Clinton Impeachment Testimony: House Judiciary Committee

Testimony of Jonathan Turley
Shapiro Professor of Public Interest Law, George Washington University Law School

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

INTRODUCTION

Summary: My name is Jonathan Turley. I am a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. Although I have taught constitutional criminal procedure and lectured on the Madisonian Democracy for years, my views have been most influenced by my litigation in past cases dealing with the separation of powers doctrine, executive privilege, and Article II authority. While the current debate over the impeachment standard can appear arcane and theoretical, these standards have concrete expression in cases involving the lives of average citizens and the conduct of Executive Branch officials. When Congress decides that certain criminal conduct does not rise to the level of impeachable offenses, it is defining a permissible parameter for future presidential conduct. Executive power will fill the space created by any decision of this body………………………………………Page 6

METHODOLOGY

Summary: While I greatly respect the academics on the other side of this debate, I do not believe that there is a basis to exclude the alleged criminal conduct from potential articles of impeachment on any definitional, historical or policy basis. The literature in this area is rich with different theories of constitutional interpretation. There is a danger when these theories are super-imposed on a sparse historical record to advance a claim of clear original intent or restrictive hidden meaning. As will be shown, the meaning of “high crimes and misdemeanors” is inextricably linked to the structural function of the House. Impeachment was created as a process by which the public could address serious questions of legitimacy in the Chief Executive and other officers. It was a process by which illegitimacy could be remedied by removal and legitimacy could be redeemed by acquittal. This is why criminal acts committed in office, regardless of their motivation or subject matter, should ordinarily be submitted to the Senate……………Page 9

TEXTUAL ANALYSIS

Summary: The meaning of Article II, Section 4 is properly the focus of this hearing and the central issue for the House of Representatives in this crisis. An objective textualist reading reveals no conclusive definition of “high crimes and misdemeanors.” Both sides in this debate could claim some support in the text. Absent the most ardent textualist approach, however, an objective reading of Article II leaves the question unresolved. The next interpretive step is to look to the “legislative history” behind this language…………………………………………………………………………………….Page 12

HISTORICAL ANALYSIS

A. The Constitutional Convention of 1787.

Summary: Impeachment was not a central focus of the Constitutional Convention. There were two types of impeachment issues raised in the Constitutional Convention and state ratification debates. First, the delegates were concerned about institutional issues related to the whether and how a president could be removed from office, particularly the proper “court” that would rule on impeachable offenses. Second, the delegates were concerned about the specific standard to be used in any removal. While the delegates were very clear as to the institutional issues, they did not define the standard for removal beyond a highly generalized phrase. Both sides in this debate can find support in this record. A more objective response, however, is to conclude that this record reveals the same division of opinion that we have today. Rather than create a more specific definition, the Framers created a specific process for reaching impeachment decisions…………………………………………………………………Page 17

B. The Antecedent English History.

Summary: While the Framers adopted the English standard of “high crimes and misdemeanors,” they did not reproduce the English model and instead made a series of important changes. The historical use of this phrase clearly encompassed a very low threshold of conduct and subjected most offensive conduct to possible impeachment. On the other hand, charges were often loosely framed in terms of official misconduct or negligence in conducting affairs of office. Once again, therefore, the historical value of

this record can be best described as inconclusive………………………………Page 29

FUNCTIONAL ANALYSIS

Summary: Putting aside notions of binding textualist or originalist interpretations, we are left with a functional question. How we view the role of impeachment within the constitutional scheme will largely dictate our interpretation of the “high crimes and misdemeanors” standard. To answer this question, we must consider both the standard and the role of the House of Representatives in the impeachment process. In my view, the impeachment process has two consistent functions. First, impeachment serves as a unique counterbalance to presidential power as part of the checks and balances in the tripartite system. Second, the impeachment process serves to address public legitimacy issues in forcing serious allegations into the Senate for a resolution under strict procedural guarantees……………………………………………………Page 33

A. The Institutional Function of the House of Representatives in Impeachment Proceedings: Static Constitutional Principles.

Summary: The Constitution contains both static and evolutionary provisions. Static provisions are immutable and unchanging because they serve a structural function in the constitutional scheme. Static provisions guarantee the separation of powers and the system of checks and balances. Within this rigid structure can be found more fluid or evolutionary standards. These general standards evolve with changing values or circumstances in society. Impeachment inquiries involve both static and evolutionary provisions……………………………………………………………………………………Page 34

1. The House of Representatives as a Grand Jury.

Summary: The roles of the House and Senate roughly resemble the classic grand jury and petit jury models. The Framers used criminal procedure terms like “convict” or “acquittal” or “punishment” in debating the process. Under the Constitution, the House functions much like a grand jury. Like a grand jury, the House does not rule on the merits of impeachment allegations, a function given exclusively to the Senate. Articles of impeachment are a type of presidential indictment under Article I. In my view, the Framers wanted credible impeachment allegations to be handled by the Senate under the conditions set out in Article I. The House was not endowed with any of the features viewed as essential to a proper treatment of the merits…………….Page 35

2. Impeachment as a Check on Presidential Power.

Summary: The accusatory function of the House is essential to maintain a certain deterrence on presidential misconduct. Assuming the impeachment process is a check and balance, any limiting threshold test must not be endorsed without considerable care and caution. Narrowing the scope of impeachable offenses can correspondingly expand the scope of permissible presidential conduct……………………………………………………..Page 40

B. The Political Function of Impeachment: Evolutionary Standards of Legitimacy.

1. High Crimes and Misdemeanors as an Evolutionary Standard.

Summary: While the structural integrity of the Madisonian Democracy requires certain static provisions, the political integrity of the system requires more evolutionary standards to deal with contemporary concerns and crises. There are various examples of evolutionary standards within the Constitution. In my view, “high crimes and misdemeanors” is an evolutionary standard within a static structural framework……………………………………………..Page 47

2. Impeachment and the Legitimacy to Govern.

Summary: Impeachment was a process by which the public could address serious questions of legitimacy in the Chief Executive and other officers. This public inquiry into “the conduct of public men” allows a free people to respond to questions of illegitimacy rather than leave the system paralyzed or diminished by scandal. The view of the impeachment process in this fashion reinforces the need of the House to submit credible evidence of serious crimes to the Senate. Regardless of the outcome, any decision on credible allegations of serious criminal conduct should be made under “oath or affirmation” in a Senate trial specifically created for such review. Not only are all three branches present at that constitutional moment but the president’s conduct is reviewed by legislative figures designated by the Framers due to their length of term and special institutional characteristics. If a president leaves such a body with his office intact, he can claim a form of political legitimacy that may have been lost through his own conduct and, more importantly, may be regained through the act of submitting to the will of the public……………………………………………………………………………..Page 54

C. Inherent Dangers of a Threshold Exclusion Under Article II.

Summary: While I do not want to dwell on our differences, two letters have been circulated by law professors and historians, respectively. The two letters reach identical conclusions with significant differences in argument. What is remarkable about these letters is the complete failure to consider the countervailing separation of powers issue: how a new precedent excluding certain crimes from the scope of impeachable conduct would “permanently disfigure[] and diminish[]” the Presidency. As a lawyer, the notion of excluding conduct based on a casual category of “private behavior” is stupefying. If adopted, we will have to apply this standard in a host of different circumstances and future presidents will rely upon this standard to guide their actions. Until this crisis, many of us assumed that the line of conduct was a bright line: a president cannot commit crimes in office. We have had every type of president in office from drunkards to dullards. Their only limitation was that, if they committed criminal acts, they would have to answer for their conduct in the well of the Senate. There is no explanation why this minimal requirement of conduct is so debilitating for a president. Holding a president to the laws that he must faithfully execute does not diminish our system, it reaffirms our most sacred principle that no individual is above the law…………………………………………………………………………………………Page 68

CONCLUSION

Summary: Any impeachment decision is obviously political in the sense that it is being made by political figures based on their view of the public interest. This does not mean, however, that the methodology and standards are political. Each member will have to reach a principled decision as to the conduct of this President. I hope that the members consider the value of the constitutional process in place for such a divisive national issue. The allegations against President Clinton go to the very heart of the legitimacy of his office and the integrity of the political system. As an individual, a president may seek spiritual redemption in the company of friends and family. Constitutional redemption, however, is found only in the company of representatives of all three branches in the well o f the Senate. It is there that legitimacy, once recklessly lost, can be regained by a president………………………………………………………………………………….Page 79

PREPARED STATEMENT

Jonathan Turley

Shapiro Professor of Public Interest Law

George Washington University Law School

Before

The Subcommittee on the Constitution

The House Committee of the Judiciary

United States House of Representatives

November 9, 1998

INTRODUCTION

Mr. Chairman, members of the Subcommittee on the Constitution, my name is Jonathan Turley. I am a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. I am honored to join you today in discussing the standards for impeachment. The Subcommittee has assembled an impressive array of law professors, lawyers, historians, and political scientists to assist you in exploring this fundamental question. We all come to the question from different disciplines, different backgrounds, and different perspectives. Regardless of our differences, however, we share a common concern that the standards applied in this crisis will have considerable ramifications for our country and our constitutional system of government.

For my part, I come to this question as a law professor who has litigated many of the constitutional issues involved in the current crisis. Although I have taught constitutional criminal procedure and lectured on the Madisonian Democracy for years, my views have been most influenced by my litigation in past cases dealing with the separation of powers doctrine, executive privilege, and Article II authority. While academic debates like today’s can appear arcane and theoretical, these standards have concrete expression in cases involving the lives of average citizens and the conduct of executive branch officials. Executive power exhibits the same physical properties as a gas in a confined space: as the constitutional space expands, executive power expands to fill that space. The Framers were well aware of this tendency among all of the branches when they created a system of checks and balances. They sought to confine the space for expansion of one branch with the counter-pressure of the other branches. Congress should not be confused by the difference between a formal expansion of authority and an expansion of authority by negative inference. When Congress decides that certain criminal conduct does not rise to the level of impeachable offenses, it is defining a permissible parameter for future presidential conduct. Executive power will fill the space created by any decision of this body.

Before addressing the constitutional issues raised by this inquiry, I must acknowledge that, like some of my colleagues testifying today, I have reached personal conclusions as to the merits of this impeachment inquiry. My conclusions are a matter of public record. In addition to testifying in the Senate hearing on these issues, I have written many articles on the specific legal, historical, and constitutional questions facing Congress. While I clearly come to this question with some prior conclusions as to the basis for impeachment, my views on the standards for impeachment are entirely independent of this crisis or its underlying allegations. As an academic, I have a particular interest in the role of the House of Representatives in the impeachment process. See Jonathan Turley, Congress as Grand Jury: The Role of the House of Representatives in the Impeachment of an American President, 67 Geo. Wash. Law Review ___ (1999) (upcoming March issue).

I raise this issue because there has been a tendency in this crisis to define fundamental questions in terms of personalities. This has created an unfortunate tendency to judge impeachment standards depending on one’s view of the President or the Independent Counsel. This is precisely why this hearing is so important. Long after this President, this Independent Counsel, and this crisis have faded into history, we will live with the standards that we articulate in the coming weeks. The standards for impeachment are not simply important for what they say about the government but what they say about the governed. We define something about ourselves in defining our expectations of our leaders. Academics cannot give an answer in such an inquiry. The most that we can do is help define the various dimensions of the question.

SUMMARY AND METHODOLOGY

Much of the recent debate over the standards for impeachment has focused on whether certain types of criminal acts or misdeeds are by definition outside the scope of Article II, Section 4. The White House has argued that a threshold definition of “high crimes and misdemeanors” excludes the conduct alleged as the basis for articles of impeachment in this inquiry. Some of the academics present today have endorsed variations of this theory. Accordingly, it is argued, the inquiry should be concluded without further action (beyond a possible censure) since, even if proven, the alleged misconduct could not fall under the clear meaning of impeachable acts. Additionally, it is argued that any impeachment based on the allegations of the Independent Counsel would actually undermine our constitutional system.

It is important to restate the specific context for this threshold argument. President Clinton stands accused of a series of knowing criminal acts in office, including perjury, obstruction of justice, witness tampering, and abuse of office. While I greatly respect the academics on the other side of this debate, I do not believe that there is a basis to exclude such conduct from potential articles of impeachment on any definitional, historical or policy basis. Far from it, I believe that the argument advanced by the White House would create extremely dangerous precedent for our country and would undermine fundamental guarantees of the Madisonian Democracy. It is my view that the allegations in this inquiry, if proven, would constitute clear and compelling grounds for impeachment and the submission of this matter to the United States Senate for a determination of the merits.

Before explaining the basis for this conclusion, a brief methodological point is warranted. You will note that many academics present today will rely on the same quotations from the Framers in advancing their rivaling conclusions. The literature in this area is rich with different theories of constitutional interpretation. The meaning of the impeachment standard is heavily influenced by the view of the individual academic. Many academics follow a variety of alternative interpretative approaches other than textualist or originalist interpretation. There is a danger when these theories are super-imposed on a sparse historical record to advance a claim of clear original intent or restrictive hidden meaning. They represent choices by academics as to the most vital factors or values within the constitutional system. They are choices that may be probative and informed but they are also highly personal choices. In reality, I expect that you will find at the end of this day that academics are divided much in the same way that the Framers were divided. You will be left with a personal judgment as to the seriousness of the President’s conduct as considered by the standards and expectations of this generation.

One of my primary interests in the current debate is the repeated use of historical or originalist arguments to claim a restrictive definition of “high crimes and misdemeanors.” In my opinion, there is no objective basis in the text or history of the Constitution to claim a clear answer to this question. There is no “dead-hand control” of the Framers on answering the question before this body. The Framers were more concerned with who would decide this question rather than what they would decide in a given circumstance.

Since this argument has been advanced on originalist and textualist grounds, three obvious questions should be addressed by this Subcommittee. First, Congress must examine the actual language of Article II to determine any textual meaning of the terms “other high crimes and misdemeanors.” Second, if no clear textual definition in the language, Congress must look at the history and debates behind the language to determine any original intent of the Framers. Third, and finally, Congress must consider the meaning of “high crimes and misdemeanors” in relation to the function of impeachment within the Madisonian Democracy.

My formal testimony today will address each of these discrete inquiries.

TEXTUAL ANALYSIS

While (as will be shown below) impeachment was not a primary focus of the Framers, it was viewed as central to the structure of the tripartite system. Impeachment is mentioned in five different provisions of the Constitution. Although the critical language is found in Article II, it is useful to begin with the actual textual references to this process:

Article I, Section 2: . . . The House of Representatives

shall choose their Speaker and other Officers; and shall

have the sole Power of Impeachment. U.S. Const. art.

I, cl. 8.

Article I, Section 3: . . . The Senate shall have the sole

Power to try all Impeachments. When sitting for that

Purpose, they shall be on Oath or Affirmation. When the

President of the United States is tried, the Chief Justice

shall preside: And no Person shall be convicted without

the Concurrence of two thirds of the Members present.

U.S. Const. art. I, 3, cl. 6.

Article I, Section 3: Judgment in Cases of

Impeachment shall not extend further than to removal

from Office, and disqualification to hold and enjoy any

Office of honor, Trust, or Profit under the United States:

but the Party convicted shall nevertheless be liable and

subject to Indictment, Trial, Judgment, and Punishment,

according to the Law. U.S. Const. art. I, 3, cl. 7.

Article II, Section 2: . . . [The President] shall have

Power to grant Reprieves and Pardons for Offences

against the United States, except in Cases of

Impeachment. U.S. Const., art. II, 2, cl. 1.

Article II, Section 4: The President, Vice President

and all civil Officers of the United States, shall be

removed from Office on Impeachment for, and

Conviction of, Treason, Bribery, or other high Crimes

and Misdemeanors. U.S. Const. art. II, 4.

These provisions yield primarily procedural limitations that were laid out with considerable specificity. They relate to the questions of who will decide impeachment issues and how that decision will be made. The two houses of Congress are given distinct and exclusive roles in the impeachment process. The Framers designated the specific voting requirements for each house in fulfilling these respective roles. The Framers further added such details as the identity of the presiding judge, the use of oaths or affirmations in impeachment trials, and limitations on the permissible punishment for committing impeachable offenses. After designating such procedural issues with specificity, however, the Framers left the actual standard for impeachment as an extremely general and potentially malleable phrase.

Interestingly, the phrase “high crimes and misdemeanors” was not made part of Article I and the limitations on the congressional impeachment authority. In defining the process by which Congress would carry out this duty, the Framers did not elect to add limiting language for areas of legitimate inquiry. Rather, the phrase appears as part of the description of executive authority in Article II where it defines the parameters for presidential conduct and conditions for removal.

The meaning of Article II, Section 4, is properly the focus of this hearing and the central issue for the House of Representatives in this crisis. The text of this provision, of course, yields little evidence of definitional intent. The language establishes three basic textual points. First, “other high crimes and misdemeanors” obviously refers to conduct other than treason and bribery. Second, it is generally accepted that “misdemeanors” encompasses non-criminal conduct in the sense of “misdeeds.” Finally, in the description of the House impeachment authority, the Framers only designated a specific process by which such decisions are to be made rather than add any exclusionary or restrictive phraseology.

The text is most notable in its omission of certain distinctions. The text does not, for example, distinguish between the standard of impeachment as applied to the President, Vice-President or other civil officers (which include federal judges). There is no textual basis to claim that the Framers intended a lower standard to apply in the impeachment of federal judges than in the impeachment of presidents. The same standard of “other high crimes and misdemeanors” is stated as applicable to all of the subject officials regardless of their office. Likewise, the text does not limit or restrict the impeachment standard to official acts or abuse of power. In fact, as will be shown below, words that would have restricted the standard to such misconduct were actually removed from the text.

Analyzing this language from an originalist or textualist viewpoint would lead to an extremely broad definition of “other high crimes and misdemeanors.” While impeachment decisions are not reviewable by the federal courts, a judicial review of this language would produce a predictable result for judges who subscribe to a strict construction theory of interpretation. Such judges would conclude that, if the Framers intended a more restrictive definition or a different standard for presidents as opposed to judges, the text would reflect such an intent. Instead, the

Framers defined the process of impeachment with specificity but not the standard applied in the respective inquiries or trials of either house.

An objective textualist reading reveals no conclusive definition of “other high crimes and misdemeanors.” Both sides in this debate could claim some support in the text. The word “other” can be cited as evidence of the intent to include offenses of a similar magnitude as the identified offenses. Under the canon of construction “ejusdem generis,” the term “other high crimes and misdemeanors” can be read “as the same kind” as treason and bribery.(1) Conversely, the general and undifferentiated language

can be legitimately cited as textual support for applying to presidents the same broad standard applied to judges. Under the interpretation given this phrase in past impeachment cases, the President’s conduct would clearly

fall within the meaning of “high crimes and misdemeanors.” Absent the most ardent textualist approach, however, an objective reading of Article II leaves the question unresolved. The next interpretive step is to look to the historical evidence behind this language.

HISTORICAL ANALYSIS

A. The Constitutional Convention of 1787.

It is not a particularly challenging task to review the original words of the Framers on this issue. Impeachment was not a central focus of the Constitutional Convention. See generally Michael J. Gerhardt, The Constitutional Limits to Impeachment and its Alternatives, 68 Tex. L. Rev. 1 (1989). The Federalist Papers contain only limited discussion of this area. Likewise, the references in the debates over the language and ratification of this clause is quite sparse. The “legislative history” on this issue can be found in the debates in Philadelphia during the summer of 1787 and the later ratification debates in the various states. What these debates reveal is open division among the Framers resulting in a general compromise. It does not reveal a clear resolution for either side in this debate.

Most academics have used the same limited references to support either broad or restrictive definitions of impeachable offenses.(2) In the Constitutional Convention, only a small number of delegates spoke in any detail on this issue and the result was a general phrase incorporating a long-used English standard. There is evidence in the Constitutional Convention to support both sides of this debate. The only clear matter is that the delegates were divided on the standard for impeachment but resolved impeachment issues of greater concern.

There were two types of impeachment issues raised in the Constitutional Convention and state ratification debates. First, the delegates were concerned about institutional issues related to the whether and how a president could be removed from office, particularly the proper “court” that would rule on impeachable offenses. Second, the delegates were concerned about the specific standard to be used in any removal. While the delegates were very clear as to the institutional issues, they did not to define the standard for removal beyond a highly generalized phrase. Instead, they spent considerable time defining the “jury” or “court” that would decide the merits of any impeachment.

There was debate on the very option of impeachment of a president. At the time, before the enactment of the twenty-fifth amendment in 1967, impeachment was the only method of removal for a President under the Constitution. Delegates often suggested standards contained in their own state constitutions, such as the “maladministration or corruption” standard used in such states as Delaware and North Carolina. Some delegates like Charles Pinckney of South Carolina, Gouverneur Morris of Pennsylvania, and Rufus King of Massachusetts struggled at various points with the notion of a chief executive who could be subject to removal on any ground. Delegate Gouverneur Morris initially believed that impeachment would place a president under the de facto control of the legislature.(3) William Davie of North Carolina, however, warned that impeachment was “essential security for the good behaviour of the Executive.”

2 Records of the Federal Convention of 1887, at 64 (M. Farrand ed.) (rev. ed. 1937) [hereinafter Records vol. 2] Ultimately, delegates like Benjamin Franklin, George Mason, and James Wilson persuaded the Convention that impeachment was vital to the structural integrity of the system.(4)

The delegates divided more sharply on the appropriate mechanism and “court” for impeachments. Each of the delegates advanced plans that often reflected the conclusions of their state conventions. Some delegates, like Edmund Randolph and James Madison, advocated the “Virginia Plan,” which would have given the federal courts the authority to try impeachments. Other delegates like William Paterson of New Jersey advanced the “New Jersey Plan,” which would have placed the power of impeachment in the hands of the nation’s other chief executives, the state governors. John Dickinson of Delaware recommended that the President “be removable by the national legislature upon request by a majority of the Legislatures of the individual States,” 1 Records of the Federal Convention of 1787, at 78 (M. Farrand ed., 1937) [hereinafter Records vol. 1].

New York Delegate Alexander Hamilton advanced a plan similar to the New York impeachment process in which impeachments were tried by a court “to consist of the Chief or Judge of the superior Court of Law of each State.” Records vol. 1, supra, at 292-93. Ultimately, with the Pennsylvania and Virginia delegates in continued opposition, the delegates agreed on leaving the impeachment decision to Congress. The delegates, however, divided the process between the houses and gave each house distinct roles in promulgating articles of impeachment and trying articles of impeachment.

While the debate over the proper court for impeachment and necessary vote was quite detailed, the issue of the standard for impeachment remained notably general throughout the debates. The delegates were again divided. On one end of this debate, delegates like Roger Sherman of Connecticut “contended that the National Legislature should have power to remove the Executive at pleasure.” Id. at 85. Likewise, other delegates like George Mason of Virginia offered the standard to be “maladministration.” Records vol. 2, supra, at 550. Conversely, as noted above, some delegates like Charles Pinckney believed that a president should not be subject to impeachment for any offense. In response to Mason’s standard, James Madison objected that “maladministration” as too ambiguous but Madison also stated impeachment was a necessary precaution against “the incapacity, negligence or perfidy of the chief Magistrate.” Id. at 65. For his part, Alexander Hamilton referred to impeachable offenses as “those offences which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust.” THE FEDERALIST No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

Benjamin Franklin viewed impeachment as a process by which public concerns over presidential misconduct could be resolved and the legitimacy of a presidency restored. Franklin noted that there are times when a president’s conduct is viewed “obnoxious” and demands a process of public review and decision. Records vol. 2, supra, at 550. The impeachment process, he concluded, is “the best way . . . to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” Id. at 65. This point was also made during the state ratification debates by delegates like James Wilson who stressed a broad range of accountability for the Chief Executive:

The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our president; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. We secure vigor. We will know what numerous executives are. We know there is neither vigor, decision, nor responsibility, in them. Add to all this, that officer is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and his public character by impeachment.

2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 449 (Jonathan Elliot ed., 1941).

In the actual drafting, these views appeared and disappeared during the work of the Committee of the Whole, Committee of Eleven, the Committee of Detail, and the Committee of Style and Arrangements. At first, the delegates appeared to favor the standard, advocated by Hugh Williamson of North Carolina, of “malpractice or neglect of duty.” Records vol. 1, supra, at 78. This standard, which first appeared in a resolution on May 29, 1787, was then slightly reworded by the Committee of Detail as “neglect of duty, malversation, or corruption.” Records vol. 2, supra, at 337, 344.

On June 1, 1787, Gunning Bedford of Delaware referred to the impeachment standard as “reach[ing] malfeasance only, not incapacity.” Records vol. 1, supra, at 69. On June 2, 1789, Delaware delegate Dickenson proposed a provision without a standard that would simply state that the president is “removable by the national legislature upon request by a majority of legislatures of the individual States.” Id. at 78. While this motion was rejected, Mason (who opposed the measure) stated the need of impeachment because “some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.” Id. at 86. Immediately following Mason’s comments, Madison stated (with James Wilson of Pennsylvania) that he was concerned about any system that would prevent the majority from “remov[ing] . . . an officer who had rendered himself justly criminal in the eyes of a majority.” Id.

These comments appear sporadically in the Convention records often within the discussion of the structure of the impeachment process. The standard continued to shift with the discussion. On July 20, 1787, the standard of “malpractice or neglect of duty” was under consideration. Records vol. 2, supra, at 64. Other members then substituted “treason, bribery, or corruption” while George Mason demanded that “maladministration” should be added. On September 8, 1787, the Committee of Eleven suggested a standard of “treason or bribery.” Finally, delegates like James Madison successfully argued that they should use the English standard of “other high Crimes and Misdemeanors against the United States.”(5) The standard of “other high Crimes and Misdemeanors against the United States” was then sent to the Committee on Detail. The Committee on Detail then decided to eliminate the words “against the United States.” Id. at 600.

Thus, the requirement that “other high Crimes or Misdemeanors” refer to misconduct directed against the public was removed from the standard. This would seem to be the very distinction drawn by the White House in this debate, the notion that impeachable offenses must be forms of official misconduct or abuse of office. It is not clear, however, whether the Committee on Style and Arrangement simply viewed this language as redundant or, alternatively, too restrictive. The Committee on Style and Arrangement was not given authority to make major changes in such standards and most (but not all) changes in the Committee were made for cosmetic or consistency purposes. Nevertheless, there was no objection to the removal of a phrase that would clearly narrow the scope of impeachments. Regardless of the reason for this final change, the final version of “treason, bribery, and other high crimes and misdemeanors” emerged without the potentially restrictive phrase “against the United States.”

Any academic could read most any original intention into such a record. For my part, I tend to view the record with a legisprudential perspective.

In one sense, this record should look familiar to members of this Committee. As with modern legislative bodies, the Constitutional Convention often gravitated toward more general language when faced with deep division. This is precisely the phenomenon that leads to “legislative gaps” or ambiguities in modern legislation. The delegates were quite familiar with the English standard and the contemporary impeachments of individuals like Governor-General Warren Hastings. See IMPEACHMENT STAFF INQUIRY, HOUSE COMMITTEE ON THE JUDICIARY, MEMORANDUM: CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 11 (Feb. 20, 1974). It was an available basis for compromise to use such a well-known standard when presented with a legislative division.

Notably, the delegates did not opt for a specific list of offenses, which would have been entirely possible from their knowledge of English cases.(6) Instead, the delegates committed their time to defining the court and process by which an impeachment decision would be made.

As will be shown below, I believe this approach was consistent with other areas of the Constitution. Consider the exchange between the main protagonists:

The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.

Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offense. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined–As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments.

He moved to add after “bribery” “or maladministration.”

Mr. Gerry second him–

Mr. Madison. So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr. Govr Morris, it will not be put in force & can do no harm– An election of every four years will prevent maladministration.

Col. Mason withdrew “maladministration” & substitutes “other high crimes & misdemeanors” (“agst. the State”).(7)

On the question thus altered [Ayes — 8; Noes –3](8)

Records vol. 2, supra, at 550.

Both sides in this debate can find support in this record. There were clearly delegates who were concerned that the standard for impeachment could be set so low or so ambiguously that the President would be subject to impeachment at the will of Congress. Likewise, the Framers do make occasional reference to abuses of office. Even Mason refers to a definition sufficient to cover “[a]ttempts to subvert the Constitution.” Records vol. 2, supra, at 550. Conversely, delegates were also concerned about too narrow a definition. The reference to Hastings by Mason is particularly telling on this point. Governor General Warren Hastings was very much on the minds of the Framers because it was a contemporary impeachment case. Hastings, however, was not impeached for criminal acts alone but a variety of criminal and noncriminal acts, including “high crimes and misdemeanors in the form of gross maladministration, corruption in office, and cruelty toward the people of India.” Impeachment Inquiry, supra, at 11 & n.19. When Mason objected that the language treason and bribery would not reach such conduct, he suggested a potentially broad definition to extend to different forms of misconduct in a Chief Executive.

Congress could certainly chose to give greater weight to one delegate or one statement over another. A more objective response, however, is to conclude that this record reveals the same division of opinion that we have today. Rather than create a more specific definition, the Framers created a specific process for reaching impeachment decisions.

B. The Antecedent English History

Since the delegates applied a known English standard, it might be possible to find some evidence of intent from the historical meaning of the phrase “high crimes and misdemeanors.” Certainly, the impeachment clauses were heavily influenced by the English model. THE FEDERALIST No. 65 at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (noting that the English experience was “[t]he model from which the idea of this institution has been borrowed”). Various alternative phrases used in English impeachments before “high crimes and misdemeanors” ranged from “treasons, felonies, and mischiefs done to our Lord, The King” to “divers deceits.” See generally Leon R. Yankwich, The Impeachment of Civil Officers Under the Federal Constitution, 26 Geo. L. J. 849, 853 (1938).

The phrase “high crimes and misdemeanors” was first clearly applied in the trial of the Duke of Suffolk in 1386 who stood accused of a host of impeachable offenses including the appointment of incompetent officers and the use of appropriated funds for unapproved purposes.(9) After the trial of Suffolk, impeachment on the basis of high crimes and misdemeanors covered a range of noncriminal conduct, including the impeachment of Peter Pett for “loss of a ship through neglect to bring it to mooring.” Likewise, the Earl of Oxford was tried for the high crime and misdemeanor of “giving pernicious advice to the Crown.” Under this standard

Persons have been impeached for giving bad counsel to the king; advising a prejudicial peace; enticing the king to act against the act of parliament; purchasing offices; giving medicine to the king without advice of physicians; preventing other persons from giving counsel to the king, except in their presence; . . . Others were founded in . . . malversations and neglects in office; for encouraging pirates; for official oppression, extortions, and deceits; and especially for putting good magistrates out of office, and advancing bad.

2 Joseph Story, COMMENTARIES OF THE CONSTITUTION OF THE UNITED STATES § 798, at 268-69 (rev. ed. 1991).

As noted earlier, the Framers were most aware of contemporary impeachments like that of Governor General Warren Hastings of the East India Company. The articles of impeachment against Hastings were approved in 1787 and included “maladministration” and other noncriminal acts. PETER C. HOOFER & N.E.H. HULL, IMPEACHMENT IN AMERICA 1635+1805, at 113 (1984). These charges included “cruelty” and a variety of conduct incompatible with a representative of the Crown. Id.

Notably, the delegates made few references to English impeachment cases or standards in the debate. As noted earlier, the delegates often advocated standards from their own state constitutions rather than the dimensions of the English standard, which was so fluid as to defy reliable definition in practice. Likewise, while taking the well-known English phrase, they did not reproduce the English model but instead made a series of important changes. Gerhardt, supra, 68 Tex. L. Rev. at 11 (“[F]rom the outset of the Convention, the delegates agreed to deviate from the English impeachment procedure.”) (citing HOFFER & HULL, supra, at 96). For example, the bifurcation of roles between the two houses was taken from the English model “which assigned the role of the prosecutor to the Commons while the Lords sat in judgment.” RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 54 (1973). Nevertheless, the Framers made critical changes in the United States Constitution such as the imposition of a two-thirds vote in the Senate for conviction; the requirement of acting upon oath or affirmation; and the limitation of persons subject to impeachment.

Both sides can take support from this historical record. The historical use of this phrase clearly encompassed a very low threshold of conduct and subjected most any offensive conduct to possible impeachment. Moreover, there was no apparent interest in the scope of the phrase when it was introduced to resolve the division of opinion in the Convention.(10)

On the other hand, charges were often loosely framed in terms of official misconduct or negligence in conducting affairs of office. While this is consistent with a legitimacy definition, discussed below in the functional analysis section, it can be claimed as some evidence of a public/private distinction. Once again, therefore, the historical value of this record can be best described as inconclusive. There is little reason to argue that the Framers desired to transpose the English model on their new country when they made such significant procedural changes. The standard “high crimes and misdemeanors” was a convenient and known phrase in such cases. Rather than create a new standard, the Framers simply created a new process by which to apply it.

FUNCTIONAL ANALYSIS

Putting aside notions of binding textualist or originalist interpretations, we are left with a functional question. How we view the role of impeachment within the constitutional scheme will largely dictate our interpretation of the “high crimes and misdemeanors” standard. To answer this question, we must consider both the standard and the role of the House of Representatives in the impeachment process. In my view, the impeachment process has two consistent functions. First, impeachment serves as a unique counterbalance to presidential power as part of the checks and balances in the tripartite system. Second, the impeachment process serves to address public legitimacy issues in forcing serious allegations into the Senate for a resolution under strict procedural guarantees.

Under this constitutional scheme, both houses have distinct functions. I have always found the role of the House to be more interesting than the Senate because so little was actually stated about the House impeachment authority in the Constitutional Convention or the constitutional text. In my view, the impeachment clause is a critical check and balance on the Chief Executive and the House vote is the most critical component in preserving that deterrent.

A. The Institutional Function of the House of Representatives in Impeachment Proceedings: Static Constitutional Principles.

The Constitution contains both static and evolutionary provisions. Static provisions are often structural in their function in the constitutional scheme. These provisions are unchanging and immutable. Article I, Article II and Article III were written to preserve checks and balances that remain constant regardless of the period or issues in controversy. The power of the veto in the Chief Executive and the power of the purse in the Legislative Branch are examples of static structural elements that preserve balance within the tripartite system.(11) These static provisions serve a structural function in preserving separation of powers and the system of checks and balances. As will be shown, the meaning of “high crimes and misdemeanors” is inextricably linked to this structural function of the House.

1. The House of Representatives as a Grand Jury.

The Framers were obviously aware of the dangers of legislative encroachment in allowing the removal of a president by Congress. Their response to this concern, however, was to look to the institutional roles of the two houses and not to restrict the standard to certain areas or subject matters. As on many issues, the Framers applied the concept of bicameralism to moderate any improper legislative impulse. As the Supreme Court noted in Nixon v. United States, 506 U.S. 224, 236 (1993), “[the] split of authority [between the houses] guards against the danger of persecution from the prevalency of a factious spirit in either of those branches.”

In crafting the static provisions of impeachment authority, the Framers primarily focused on the Senate. It was the Senate that would resolve any uncertainty over the fitness of a president to govern through a process that was weighted toward acquittal. It is interesting that the oft-used quote of Alexander Hamilton on the “political” nature of the impeachment process was actually a reference to the decision of the Senate:

[T]he subjects [of Senate] jurisdiction [in an impeachment trial] are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

THE FEDERALIST No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The oft-cited reference to a political determination, therefore, expressly linked that function with the Senate and not the House. Such comments could indicate that the Framers foresaw a discretionary vote, even a “nullification” vote, to be more properly made in the Senate as opposed to the House. It was the Senate that was viewed as the body best suited to resolve such controversies in the long-term interests of the nation with either conviction or acquittal.

Various Framers referred to the Senate’s role exclusively when discussing impeachment. The Framers viewed the Senate as guaranteeing a more moderate and discriminating review of controversies surrounding a president. Alexander Hamilton observed: “What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?” Id. at 398.(12)

The different treatment given the House and Senate in both the language of the Constitution and the constitutional debates is telling. The Framers simply noted that the House “shall have the sole Power of impeachment.” U.S. Const. art. I, § 2. There is no guidance as to how impeachment inquiries are to be raised, conducted, or concluded, including the absence of any requirement to conduct proceedings under oath. The Senate, on the other hand, is discussed repeatedly and carefully structured. The Framers specifically require that the Senate proceed “on Oath or Affirmation.” U.S. Const. art. I, §3. When the President is tried, the Senate is required to proceed with the Chief Justice of the Supreme Court as the presiding judge. The Framers mandate that the Senate may not impose any judgment “further than to removal from Office.” Id.

This emphasis on the Senate reflects the more procedural role of the House in bringing matters to the Senate where the substantive determination is made for removal.

The debates reflect the view that the Senate would be the forum for the appearance of witnesses and a comprehensive treatment of the allegations of misconduct against a president. The Framers did not appear to anticipate the type of hearing with witnesses and subpoenas used during the Nixon inquiry by the House Judiciary Committee.(13) For that reason, impeachment allegations can be raised in a variety of ways including referrals from state legislatures, grand juries, and individual members. While committees have routinely been used to address such allegations, the Constitution does not even require deliberations, let alone a committee hearing.

The voting roles of the House and Senate roughly resemble the classic grand jury and petit jury models. The Framers used criminal procedure terms like “convict” or “acquittal” or “punishment” in debating the process. Under the Constitution, the House functions much like a grand jury. Similar to a grand jury, the House does not rule on the merits of impeachment allegations, a function given exclusively to Senate under Article I, Section 3. Rather, articles of impeachment are a type of presidential indictment under Article I. Moreover, the vote of the House to impeach is a simple majority vote like a grand jury while the Senate requires a higher standard to find guilt (a two-thirds vote). Finally, the Framers specifically mandated that a trial be held in the Senate under specific conditions while leaving the House to impeach in any fashion that it chooses.

In my view, the Framers wanted impeachment issues to be handled by the Senate under the conditions set out in Article I, Section 4. This was the body that Hamilton described as the “court of impeachment.” THE FEDERALIST No. 65, at 398 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The House was not endowed with any of the features viewed as essential to a proper treatment of the merits.(14) The House function was, therefore, viewed as facilitating review in the Senate by articulating the allegations against a president. While the Senate is not as protective over rights as a conventional trial,(15) the Senate’s impeachment authority was specifically created to hear witnesses and to deliberate on such matters. For the House to take on a broader role of litigating the merits would be akin to a grand jury convicting an individual without benefit of the protections of a trial, including the rules of evidence. The House serves an accusatory not an adjudicatory function.

2. Impeachment as a Check on Presidential Power.

The accusatory function of the House is essential to maintain a certain deterrence on presidential misconduct. Conversely, as will be shown below, the adjudicatory function of the Senate is essential to maintain a certain political integrity in the system.

There is a tendency to view the impeachment provisions as a type of negative “qualification” provision without any view to its role as part of the checks and balances between the branches. Clearly, the Framers wanted to create a vehicle for removal to avoid paralysis in office. However, they also viewed impeachment as a critical check on the conduct of the President, including a lingering threat for failure to supervise other executive branch officers. Madison explained that:

[it is] indispensable that some provision should be made for defending the Community ag[ain]st the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more with the compass of probable events, and either of them might be fatal to the Republic.

Records vol. 2, supra, at 66; see also 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 281 (Jonathan Elliot ed., 1941) (Pinckney) (“Under the new Constitution, the abuse of power was more effectually checked than under the old one. A proper body, immediately taken from the people, and returnable to the people every second year, are to impeach those who behave amiss, or betray their public trust.”). While there may be a variety of disabilities that were not viewed in the 1700s as falling within “the compass of probable events,” the impeachment process is the only provision imposing a direct threat on a president in the conduct of his office. This serves to deter misconduct and to encourage a president to maintain certain “virtues” in governance.

The accusatory function of the House of Representatives is central in the design of a check and balance system.(16) See JOHN R. LABOVITZ, PRESIDENTIAL IMPEACHMENT 249 (1978) (“To avoid executive usurpation of power, the delegates sought to provide checks upon his conduct, including provision for his removal though impeachment.”) Since impeachment is the only method by which a president can be removed from office for misconduct, it is the only check and balance on the personal conduct of the Chief Executive as opposed to the Executive Branch.

What is clear from the debates is that impeachment was first considered exclusively in terms of a limitation on the President. When the Framers first inserted a removal provision in the Constitutional Convention, the provision referred only to the removal of a president.(17) As a check and balance, any narrowing of the definition of impeachable conduct will have a corresponding expansion of the area for permissible conduct by the Chief Executive. For that reason, any limiting threshold test must not be endorsed without considerable care and caution. If the House endorses the view that the President can commit the alleged criminal acts without suffering impeachment, the House will be defining an area for permissible future conduct.(18) Likewise, there is great significance to where an impeachment process terminates. If the process terminates in the House, the underlying conduct becomes precedent of exclusion. If the process terminates in the Senate without conviction, no precedent is established for similar conduct in the future.(19) Both decisions may be acts of political nullification of criminal conduct by a president. However, when the House acts in this fashion, it has a greater influence on future presidential conduct.

By performing its accusatory function, the House plays the critical deterrent role for a president. This deterrence function was referenced by the Framers. When Elbridge Gerry of Massachusetts “urged the necessity of impeachments,” he further noted:

A good magistrate should not fear them. A bad one ought to be kept in fear of them. [Gerry] hoped the maxim would never be adopted here that the chief magistrate could do [no] wrong.

Records vol. 1, supra, at 66. Likewise, other delegates in the state ratification debates expressed concerns over the need for deterrence with the system. For example, James Iredell (who would become the sixth appointment to the United States Supreme Court) spoke of the importance of the House impeachment authority as a deterrent in his remarks to the North Carolina Convention:

Mr. Chairman, I was going to observe that this clause, vesting the power of impeachment in the House of Representatives, is one of the greatest securities for a due execution of all public offices. Every government requires it. Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. . . . It will be not only the means of punishing misconduct, but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he know there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.

4 Elliot, supra, at 32 (Iredell)(emphasis added).

When properly used, the mere threat of removal can produce the deterrence sought by these Framers. Academics often discuss deterrence as a relationship between detection and penalty. As detection increases, a penalty can decrease without undermining deterrence. See generally Richard A. Posner, An Economic Theory of the Criminal Law, Colum. L. Rev. 1193, 1209+14 (1985). In the same fashion, a higher penalty will often deter conduct with a lower level of detection. In this deterrence scheme, the House functions as the detecting body. By threatening detection and accusation, the House deters misconduct by exposing presidents to the uncertain outcome of a Senate trial. Because the Constitution is written to make a penalty less likely in the Senate, it is essential that the House fully perform its detection and accusation role to achieve deterrence under this system. The Senate may then choose to acquit but the standard of conduct for future presidents has not been lowered by the adoption a narrow threshold definition in the House.

Early in this process, I suggested that Congress should not view impeachment as requiring conviction and removal. I stated that there may be circumstances in which the proper penalty for a president is indictment in the House but not removal. Impeachment performs the very constitutional function that is sought in a censure. It defines conduct as sufficiently egregious to warrant removal. The actual removal of a president, however, depends on a variety of circumstances considered in the Senate. The Senate is expected to balance many factors in the interests of the public. In this sense, the Framers appeared to anticipate that the Senate could engage in “jury nullification.” The Senate has the authority to simply deny conviction on the articles of impeachment. If criminal conduct committed in office is to be nullified,(20) however, the Senate is the designated body to make such a decision in the interests of the nation. In the Senate trial, a president will be called as a witness and placed under oath. Unlike the House, all three branches will be present by design in the Senate trial. With the members sitting as jury, the Chief Justice sitting as presiding judge, and the President as witness and accused, all three branches participate in the final outcome. If a President’s crimes are to be excused, it is the Senate that should make that decision after the public has been given a fully defined set of allegations and allowed to hear sworn testimony of the President.

As will be shown below, this is essential to the view of the impeachment vote as a decision on the continued political and legal legitimacy of the President.

B. The Political Function of the Impeachment: Evolutionary Standards of Legitimacy.

1. High Crimes and Misdemeanors as an Evolutionary Standard.

The institutional or structural function of the House is distinct from the standard that it must apply as part of that function. While the separation of powers doctrine demands certain static provisions, the Framers also created some standards that are clearly evolutionary in meaning. See Martin v. Hunter’s Lessees, 1 Wheaton 326 (1816) (“The Constitution unavoidably deals in general language. . . . The instrument was not intended to provide merely for exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.”). The relationship between static and evolutionary provisions is central to defining “high crimes and misdemeanors.”

There are various examples of evolutionary standards within the constitutional framework. For example, Article I contains a prohibition on bills of attainders. The prohibition on bills of attainder in Article I were linked in the minds of some of the delegates to the Constitutional Convention to the impeachment clause. Like the impeachment clause, the English understanding of bills of attainder was different from the American version.(21) In the United States, the term “bill of attainder” covers both classic cases of “attainder” as well as “pains and penalties.” Accordingly, as first made clear by Chief Justice Marshall in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), legislative punishments in the United States are not limited to criminal penalties. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866), the Court noted that even deprivation of “rights, civil or political, previously enjoyed” constitutes punishment under the United States Constitution. Likewise, in United States v. Brown, 381 U.S. 437 (1965), the Supreme Court stressed that “[i]t would be archaic to limit the definition of ‘punishment’ to ‘retribution.'”(22) See id. at 458. The view of the punitive purpose or effect of legislation is an evolving standard within the static prohibitory language of Article I. (23)

The eighth amendment also contains a prohibition on “cruel and unusual punishment” that the federal courts have treated as evolutionary within our society’s values and norms. This evolutionary character was explained by the Supreme Court in Weems v. United States:

Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their case, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be . . . The meaning and vitality of the Constitution have developed against narrow and restrictive construction.

Weems v. United States, 217 U.S. 349, 373 (1910); see also Herrara v. Collins, 506 U.S. 390, 431 (1993) (noting the constitutional phrase “cruel and unusual punishments” “is not static but rather reflects evolving standards of decency.”). The federal courts, therefore, apply the constitutional standard with the assumption that “the words . . . are not precise, and . . . their scope is not static.” Trop v. Dulles, 356 U.S. 86, 100+101 (1958); see also Gregg v. Georgia, 428 U.S. 153, 171 (1976) (noting that the constitutional phrase must be interpreted “in a flexible and dynamic manner.”).

Likewise, the fourth amendment also contains such an evolutionary standard. The fourth amendment prohibits “unreasonable searches and seizures” but does not define those standards. The underlying phrases and standards under the fourth amendment are treated as “fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed.” United States v. D.F., 115 F.3d 413, 413 (7th Cir. 1997). The federal courts have noted that “[the Supreme Court] discarded traditional property concepts in search and seizures cases where . . . those concepts seem no longer to reflect modern expectations.” United States v. Hunt, 505 F.2d 931, 937 (5th Cir. 1974). Instead, the Supreme Court has defined the scope of the fourth amendment according to an evolutionary standard of “expectation of privacy” that changes with society and technology. Katz v. United States, 389 U.S. 347 (1967).

In my view, “high crimes and misdemeanors” is an evolutionary standard within a static, structural framework. Just as “unreasonable searches and seizures” was tied to an evolving “expectation of privacy,” the impeachment clause imposes an evolving expectation standard on presidential conduct. The standard necessarily will evolve with society and its values. See IMPEACHMENT STAFF INQUIRY, HOUSE COMMITTEE ON THE JUDICIARY, MEMORANDUM: CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 4 (Feb. 20, 1974) (noting that “[t]he framers did not write a fixed standard. Instead they adopted from English history a standard sufficiently general and flexible to meet future circumstances and events, the nature and character of which they could not foresee.”).

Alexander Hamilton seemed to acknowledge the need for an evolutionary standard in his explanation of why an impeachment decision should not be reviewed by the federal courts, which require clear parameters to avoid judicial activism in review:

This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.

THE FEDERALIST No. 65, at 398 (Alexander Hamilton) (Clinton Rossiter ed., 1961). This view was later reaffirmed by the Supreme Court in Nixon v. United States, 506 U.S. 224, 236 (1993), in the holding that the impeachment clause simply does not “provide an identifiable textual limit on the authority which is committed to the Senate.”

An impeachment standard must be evolutionary to serve any meaningful function in this system. In the course of the last two hundred years, a significant degree of conduct has become subject to criminal and civil penalties, reflecting changes in contemporary standards. Many issues that were once considered “private” concerns, such as sexual harassment, are now considered public concerns. Each generation must consider the gravity of a criminal act or misdeed by a president. Today, a proven case of sexual harassment or racial discrimination would be viewed by many citizens as inherently incompatible with the office of the President. In the 1700s, it is doubtful that such conduct would be viewed as alarming, let alone impeachable. There are a variety of contemporary illegal or offensive acts that were simply not matters of concern in the eighteenth century. See H. Jefferson Powell, Rules for Originalism, 73 VA. L. REV. 659, 669 (1987) (noting that “the founders thought, argued, reached decisions, and wrote about the issues that mattered to them, not about our contemporary problems.”).

This does not mean that “high crimes and misdemeanors” is a completely indeterminate or arbitrary standard. In my view, serious crimes in office, such as lying under oath before a federal grand jury, have always been “malum in se” conduct for a president and sufficient for impeachment. Nevertheless, there are criminal acts which may not be viewed as sufficient to warrant submission to the Senate. A president may commit some crimes, like drunk driving, for which impeachment is not appropriate. The House does have a discretionary role in defining high crimes and misdemeanors to exclude minor criminal infractions which do not raise legitimacy concerns.(24) Cf. Gerhardt, supra, 68 Tex. L. Rev. at 87 (noting “there are certain statutory crimes that, if committed by public officials, reflect such lapses of judgment, such disregard for the welfare of the state, and such lack of respect for the law and the office held that the occupant may be impeached and removed, for lacking the minimal level of integrity and judgment sufficient to discharge the responsibilities of office.”). The suggestion, however, that a threshold test can be articulated to exclude criminal acts due to their subject matter (as opposed to such issues as gravity or premeditation) is dangerous and unnecessary. The guarantees against legislative abuse is found, not in the Article II standard, but the static institutional provisions of Article I. Moreover, as shown below, there is a political value to having serious allegations of criminal conduct heard in the Senate rather than the House–regardless of the outcome.

2. Impeachment and the Legitimacy to Govern.

As should be obvious, I view impeachment as a specific process rather than a specific standard by which public controversies could be resolved. There are both structural and political functions served by impeachment. The static impeachment process serves to protect the structural integrity of the system while the evolutionary impeachment standard serves to protect the political integrity of the system. The latter political function is vital when serious questions of legitimacy are raised with regard to the Chief Executive.

A President must have both legal and political legitimacy to lead a democratic nation. In times of crisis, a president must have sufficient legitimacy to demand the greatest sacrifice of citizens since a president cannot coerce a free nation. A president who is viewed as being without legitimacy suffers from a dangerous form of disability. Framers foresaw controversies in which “an officer . . . had rendered himself justly criminal in the eyes of a majority.” Records vol. 1, supra, at 86 (Mason). The Framers created a process in which such questions of legitimacy could be resolved in an open and deliberative fashion. Alexander Hamilton described impeachment as “a method of national inquest into the conduct of public men.” THE FEDERALIST No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

This public inquiry into “the conduct of public men” allows a free people to respond to questions of illegitimacy rather than leave the system paralyzed or retarded by scandal.

Benjamin Franklin referred to this function in his view of the impeachment process:

What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in [which] he was not only deprived of his life but of the opportunity of vindicating his character. It [would] be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.

Records vol. 2, supra, at 65. Franklin’s words reflect a view of impeachment that is potentially redemptive. If a president stands before the Senate and answers allegations under oath, he can regain the legitimacy that he lost in the eyes of many Americans. If a president is justly accused, the Framers viewed the loss of legitimacy to be a permanent condition and specifically mandated that conviction would be accompanied with “disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.” U.S. Const. art. II, 3, c. 7.

Both Franklin and Randolph emphasized the need for the public to view the process as responding to questions of fitness to avoid “irregular[]” responses. Records vol. 2, supra, at 67 (Franklin) (noting that, absent a system of impeachment, citizens can resort to violent action); Id. at 67 (Randolph) (“The propriety of impeachments was a favorite principle with him; Guilt wherever found out to be punished. The Executive will have great opportunities of abusing his power . . . Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections.”). Madison created a system by which such powerful pressures could be directed to allow some release within the legislative branch rather than resisted to the point of social explosion.

The brilliance of Madison was his recognition that factions and divisions within a nation can, if left unresolved, fester into open conflict or “convulse the society.” THE FEDERALIST No. 10 at 80 (James Madison) (Clinton Rossiter ed. 1961). Madison saw the natural inclination of citizens to divide on issues of importance to a democratic system since “[t]he latent causes of faction are . . . sown in the nature of man.” Id. at 79. Rather than emphasize only aspirational collective values,(25) Madison emphasized the importance of recognizing factional divisions and the need to force such divisions into the open for a majoritarian result. Id. at 80 (“The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.”) The bicameral system was a result of this approach.

Impeachment is at times essential to address factions produced by the misconduct of a Chief Executive. There is no more dangerous or divisive a question in a democratic system than the legitimacy of a president to govern. Alexander Hamilton warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” THE FEDERALIST No. 65, at 396-97 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The test of the system was to create a process that could handle such intense pressures while protecting against majoritarian abuse. Impeachment provides a public forum to address these concerns and, when appropriate, subject a Chief Executive to a new vote of legitimacy. The bicameral structure of impeachment allows for serious questions of legitimacy in the Chief Executive to be raised in an open and deliberative fashion.(26) It was a process by which illegitimacy could be remedied by removal and legitimacy could be redeemed by acquittal.

“High crimes and misdemeanors” is a standard directed at conduct by a president that is so serious as to undermine his political and legal legitimacy to govern. See CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 49 (1974) (“I think we can say that ‘high Crimes and Misdemeanors,’ in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not ‘criminal,’ and which so seriously threaten the order of political society as to make pestilent and -DANGEROUS THE CONTINUANCE IN POWER OF THEIR PERPETRATOR.”) (capitalization in original). Madison noted that there are times when the public should not have to wait for the termination of a term to remove a person unfit for the office. Madison explained that:

[It is] indispensable that some provision should be made for defending the Community ag[ain]st the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more with the compass of probable events, and either of them might be fatal to the Republic.

While there may be a variety of disabilities that were not viewed in the 1700s as falling with “the compass of probable events,” the impeachment process was available to the public to avoid the paralysis of a president serving in office with the title but not the legitimacy to govern.

Such legitimacy concerns are not confined to the Framers. Congress has previously emphasized legitimacy issues in impeachment inquiries of both presidents and other officers. In the presidential impeachment cases, Congress has often stressed conduct that undermined both the office of the President and the legitimacy of the President to govern.(27) Various presidents have been the subject of proposed articles of impeachment, including Presidents John Tyler, Andrew Johnson, Grover Cleveland; Herbert Hoover, Harry S. Truman, Richard Nixon, Ronald Reagan, George Bush, and now William Clinton. These proposed articles often included issues touching on fitness, character, or legitimacy. Most of these allegations were, however, clearly partisan, often abusive, and largely unsuccessful.

In the articles of impeachment against President Richard Nixon,(28) the House tied each specific act to the charge that the President’s conduct was “contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.” 3 Deschler’s Precedents of the United States House of Representatives, H. Doc. 94-661, 94th Cong., 2d Sess., Ch. 14, § 15.13, 638-643 (1974) (Article I through Article III). The use of impeachment to address legitimacy issues was made by the New York bar during the Nixon hearings:

It is our conclusion, in summary, that the grounds for impeachment are not limited to or synonymous with crimes (indeed, acts constituting a crime may not be sufficient for the impeachment of an officeholder in all circumstances). Rather, we believe that acts which undermine the integrity of government are appropriate grounds whether or not they happen to constitute offenses under the general criminal law. In our view, the essential nexus to damaging the integrity of government may be found in acts which constitute corruption in, or flagrant abuse of the powers of, official position. It may also be found in acts which, without directly affecting governmental processes, undermine that degree of public confidence in the probity of executive and judicial officers that it essential to the effectiveness of government in a free society. . . . At the heart of the matter is the determination–committed by the Constitution to the sound judgment of the two House of Congress–that the officeholder has demonstrated by his actions that he is unfit to continue in the office in question.

COMMITTEE ON FEDERAL LEGISLATION OF THE BAR ASSOCIATION OF THE CITY OF NEW YORK, THE LAW OF PRESIDENTIAL IMPEACHMENT 8 (1974).

While there is considerable debate over the relevance of the judicial impeachment standards to a presidential impeachment,(29) one aspect of the judicial impeachments is probative. After the ratification of the Constitution, judicial impeachments were commenced during the lifetime of many of the delegates. From these early cases to the present time, the House has included legitimacy articles that charged judicial officers with bringing disrepute upon their offices. There was no outcry at such non-criminal bases for impeachment or the right of the public to review conduct that is so offensive as to be viewed as incompatible with an office.(30)

This view of impeachment as addressing legitimacy issues is certainly present in modern impeachment trials where Congress has often sought removal based on such articles as “[b]y his conduct, raising substantial doubt as to his judicial integrity, undermining confidence in the integrity and impartiality of the judiciary, betraying the trust of the people of the United States; disobeying the laws of the United States, and bringing disrepute on the Federal courts and the administration of justice by the Federal courts.” Articles of Impeachment Against Judge Walter L. Nixon, Jr., as Amended, S. Doc. 101+17, 101st Cong., 1st Sess. 21-27 (Oct. 5, 1989) (Article III); see also Report of the Impeachment Trial Committee on the Articles Against Judge Alcee L. Hastings, S. Rept. 101+156, 101 st. Cong., Sess, 3 (Oct. 2, 1989) (including Article XVII for “undermin[ing] the trust of the people of the United States.”); Congressional Impeachment Process and the Judiciary: Documents and Materials on the Removal of Federal District Judge Harry E. Claiborne, 19; Document I, 1-6 (1987) (including Article IV which charges “betraying the trust of the people of the United States and reducing the confidence in the integrity and impartiality of the judiciary, thereby bringing the federal courts and administration of justice by the courts into disrepute.”).

The view of the impeachment process as a vehicle for dealing with legitimacy questions reinforces the need of the House to submit credible evidence of serious crimes to the Senate. A president then will be given the opportunity to testify under “oath or affirmation” as to the allegations. If a president lies to Congress at that moment, there should be no further question about his unsuitability to continue in office. Cf. 4 Elliot, supra, at 127 (Iredell) (noting that, in the course of official dealings with Congress, the president “must certainly be punishable for giving false information to the Senate.”) If a president testifies truthfully, however, the Senate may acquit even in the face of likely criminal acts. The difference is that this decision will have been made in a Senate trial specifically created for such review with representatives of all three branches. The President’s conduct is reviewed by legislative figures designated by the Framers due to their length of term and special institutional characteristics. If a president leaves such a body with his office intact, he can claim a form of political legitimacy that was gained by exposing himself to removal by will of the public.

There are obviously some acts that do not raise serious questions of the legitimacy of a president as a person of “good virtue” or veracity. However, there are many criminal or noncriminal acts that seriously undermine such legitimacy in a person who must “take Care that the Laws be faithfully executed.” U.S. Const. art. II, 3; cf. Gerhardt, supra, 68 Tex. L. Rev. at 88 (“The answer seems to be that someone who holds office also holds the people’s trust, and an officeholder who violates that trust effectively loses the confidence of the people and, consequently, must forfeit the office.”).

An allegation of criminal acts in office by a president represents the greatest threat to legitimacy and should ordinarily go to the Senate for review. The legitimacy of a president is seriously undermined when he has committed acts for which average citizens have been prosecuted. This anomaly creates the appearance that the President stands above the law. This was precisely the concern of Framers like George Mason when he argued for the need of impeachment by asking a relevant rhetorical question: “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?” Records vol. 1, supra, at 66; see also 2 Story, supra, at 278-79 (noting that impeachment “holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws.”). The circumvention of a Senate trial creates an appearance of special extrajudicial status in the President and undermines the legitimacy of prosecution of average citizens by the Executive Branch. It also undermines the oath of the President that he will execute the federal laws that he himself has violated.

While criminal allegations should militate in favor of submission to the Senate, particular mitigating and aggravating factors will ordinarily be considered. The most important of these factors is premeditation. As with any prosecutor, Congress must inquire into the quality of the criminal act in terms of intent and premeditation. There is a considerable difference between an act committed under the influence of alcohol like drunk driving and a premeditated criminal act by a president. If the House believes that the President acted with full premeditation and knowledge of the criminal conduct, it would be difficult to justify a vote against submission to the Senate for a consideration under the procedures laid out by the Framers.

Articles I through III reflect the genius of the Madisonian Democracy to direct pressures that often tear apart other systems. Madison was particularly keen on the use of open and deliberative process to bring factions to the surface where they can be addressed. When a president stands accused of criminal acts in office, he creates a division among the public as to his legitimacy to serve as president. Rather than have such issues go unanswered, the Framers created a process by which a president would be called to defend his conduct and submit to will of the Senate as representatives of the citizens. This process is political and redemptive. The danger of threshold exclusions in the House is that the public is denied the value of this political judgment. This is why it is sometimes more important how we reach a decision than what we decide.

C. Inherent Dangers of a Threshold Exclusion Under Article II.

The thrust of my testimony today is to refute any textual or originalist basis for a clear exclusion of alleged criminal conduct in this crisis from the scope of the impeachment clause. As an alternative, I have suggested a functional interpretation of the impeachment standard. The academics appearing today clearly have different views of these matters and I look forward to reading the testimony of academics with whom I disagree but for whom I have tremendous respect.

While I do not want to dwell on our differences, two letters have been circulated by law professors and historians, respectively. These letters advance different claims as to the basis of the threshold definition of impeachment. I would like to briefly comment on those letters since, like various other law professors, I obviously declined to sign the law professors’ letter when it was circulated.

The two letters reach identical conclusions with significant differences in argument. The historians, identified collectively (and exclusively) as “Historians in Defense of the Constitution,” leave no doubt as to the intent of the Framers. While I expect that the historians appearing as majority witnesses today can address their apparent de facto position as “historians in opposition to the Constitution,” I found the sweeping originalist claims of the letter to be astonishing. The letter, signed by some of our most renowned historians, states categorically that “[t]he Framers explicitly reserved [impeachment] for high crimes and misdemeanors in the exercise of executive power.” Furthermore, the historians add that the impeachment of President Clinton for these alleged crimes in office “will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress.”

I will not repeat my view of the textual or historical record to refute this claim beyond noting that I cannot find any explicit, clear, or compelling evidence of original intent in the debates. What is remarkable about this letter is the complete failure to consider the countervailing separation of powers issue: how a new precedent excluding certain crimes from the scope of impeachable conduct would “permanently disfigure[] and diminish[]” the Presidency. If the letter is advancing a functional argument, there should be some minimal attention to the long-term consequences of a new doctrine that a president may lie under oath and commit crimes with regard to some undefined subjects without facing impeachment. The casual dismissal of the alleged crimes committed by President Clinton as “private behavior” ignores the fact that criminal acts are routinely committed for the most personal and absurd reasons. If a president can lie in order to hide such personal behavior, what else may he lie about? If he can lie to the Judicial Branch, can he lie to the Legislative Branch on these subjects when the tripartite system demands reliable communication between all three branches? Can he commit other criminal acts in addition to lying under oath as part of such behavior without risk of impeachment? Casual assertions about criminal acts committed by presidents in office can provide catastrophic results for a constitutional system.

Not only does the record lack the “explicit” statements noted (but not quoted) by the historians, some of the Framers actually suggest impeachment as a method of applying the same laws to the Chief Executive that are applied to average citizens. For example, Hamilton stated that, when a president stands accused of criminal acts, he can be impeached and “[h]e may afterwards be tried & punished in the ordinary course of the law–His impeachment shall operate as a suspension from office under the determination thereof.” Alexander Hamilton, Speech at the Convention (June 18, 1787), reprinted in William M. Goldsmith, The Growth of Presidential Power: A Documented History 99 (1974). Nevertheless, according to the historians, a president may commit any criminal act and remain in office so long as the criminal act is not “in the exercise of executive power.” There is no suggested exception to this position in the letter. Thus, a president may openly commit molestation or murder without suffering impeachment. Such a principle would allow the system to be paralyzed by perceived illegitimacy in the Chief Magistrate based on the most artificial of distinctions. Since a President is constitutionally required to “faithfully execute” the laws of the United States, many would view the status of a presumed criminal actor to be incompatible with the “public” not the “personal” life of the Chief Executive.

My difference with the historians may reflect our different academic perspective and professional training. As a lawyer, the notion of excluding conduct based on a casual category of “private behavior” is stupefying. If adopted, we would have to apply this standard in a host of different circumstances and future presidents would rely on this standard to guide their actions. Until this crisis, many of us assumed that the line of conduct was a bright line: a president cannot commit crimes in office. Frankly, we have had every type of president in office from drunkards to dullards.(31) Their only limitation was that, if they committed criminal acts, they would have to answer for their conduct in the well of the Senate. There is no explanation why this minimal requirement of conduct is so debilitating for a president. Holding a president to the laws that he must faithfully execute does not diminish our system, it reaffirms our most sacred principle that no individual is above the law.

In prior commentary on this issue, various legal academics have advanced the same categorical exclusion of any acts that are not directly linked to use of executive authority. However, some of the same academics also insist that a president could never be indicted before impeachment. Thus, a president could openly commit a crime like child molestation and remain in office through two terms. In fact, according to this interpretation, the Framers accepted that a president could have remained immune from prosecution through multiple terms since the Constitution did not have limitations on terms in office. There is little basis in the historical record to support such a result.

The joint letter of the law professors takes a different approach from the historians. While some law professors have advanced original intent or textual arguments in commentary on the crisis, the letter of the law professors acknowledges that “[n]either history nor legal definitions provide a precise list of high crimes and misdemeanors. Reasonable persons have differed interpreting these words.” The law professors then advance an argument that the definition of “high crimes and misdemeanors” must be tied to the exercise of executive authority. Yet, the law professors then state that they accept that president can be impeached for “private” conduct.(32) Thus, according to these law professors, the impeachment clause does not categorically limit impeachable offenses to official acts or use of executive authority. Thus, the only remaining test is that private conduct must be “heinous.” The law professors, therefore, simply argue that in their judgment the alleged crimes committed by President Clinton are not sufficiently “heinous.”

The suggestion that a president may commit perjury before a federal grand jury on some subjects produces rather troubling legitimacy issues. For example, a president will continue to serve as the Chief Executive enforcing laws that he appears to have violated. The law professors acknowledge that such issues as “perjury” “can without doubt be impeachable offenses”: if the subject matter is right. This creates the challenging task of creating a list of subjects upon which a president may lie under oath. In an open democratic system, the public should certainly be informed of those subjects upon which a president can commit perjury. Last year, almost 100 people were prosecuted by the President’s Justice Department for perjury.(33) These individuals were not given the option of permissible subject and impermissible subjects for perjury. Likewise, individuals have been prosecuted for obstruction based on the use of hypothetical suggestions for testimony.(34) As Chief Executive, the President stands as the ultimate authority over the Justice Department and the Administration’s enforcement policies. It is unclear how prosecutors can legitimately threaten, let alone prosecute, citizens who have committed perjury or obstruction under circumstances nearly identical to the President’s. Such inherent conflict will be even greater in the military cases and the President’s role as Commander-in-Chief.(35)

If the President is a perjurer, the disabling condition extends beyond mere enforcement issues. A president is often called upon to give personal statements attesting to facts or binding statements to the two other branches of government. This creates a rather obvious concern. It is clear that the President lied under oath. There is no question that the President knowingly allowed false evidence (in the form of the Lewinsky affidavit) to be placed in a record with his agreement as to its content. Since there is little question that this President does lie under oath, the only question would be whether he would choose to lie again. The President can hardly delegate the responsibility to attest to facts to a subordinate free of a perjury allegations. In the same fashion, when the President communicates with Congress, does it matter that he clearly lied to another branch of government? These are questions of legitimacy that go directly to a president’s ability to function as Chief Executive. The presumed status as a perjurer is hardly a matter that is confined to the President’s private status.

The “heinous” requirement of the law professors only begs the question of definition. Some of us believe that premeditated and repeated acts of perjury before a federal grand jury is sufficiently serious conduct for impeachment. These law professors disagree. This, however, rapidly becomes a matter of personal disagreement and not constitutional interpretation. We all agree that some private conduct would justify impeachment but these professors believe that the separation of powers doctrine demands a narrow scope while other professors believe that it demands a broader scope. Neither group, however, is arguing an originalist or textualist claim that is dispositive when debating such issues. This is a far cry from the suggestion (echoed by the historians) that there is a threshold definitional standard excluding any criminal acts or misconduct not related to the misuse of executive authority.(36)

If these law professors are now recognizing that the impeachment standard does extend to some private conduct (and does not reflect a categorical exclusion of crimes or misconduct related to non-official matters), we would be simply debating gravity issues on a case-by-case basis. Ironically, I believe that the suggested “executive function” theory is only workable as an absolute threshold definition. Once there are recognized exceptions, the suggested arguments supporting the theory become far less compelling. For example, if academics wish to avoid a “chilling effect” on a president, only an absolute threshold exclusion would achieve the level of protection from legislative abuse. Once we argue case-by-case questions of “heinousness,” presidents remain subject to the discretionary judgment of Congress.

I believe that the protections from legislative abuse in impeachment proceedings are contained in the structure of the impeachment clauses, which also contain critical checks and balances on presidential power. As for the standard itself, I believe that “high crimes and misdemeanors” must encompass crimes or misconduct that raise questions of legitimacy to govern. These questions of legitimacy are primarily raised by a president’s open contempt for the law through criminal acts, which constitute the most likely basis for impeachment. When there is compelling evidence that a president has committed criminal acts in office, there should be an initial presumption that the matter will be submitted to the Senate for a public resolution of the question. This is particularly the case with criminal felonies committed with premeditation. Under a legitimacy test, it matters little whether a president displays open contempt for the law in the execution of a presidential as opposed to a personal function. The public injury is found in the open disregard of laws that the President is sworn to uphold. The public injury is the implied assertion that a president is beyond the reach of core criminal standards in a nation of laws, not men.

CONCLUSION

Any impeachment decision is obviously political in the sense that it is being made by political figures based on their view of the public interest. This does not mean, however, that the methodology and standards are political. Each member will have to reach a principled decision as to the conduct of this President. I hope that the members consider the value of the constitutional process in place for such divisive national issues. While the Framers had no idea of the contemporary issues that face our nation, they knew a great deal about factions and the need to resolve divisions as part of the political system.

There is a considerable difference between the House refusing to impeach a president over serious conduct and the Senate refusing to remove a president for such conduct. The House decision establishes the expectations of a people in the conduct of the Chief Executive and serves as a critical deterrent to presidential misconduct. While the Senate can decide not to remove a president in the interests of the nation for a variety of reasons, the House should not falter in maintaining a bright line for presidential conduct.

In my view, President Clinton’s conduct demands an open and deliberative review under the conditions created for that purpose by the Framers. By his own admission, President Clinton has engaged in reprehensible conduct in office. Allegations of criminal acts in office by a president are perhaps the greatest threat to the perceived legitimacy of a government. When there is compelling evidence of criminal acts in the Chief Executive, an entire system of laws is undermined and demands some form corrective action. Justice Brandeis stressed this danger in Olmstead v. United States, 277 U.S. 438, 485 (1928) (quoted in Elkins v. United States, 364 U.S. 206, 223 (1960), when he warned:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker; it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

The allegations against President Clinton go to the very heart of the legitimacy of his office and the integrity of the political system. As an individual, a president may seek spiritual redemption in the company of friends and family. Constitutional redemption, however, is found only in the company of representatives of all three branches in the well of the Senate. It is there that legitimacy, once recklessly lost, can be regained by a president.

1. This canon appears to underlie the analysis of a letter circulated by law professors supporting the narrow interpretation of “high crimes and misdemeanors” in this crisis. While certainly a legitimate interpretative point, this canon is primarily used in statutory construction and, even in the statutory context, rarely “impl[ies] that an ejusdem generis reading of the statute is constitutionally compelled to the exclusion of other reasonable interpretations.” Garner v. Louisiana, 368 U.S. 157, 168 (1961). Even in such statutory cases, courts rarely apply the doctrine where “[n]o conflict between a general and a specific proposition of law is involved.” Campbell v. United States District Court, 501 F.2d 196, 201 (9th Cir. 1974). When construing a constitution, courts tend to be more circumspect. The text of Article II can be easily read to mean what it states: the Framers wanted to identify two specific acts of impeachable offenses while allowing Congress to define additional impeachable acts within the established structure of Article 1. As will be shown below, there is a strong functional argument for such a standard without resorting to a canon of construction.

2. 0 The use of legislative history in actual cases has proven one of the most controversial and divisive among the courts. Jurists like Justice Anton Scalia have waged a furious war against the use of legislative sources in many statutory cases as inherently unreliable and opportunistic. See Frank Easterbrook, Statute’s Domain, 50 U. Chi. L. Rev. 533, 541 (1983) (“The number of judges living at any time who can, with plausible claim to accuracy, ‘think [themselves] . . . into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar,’ may be counted on one hand.”) (quoting Richard Posner, Statutory Interpretation–in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983)). For these jurists, reliance on the “legislative” record in this matter would be positively maddening.

3. 0 Morris favored a shorter term of office and impeachment of the “great officers of State” in the cabinet. See generally, Alexander Simpson, Jr., Federal Impeachments, 64 U. Pa. L. Rev. 651, 656 (1916).

4. 0 On July 20, 1787, the question was presented after a motion for postponement: “[s]hall the Executive be removable on impeachments?”

The vote was eight to two with Massachusetts and South Carolina voting against the measure. Records vol. 1, supra, at 69.

5. 0 During the debates, the delegates considered and rejected the term “high misdemeanor” in favor of other crimes “in order to comprehend all proper cases, it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.'” Simpson, supra, at 662.

6. 0 Professor Raoul Berger has in fact assembled such a list of categories of impeachable offenses. These included “misapplication of funds;” “abuse of official power;” “neglect of duty;” “encroachment or contempts of Parliament prerogatives;” “corruption;” “betrayal of trust;” and “giving pernicious advice to the crown.” Raoul Berger, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 70-71 (1973)

7. 0 After this language was added, Mason moved to change the words “against the State” to “against the United States.” This was done “in order to remove ambiguity” and was approved unanimously. Then, the Committee of Style dropped “against the United States,” producing our current language.

8. 0 The specific vote of 11 delegations was: New Hampshire (in favor); Massachusetts (in favor); New Jersey (against); Pennsylvania (against); Delaware (against); Maryland (in favor); Virginia (in favor); North Carolina (in favor); South Carolina (in favor); Georgia (in favor).

9. 0 A precise date for the first English impeachment is a matter of academic debate. See generally Alexander Simpson, Jr., Federal Impeachments, 64 U. Pa. L. Rev. 651, 651 (1916) (noting that some academics trace impeachment to “David, brother of Llewellyn” in 1283). Reliable procedures were not put into place until 1399, by an act of Henry IV.

10. 0 As shown in the functional analysis section, the United States Congress has always applied an interpretation of “high crimes and misdemeanors” in judicial cases that encompasses non-public acts or conduct.

11. 0 Some non-structural provisions such as the age and citizenship requirements of Article I and Article II are static provisions establishing minimal qualifications for office.

12. 0 I have found the periodic references to Jefferson’s view on impeachment to be interesting given his unease with the final procedural safeguards. This unease became apparent in the impeachment trial of Senator William Blount, a delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land of what is now Louisiana. During the debate, Jefferson’s close friend, Virginia Senator Henry Tazewell, argued that a jury and not the Senate should judge impeachments. Jefferson clearly agreed. 7 THE WRITINGS OF THOMAS JEFFERSON at 195 (Paul L. Ford ed., 1896) (Letter from Thomas Jefferson to Henry Tazewell). Jefferson wrote to Madison on the issue, but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that “[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries.” 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For a discussion of this trial, see Buckner F. Melton, Jr., Federal Impeachment and Criminal Procedure: The Framer’s Intent, 52 Md. L. Rev. 437 (1993) (discussing the Jefferson and Madison letters)

13. 0 During the Nixon hearings, the House assumed many of the functions that the Framers described as part of the Senate process — a dangerous practice in a carefully divided and balanced system. The suggestion of a long hearing in the current inquiry is troubling given the existence of a comprehensive record by an officer appointed to gather such information. The only constitutional duty of the House in such a circumstance is to confirm the accuracy of the submitted record and to determine that these allegations, if true, would constitute “high crimes and misdemeanors.” Since the Senate has sole authority to try all impeachments, the balancing of individual testimony or facts is properly a matter for the Senate. It would behoove the House to consider the constitutional foundations for the Nixon model before replicating such a quasi-Senate proceeding.

14. 0 This is significant since individuals like Jefferson had serious reservations with the Senate procedures (particularly the absence of a jury). They would likely have had even greater reservations with the House reaching the merits of cases, as was done in the Nixon hearings.

15. 0 The Senate is not required under the Constitution to follow the rules of evidence or allow for the sixth amendment rights of a criminal defendant such as confrontation or a jury. Nevertheless, it is required to proceeded under oath or affirmation; submit to the supervision of the Chief Justice; and satisfy a two-third vote for conviction. The required supervision of the Chief Justice would suggest an expectation that the Chief Justice would rule of evidentiary or procedural issues to guarantee minimal standards of adjudication, as was the case in the Johnson trial.

16. 0 The separation of powers is based on the static separation provisions defining the three branches and the system of checks and balances. The latter offer “the great security against a gradual concentration of the several powers in the same department” by applying the principle that “[a]mbition must be made to counter ambition.” THE FEDERALIST No. 51 at 321 (James Madison) (Clinton Rossiter ed., 1961); see also THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961).

17. 0 It was later extended to the Vice-President and other civil officers without explanation. See Julie R. O’Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L. J. 2193, 2201 (“The scope of the [impeachment clause] was expanded, without recorded discussion, to include ‘the vice-president and other Civil officers of the U.S.’ only on September 8, after the Framers had discussed the necessity of impeachment and formulated the applicable impeachment standard.”)

18. 0 A simple censure or condemnation offers little to a system of checks and balances which appears precisely why the Framers did not rely on such penalties in any part of the constitutional system. If a Chief Executive has already been the subject of a public controversy, a censure is little more than shaming him twice. An impeachment constitutes a more historical penalty for a president that formally identifies conduct as incompatible with the status of Chief Executive, while carrying the same repudiatory message as a censure vote.

19. 0 This is due to the fact that the Senate is expected to use its discretion to balance the various long-term needs of the country. Since a House vote would establish that some crimes in office are sufficient to expose a president to removal, a future Chief Executive could not be assured that a Senate vote would turn on the merits in his favor. The House defines improper conduct and the Senate establishes the penalty for that conduct.

20. 0 While I have personal reservations about nullifying evidence of serious criminal acts in office, each Senator must reach his or her own conclusion as to the interests of the nation when presented with such evidence. The Framers appeared to allow for nullification of some allegations in the Senate. The House, however, is not the appropriate body to engage in such decisions. This is precisely why the talk of censure is so disabling for the system. Much of the contemporary debate has described the House function as if the members would be voting on the merits before any trial occurred before the Senate. This creates not only a redundancy in the roles of the two houses but undermines the bicameral intentions of the Framers in giving distinct roles to each body. By articulating such allegations in articles of impeachment, the House facilitates an open and deliberative debate over the conduct of the President. This debate occurs in the Senate, which calls witnesses and reaches the merits of the issue. Applying exclusionary interpretations at the House stage short-circuits this process and deprives the nation of a public resolution of legitimacy issues.

21. 0 In England, a Bill of Attainder referred to sentences of death issued for individuals without the benefit of trial. Penalties other than death were referred to as “bills of pains and penalties.”

22. 0 The Court has recognized that civil restrictions on employment and personal status can satisfy the punishment requirement of this test. See, e.g., id. (barring union membership); United States v. Lovett, 328 U.S. 303 (1946) (salary cuts), Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) (barring practice as priest); Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1867) (barring practice as lawyer).

23. 0 The Supreme Court has repeatedly stressed that “punishment” for purposes of the “bill of attainder” go beyond the historical definition. The courts will often consider “the type and severity of burdens imposed” or, alternatively, whether the legislative record “evinces a congressional intent to punish.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 473, 475-76 (1977); see also Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 851 (1984). These are sometimes called the “functional” and “motivational” tests to distinguish them from the “traditional” or “historical” test for Bills of Attainder.

24. 0 On this point, there appears to be agreement on one level with the law professors who signed the letter discussed in Subsection C below. Unlike the historians who signed a separate letter, the law professors agree that non-official conduct could be impeachable. The only difference is that these law professors would limit such conduct to “unspeakable heinousness” while I would view the standard as covering any serious offense that deprives a presidency of legitimacy due to its gravity, premeditation, or contempt for rule of law.

25. 0 Madison criticized previous philosophers for their assumptions about human interests and behavior. THE FEDERALIST No. 10, at 81 (‘[t]heoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would at the same time be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”).

26. 0 Certainly in the judicial impeachments, the notion of illegitimacy brought on by improper or offensive conduct was readily accepted in the eighteenth century under the Constitution. This illegitimacy basis for impeachment continued throughout our history with judges often charged with bringing “disrepute” upon their offices. See, e.g., Impeachment of Halsted L. Ritter, 80 CONG. REC. 5602-08 (1936); see also Wrisley Brown, The Impeachment of the Federal Judiciary, 26 HARV. L. REV. 684, 692 (1913) (noting that impeachment was appropriate for “an official dereliction of commission or omission, a serious breach of moral obligation, or other gross impropriety of personal conduct which, in its natural consequences, tends to bring an office into contempt and disrepute.”).

27. 0 The first president to face an impeachment inquiry vote in the House was President John Tyler in 1843. President Tyler was charged with a variety of noncriminal acts including “shameless duplicity, equivocation, and falsehood with his late Cabinet and Congress.” Impeachment of the President of the United States, Congressional Globe, vol. 12, Jan. 10, 1843, p. 144. The vote of the House was 127 to 83 against “the charges.” Id.

28. 0 The articles of impeachment against President Johnson included various noncriminal (and clearly abusive) bases for removal, including the allegation that the President “with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces . . . against Congress [and] the laws of the United States duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled and within hearing.” Journal of the House of Representatives of the United States, 40th Cong., 2nd Sess. (Washington: GPO, 1868) pp. 440-450; see also The Impeachment of the President, Congressional Globe, vol. 39, March 2-3, 1868, pp. 1613-42.

29. 0 The effort to distinguish the roles of the President and judges to support an argument for a different standard is problematic. First, the argument that the impeachment of a judge will not reverse a popular election (as it would a President) ignores the fact that impeachment does not reverse an election since the Vice-President replaces the President in succession. The suggestion that this process is in any way analogous to a parliamentary system, where a government is replaced, is meritless. Second, comparisons to the other branches is not always to the benefit of the President. For example, some of the delegates appeared to favor impeachment to guarantee the removal of a president due to his special powers in comparison to Congress. Madison noted that impeachment was necessary in cases of “incapacity, negligence or perfidy” because a president guilty of such acts could not be relied upon to lead a government or foreign affairs. Records vol. 2, supra, at 65-66. Madison noted this makes the president more dangerous than legislative officers with the same failings:

The case of the Executive Magistracy was very distinguishable, for that of the Legislative or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administrated by a single man, loss of capacity or corruption was more within the compass of probable events and either of them might be fatal to the Republic.

Id. at 66.

30. 0 For example, recent impeachments of judicial officers include: Judge Harry Claiborne (income tax evasion); and Judge Walter Nixon (perjury). See Gerhardt, supra, 68 Tex. L. Rev. at 4 n.11.

31. 0 There appears to be a sudden interest in the sexual habits of the Framers, who are now being politically exhumed and “spinned” as part of the crisis. This is particularly the case of Alexander Hamilton’s affair with Maria Reynolds in the summer of 1791. This affair occurred while Hamilton was Treasury Secretary and commentators have stressed that the subsequent scandal involved allegations that Hamilton used this office to assist his lover’s husband in illegal transactions. Since there was no call of impeachment or punishment, it is argued that the drafters and their contemporaries did not view such scandals to be matters of public concern. The facts of this matter have been grossly misrepresented. See generally CLAUDE G. BOWERS, JEFFERSON AND HAMILTON (1925). Hamilton was in fact confronted with these allegations by congressional leaders. Hamilton was able to present documents to show that there were no such illegal transactions and that his lover’s husband was trying to blackmail him. When the Jeffersonians attacked Hamilton on this false charge in later years, he publicly admitted the affair and submitted the documents proving the allegations to be untrue. There was no action taken because there was no evidence of any conduct other than a consensual sexual relationship.

32. 0 Various signatories to the letter of law professors presumably have abandoned any claim that the language or history of the impeachment clauses categorically excludes private acts and must be limited to uses of executive authority.

33. 0 In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual-harassment claim. Stephan’s alleged perjury occurred in a civil case but he was still prosecuted for criminal perjury. Likewise, Millard McAfee was prosecuted by the Justice Department for perjury committed in a deposition in a civil case. This was a civil dispute over cattle hides that never went to court.

34. 0 Ex-Congressman Mario Biaggi who was convicted of obstruction in 1988 for using a similar type of hypothetical. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. Biaggi helpfully suggested that “you didn’t give it to me because I’m a member, member of Congress.” United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). The Justice Department convicted Biaggi on obstruction based on the hypothetical. Likewise, The Justice Department has prosecuted individuals like Barbara Battalino. Battalino was a psychiatrist employed by the Veterans Administration and was accused of having oral sex with a patient in violation of ethics rules. Battalino denied the relationship when she was questioned by investigators. Battalino was prosecuted for obstruction and received a sentence of six-months detention and a large fine.

35. 0 Large numbers of enlisted personnel and officers have been discharged for lying about “inappropriate relationships.” Last year alone, President Clinton’s Administration court-martialed 67 service personnel for simple adultery (without the added offense of lying). Likewise, numerous individuals have been punished for failing to tell the entire truth when questioned by superiors or investigators. In the case of Lieutenant Kelly Flynn, a female pilot was forced out of the service for adultery and lying about her relationship in a subsequent investigation. When Lt. Flynn was removed as a B-52 pilot for making false statements and acts of adultery, President Clinton’s Air Force Chief of Staff, General Ronald Fogleman, explained that her removal from the service was the only option in such a case since it would be dangerous to entrust nuclear weapons to a person with such problems of character and veracity.

36. 0 Even on the core category of misuse of executive authority, however, the law professors’ letter raises more questions than it answers. For example, the law professors note that some “non-indictable” conduct may be impeachable. The example given is that “a President might be properly impeached if, as a result of drunkenness, he recklessly and repeatedly misused executive authority.” This example leaves it unclear as to whether the President would be impeached as a drunkard or for his “reckless[] and repeated[] misuse” of executive power. If it is the former, it may be an incapacity issue. If it is the latter, it should not matter if the president is acting due to premeditation or inebriation.

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