Let me begin by stating what I believe the American people view as the obvious. There are no good guys in this sordid affair. Rightly or wrongly, the public has concluded that the President is an adulterer and liar; that Ken Starr has abused his authority by unfair tactics born out of vindictiveness; that the House Managers have acted in a narrowly partisan way and are now desperately attempting to justify their actions for their own political reputation. Finally, they have concluded that Monica Lewinsky was both used and a user, while Linda Tripp, Lucianne Goldberg, Paula Jones and her official and unofficial legal team are part of a larger political plot to `get the President'.
All of that is beyond our ability to effect. Our job is not to dissect the motives or even the tactics of Ken Starr, the trial lawyers, Linda Tripp, and others. Our only job is to determine whether the President of the United States by his conduct committed the specific acts alleged in the two Articles of Impeachment. Not generally, but specifically: Did he do what is alleged? And if he did, do these actions rise to the level of high crimes and misdemeanors necessary to justify the most obviously anti-democratic act the Senate can engage in--overturning an election by convicting the President.
It is very important--both for history's sake and for fairness' sake--that we keep our eye on the ball. When I tried cases, I learned from a man named Sid Balick--he used to say at the outset to the jury:
Keep your eye on the ball. The issue is not whether my client is a man you would want your daughter to date--a man you would invite home to dinner. The issue is did my client kill Cock Robbin--period.
But if we listen to the oft-times confusing presentation of the House Managers--they would have us think that it is sufficient for us to conclude that we would not trust him with our daughters and not invite him home for dinner in order to convict.
Much more is required. The House set the standard we must repair to in the Articles--did he commit a criminal offense? That is what they allege; that is what they must prove.
The Managers keep saying that this case is about what standards we want our President to meet. We hear Flanders Fields intoned--the honor of our most decorated heroes. How incredibly self-serving and autocratic such a plea is.
The American people are fully capable--without our guidance or advice--to determine what standards they want our President to meet. That is an appropriate question to ask ourselves when we enter the voting booth to vote--it is not when we rise on this floor to vote.
Spare me from those who would tell the American people what standard they must apply when voting for President. Ours is an Impeachment standard and our oath to do justice under that standard.
Impeachment is about what standard to use in deciding whether or not to remove a President duly elected by the people.
These are two very different questions and we must not, we cannot, get them confused. You and I and the American people can apply any standard we want our President to meet when we go to the polls on election day.
Only the Constitution can supply the standards to use in deciding whether or not to remove the President--and--in my view, this case does not meet that standard, for two reasons.
First, the facts do not sustain the House Managers' case. According to the House's own theory, we must find that the President has violated federal criminal statutes--not just that he did bad things. In all good conscience, I just cannot believe that any jury would convict the President of any of the criminal charges on these facts. I also believe that it is our constitutional duty to give the President the benefit of the doubt on the facts. To me, the allegations that the President violated Title 18 were left in a shambles on this floor.
But I do not have time to dwell on the facts. So let me turn to the second reason: the President's actions do not rise to the level required by the Constitution for the removal of a sitting President.
We have heard it argued repeatedly that the Constitution does not create different standards for Judges and the President. But that argument fails to comprehend the organizing principle of our constitutional system--the separation of powers. The framers divided the power of the federal government into three branches in order to safeguard liberty. This innovation--the envy of every nation on earth--can only serve its fundamental purpose if each branch remains strong and independent of the others.
We needed a President who was independent enough to spearhead and sign the Civil Rights Act. We needed a President who was independent enough to lead the nation and the world in the Persian Gulf War. We still need an independent President.
The constitutional scholarship overwhelmingly recognizes that the fundamental structural commitment to separation of powers requires us to view the President as different than a federal judge. Consider our power to discipline and even expel an individual Senator. In such a case, we do not remove the head of a separate branch and so do not threaten the constitutional balance of powers. To remove a President is to decapitate another branch and to undermine the independence necessary for it to fulfill its constitutional role.
Only a President is chosen by the people in a national election. No Senator, no Representative can make this claim. To remove a duly elected President clashes with democratic principles in a way that simply has no constitutional parallel. By contrast, there is nothing anti-democratic in the Senate removing a judge, who was appointed and not elected by the people.
Another contention we continue to hear is that the Framers clearly thought that obstruction of justice of any kind by a President was a high crime and misdemeanor. For this they cite the colloquy between Colonel George Mason and James Madison, who argued that a President who abused his pardon power could be impeached. That colloquy illustrates that it is not any obstruction that would satisfy the Constitution--rather, that the framers were immediately concerned about abuses of official power, such as the pardon power.
The House Managers have relied repeatedly on Alexander Hamilton's explanation of impeachment found in Federalist No. 65. But careful reading demonstrates that these articles of impeachment are a constitutionally insufficient ground for removing the President from office. Federalist No. 65 states:
The subjects of [the impeachment court's] jurisdiction 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.
Hamilton had the word `political' typed in all capital letters to emphasize that this is the central, defining element of any impeachable offense. Having emphasized its meaning, he did not leave its definition to chance. While all crimes by definition harm society, impeachable offenses involve a specific category of offenses. Using Hamilton's terms, these are offenses committed when `public men' who `violat[e] some public trust' cause `injuries done immediately to the society itself.' The public trust that resides in, to use Hamilton's hoary phrase, `public men' is what we would call today official power.
What other construction can be given these words? Hamilton did not define an impeachable offense to be any offense committed by public men. He did not define an impeachable offense to be any reprehensible act committed by a bad man. Only those acts that abuse public office and so harm the public directly and politically are impeachable.
While I would like to take credit for this insight into Hamilton's meaning, I actually stand in a line of interpretation that stretches back to the founding era. William Rawle wrote the first distinguished commentary on the Constitution, `A View of the Constitution of the United States of America.' In this treatise, he came to precisely the same interpretation I have described. He said, `The causes of impeachment can only have reference to public character and official duty. . . . In general those which may be committed equally by a private person as a public officer are not the subject of impeachment.'
Joseph Story was not only a long-serving and important Justice of the Supreme Court of the United States, he was a preeminent constitutional scholar and author of a treatise that remains an important source for understanding the Constitution's meaning. He too emphasized that `it is not every offense that by the constitution is . . . impeachable.' Which offenses did he regard to be impeachable? `Such kinds of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust.' Justice Story tied the definition of impeachable offenses to the purpose that underlies the separation of powers--safeguarding the liberty of the people against abusive exercise of governmental power. He observed that impeachment `is not so much designed to punish an offender as to secure the state against gross official misdemeanors.'
There is no question that the Constitution sets the bar for impeachment very high--especially where the President is involved. Federalist 65 bears this out, as do numerous other commentaries.
But Federalist 65 also sounds a warning--again, it is a warning that has been invoked over and over again--that impeachments inevitably risk being hijacked by partisan political forces.
Federalist 65 worried that the `animosities, partialities, influence, and interest on one side or the other' would enable partisans to find a way to interpret words such as high crimes and misdemeanors to match the outcome they otherwise wished to reach--not necessarily out of any malevolence, but simply because of the great capacity that we all have to rationalize.
Here the rationalization is pretty easy--the President is a disgrace to the office, I honor and revere the office of the Presidency, so there must be some way to get this man out of that office. Therefore, his actions must rise to the level of high crimes and misdemeanors.
It is tempting to go down that road --but this is precisely the temptation that the Framers urged us to avoid.
In Federalist 65, Hamilton defended the United States Senate as the only body that could possibly hear a presidential impeachment. `Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? 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 . . . his accusers?'
Hamilton was placing the responsibility to be impartial squarely upon us--a responsibility that has become embodied in the oath we took when the trial began.
Charles Black, the renowned constitutional law professor from Yale, boiled down the attitude that we as Senators must adopt in order to achieve an impartiality and independence sufficient to the responsibilities of impeachment. He said we must act with a `principled political neutrality.'
That is a tough standard to meet. In the Johnson impeachment, for example, James Blaine originally voted for the impeachment of the President in the House. Years later he admitted his mistake, saying that `the sober reflection of after years has persuaded many who favored Impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict.'
And in our contemporary situation, former President Ford and our distinguished colleague and former majority leader, Robert Dole, have both urged us not to go down the road to impeachment, but to seek other means to express our displeasure.
Charles Black knew that principled political neutrality was hard to achieve, so he suggested one approach. He suggested that prior to voting, a Senator should ask:
Would I have answered the same question the same way if it came up with respect to a President towards whom I felt oppositely from the way I feel toward the President threatened with removal?
In reaching a final decision, the question I wish to pose to my colleagues is this: Can you legitimately conclude that you would vote to remove a sitting President if he were a person towards whom you felt oppositely than you do toward Bill Clinton?
Given the essentially anti-democratic nature of impeachment and the great dangers inherent in the too ready exercise of that power, impeachment has no place in our system of constitutional democracy except as an extreme measure--reserved for breaches of the public trust by a President who so violates his official duties, misuses his official powers or places our system of government at such risk that our constitutional government is put in immediate danger by his continuing to serve out the term to which the people of the United States elected him.
In my judgment, trying to assume a perspective of principled political neutrality, the case before us falls far, far short on the facts and on the law.
I ask unanimous consent that the text of a more comprehensive statement be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
SENATOR JOSEPH R. BIDEN'S COMPREHENSIVE STATEMENT ON IMPEACHMENT DELIBERATIONS
There are no good guys in this sordid affair. Rightly or wrongly, the public has concluded that the President is an adulterer and liar. Ken Starr has abused his authority by unfair tactics born out of vindictiveness. The House Managers have acted in a narrowly partisan way and are now desperately attempting to justify their actions for their own political reputation and that Monica Lewinsky was both used and a user, while Linda Tripp, Lucianne Goldberg, Paula Jones and her official and unofficial legal team are part of a larger political plot to `get the President'.
At this point, all that occurred before this is beyond my ability to affect. My job as a United States Senator hearing an impeachment trial is not to dissect the motives or even the tactics of Ken Starr, the trial lawyers, Linda Tripp and others. My only job is to determine whether the President of the United States, by his conduct committed the acts alleged in the two Articles of Impeachment before us. Not generally, but specifically, did he do what is alleged--and if he did, do these actions rise to the level of high crimes and misdemeanors necessary to justify the most obviously anti-democratic act the Senate can engage in overturning an election.
THE ARTICLES OF IMPEACHMENT
When the Framers designed our elected branches of government, they established a system of separate but equal branches. The independence of the President from the Congress, and vice versa, is constitutionally anchored in the fact that each answers directly to the people through the ballot box. The people determine who will serve in either branch.
As I said in a speech last September at Syracuse Law School and in another on the floor of the United State Senate, the independence of the President from the Congress was no minor detail in the constitutional design. The single major goal and idea that best explains how the Framers constructed the office of the Presidency was to make the presidency as politically independent of the Congress as they could. They believed his independence vital to the protection of our liberties.
It takes a strong and independent President to sign the Emancipation Proclamation in the face of congressional opposition, as Abraham Lincoln did. It takes a strong and independent President to sign the executive order integrating the Armed Services in the face of congressional resistance, as Harry Truman did. It takes a strong and independent president to veto legislation in the face of strong majorities, as Ronald Reagan, George Bush and all of our Presidents have done.
We can, and we do, disagree about the wisdom of any particular presidential decision, but none of us can doubt that the institution of a strong and independent presidency has enhanced our freedoms and made us a stronger nation.
For us to remove a duly elected president will unavoidably harm our constitutional structure.
Accordingly, for this Senator, the starting point in my thinking about the articles of impeachment must begin with giving the President the benefit of the doubt, and to err on the side of sustaining the independence of that office so vital to the Framers and to the constitutional system they designed. Impeachment must be used against a President only as an extreme measure, when the President has so breached the public trust that our system of government is put in danger by his continuing to serve out the term to which the people of the United States elected him.
Have the House Managers presented a case of sufficient severity, and have they proved it with sufficient clarity, to justify the drastic and awesome, step of convicting a duly elected President?
On January 12, when the House Managers walked across the rotunda to the Senate and presented their case against the President, the country moved from the realm of sound bites and political attacks to a serious and sober consideration of the precise nature of the House's allegations against the President, and of the full extent of the record evidence against him.
The House Managers have told us that in their judgment two dangers to our system of government justify taking this unprecedented and awesome step.
First, they said that failing to remove the President will undermine the rule of law and the administration of justice. Permitting a serial perjurer and obstructor of justice to escape punishment will bring disgrace on the oath `to tell the truth.' It will mean that we can no longer with good conscience punish other people who have committed perjury or obstructed justice. The ultimate effects would be felt throughout the judicial system. Like a pebble dropped into a pond, they said, it will send out ripples to all corners of our judicial system.
Second, they said that failing to remove the President will also condone his plot or scheme to deny a specific civil rights plaintiff--Paula Jones--of a full opportunity to litigate her civil rights claims against the President. Regardless of the ripple effects of his actions, the acts themselves were violations of law that amounted to a failure of the President to `take care that the laws be faithfully executed,' in violation of his oath of office.
MULTIPLE VIOLATIONS OF THE CRIMINAL LAW NECESSARY
As I have said in earlier speeches on the impeachment power, not all crimes are impeachable, and an impeachable offense does not have to be a crime.
In this case, however, the House Managers have made it quite clear that their case against the President depends entirely on proving that he has committed crimes, and not just a few crimes, but an elaborate scheme that included `lots and lots of perjury' and `many obstructions of justice,' to quote Mr. McCollum. The dangers the President supposedly poses flow not from the President's reprehensible conduct, or from the fact that he misled his family, his aides, his cabinet and the nation about that conduct. This impeachment is not about sex, they have insisted.
I asked Mr. Barr about this during the trial, and he said `What brings us here . . . is the belief by the House of Representatives in lawful public vote that this President violated, in numerous respects, his oath of office and the Criminal Code of the United States of America--in particular, that he committed perjury and obstruction of justice.' Mr. McCollum made the same point in his opening presentation, when he said, `The first thing you have to determine is whether or not the president committed crimes. It's only if you determine he committed the crimes of perjury, obstruction of justice and witness tampering, that you ever move on to the question of whether he is removed from office. . . . None of us would argue to you that the president should be removed from office unless you conclude he committed the crimes that he is alleged to have committed.'
THE BURDEN OF PROOF IN ASSESSING THE HOUSE'S CASE
So the question before the Senate is whether the President is a serial perjurer and a massive obstructor of justice.
What standard of proof should a Senator apply in deciding whether the record supports the accusations contained in the articles of impeachment--the accusations that the President violated the federal criminal law? The House Managers quite correctly pointed out that the Senate has never sought to determine for the entire body what the burden of proof should be in an impeachment. In effect, we have left it to the good judgment of each Senator to decide whether or not they are convinced by the evidence presented to us.
For this Senator, fundamental fairness as well as the nature of the House's case dictate that I ought to be convinced beyond a reasonable doubt that the President violated the laws that the House alleges. Proof beyond a reasonable doubt is the same standard applied in criminal cases--it is the standard that would apply if the President were tried in a criminal court for perjury or obstruction of justice.
It seems to me that fundamental fairness counsels that I apply the same standard as a criminal court precisely because the House asserts that what makes his actions impeachable is that he has violated federal criminal statutes regarding perjury and obstruction of justice. It strikes me as absurd that the Senate would have the arrogance to throw out a duly elected President on these grounds unless it was convinced that he would be convicted of those charges. Otherwise, we would be saying in effect that even though the President would not be convicted on these crimes, we are nevertheless throwing him out of office because he committed those crimes. That would clearly be giving the President less protection than we provide any other citizen when charged with a crime.
Someone else can try to explain the logic of that decision, but not me.
In addition, the standard of proof beyond a reasonable doubt seems to me compelled by the fact that in the House's explanation of the harm to our system of government if the President is not thrown out, their entire explanation rises and falls depending upon whether or not the President would be convicted in a court of law for the crimes alleged. If he could not be convicted in a court of law, then the Senate is not `condoning' perjury or obstruction of justice any more than a criminal court is condoning those crimes when someone is acquitted on such charges. But if the Senate is not condoning those crimes, there is no conceivable basis for concluding that the public will be harmed by the President's remaining in office.
Furthermore, in applying the standard of proof beyond a reasonable doubt, the Senate simply must pay attention to the precise legal definitions of the crimes. What the pundits have condemned as legal hair splitting, and what the public rightly condemns in the president's penchant for evasive answers when responding to questions in a public setting, must now necessarily occupy our attention with regard to the President's answers under oath, such as a deposition or a grand jury proceeding because the claim made by the House is that the President violated specific criminal laws. If your aim is to respect the rule of law, you must also respect the rules of law--the precise legal definitions of the crimes, as found in 18 U.S.C. 1623, the federal perjury statute, and in 18 U.S.C. 1503 and 1512, the applicable federal obstruction of justice statutes.
I have now studied the record sent to us by the House, listened to the presentations and arguments of the House Managers and the President's counsel, reviewed the videotape testimony of Monica Lewinsky, Vernon Jordan and Sidney Blumenthal, and listened to the views of my colleagues.
On that basis, I have reached the conclusion that the House has not presented evidence that could persuade a criminal jury beyond a reasonable doubt that the President has violated the applicable federal criminal statutes. There are too many holes, too many conclusions reached only by drawing negative inferences against the President, and too much evidence that apparently contradicts or is inconsistent with the House's case.
Now, let me be frank with you. I do not know for sure what actually occurred. Notwithstanding that, I am forced to make a judgment. In order to preserve the constitutional separation of powers, the independence of the presidency and the sovereignty of democratic elections, the President deserves the benefit of the doubt. This record falls well short of the certainty required to remove a President from office.
THE CONSTITUTIONAL BALANCE THE SENATE MUST STRIKE
While I believe that I must apply a standard of proof beyond a reasonable doubt because of the nature of the charges that the House has brought to us, it is also quite true--and I have said as much on prior occasions--that the Senate does not sit as a court of law when it tries an impeachment. As Alexander Hamilton stated in Federalist 65, impeachment is a political process.
`Political' in Hamilton's usage had two meanings as it relates to impeachments. The first I have mentioned already, and I have spoken about in this chamber before: impeachable offenses are offenses against the body politic. In the words of James Wilson, `in the United States . . . impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.'
The Senate's judgment in an impeachment trial is ultimately political in a second sense, too. It is political in the sense that the Senate has the responsibility to weigh the all the consequences to the body politic in making its decision--the consequences that might flow from removing the President as well as the consequences that might flow from failing to remove him.
That is what I mean, and what Hamilton meant, by the ultimate judgment being a political one. As Senator Bumpers reminded us, the consequences of the decision we make will live on long after Bill Clinton has left office and long after each of us has left office. We must hand our constitutional structure on to our children and to future generations with its foundation as solid as it was when it was handed to us. It is our responsibility as Senators to make a judgment as to how best to accomplish that objective.
The obligation to evaluate the competing costs of retention and removal, incidentally, is what clearly distinguishes judicial impeachments and presidential impeachments--very different institutional and long term consequences weigh in the balance in these two cases.
Removing the President from office without compelling evidence would be historically anti-democratic. Never in our history has the Senate overturned the results of an election and removed a President from office. History could not more plainly demonstrate what a dramatic step removing an elected President would be. The founding of our republic was the most dramatic assertion of the sovereignty of the people that the world had ever known. Abraham Lincoln dedicated the battlefield at Gettysburg to this proposition recalling that our union stands for `government of the people, for the people, and by the people.'
The sovereignty of the people is exercised through national elections. All citizens, but particularly those of us who have had the honor to stand for election, have an instinctive respect for the will of the people as expressed through national elections. Thomas Jefferson, in his first inaugural address, aptly called this democratic instinct a `sacred principle.' Reversing the people's sovereign decision would be in radical conflict with the principle on which our nation is founded as understood and applied throughout our history.
For one branch to remove the head of a co-equal branch unavoidably harms our constitutional structure. The framers intentionally chose not to create a parliamentary system of government. They meant for the President and Congress to be independent of and co-equal with one another. Maintaining each of those branches as strong and independent is fundamental to the Constitution's very structure--a structure they designed to safeguard the liberty of the governed against abuses of power by those who govern.
It is true that impeachment is part of this structure. Removing a president from office for sufficient reasons and upon sufficient proof is therefore consistent with that structure. At the same time, the great dangers inherent in the too ready exercise of that power mean that impeachment should be seen as an extreme measure.
The framers were accomplished, practical statesmen. They recognized that impeachment could be misapplied to undermine the primary structural guarantee of liberty--the separation of powers. They worried that Congress would be tempted to use the impeachment power to make the President `less equal.' As Charles Pinckney warned his colleagues at the Philadelphia Convention, Congress could hold impeachment `as a rod over the Executive and by that means effectively destroy his independence.'
How are we to keep the impeachment power within its constitutional boundaries, so that it stands ready to be used appropriately but does not become a `rod' in the hands of a partisan Congress, threatening the independence of the Presidency, as Charles Pinckney worried during the Constitutional convention?
The solution to this problem must lie in approaching the Senate's ultimate decision from as much of a position of bipartisanship as we can possibly achieve. This is the only way in which we can possibly focus primarily on the institutional consequences of our actions to see them in terms of their long term consequences instead of their short term partisan ones.
Nonpartisan faithfulness to the Constitution's structure, which protects the liberty of the governed must determine our action today.
This was my view of our role in 1974, when I rose on the floor of the United States Senate and made a `plea . . . for restraint on the part of all parties involved in the affair.' That was in the case of the possible impeachment of Richard Nixon. And it was my view last year, when I urged restraint and bipartisanship as the attitude I hoped my colleagues would adopt. And it remains my view.
Viewed from that perspective, it is hard for me to see how the harms flowing from keeping Bill Clinton in office outweigh the harms to our constitutional democracy that would result from removing him.
HARMFUL CONSEQUENCES RECONSIDERED
I have listened attentively to the House Managers' case. In all honesty, I can sympathize with their sense of outrage at the President's actions and his unwillingness to be fully accountable for those actions for so many months. Notwithstanding that, from the vantage point of a restrained view, and as nonpartisan a view as I can muster, the dangers they see from keeping President Clinton in office seem less dire than they claim. At the same time the harms to our system of government from removing him seem to me to be quite serious.
The House Managers warn that failure to remove the President would destroy or undermine the sound administration of justice and threaten the rule of law. If true, that would be a big deal.
But we need to step back a moment and cool down the rhetoric. Manager Graham suggested as much when he reminded us all of the resiliency of the American system of government. `So when we talk about the consequences of this case,' he said, `no matter what you decide, in my opinion, this country will survive. If you acquit the President, we will survive. If you convict him, it will be traumatic, and if you remove him, it will be traumatic, but we will survive.'
That same calmer judgment ought to apply to the administration of justice and the rule of law. The House Managers presented no evidence whatsoever of the dire consequences they predict. And there is no evidence of such dire consequences that they could present--because their evaluation of the consequences is nothing but speculation.
I would submit to you that the consequences of failing to remove the President will most likely be very different from those described by the House. This is one pebble whose ripples will in all likelihood simply wash up harmlessly on the shores and be forgotten forever. I, frankly, do not see how failing to remove the President will alter the conduct of the next prosecutor having to decide whether to bring a perjury indictment, nor do I think that juries will be persuaded by a lawyer's argument that because the President `got away with it' the jury should acquit his client. The fact of the matter is, lots of perjury trials result in acquittals without impacting the ability of the criminal justice system to bring such charges where appropriate.
The House Managers' cry of alarm ignores the fact that we are in an impeachment trial. This is not a criminal proceeding and thus the manner in which the Senate deals with the question has no implications at all for how a court of law would deal with it.
The Constitution is very clear about this. In Article I, 3, cl. 7, the Constitution provides that whether or not a person is removed from office through impeachment that party `shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.' If the evidence is as overwhelming as the Managers say, the President can be prosecuted for perjury and obstruction after he leaves office.
The American people have a very robust understanding that impeachment is a political process--and a particularly clear understanding that this impeachment has been thoroughly politicized until it got to the Senate--I don't think anyone is confusing it with a legal process. No one, therefore, will take any solace from the President's acquittal in terms of their ability to commit perjury or obstruct justice and thereby avoid criminal charges.
Now don't misunderstand me--I am not suggesting that letting a guilty person off from a crime he or she has committed is OK. I am saying, first, that the President has not been charged with a crime in a criminal court, so that failing to acquit him is not at all letting him off from a crime, and second, that our decision will not have the kind of `sky is falling' consequences described by the House in any event. In my judgment, the rule of law and the sound administration of justice in this country will be unaffected by the action we take in the Senate, one way or the other.
The House Managers have also warned that failing to remove the President will also condone his plot or scheme to deny a specific civil rights plaintiff--Paula Jones--her day in court, by withholding from her, through acts of perjury and obstruction, full information about the `nature and details' of his relationship with Monica Lewinsky. Just how accurate and complete a description is this one? In order to answer that question, we need a fuller picture of the `nature and details' of the Jones litigation itself.
If you listened just to the House Managers, you would think that the Jones lawsuit was just a run-of-the-mine typical sexual harassment civil rights case.
It was not. From the very beginning, that lawsuit had been politically motivated. All the facts we know about this case, even taking Paula Jones at her word that the incident in the Excelsior Hotel actually occurred, demonstrate that the lawsuit was also without merit. She had never been harmed in any way in her job, and the President had never repeated anything remotely resembling an unwanted sexual advance on her again. She had received merit pay raises in her state employment and she had received good job performance reviews. She was unable to prove that she had been damaged in any way by the President's actions.
Actually, what damages she did assert--what caused her to file the lawsuit, according to her testimony--was the result of the publication of a hatchet-job article against President Clinton run in the American Spectator. The article was one salvo in an on going right wing probe into Clinton's life in Arkansas, aimed simply at digging up anything that could be politically damaging to the President. When the American Spectator ran a story making an unflattering reference to a `Paula,' Jones found a lawyer to file suit in order to `reclaim her good name.'
The lawyers Paula Jones eventually found were also underwritten by right wing conservative Republican money. In fact, investigative reporters as recently as this past Sunday continue to reveal more and more details of the tightly knit web of conservative lawyers and conservative financial backers who have hounded this President relentlessly since the day he took the office.
Now the President knew that the lawsuit was without merit--he might have behaved obnoxiously with Paula Jones, but he did not commit sexual harassment. He also knew that the real motivation of the lawsuit, the motivation that funded it and kept it going, was a political assault on him, not a legal assault. The law suit and its powers of discovery were being used to engage in a fishing expedition throughout Arkansas in search of political dirt. Leaks from that discovery appeared regularly in the Washington press.
The President knew something else, as well. He knew that his illicit relationship with Monica Lewinsky had nothing to do with the merits of the Jones litigation. On this matter, you do not have to rely on the President's assessment or mine, because the court independently concluded the same thing. In the order denying the plaintiff's discovery into the Lewinsky facts, Judge Wright said that the Lewinsky facts, even if the allegations concerning them were true, had nothing to do with the essential or core elements of Paula Jones lawsuit.
So keeping Lewinsky out of the politically motivated Jones case did not jeopardize Paula Jones' chances of prevailing, which were non-existent in any event. What it did do was to prevent the president's political enemies from using the Jones discovery procedures to pry open that secret relationship and expose it, all to the political damage of the President.
In this context, it is understandable that the President wanted to frustrate the Jones litigation. What is more, the President can hardly be said to have prevented Paula Jones from presenting a case, because there was no meritorious case to present.
That doesn't justify perjury or obstruction, of course, but it does provide an accurate context for appraising the House Managers' second claim. If they are permitted to convert a meritless and politically motivated lawsuit into a presidential conviction for impeachable offenses, the Senate will be rewarding behavior that we ought to condemn. We need to think more than once about rewarding this kind of political witch hunt.
All of what I have just said informs this Senator's judgment concerning the harms to the country that would be caused by failing to convict a President who had committed the acts alleged by the House.
In fact, if the rule of law and the fair administration of justice will not be destroyed--contrary to the House Managers' assertions--and if the American people understand that the President's actions were in the context of a politically-motivated lawsuit and involved concealing an embarrassing improper relationship that was irrelevant to that lawsuit--then it is very hard for this Senator to see how the President's continuing in office poses the sort of grave danger to our system of government that the Framers had in mind when they gave the Congress the awesome power to impeach and remove an elected President.
In weighing the competing consequences of removal and retention in office, we must honor the constitutional obligation we undertook when we swore to do `impartial justice.'
To that end, I think we all could benefit from the wisdom on several participants in the impeachment of Andrew Johnson, 131 years ago.
Two of them--Chief Justice Salmon Chase and Congressman James G. Blaine--both of whom historians record as being highly critical of Johnson and initially favoring his removal--were nevertheless able to step back from the partisanship of that moment and weigh the competing harms in the way I have suggested is proper.
Chief Justice Salmon Chase, who himself had political presidential ambitions, wrote to a friend on the day the trial ended, saying, `What possible harm can result in the country from continuance of Andrew Johnson months longer in the presidential chair, compared with that which must arise if impeachment becomes a mere mode of getting rid of an obnoxious President?'
And years later, James G. Blaine, who had voted for impeachment in the House, said, `The sober reflection of after years has persuaded many who favored Impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions that Andrew Johnson in his utmost endeavor was able to inflict.'
And in our contemporary situation, former President Ford and our distinguished colleague and former majority leader, Robert Dole, have both urged us not to go down the road to impeachment, but to seek other means to express our displeasure.
We ought to follow these lessons, and to be attentive to the damage that removing a duly elected President on these charges will inflict on our system of government.
A decision to remove Bill Clinton will not destroy our system of government. But it will stand as a precedent--the very first time the United States Senate has removed any president from office. If we vote to convict and remove the President after a highly partisan impeachment for conduct that appears to be private and non-official, we will create an opportunity for impeachments to become a tool of partisan politics by other means.
CONCLUSION
Engaging in the balance that the Constitution requires, I cannot vote to convict the President. The evidence of proof beyond a reasonable doubt that the President violated federal criminal statutes has not been presented. Even were the evidence stronger, the Constitution demands that we weigh the competing considerations in a nonpartisan manner.
The President deserves our condemnation. He has brought shame to himself.
But we have not reached this point due to his failings alone. It has taken the volatile combination of his blameworthiness and the unalloyed animosity of others toward him that have brought us to the brink of a profound constitutional moment.
Given the essentially anti-democratic nature of impeachment and the great dangers inherent in the too ready exercise of that power, impeachment has no place in our system of constitutional democracy except as an extreme measure--reserved for breaches of the public trust by a President who so violates his official duties, misuses his official powers or places our system of government at such risk that our constitutional government is put in immediate danger by his continuing to serve out the term to which the people of the United States elected him.
I urge my colleagues to remain faithful to the constitutional design and to our obligation to do impartial justice.
Below are significant issues of constitutional law, positive law, or Senate procedure that have arisen during the impeachment trial of President Clinton. As the impeachment process moved forward in the House to the point where its arriving in the Senate appeared likely, I began an intensive study of the Constitution, the Framers' understanding, and our historical constitutional practices in the Senate to prepare for a possible impeachment trial, which I continued once the Senate assumed jurisdiction over the matter. Over the past several months, I have shared some of my conclusions with my colleagues and the public in speeches and memoranda, portions of which are below. (Bracketed comments are additions to the original text, inserted to assist in comprehension.)
BIPARTISANSHIP
Mr. President, during the past twenty-six years as a United States Senator, I have been confronted with some of the most significant issues facing our nation. Issues ranging from who sits on the highest court in the land to whether we should go to war. These are weighty issues. But none of these decisions has been more awesome, more daunting, more compelling, than the issue confronting us at the present time.
The issue of whether to impeach a sitting President is a monumental responsibility. A responsibility that no Senator will take lightly.
And as imposing as this undertaking is, I am sad to say that I have had to contemplate this issue twice during my service in the Senate; once during President Nixon's term and now.
And while the circumstances surrounding these two events are starkly different, the consequences are starkly the same. The gravity of removing a sitting President from office is the same today as it was twenty-five years ago. Listen to what I said on the floor of the United States Senate on April 10, 1974 during the Watergate crisis:
`In the case of an impeachment trial, the emotions of the American people would be strummed, as a guitar, with every newscast and each edition of the daily paper in communities throughout the country. The incessant demand for news or rumors of news--whatever its basis of legitimacy--would be overwhelming. The consequential impact on the federal institutions of government would be intense--and not necessarily beneficial. This is why my plea today is for restraint on the part of all parties involved in the affair.'
I could have said these same words today. It is uncanny how much things stay the same.
Furthermore, in 1974 I urged my colleagues in the United States Senate to learn from the story of Alice in Wonderland. Then I cautioned that we remember Alice's plight when the Queen declared `sentence first, verdict afterwards.'
But the need for restraint is even greater today than it was in 1974. In 1974, the impeachment question was not as politically charged as it is today. In 1974 we were willing to hear all the evidence before making a decision. Today, I hope, for our nation's sake, that we do not follow the Queen's directive in Alice in Wonderland and that we will make a wise judgment after deliberate consideration.
My legal training combined with more than a quarter century of experience in the United States Senate has taught me several important lessons. Two of these lessons are appropriate now.
First, an ordered society must first care about justice.
Second, all that is constitutionally permissible may not be just or wise.
And it is with these two very important lessons guiding me, that I embark upon a very important decision regarding our country, our Constitution, and our President.
The power to overturn and undo a popular election of the people, for the first time in our nation's history, must be exercised with great care and sober deliberation.
We should not forget that 47.4 million Americans voted for our President in 1996, 8.2 million more than voted for the President's opponent: [Speech, 10/2/98]
* * * * *
Let me now stand back from the issues of substance and procedure, and look at the impeachment mechanism as it has actually functioned in our country's history. The proof of the framers' design, after all, will be in how the mechanism has worked in practice.
As we have seen, the framers worried that impeaching a sitting president would most likely be highly charged with partisan politics and pre-existing factions, enlisting all the `animosities, partialities, and influence and interest' that inevitably swirl around a sitting president. History shows that they had a right to be worried.
Prior to the case of President Nixon, presidential impeachment had only been used for partisan reasons.
History tells us that John Tyler was an enormously unpopular president, facing a hostile Congress dominated by his arch political enemy, Henry Clay. After several years of continual clashes, numerous presidential vetoes and divisive conflicts with the senate over appointments, a select committee of the House issued a report recommending a formal impeachment inquiry.
President Tyler reached out to his political enemies: he signed an important bill raising tariffs which he had formerly opposed--and he found other means of cooperating with the Congress. In the end, even Henry Clay, speaking from the Senate, urged a slowdown in the impeachment proceedings, suggesting instead the lesser action of a `want of confidence' vote rather than formal impeachment proceedings. In early 1843, the resolution to proceed with an impeachment inquiry was defeated on the House floor, 127 to 83.
In 1868, Andrew Johnson came much closer to conviction on charges of serious misconduct. Although Johnson's impeachment proceedings ostensibly focused on his disregarding the tenure in office act, historians uniformly agree that the true sources of opposition to president Johnson were policy disagreements and personal animosity. [Text note: The conflict this time was between Johnson's moderate post Civil War policies toward the Southern states and the overwhelming Radical Republican majorities in both chambers. One especially volatile division was over whether Southern Senators and Representatives ought to be admitted to Congress prior to the enactment of Constitutional amendments expressly denying the right of state succession. The Republicans feared dilution of their voting strength if the southerners were seated, especially since on effect of President Lincoln's Emancipation Proclamation would be to increase House representation for the Southern states, by virtue of the fact that each freed slave would count as a whole person, instead of the abandoned constitutional formula of three-fifths.
The Tenure in Office Act had been enacted over his veto to restrict his ability to remove the Secretary of War --who was allied with the Radical Republicans--from that office without the Senate's consent. Johnson fired Edwin M. Stanton anyway, claiming that the restriction on his removal authority was unconstitutional.]
The conflict this time was between Johnson's moderate post-Civil War policies toward the southern states and the overwhelming Republican majorities in both chambers. The Republicans feared dilution of their voting strength if the southerners were seated.
Johnson's defenders in the Senate were eventually able to hold on to barely enough votes to prevent his conviction. In professor Raoul Berger's view, `Johnson's trial serves as a frightening reminder that in the hands of a passion-driven congress, the process may bring down the very pillars of our constitutional system.'
Yet, if the cases of Tyler and Johnson substantiate the framers' fears, the Nixon situation vindicates the utility of the impeachment procedures. Notice how different the Nixon proceedings were from Tyler's and Johnson's. As the Nixon impeachment process unfolded, there was broad bipartisan consensus each step of the way.
While it would be foolish to believe that Members of Congress did not worry about the partisan political repercussions of their actions, such factional considerations did not dominate decision making.
Political friends and foes of the president agreed that the charges against the president were serious, that they warranted further inquiry and, once there was definitive evidence of serious complicity and wrongdoing, a consensus emerged that impeachment should be invoked. The president resigned after the House Judiciary Committee voted out articles of impeachment by a 28-10 vote.
For me, several lessons stand out from our constitutional understanding of the impeachment process and our historical experience with it. Furthermore, I believe that a consensus has developed on several important points.
While the founders included impeachment powers in the Constitution, they were concerned by the potential partisan abuse. We should be no less aware of the dangers of partisanship. As we have seen, the process functions best when there is a broad bipartisan consensus behind moving ahead. The country is not well served when either policy disagreements or personal animosities drive the process.
Many scholars who have studied the Constitution have concluded that it should be reserved for offenses that are abuses of the public trust or abuses that relate to the public nature of the President's duties. Remember, what is impeachable is not necessarily criminal and what is criminal is not necessarily impeachable: [Speech, 10/2/98]
* * * * *
I am here today to call for bipartisanship in the impeachment process. It is a concept many will say they agree with. But actions speak louder than words.
The framers of the Constitution knew that the greatest danger associated with impeachment was the presence of partisan factions that could dictate the outcome.
It is clear from the debates and from the commentaries on the Constitutional Convention that the framers were concerned that anything less than bipartisanship could, and would, do great damage to our form of government. They knew that to contemplate an action as profound as undoing a popular election requires at a
minimum that members of both parties find that the alleged wrong is grave enough to overturn the will of the majority of the American people.
The framers also understood the sentiment expressed nearly 200 years later by Congresswoman Barbara Jordan during the impeachment proceedings of Richard Nixon.
She said, `it is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.'
But the current debate is guided by faction, not reason. One example: The House Judiciary Committee this month heard a battery of witnesses address the question of what is an impeachable offense. Democrats called legal experts who testified that the President's acts are not impeachable offenses, and Republicans called witnesses who were just as certain they were. By the end of the hearing, anyone listening would have the overwhelming impression that there was no consensus in the legal community on the issue, that it was an open question.
Yet the vast majority of historians and legal scholars have concluded--and stated publicly--that nothing that President Clinton has been accused of rises to the level of an impeachable offense. The hearing was a political charade. We are told that ultimately, this is a political process. Ultimately, it is. The question is whether it is going to be a fair process. I argue that it can, and must be fair.
In his marvelous book on the impeachment process, published while the country was in the throes of President Nixon's Watergate troubles, Professor Charles Black alerted us to the danger of partisanship.
Because the constitution and its history provide us with more questions about impeachment than answers, he said, `it is always tempting to resolve such questions in favor of the immediate political result that is palatable to us, for one can never definitely be proved wrong, and so one is free to allow one's prejudices to assume the guise of reason.'
Black was echoing Alexander Hamilton, who warned in Federalist 65 that impeachments:
`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. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on the one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of guilt or innocence.'
I don't think I am being partisan myself in warning about the risks of partisan excess. As a 32 year-old Senator, I expressed this same concern about the fate of a Republican President. On April 10, 1974, I rose on the floor of the United States Senate and said:
`In the case of an impeachment trial, the emotions of the American people would be strummed, as a guitar, with every newscast and each edition of the daily paper in communities throughout the country.
The incessant demand for news or rumors of news--whatever its basis of legitimacy--would be overwhelming. The consequential impact on the federal institutions of government would be intense--and not necessarily beneficial. This is why my plea today is for restraint on the part of all parties involved in the affair.'
I make the same plea for restraint today. And while the circumstances surrounding these two events are starkly different, the consequences for our Nation are the same. The gravity of removing a sitting president from office is the same today as it was twenty-four years ago.
The American people understand that the consequences of impeaching a sitting President are grave and, thus far, they have shown a remarkable restraint--more than some of the pundits and experts. But I believe they have reached two clear conclusions: Congress should resolve the matter expeditiously and resolve the matter in a fair and non-partisan manner.
These conclusions have great significance to the impeachment process. I believe the American people will ultimately make their judgment about the proceedings and the outcome based in part, on whether the House Judiciary Committee votes along strict party lines and whether the House of Representatives acts in a similar manner.
That may not be fair, but I believe that is how they will judge it. Therefore, it seems clear to me that for history's sake, and with the Committee's legacy in mind, Chairman Hyde and the Republican majority in the House must bend over backwards to demonstrate that they have conducted this proceeding based on principle, not politics.
There is yet another issue where public opinion comes into play. That is the question of whether the President's transgressions warrant impeachment. We know from survey after survey that the American people believe the President's actions do not justify impeaching him.
Should that have any bearing on the outcome? Many of my colleagues say they will ignore public opinion. In most cases, this is a sound position for a member of Congress to take. When we are elected to the House and the Senate, we are sent here to exercise judgment, not simply to be weathervanes that shift with the political winds. The fact that this is an impeachment proceeding doesn't change that--it makes it even more important that we exercise our best judgment.
But I believe it is a serious mistake to take the position that public opinion should have no bearing on how we act and what we do. Let me explain. Many people--and many legal scholars--have said that impeachment should be reserved for grave breaches of the public trust. Surely, if we are trying to decide whether an offense is a breach of the public trust, it is important to know what the public thinks. If the American people think the President's actions do not warrant impeachment, we should listen to their views, and take them seriously.
It would be a serious mistake to ignore public opinion for another, more fundamental reason. This is their President we are talking about. The President of the United States doesn't serve at the pleasure of the legislature, as a prime minister does in a parliamentary system. He is elected directly by the people of the United States.
The election of a President is the only nationwide vote that the American people ever cast. That is a big deal. If the American people don't think they have made a mistake in electing Bill Clinton, we in the Congress had better be very careful before we upset their decision.
This was brought home to me several weeks before the elections at a filling station in Wilmington. The woman working the cash register looked up at me with something of a scowl on her face. I assumed--incorrectly, it turned out--that she had voted against me the last time I ran. She said, `You're Joe Biden, aren't you?' I nodded. She said, `What are you going to do to President Clinton on this Lewinsky thing?' I started to give her a noncommital answer about the process needing to go forward, but she brought me up short. `Don't you or anyone else take my vote away, Joe. He's my President! If you remove him, I will never vote again.'
This woman--and the American people--understand the genius of the American system in their bones. They know that the Congress and the President are separate branches of government. They understand that each branch is responsible to them, not to the other branch of government. Just as they know that the Senators from their state are theirs, and the Representative from their district is theirs, they know that the President is theirs, too.
Anyone who wants to impeach Bill Clinton needs to keep in mind what the American people think about it, because he is their President.
Let me be absolutely clear. This does not mean just doing what the opinion polls say. It means proceeding in a manner that the American people understand to be fair. In the case of an impeachment, fair means bipartisan. It means putting aside the disagreements that stem from partisan factions. The time for partisan factions to play a role is in the process of elections, where candidates advance competing policies and platforms and the people vote. Once the election is held, our leaders hold office until the next election. It is simply antithetical to our constitutional democracy to use impeachment to overturn an election on partisan grounds. It violates the independence of the Presidency and it usurps the people's voice.
The Framers saw this danger when they wrote the impeachment power into the Constitution. Hamilton warned that an impeachment would `connect itself with pre-existing factions,' just as Black much later saw that impeachment was an occasion for `prejudices to assume the guise of reason.'
So those who wish to proceed with impeachment in the face of the public's contrary opinion bear a special obligation and confront a special risk. The obligation they face is that they must proceed in a bipartisan manner, so that we can defend the Congress's actions as fair and consistent with the constitutional framework--so that if impeachment goes forward, those who support it can look my constituent, or their constituent, straight in the eyes and defend the process as fair and just.
Should they fail to do this, the risk they face is the chance that they will inflict more damage on our system of government and induce more cynicism and disgust with politics than anything the President has done so far.
So we must be prudent. Otherwise we will succumb to the danger the Framers warned against. We will subject the President to what amounts to a vote of no confidence. If you disapprove of his presidency and its policies, or if you do not like the man, vote to impeach. If, on the other hand, you support his presidency and his policies, or if you do like the man, vote to acquit. But that is not our system of government.
When Benjamin Netanyahu returned home after signing the Wye accords, he faced a vote of no confidence. If he had lost, he would have been out of office and another government would have to be formed.
That is simply not our system of government. Ours is not a parliamentary system. That is not how impeachment is supposed to operate.
Reflect for just a moment on how different our government is. Here, the President and the Congress are separate branches of government. Each is elected directly by the people. The President and Vice President are the only officials elected by ALL the people. Through the electoral process, they answer to all the people. In such a system, a vote of no confidence, as a means of removing the head of government when the Congress disapproves of his leadership, contradicts the theory of separated powers. It would trample on the choice made by the people through the electoral process.
This is no small matter. It goes to the heart of the constitutional design. As Jack Rakove, the Stanford historian, noted during the recently held House hearings on the standard for impeachment, the prevailing principle that guided the Framers in shaping the institution of the Presidency during the Philadelphia Convention, the one major goal and idea that best explains how that office took shape over the summer of 1787, was their intention on `making the presidency as politically independent of the Congress as they could.'
The Framers saw the system of separated powers and checks and balances as a bulwark in support of individual liberty and against government tyranny. The separation of powers prevents government power from being concentrated in any single branch of government. Permit one branch of government to subjugate another to its partisan wishes, and you permit the kind of concentration of power that can lead to tyranny.
So the system the Framers established is utterly incompatible with the idea that sharp partisan divisions could be sufficient to impeach. Preserving our system, with its checks and balances and separation of powers, ought to be part of our consideration as we attempt to resolve the current controversy.
How do we ensure that impeachments do not become the partisan showdowns that the Framer's warned about? The answer is both simple and elusive. The only thing that prevents the impeachment power from being abused is the good faith of Members of Congress.
Professor Black proposed a simple test. He said that for the purposes of impeachment, members take off their party's hat--shed their partisan identity--and then try to take on the identity of a member of the other party. In other words, Republicans who favor Clinton's impeachment should try to pretend they are Democrats, and see if they still hold that same conclusion. Democrats who scoff at impeachment in the present instance should try to see it from the Republican's point of view.
It is very difficult to perform this test, especially in the highly charged partisan atmosphere in which we live, but you get the point. Before we undertake such a solemn act as impeachment, we should examine our reasoning very carefully to be sure we are not simply following partisan instincts.
Impeachment can be legitimate if and only if it emanates from a bipartisan
conviction that the president has committed high crimes and misdemeanors--when people of opposing viewpoints can come together in agreement over the seriousness of the offense and the appropriateness of the sanction.
Partisanship need not disappear entirely--that would be impossible. It simply must be held in check for a time--a few weeks, perhaps a month--and by a relatively small number of people, so that a bipartisan consensus can take shape.
Look back at the Nixon impeachment. It took on legitimacy when a core of Republicans on the House Judiciary Committee were moved by the nature of President Nixon's offenses to break party ranks and vote for articles of impeachment. In the Senate, it was the stark reality of eroding Republican support that prompted President Nixon to resign. There was bipartisan consensus that what Nixon did was impeachable.
Partisanship did not evaporate entirely during the impeachment trial of Andrew Johnson. In fact, the entire episode was riddled with partisanship, and overall it stands as an excellent example of how not to conduct an impeachment.
Still, seven Republican Senators did vote with the Democrats for acquittal, shedding their partisan preferences, to prevent that impeachment from succeeding. It took only that amount of bipartisanship to save the country from an impeachment that most people--in retrospect--have concluded would have been a terrible mistake. The fact that a conviction in the Senate requires a two-thirds majority guarantees a measure of necessary bipartisanship except in all but the most lopsided Senates.
But bipartisanship should not wait until the matter reaches the Senate chamber. In previous impeachments the votes in both the House and the Senate have been by overwhelming majorities. In the past, except for the Johnson impeachment, the only times articles of impeachment reached the floor were in cases of tremendous bipartisan consensus that the offenses satisfy the constitutional standard and that the officer ought to be removed.
As for the Johnson impeachment itself, according to James Blaine, one of the Republican House members who voted for impeachment, he and others came in time to regret the effort. In private correspondence, Blaine wrote that, `the sober reflection of after years has persuaded many who favored impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict.'
The conclusion I reach is this. The burden is, as it always has been, on those who seek to impeach and convict a President. To overturn a popular election, they must convince the American people and at least some in the President's party that the President's actions meet the high standard for impeachment settled upon by our founders in the Constitution.
This is what I mean by bipartisanship.
The standard is `principled political neutrality.'
And one measure of whether a member has met that principle is to ask in Professor Black's words: `Would they have answered the same question the same way if it came up with respect to a president towards whom [they] felt oppositely from the way [they] feel toward the President threatened with removal.'
The American people will know whether each member met that test. They will not demand unanimity, but they will demand consensus.
Thus far, the House Judiciary Committee has proceeded without dignity, causing the American people to lose respect for the Committee.
As a result, the burden of demonstrating that they are proceeding with a standard of `principled political neutrality' will be politically difficult to meet.
Ken Starr will make his case, the President should be allowed to make his. Then let them decide if the President's conduct meets the test of what the framers had in mind by `high crimes and misdemeanors.'
The choice is not whether the President's self-evidently shameful and possibly criminal conduct must be punished by impeachment or be condoned. The choice is whether the process for dealing with his conduct is removal from office or some other means--censure, or perhaps even a criminal trial after he has left office.
To those who say that failure to bring articles of impeachment against the President would amount to condoning his immoral behavior or overlooking a criminal act, notwithstanding the fact it does not meet the test of an impeachable offense, I say they do not understand our system of government. For the Constitution contemplates and the law provides for such a circumstance--it is called a criminal trial after his term is served. It is a way to punish the President without doing damage to the system of separated powers or overruling the judgment of the American people.
Failure to impeach, even failure to proceed with a criminal action, does not mean that the President has not paid for his immoral behavior--he has already been sentenced to a hundred years of shame in the history books, which is not an insignificant penalty.
So I say to my colleagues in the House, do your duty. Proceed with principled political neutrality. For if you do, history will judge you kindly. And if you do not, it will judge you harshly.
And for those of us who hold high public office and the public trust, history is a judge: [Speech, 11/18/98]
BURDEN OF PROOF
What is the standard of proof? The Constitution does not set forth an express standard of proof that the evidence must meet in order to allow the Senate to convict the president. Practice has left to each Senator to determine for him or herself what standard to apply.
From the judicial setting there are three major standards from which to choose. Most civil trials require a plaintiff to prove his or her case by a preponderance of the evidence. This means that the plaintiff must prove that it is more likely than not that the plaintiff's assertions are true. Criminal trials require the most exacting degree of proof. The prosecution must prove the defendant's guilt beyond a reasonable doubt. A third, middle course is applied in some cases. This standard, clear and convincing evidence, requires proof that substantially exceeds a mere preponderance but that does not eliminate all reasonable doubt. There must be a very high degree of probability that the evidence proves what the plaintiff asserts, but the proof may fall short of certainty.
Many Senators, analogizing to a criminal trial, have expressed that they would require the House Managers to prove their case `beyond a reasonable doubt.' In anticipation of an impeachment trial of President Richard Nixon, Senators Sam Ervin, Strom Thurmond, and John Stennis all declared that they would apply the beyond a reasonable doubt standard. But it is clear that individual Senators may opt for a civil standard.
This issue may not have more than rhetorical significance for the impeachment trial of President Clinton. These standards are meant to guide juries in their fact-finding capacity. Insofar as the trial focuses on the question whether the President's conduct justifies conviction and removal from office, the proceedings will call on the Senate in its judicial character. Resolving that question requires the Senate to exercise its legal and political judgment in order to determine whether the constitutional punishment fits the misconduct. It does not call upon the Senate to make a factual determination about what conduct actually occurred: [Memorandum, 12/28/98]
* * * * *
THE BURDEN OF PROOF IN ASSESSING THE HOUSE'S CASE
But can the President rightly be charged with having committed the massive number of crimes that the House Managers allege? As Mr. McCollum said, if we cannot conclude that the President has violated the law, even the House Managers would agree that he should not be removed from office. Even if you accept their recitation of the dire consequences of President Clinton remaining in office, if the President cannot be shown to have been a serial perjurer and a massive obstructor of justice, the Senate should acquit.
What standard of proof should a Senator apply in deciding whether the record supports these charges? Both the House Managers and the President's counsel addressed this significant issue. The House Managers quite correctly pointed out that the Senate has never sought to determine for the entire body what that burden of proof should be in an impeachment. In effect, we have left it to the good judgment of each Senator to decide whether or not they are convinced by the evidence presented to us.
For this Senator, fundamental fairness as well as the nature of the House's case indicate that I ought to be convinced beyond a reasonable doubt that the President violated the laws that the House alleges. Proof beyond a reasonable doubt is the same standard applied in criminal cases--it is the standard that would apply if the President were tried in a criminal court for perjury or obstruction of justice.
It seems to me that fundamental fairness counsels that I apply the same standard a criminal court would apply precisely because the House asserts that what makes his actions impeachable is that he has violated the criminal statutes regarding perjury and obstruction of justice. It strikes me as absurd that the Senate would have the arrogance to throw out a duly elected President on these grounds unless it was convinced that he would be convicted of those charges. Otherwise, we would be saying in effect that even though the President would not be convicted on these crimes, we are nevertheless throwing him out of office because he committed those crimes. Someone else can try to explain the logic of that decision to the voters, but not me.
In addition, the standard of proof beyond a reasonable doubt seems to me compelled by the fact that in the House's explanation of the harm to our system of government if the President is not thrown out, their entire argument rises and falls depending upon whether or not the President would be convicted in a court of law for the crimes alleged. If he could not be convicted in a court of law, then the Senate is not `condoning' perjury or obstruction of justice any more than a criminal court is condoning those crimes when someone is acquitted on such charges. The Senate, like a court, is simply saying, `not proven.' But if the Senate is not condoning those crimes, there is no conceivable basis for concluding that the public will be harmed by the President's remaining in office.
[There is another way to look at this: In any impeachment, a Senator must simply be convinced to his or her satisfaction that the defendant committed the acts alleged. That standard never changes. However, when the articles of impeachment allege that offenses rise to an impeachable level because these actions violate the law and have harmful consequences to the country because the defendant has violated the law and would not be punished, in that case a Senator must be convinced that a defendant would in fact be punished by a criminal court. In other words, the Senator must simply be convinced that a court would find that there is proof beyond a reasonable doubt.
In contrast, if the charges were that the president had lied to the American people, the Congress or foreign leaders, and that the harmful consequences flowed from being unable to rely upon his word, then a Senator must simply be convinced that the President lied, relying upon whatever level of proof is sufficient to convince him or her of that fact.]--[Memorandum, 1/21/98]
CENSURE
In recent days, some have suggested that because the Starr report provides prima facie evidence of what are arguably impeachable offenses, the House and the Senate have a constitutional responsibility to see the impeachment process through to its conclusion. In my view, the constitutional history that I have sketched here this evening shows this position to be entirely mistaken. Indeed, if anything, history shows a thoroughly understandable reluctance to have the procedure invoked.
Stopping short of impeachment would not be reaching a solution `outside the Constitution,' as some suggest--it would be entirely compatible and consistent with the Constitution.
The 28th Congress [which contemplated but then terminated impeachment proceedings against President Tyler] hardly violated its constitutional duty when the House decided that, all things considered, terminating impeachment proceedings after cooperation between the Congress and the President improved was a better course of action than proceeding with impeachment based on his past actions, even though it apparently did so for reasons no more laudable than those that initiated the process.
Impeachment was and remains an inherently political process, with all the pitfalls and promises that are thus put into play. Nothing in the document precludes the Congress from seeking means to resolve this or any other putative breach of duty short of removing him from office. In fact, the risky and potentially divisive nature of the impeachment process may counsel in favor of utilizing it only as a last resort.
Of course, impeachment ought to be used if the breach of duty is serious enough--what the Congress was prepared to do in the case of Richard Nixon was the correct course of action. However, nothing in the Constitution precludes the congress from resolving this conflict in a manner short of impeachment.
The crucial question--the question with which the country is currently struggling--is whether the President's breaches of conduct--which are now well-known and which have been universally condemned--warrant the ultimate political sanction. Are they serious enough to warrant removal?
In answering that, we need to ask ourselves, what is in the best interest for the country?
And while I have not decided what ultimately should happen, I do want to suggest that it is certainly constitutionally permissible to consider a middle ground as a resolution of this matter. Such an approach might bring together those of the President's detractors who believe there needs to be some sanction, but are willing to stop short of impeachment, as well as those of the President's supporters who reject impeachment, but are willing to concede that some sanction ought to be implemented.
As a country, we have not often faced decisions as stark and potentially momentous as the impeachment of a president. On the other hand, we would be wise not to overstate such claims--surely we have faced some moments just as stark and serious as this one. We have survived those moments, and we will survive this one.
Whatever the outcome of the present situation, I am confident that our form of government and the strength of our country present us not with any constitutional crisis, but rather with the constitutional framework and flexibility to deal responsibly with the decisions we face in the coming months: [Speech, 10/2/98]
CRIMES AND MISDEMEANORS, HIGH
Let me say at the outset, that what President Clinton did was reprehensible. It was a horrible lapse in judgment and it has brought shame to him personally and to the office of the president. His actions have hurt his family, his friends, his supporters and the country as a whole. President Clinton has said this himself.
Let me also say that I have not made any decision as to what I think should happen. I have not come to any conclusion as to what consequences the President should face for his shameful behavior. I believe the oath I have taken precludes me and other Senators from prejudging, as I may be required to serve as a judge and juror in the trial of the century.
I can only make an assessment after hearing all of the evidence: evidence against the President, and evidence in support of the President.
No one knows how this will turn out. However, I have given the topic some thought and would like to explore some of the issues that surely will confront responsible Members of Congress and all Americans as we enter this difficult period in our history.
The framers of the Constitution who met in Philadelphia in the summer 1787 considered offering the country a constitution that did not include the power to impeach the president. After all, any wrongs against the public could be dealt with by turning the president out in the next election.
One delegate to the constitutional convention, Charles Pinckney of South Carolina, worried that the threat of impeachment would place the president under the thumb of a hostile congress, thereby weakening the independence of the office and threatening the separation of powers. According to James Madison's notes, Pinckney called impeachment a `rod' that congress would hold over the president.
In being reluctant to include an impeachment power, the framers were not trying to create an imperial presidency. In fact, what they were worried about was protecting all American citizens against the tyranny of a select group.
In their view, the separation of powers constituted one of the most powerful means for protecting individual liberty, because it prevented government power from being concentrated in any single branch of government. To make the separation of powers work properly, each branch must be sufficiently strong and independent from the others.
The framers were concerned that any process whereby the legislative branch could sit in judgment of the president would be vulnerable to abuse by partisan factions. Federalist No. 65 begins its defense of the impeachment process by warning of the dangers of abuse. It argues that impeachments:
`Will seldom fail to agitate the passions of the whole community, and to divide them into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of guilt or innocence.'
So the framers were fully aware that impeachment proceedings could become partisan attacks on the president--charged with animosities generated by all manner of prior struggles and disagreements, over executive branch decisions, over policy disputes, over resentment at losing the prior election. Federalist No. 65 expresses the view that the use of impeachment to vindicate these animosities would actually be an abuse of that power.
This sentiment is as true today as it was when the constitution was being written. It was also true when Richard Nixon faced impeachment in 1974. In fact, it would have been wrong for Richard Nixon to have been removed from office based upon a purely partisan vote. No president should be removed from office merely because one party enjoys a commanding lead in either house of the congress.
Yet while the framers knew that impeachment proceedings could become partisan, they needed to deal with strong anti-federalist factions.
The anti-federalists strenuously argued that the federal government would quickly get out of step with the sentiments of the people and become vulnerable to corruption and intrigue, arrogance and tyranny. This charge proved close to fatal as the ratifying conventions in the states took up the proposed constitution.
The framers of the Constitution knew that the Constitution would have been even more vulnerable to charges of establishing a government remote from the people if the president were not subject to removal except at the time of re-election.
James Madison's notes of the Philadelphia constitutional convention record his observations of the debate. He:
`Thought it indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the chief magistrate [that is, the president]. 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 speculation or oppression. He might betray his trust to foreign powers.'
So in the end, the framers of the Constitution risked the abuse of power by the congress to gain the advantages of impeachment.
Once the decision to include the power of impeachment had been made, the remainder of debate on the impeachment clauses focused on two issues:
1. What was to constitute an impeachable offense or what were the standards to be?
2. How was impeachment to work or what were the procedures to be?
As we shall see, the framers proved unable to separate these two issues entirely. Understanding how they are intertwined, however, helps us to understand the full implications of the power.
The Constitution provides that `the House of Representatives shall. . . have the power of impeachment.' (Article I, Section 2, Clause 5).
The framers decision that the House of Representatives would initiate the charges of impeachment follows the pattern of the English Parliament--where the House of Commons initiates charges of impeachment. Beyond this, the choice must have seemed fairly compelled by two related considerations.
The first, already mentioned, was the need to provide the people as a whole with assurances that the government they were being asked to create would be responsive to the interests and concerns of the people themselves.
The second was the framer's substantive understanding of the impeachment power. It was a power to hold accountable government officers who had, in Hamilton's terms, committed `an abuse or violation of some public trust' thereby committing an injury `done immediately to the society itself.'
If the gravamen of an impeachment is the breach of the public's trust, no branch of the federal government could have seemed more appropriate to initiate such a proceeding than the House, which was conceived and defended as the chamber most in tune with the people's sympathies and hence most appropriate to reflect the people's views.
The Constitution further provides that the president shall be `removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.' (Article II, Section 4).
This language went through several changes during that summer of 1787. In initial drafts, the grounds for impeachment were restricted to treason and bribery alone. When the matter was brought up on September 8, 1787, George Mason of Virginia inquired as to why the grounds should be restricted to these two provisions.
He argued that `attempts to subvert the constitution may not be treason as above defined.' Accordingly, he moved to add `maladministration' as a third ground.
James Madison objected to Mason's motion, contending that to add `so vague a term will be equivalent to a tenure during the pleasure of the senate.' Here again, we see the worry that impeachment would be misused by the congress to reduce the independence of the president, allowing partisan factions to interfere at the expense of the larger public good.
The objection apparently proved effective because mason subsequently withdrew the motion and substituted the phrase `or other high crimes and misdemeanors.'
What does the phrase mean? It is clear the framers thought it to be limited in scope. But beyond this, constitutional scholars have been debating the meaning of this phrase from the very early days of the republic.
Yet despite this on-going dialogue, I believe there are two important points of agreement as to the original understanding of the phrase, and a third issue where the weight of history suggests a settled practice.
First, as we have already seen, the framers did not intend that the president could be impeached for `maladministration" alone.
Second, a great deal of evidence from outside the convention shows that both the framers and ratifiers saw `high crimes and misdemeanors' as pointing to offenses that are serious, not petty, and offenses that are public or political, not private or personal.
In 1829, William Rawle authored one of the early commentaries on the Constitution of the United States. In it, Rawle states that `the legitimate causes of impeachment. . . can only have reference to public character and official duty.'
He went on to say, `in general, those offences which may be committed equally by a private person as a public officer are not the subjects of impeachment.'
In addition, more than one hundred fifty years ago, Joseph Story, in his influential Commentaries on the Constitution, stated that impeachment is:
`Ordinarily' a remedy for offenses `of a political character,' `growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.'
The public character of the impeachment offense is further reinforced by the limited nature of the remedy for the offense. In the English tradition, impeachments were punishable by fines, imprisonment and even death. In contrast, the American constitution completely separates the issue of criminal sanctions from the issue of removal from office.
The Constitution states that `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.' (Article I, Section 3, Clause 7).
The remedy for violations of the public's trust in the performance of one's official duties, in other words, is limited to removal from that office and disqualification from holding future offices. Remedies that I might add, correspond nicely to the public nature of the offenses in the first instance.
Additional support comes from yet another commentator, James Wilson, a delegate to the convention from Pennsylvania. In his lectures on the Constitution, Wilson wrote that `in the United States and Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.'
All in all, the evidence is quite strong that impeachment was understood as a remedy for abuse of official power, breaches of public trust, or other derelictions of the duties of office.
The third point to make about the scope of the impeachment power is this: to be impeachable, an offense does not have to be a breach of the criminal law.
The renowned constitutional scholar and personal friend and advisor, the late Phillip Kurland, wrote that `at both the convention that framed the constitution and at the conventions that ratified it, the essence of an impeachable offense was thought to be breach of trust and not violation of the criminal law. And this was in keeping with the primary function of impeachment, removal from office.'
If you put the notion that an impeachable offense must be a serious breach of an official trust or duty, together with the point that it does not have to be a criminal violation, you reach the conclusion that not all crimes are impeachable, and not every impeachable offense is a crime. [Speech, 10/2/98]
* * * * *
Reference has been made to an exchange between George Mason and James Madison at the Virginia Ratifying Convention. Mason is reported to have worried that a president might `stop [an] inquiry' into wrongdoing involving the president. Madison is reported to have replied that this concern was not substantial because the House of Representatives could impeach the president if he did so. The exchange, it has been argued, proves that the Framers viewed obstruction of justice as clearly an impeachable offense.
A more extended look at the colloquy shows that Mason's precise concern was that the President would use his pardon power to pardon people whose investigations might reveal presidential involvement in criminal activities. Mason used this concern as the basis for arguing that the pardon power should be placed in the House, and not with the President. To this concern, Madison replied that if the President so abused the pardon power, he could be impeached. So it was an action that abused an official power of the President that Madison thought was impeachable.
Here is a condensed version of the exchange as reported in Eliot's Debates.
Mr. GEORGE MASON, animadverting on the magnitude of the powers of the President, was alarmed . . . Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?
Mr. MADISON, adverting to Mr. Mason's objection to the President's power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate. . . . There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him. . . . This is a great security.' [Memorandum, 2/9/99]
* * * * *
II. THE MEANING OF `HIGH CRIMES AND MISDEMEANORS' UNDER THE CONSTITUTION
The Constitution establishes that the President `shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.' That instrument, by design, does not contain an express definition of the phrase `other high Crimes and Misdemeanors.' The framers intended the Constitution to endure for centuries and recognized that they could not provide a more specific definition that would justly serve the nation's interest into an unknowable future. Instead, they wisely entrusted the construction and adaptation of that phrase to the judgment and conscience of the people's chosen representatives in Congress. Thus, the Senate is left to exercise what Alexander Hamilton termed our `awful discretion' to judge whether the President's conduct warrants removing him from office.
While the Constitution calls upon each Senator to bring his or her good faith political judgment to bear on the meaning of the constitutional standard of `other high Crimes and Misdemeanors,' it does not abandon us to an ad hoc or partisan exercise of our discretion. Indeed, the framers strongly urged in both the Philadelphia convention and the state ratifying conventions that the constitutional standard is not properly understood to allow impeachment to be used as a tool of partisan punishment. The Constitution itself, the history of its framing and ratification, and the construction given through faithful interpretation and practice since its ratification converge to provide powerful guidance for determining what offenses justify impeachment and conviction. These touchstones of constitutional interpretation reveal that high crimes and misdemeanors are great offenses characterized by two elements: (1) grave harm to the constitutional system of government that (2) results from official misconduct.
A. THE HISTORY OF IMPEACHMENT
The framers met in Philadelphia in 1787 because the government under the Articles of Confederation was so ineffectual as to have brought the fledgling union to `the last stage of national humiliation.' They intended to establish a government through which the people could effectively define and pursue the general welfare. To do so, the framers understood that the government whose charter they were about to write would have to be entrusted with broad coercive powers to act directly upon American citizens. At the same time, the framers were practical statesmen who understood that the powers necessary to make a government effective could be misused make it potentially an instrument of oppression. Madison explained the dilemma:
`If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.'
To meet this potential threat to liberty, the framers divided the federal government into three co-equal branches and further divided the legislative branch into two houses in order to require the concurrence of the branches before the government's coercive power could be brought to bear on the people. Thus, while Article 1, Section 1 of the Constitution vests the legislative power in Congress, this power is subject to presidential veto and judicial review for constitutionality. Executive action generally requires a legislative basis or appropriations or other legislative support and is subject to judicial review.
Finally, the establishment and jurisdiction of the federal courts generally depends upon legislative authorization, subject again to presidential veto. Within this structure each branch is to be independent and is `armed' to defend itself against encroachments by the others. As Justice Robert Jackson observed, `the Constitution diffuses power the better to secure liberty . . . . It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.'
Maintaining the independence of the three branches of government dominated the debates regarding impeachment at the Constitutional Convention. Initially, the framers considered offering the country a constitution that did not include the power to impeach the president. After all, any wrongs against the public could be dealt with by turning the president out in the next election. One delegate to the constitutional convention, Charles Pinckney of South Carolina, worried that the threat of impeachment would place the president under the thumb of a hostile congress, thereby weakening the independence of the office and threatening the separation of powers. According to James Madison's notes, Pinckney called impeachment a `rod' that congress would hold over the president.
In being reluctant to include an impeachment power, the framers were not trying to create an imperial presidency; they were concerned about protecting all American citizens and the nation as a whole. In their view, the separation of powers constituted one of the most powerful means for protecting individual liberty, because it prevented government power from being concentrated in any single branch of government. To make the separation of powers work properly, each branch must be sufficiently strong and independent from the others.
The framers' worry was largely animated by the concern that any process whereby the legislative branch could sit in judgment over the president would be vulnerable to abuse by partisan factions. Federalist No. 65 begins its defense of the impeachment process by warning of its potential for abuse. It argues that impeachments:
`Will seldom fail to agitate the passions of the whole community, and to divide them into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of guilt or innocence.'
The framers were fully aware that impeachment proceedings could become partisan attacks on the president charged with animosities generated by all manner of prior struggles and disagreements over executive branch decisions, over policy disputes, over resentment at losing the prior election. Federalist No. 65 expresses the view that the use of impeachment to vindicate these animosities would actually be an abuse of that power.
Although the framers were concerned about impeachment proceedings becoming partisan, they needed to deal with strong anti-federalist factions. They were very aware that the anti-federalists strenuously urged that the federal government would quickly get out of step with the sentiments of the people and would become vulnerable to corruption and intrigue, arrogance and tyranny. This charge proved close to fatal as the ratifying conventions in the states took up the proposed constitution. The
framers of the constitution knew that the constitution would have been even more vulnerable to charges of establishing a government remote from the people if the president were not subject to removal at all except at the time of re-election.
James Madison's notes of the Philadelphia Constitutional Convention record his observations of the debate where he:
`Thought it indispensable that some provision should be made for defending the community against 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 speculation or oppression. He might betray his trust to foreign powers.'
So in the end, the framers of the constitution risked the abuse of power by the Congress to gain the advantages of impeachment.
B. THE CONSTITUTION'S TEXT AND STRUCTURE
The Constitution does not define impeachable offenses, yet its text and structure provide clear manifestation that these words refer to official misconduct causing grave harm to our constitutional system of government. The starting point for any analysis of the Constitution's meaning must be its text, which in relevant part reads, `the President . . . shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.'
Here, the text sets forth a list that begins with terms that have definite meaning (treason, which is defined in the Constitution itself, and bribery, whose definition was fixed at common law) and proceeds to relatively indefinite terms, high crimes and misdemeanors. In this setting, two rules of construction, ejusdem generis and noscitur a sociis, instruct that the meaning of the indefinite terms are to be understood as similar in kind to the definite terms. Application of these canons of construction is bolstered here by the text itself. The indefinite element, `high Crimes and Misdemeanors,' is introduced by the term `other.' This specifically refers the reader back to the preceding definite terms, treason and bribery, as supplying the context and parameters for the meaning of the indefinite phrase, `high Crimes and Misdemeanors.'
Every criminal offense, including such trivial infractions as parking offenses, involves public or societal harm. It is for this reason that criminal cases are titled, `The State versus . . .' or `The Government versus. . . .' Each of the definite impeachable offenses, treason and bribery, are distinct in that they cause grave harm to the public not in some undifferentiated sense but in a way that strikes directly at our system of constitutional government. The Constitution defines treason as `levying War against [the United States] or in adhering to their Enemies, giving them Aid and Comfort,' which plainly involves the most serious offense against our system of government. Similarly, bribery inescapably involves a serious subversion of the processes of government. In describing the common characteristics of treason and bribery, Professor Charles Black of Yale Law School explained that each offense `so seriously threaten[s] the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.'
Furthermore, Professor Edwin Corwin quoted with approval the statement of Justice Benjamin Curtis who said in defense of President Andrew Johnson that `treason and bribery . . . these are offenses which strike at the existence of [the] government. `Other high crimes and misdemeanors.' Noscitur a sociis. High crimes and misdemeanors; so high that they belong in this company with treason and bribery.'
In this constitutional setting, the terms treason and bribery take on a second distinctive aspect. As used in Article II, Section 4, each term involves official misconduct. Bribery, by definition, occurs only where a public official undertakes an official act in return for payment or some other corrupt consideration. Likewise, treason necessarily involves official misconduct in the impeachment context. To be sure, it is possible for a private citizen to commit treason by giving aid and comfort to the enemies of the United States. It must be remembered that impeachment proceedings may be pursued only against civil officers of the United States. By limiting impeachable treason to civil officers, the Constitution expressly contemplates that treason will provide a grounds for impeachment and conviction only where a civil office is used to adhere to or aid the enemies of the United States.
The textual construction expressed above--that high crimes and misdemeanors refer to grave harms to our constitutional system of government that result from official misconduct--comports with and draws significant support from the Constitution's structure. First, the structure reflects the framers' conscious decision not to adopt a parliamentary system of government, in which the executive power is subordinate to and controlled by the legislature. The structure also reflects the framers' judgment that the executive branch not be accorded primacy; their experience with the tyranny of the British monarchy was too recent to have permitted them to accept executive supremacy. Instead, the Constitution establishes three branches that are independent, strong, and co-equal. Construing the category of high crimes and misdemeanors too broadly would threaten the independence of the executive and judicial branches. This specific concern animated James Madison in the Philadelphia Convention and moved him to object to vague and potentially expansive formulations of the grounds upon which the President could be impeached and removed from office.
The formulation of high crimes and misdemeanors must be understood as consistent with the Constitution's overall structure. In as much as the Constitution's structure specifically rejects the parliamentary form, the power of impeachment and removal must be construed and exercised in a way that respects this fundamental constitutional judgment. Understanding the grounds for impeachment to be limited to cases of official misconduct that cause serious harm to our system of government allows the Congress to protect the public against oppressive official action without undermining the necessary independence of the President or the judiciary.
The Constitution's structure also supports limiting the category of impeachable offenses to those involving official misconduct. The constitutional separation of powers is designed to safeguard liberty against tyrannical or oppressive exercise of the government's power. In advocating the specific governmental structure erected in the Constitution, Madison repeatedly described the motivating concern to be establishing internal mechanisms, specifically the system of checks and balances, to control the federal government's power and minimize threat to the liberty of the people. This supports limiting the scope of impeachable offenses to official misconduct; that is, to conduct in which the civil officer misuses his or her official power. Other sorts of misbehavior by civil officers are simply beyond the concern of the separation of powers, of which the impeachment powers are a significant component. Indeed, the Constitution specifically provides that civil officers, including the President, remain subject to criminal prosecution and punishment for wrongdoing that does not involve official conduct.
C. HISTORY OF THE DEBATES AND RATIFICATION OF THE CONSTITUTION
Moving beyond the text and structure of the Constitution itself, the debates at the Philadelphia Convention of 1787, where the Constitution was drafted, and those in the subsequent state ratifying conventions provide important insight into the meaning of `high Crimes and Misdemeanors.' Close examination of these proceedings demonstrates that the framers gave careful consideration to Congress's impeachment powers. This consideration led them to understand the Constitution as setting forth a very narrow category of impeachable offenses.
Through most of the convention, the drafts of the Constitution denominated treason and bribery as the exclusive grounds for impeachment and removal of civil officers. In September 1787, as the convention was drawing to a close, Colonel George Mason and James Madison undertook colloquy that gave this provision its ultimate formulation. Because treason was expressly and narrowly defined in the Constitution itself, Mason was concerned that the impeachment power would not reach `great and dangerous offenses' and that `attempts to subvert the Constitution may not be treason' as defined in Article III of the Constitution. Mason moved to add `maladministration' as a catchall category. Significantly, this offense, which had been an accepted ground for impeachment in British practice, comprises exclusively official misconduct.
Madison objected to this addition, not because it was too restrictive, but because it was too vague and so potentially too expansive. He feared that `so vague a term will be equivalent to a tenure during the pleasure of the Senate.' Here again it is clear that the framers were concerned that impeachment would be misused by the Congress to reduce the independence of the President. In response Mason withdrew his own original motion and moved to add `or other high Crimes and Misdemeanors.' His motion was quickly approved.
The purpose of Mason's motions was to include all offenses that pose a threat to our system of constitutional government similarly to that posed by treason. Madison expressed the important concern that the expansion not be left so far open as to erode the essential independence of the other branches, and particularly of the President. In responding to Madison's concern, Mason must be understood to have intended to narrow a definition that already applied solely to official misconduct. The colloquy between Mason and Madison, then, strongly supports construing the phrase high crimes and misdemeanors to cover only official misconduct that threatens grievous harm to our governmental system.
Madison was not alone in his concern that Congress might use impeachment as a tool for encroachments upon the executive branch. This concern was raised in various state ratifying conventions as well. For example, in supporting the Constitution at the Pennsylvania Convention, James Wilson repeatedly assured the delegates that only `great injuries' could serve as a basis for invoking impeachment. In his lectures on the Constitution, Wilson went on to say that `in the United States and Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.' In the North Carolina Convention, several defenders of the Constitution, including James Iredell who was a delegate to the Philadelphia Convention and later became a Justice of the Supreme Court, argued that impeachment would `arise from acts of great injury to the community.' The debates surrounding ratification in New York produced the Federalist Papers. Alexander Hamilton explained that,
`[t]he subjects of [the Senate's impeachment] jurisdiction 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 with peculiar propriety may be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.'
Like Hamilton, the founding generation understood impeachment to be a political remedy for political offenses. It is important to bear in mind what they meant by `political.' They meant that which relates to government and the pursuit of the general welfare; that which involves the system of government or `society in its political character.' They specifically did not mean political in the sense of partisan which the framers affirmatively feared. Charles Pinckney, James Wilson, and Alexander Hamilton, for example, each decried construing the impeachment powers in ways that would allow these powers to be put to partisan ends. They lodged the power to try impeachments in the Senate precisely because they thought the Senate would have the necessary independence, stature, and impartiality to prevent the impeachment powers from becoming a tool of factionalism and partisanship. The framers expected that the Senate was, among government institutions, uniquely capable of fidelity to the constitutional limits partisanship that the framers understood to be implicit in the phrase high crimes and misdemeanors.
Leading constitutional scholarship of the founding era reflects the same view of the intended narrow scope of high crimes and misdemeanors. Justice Joseph Story, in his pathbreaking Commentaries on the Constitution, looked to British practice to understand the scope of impeachment in the United States Constitution. Recognizing that the U.S. Constitution intended to confine impeachment to a narrower set of offenses than those permitted under British law, he observed that even in Great Britain, `such kinds of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust are the most proper and have been the most usual ground for this kind of prosecution in parliament.' Story went on to say that impeachment is a remedy for offenses `of a political character,' `growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.'
The public character of the impeachment offense is further reinforced by the limited nature of the remedy for the offense. In the English tradition, impeachments were punishable by fines, imprisonment and even death. In contrast, the American Constitution completely separates the issue of criminal sanctions from the issue of removal from office. The Constitution states that `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.' The remedy for violations of the public's trust in the performance of one's official duties, in other words, is limited to removal from that office and disqualification from holding future offices.
Therefore, the Constitution contemplates both an impeachment and a criminal action as consequences for Presidents who commit impeachable offenses. This differs from the English model which only provides for criminal punishments after an impeachment conviction. If, however, a President engages in egregious but non-impeachable activity, the Constitution subjects the President to criminal liability. Impeachment therefore, is viewed not as a mechanism to punish a President, but rather a device to protect the populace. As Story said, impeachment proceedings are `not so much designed to punish an offender as to secure the state against gross official misdemeanors.'
Impeachment, therefore, is intended to preserve the constitutional form of government by removing from office an official who subverts the Constitution and is not intended to be a remedy for someone who breaks the law in connection with a private matter.
At least one important early treatise writer, William Rawle, concluded that only official misconduct could provide a basis for impeachment. He contended that `the causes of impeachment can only have reference to public character and official duty. . . . In general those which may be committed equally by a private person as a public officer are not the subject of impeachment.' Additional support for this proposition comes from the renowned constitutional scholar, Phillip Kurland who wrote that `at both the convention that framed the Constitution and at the conventions that ratified it, the essence of an impeachable offense was thought to be breach of trust and not violation of the criminal law. And this was in keeping with the primary function of impeachment, removal from office.' Finally, additional support for this proposition comes from the United States Department of Justice. As a legal memorandum produced by the Justice Department's Office of Legal Counsel during impeachment proceedings against President Nixon observed, `[t]he underlying purpose of impeachment is not to punish the individual, but is to protect the public against gross abuse of power.
