It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the president should be removed from office. The Constitution doesn't say that. The powers relating to impeachment are an essential check in the hands of this body, the legislature, against and upon the encroachment of the executive. In establishing the division between the two branches of the legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the framers of the Constitution were very astute. They did not make the accusers and the judges the same person.

Debate on Articles of Impeachment, p. 111 (1974).

At the Markup of the Articles of Impeachment, Chairman Hyde echoed these thoughts:

The framers' decision to confine legislative sanctioning of executive officials to removal upon impeachment was carefully considered. By forcing the House and Senate to act as a tribunal and a trial jury rather than merely as a legislative body, they infused the process with notions of due process. The requirement of removal upon conviction accentuates the magnitude of the procedure, encouraging serious deliberation among Members of Congress.

Markup Session, Articles of Impeachment of William Jefferson Clinton, December 12, 1998, at 172. It is abundantly clear that removal cannot occur until the Senate's trial has concluded in conviction.

3. Impeachment Does Not Overturn an Election

One rhetorical device that has recently been employed by some who oppose the impeachment of President Clinton is that impeachment of the President will "overturn the election." The suggestion is that the congressional majority is using impeachment for political reasons to undo a presidential election in which their party did not succeed.

The success of this rhetorical strategy rests wholly on the expectation that those to be persuaded by it will not read the Constitution. The Twenty-Fifth Amendment to the Constitution, which was ratified on February 10, 1967, states: "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." Since the vice presidential and presidential candidates run for office on the same ticket, impeachment of the President could not possibly result in a change of political party control in the Executive. Any assertion to the contrary is patently false.

4. A Senate Trial of an Impeachment is a Constitutional Process

Another debating tactic recently employed by those who oppose impeachment is to portray the trial in the Senate as an unbearable exercise for the country. This tactic is undoubtedly designed to alarm the public, and to aggravate the discomfort already inherent in the notion of impeaching a president. Representative Charles T.

Canady addressed this argument on December 12, 1998 during the debate on the motion to adopt a joint resolution of censure:

Now, we have a responsibility to follow the Constitution. Now, we have heard many suggestions about what will happen if this President is impeached. We have heard horror story after horror story. But do we have such fear of following the path marked out for us by the Constitution that we would take it upon ourselves to go down a different path, a path of our own choosing? Will we let our faith in the constitution be put aside and overwhelmed by the fears that have been feverishly propagated by the President's defenders?

Now, there is no question that this is a momentous issue. There is no question that impeaching a President of the United States is a momentous act. But this is not a legislative coup d'etat. This is a constitutional process. . . There is a great deal of evidence before us, but in its essentials, this is a rather simple case. It can be resolved by the Senate expeditiously. We should reject the scare tactics, we should reject the effort to have us turn away from our constitutional duty, we should vote down this motion and move forward with doing our duty in the House of Representatives.

Markup Session, Articles of Impeachment of William Jefferson Clinton, December 12, 1998, at 210-11.

It is clear that a Senate trial following impeachment would not be an extraordinary event, but it would be a methodical procedure of regular constitutional order. Those finding fault with the idea of a trial are really faulting the Constitution, and not those who believe President Clinton has committed offenses deserving impeachment and removal.

B. ARTICLES OF IMPEACHMENT AGAINST PRESIDENT CLINTON

1. Article I-Grand Jury Perjury

a. Facts

Article I charges President Clinton with "willfully provid[ing] perjurious, false and misleading testimony to a federal grand jury on August 17, 1998. A review of the judicial impeachments of the 1980s makes it clear that when a president knowingly makes false statements under oath, especially when the statements meet the standards of perjury, he has committed impeachable offenses. This is true whether or not the statements are in regard to matters related to his official duties.

The first article of impeachment against President Clinton, in charging that he made perjurious, false and misleading statements to a federal grand jury, can be challenged on two other bases. The first, that the President's statements were literally true, has already been dismissed. The second is that the statements were not material to the matters being considered by the grand jury convened by the Office of Independent Counsel. As one of the matters the grand jury was considering was the OIC's investigation of "whether Monica Lewinsky or others had violated federal law in

connection with the Jones v. Clinton case", materiality would be determined by whether the President's affair with Ms. Lewinsky was material to that case. Referral from Independent Counsel Kenneth W. Starr in Conformity with the Requirements of Title 28, United States Code, Section 595(c), H.R. Doc. 105-310, 105th Cong., 2d Sess. at 8 (1998).

Unfortunately for the President's argument, on May 26, the United States Court of Appeals for District of Columbia Circuit ruled that President Clinton's affair with Monica Lewinsky was material to the Jones v. Clinton lawsuit. The court stated that:

[Monica] Lewinsky tells us . . the government could not establish perjury because her denial of having had a "sexual relationship" with President Clinton was not "material" to the Arkansas proceeding [the Jones case] within the meaning of 18 U.S.C. §1623(a); and her affidavit containing this denial could not have constituted a "corrupt[] endeavor[] to influence" the Arkansas district court.

A statement is "material" if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a [particular] determination. The "central object" of any materiality inquiry is "whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision." Lewinsky used the statement in her affidavit. . . to support her motion to quash the subpoena issued in the discovery phase of the [Jones] litigation. District courts faced with such motions must decide whether the testimony or material sought is reasonably calculated to lead to admissible evidence and, if so, whether the need for the testimony, its probative value, the nature and importance of the litigation, and similar factors outweigh any burden enforcement of the subpoena might impose. There can be little doubt that Lewinsky's statements in her affidavit were "predictably capable of affecting" the decision. She executed and filed her affidavit for this very purpose.

In re Sealed Case, No. 98-3052, slip op. at 4-6 (D.C. Cir. May 26, 1998) (citations omitted).

It is true that the above opinion was in regard to whether Ms. Lewinsky could quash a subpoena to produce items and testify in the case of Jones v. Clinton regarding her alleged affair with President Clinton. However, the reasons for which the court upheld the subpoena as material to the Jones case are directly applicable to whether Ms. Lewinsky's affidavit was material to the Jones case. In both cases, the essential question was whether Lewinsky's alleged affair with President Clinton was material to the Jones case. Why would Ms. Lewinsky's affair with President Clinton be material to the Jones case? Because in "he-said, she-said" sexual harassment cases such as Paula Jones's, patterns of conduct are important evidence in establishing that harassment had in fact occurred. President Clinton's conduct in relation to other subordinate

employees such as Ms. Lewinsky-could help establish the veracity of Ms. Jones's claims.

b. Lessons from the Judicial Impeachments of the 1980s

The impeachments of three sitting federal judges in the 1980's provide compelling reasons to believe that President Clinton committed impeachable offenses when he made perjurious, false and misleading statements to the grand jury.

i. Federal Judges vs. Presidents

The argument is frequently made that offenses leading to impeachment when committed by federal judges do not necessarily rise to this level when committed by a president-the argument's basis is said to be that the Constitution provides that Article III judges "shall hold their Offices during good Behavior," U.S. Const. art. III, sec. 1., and thus that judges are impeachable for "misbehavior" while other federal officials are only impeachable for treason, bribery, and other high crimes and misdemeanors.

The staff of the House Judiciary Committee in the 1970s and the National Commission on Judicial Discipline and Removal in the 1990s have both rejected this argument. In 1974, the staff of the Judiciary Committee's Impeachment Inquiry issued a report which asked whether the good behavior clause "limit[s] the relevance of the *** impeachments of judges with respect to presidential impeachment standards as has been argued by some[.]" Staff of House Comm. on the Judiciary, 93rd Cong., 2d Sess., Constitutional Grounds for Presidential Impeachment (Comm. Print 1974) at 17. The staff concluded that: "It does not. * * * [T]he only im* included in the Constitution * peachment provision * * * * applies to all civil officers, including judges, and defines impeachment offenses as Treason, Bribery, and other high Crimes and Misdemeanors.'" Id.

The conclusion of the staff report is bolstered by the findings of the National Commission on Judicial Discipline and Removal, chaired by Robert Kastenmeier, former Chairman of the Committee's Subcommittee on Courts, Civil Liberties and the Administration of Justice and one of the House managers during the Senate trial of U.S. District Court Judge Harry Claiborne. The Commission concluded that "the most plausible reading of the phrase 'during good Behavior' is that it means tenure for life, subject to the impeachment power. * The ratification debates about the federal judiciary seem to have proceeded on the assumption that goodbehavior tenure meant removal only through impeachment and conviction." National Commission on Judicial Discipline and Removal, Report of the National Commission on Judicial Discipline and Removal 17-18 (1993) (footnote omitted).

**

The record of the 1986 impeachment of Judge Claiborne also argues against different standards for impeachable offenses when committed by federal judges as when committed by presidents. Judge Claiborne filed a motion asking the Senate to dismiss the articles of impeachment against him for failure to state impeachable offenses. One of the motion's arguments was that "[t]he standard for impeachment of a judge is different than that for other officers" and that the Constitution limited "removal of the judiciary to acts

involving misconduct related to discharge of office." Memorandum in Support of Motion to Dismiss the Articles of Impeachment on the Grounds They Do Not State Impeachable Offenses 4 (hereinafter cited as "Claiborne Motion"), reprinted in Hearings Before the Senate Impeachment Trial Committee, 99th Cong., 2d Sess. 245 (1986)(hereinafter cited as "Senate Claiborne Hearings").

Judge Claiborne's attorney stated to the Senate trial committee that:

[B]ecause of the separation of powers contemplated by the framers***the standard for impeachment of a Federal judge is distinct from the standard of impeachment for the President, Vice President, or other civil officers of the United States because as we know, under article II, section 4, the President, Vice President, and civil officers may be removed on impeachment for conviction of treason, bribery, or other high crimes and misdemeanors.

It is our contention that the Federal judiciary, in order to remain an independent branch, has a different standard, a separate and distinct standard, as far as the ability or the disability to be impeached, and that is that the impeachment process would take place if in fact the judge, who is the sole * * lifetime appointment of all the officers which are referred to in the Constitution, is not on good behavior, a separate and distinct standard than that which is applicable to the elected officials and the officials who are appointed for a specific term.

Senate Claiborne Hearings at 76-77 (statement of Oscar Goodman). Judge Claiborne's attorney was arguing that federal judges are not "civil officers" and thus that the impeachment standard in article II, section 4, does not apply; instead, "misbehavior" would be the grounds for impeaching a federal judge. Id. at 78-79. See also Claiborne Motion at 3-4. He admitted his theory would fall if the Senate concluded that a federal judge was a civil officer. Senate Claiborne Hearings at 79.

Representative Kastenmeier responded that "reliance on the term 'good behavior' as stating a sanction for judges is totally misplaced and virtually all commentators agree that that is directed to affirming the life tenure of judges during good behavior. It is not to set them down, differently, as judicial officers from civil officers." Id. at 81-82. He further stated that "[n]or * ** is there any support for the notion that * * Federal judges are not civil officers of the United States, subject to the impeachment clause of article II of the Constitution." Id. at 81.

*

Kastenmeier's argument was repeated by the House of Representatives. U.S. House of Representatives, Opposition to Motion to Dismiss Articles of Impeachment for Failure to State Impeachable Offenses (hereinafter cited as "Opposition to Claiborne Motion"), reprinted in Senate Claiborne Hearings at 441. The House stated that:

If lack of good behavior were the sole standard for impeaching federal judges, then a different standard would apply to civil officers other than judges. Nowhere in the proceedings of the Constitutional Convention was such a