I. HISTORICAL ANALYSIS OF "TREASON, BRIBERY AND OTHER HIGH CRIMES AND MISDEMEANORS"

At the Constitutional Convention of 1787 the Framers arranged three branches of government with an elaborate system of checks and balances. An integral part of the power over the executive branch is found in Congress' impeachment powers.3 As stated in a report prepared by the House Judiciary Committee staff in 1974 regarding impeachment, the evidence from the Constitutional Convention "shows that the framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments."4 Congress itself has the power of impeachment, a process of presenting and prosecuting charges against the President, Vice President and other civil officers. Under the Constitution, the House does not have the power to punish. In trying cases of impeachment, it is the Senate that acts as the high court. In 1868, the Senate ceased in order to call itself "a high court of impeachment."

In practice, whenever the House of Representatives decides to bring the President of the United States before the bar of the Senate, it adopts, by resolution, Articles of Impeachment approved by the House Judiciary Committee, charging the President with certain high crimes and misdemeanors and enumerating in sufficient detail as to place him on notice of his particular offenses. If the resolution passes the House by simple majority vote, thereupon it chooses leaders to direct the prosecution before the Senate. The case is then conducted in the form of a trial, under the Senate's own rules of due process, with the Chief Justice of the Supreme Court presiding. The prosecution states its case; witnesses for and against the accused can be heard; and attorneys on both sides make their arguments. When the case is fully presented the Senators vote, and if two-thirds of the members present concur in holding the accused guilty, he stands convicted and removed from office; however, if there is a vote of less than two-thirds of the Members present, he is acquitted.

The penalty which the Senate can impose upon any person convicted in a case of impeachment is strictly limited to removal of the offender from office and the imposition of a disqualification to hold and enjoy any future office of honor, trust, or profit under the United States. Any person convicted, however, is still liable, after his removal from office, to indictment, trial, judgment, and punishment for his offenses according to law.

The jurisdiction of the Senate as a court of impeachment extends only over the President, Vice President, and the civil officers of the United States for the offenses of treason, bribery, or other high crimes and misdemeanors. What conduct constitutes an impeachable offense is determined by the House. At the Constitutional Convention, originally George Mason favored including the word "mal

3 See supra note 1.

Staff of the House Judiciary Committee, 93rd Cong., Report by the Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment 709 (Comm. Print 1974) [hereinafter staff report]

administration" but he deemed the phrase too ambiguous, and capable of bestowing excessive power in the Senate. As a result, the phrase was replaced with "High crimes and misdemeanors" in order to better define the standard."

Scholars and legal historians differ on exactly what the standard is intended to include. The Committee heard testimony from several scholars who contend that the phrase is narrow and intended to cover conduct relating to abuse of official power or public acts affecting the state, but others argued that the phrase is applicable to objective misconduct relating to fitness in office.8 One of the witnesses before the Subcommittee on the Constitution stated:

To be sure, serious crimes committed in the actual performance of official government functions are likely to constitute impeachable offenses in all cases. But the scope of the House's impeachment authority is not confined to such crimes, or even to crimes at all. * * * [T]he crimes of perjury and obstruction of justice, like treason and bribery, are quintessentially offenses against our system of government, visit injury immediately on society itself, whether or not committed in connection with the exercise of official government powers. Indeed, in a society governed by the rule of law, perjury and obstruction of justice cannot be tolerated precisely because these crimes subvert the very judicial processes on which the rule of law so vitally depends.9

As noted in the Staff Report of 1974, "impeachment is a constitutional remedy addressed to serious offenses against the system of government *** they are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself, and thus are "high" offenses * * * * 10 The Report also stated that in impeachment proceedings in English practice and in this country, "[T]he emphasis has been on the significant effects of the conduct-undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, [and] adverse impact on the system of government." 11

5 The Background and History of Impeachment: Hearings Before the Subcommittee on the Constitution of the House Judiciary Committee, 105th Cong., 2nd Sess. (1998) (statement of Hon. Griffin E. Bell).

12.

"Id. It is important to note that the phrase is not intended to include only criminal offenses, rather it stems from the word "maladministration" proposed by George Mason. See Staff Report 7 See The Background and History of Impeachment: Hearings Before the Subcommittee on the Constitution of the House Judiciary Committee, 105th Cong., 2nd Sess. (1998) (statements of Susan Low Bloch, Professor of Law, Georgetown University, and Cass R. Sunstein, Professor of Law, University of Chicago Law School). Many also contend that "private" actions of the President do not give rise to impeachable behavior. See e.g., The Background and History of Impeachment: Hearings Before the Subcommittee on the Constitution of the House Judiciary Committee, 105th Cong., 2nd Sess. (1998) (statement of Arthur Schlesinger, Jr., Professor of History, City University of New York).

8 The Background and History of Impeachment: Hearings Before the Subcommittee on the Constitution of the House Judiciary Committee, 105th Cong., 2nd Sess. (1998) (statement of John O. McGinnis, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University).

The Background and History of Impeachment: Hearings Before the Subcommittee on the Constitution of the House Judiciary Committee, 105th Cong., 2nd Sess. (1998) (statement of Charles J. Cooper, Esq.).

10 Staff Report 26.

I concur with the premise that while the crimes alleged against the President may not directly involve the exercise of executive powers, excepting the issue of possible misuse of executive privileges, the alleged crimes, plainly, do involve the violation of the president's executive duties. 12

Relying on the testimony and advice of the legal scholars, historians and judges that appeared before the Subcommittee on the Constitution, I will not attempt to define the impeachment standard. It is best stated by Justice Joseph Story in "Commentaries on the Constitution" (1833), the impeachment power applies to "political offenses, 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. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law." 13

We received testimony regarding impeachment in both English and American history. It is understood that personal misconduct, violations of trust, and other charges of a more private nature can be impeachable offenses. 14 Perjury and obstruction of justice drive a stake in the rule of law. Now the question is whether perjury to conceal private conduct and other actions to thwart and impede justice in a civil rights case in federal court, as well as perjury before a federal grand jury, rise to the level of impeachable offenses.

II. THE JONES V. CLINTON CIVIL LAWSUIT

In May 1994, Paula Corbin Jones filed a sexual harassment lawsuit 15 against William Jefferson Clinton in the United States District Court for the Eastern District of Arkansas. 16 Ms. Jones alleged that the sexual harassment incident took place in a hotel

12 The Judiciary Committee voted to amend Article IV and deleted the abuse of power language regarding misuses of the exutive privilege.

13 See Staff Report 16-17.

14 In 1986 the House of Representatives voted to impeach the Honorable Harry E. Claiborne. On August 10, 1984, while serving as a judge of the United States District Court for the District of Nevada, Judge Claiborne was found guilty by a jury of making a false and fraudulent income tax return for the calendar years of 1979 and 1980 in violation of 26 U.S.C. § 7206(1). The House of Representatives adopted four articles of impeachment charging Judge Claiborne with willfully and knowingly filing false income tax returns, under penalty of perjury, for the years 1979 and 1980. One of the articles of impeachment charged that Judge Claiborne, by willfully and knowingly filing false income tax returns while serving as a Federal Judge, with betraying the trust of the people of the United States and reducing confidence in the integrity and impartiality of the Federal judiciary. Representative Hamilton Fish, ranking member of the Judiciary Committee and one of the House managers in the Senate trial stated, "Judge Claiborne's actions raise fundamental questions about public confidence in, and the public's perception of, the Federal court system. They serve to undermine the confidence of the American people in our judicial system." 132 Cong. Rec. H4713 (daily ed. July 22, 1986).

15 Title VII of the Civil Rights Act of 1964 does not explicitly refer to "sexual harassment" but makes it unlawful for an employer with fifteen or more employees to discriminate against applicants for employment or employees "because *** of sex." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment laws have largely developed through judicial opinions, as well as opinions from the Equal Employment Opportunity Commission interpreting Title VII's sex discrimination prohibition. See 42 U.S.C. 2000e et. seq. See also Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998) (holding that same sex harassment is actionable under Title VII); Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998)(holding employer vicariously liable for harassment by supervisor); Burlington Industries v. Ellerth, 118 S.Ct. 2257 (1998) (same). The Equal Protection Clause of the Fourteenth Amendment also involves the freedom to be free from gender discrimination unless it is substantially related to an important government objective. Šee Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994). Intentional sexual harassment against employers acting under the color of state law is actionable under the Fourteenth Amendment and § 1983. Id.

16 Referral from Independent Counsel Kenneth W. Starr, 105th Cong., 2d Sess., H.R. Doc. No. 105-310, at 1 (1998) (hereinafter "OIC Referral").

room 17 in Little Rock, Arkansas, while Mr. Clinton was the Governor of Arkansas.18 The President denied the allegations and argued that Ms. Jones did not have the right to proceed against him because he is a sitting President. 19 The Supreme Court unanimously rejected such an argument stating: "Like every other citizen who properly invokes [the] jurisdiction [of the District Court], [Ms. Jones] has a right to an orderly disposition of her claims." 20 Thus, the Supreme Court determined that Ms. Jones was entitled to proceed with her claim as an ordinary litigant, entitled to discovery from the defendant, President Clinton. The Supreme Court therefore reaffirmed the proposition that no person is above the law.

As is common in sexual harassment litigation, a defendant's past behavior can be relevant and material evidence to establish a pattern of misconduct to support the present allegations and the defendant's propensities. In late 1997, the parties disputed whether the President would be required to disclose information about past sexual relationships 21 with other women,22 United States District Judge Susan Webber Wright ruled that "the plaintiff [was] entitled to information regarding any individuals with whom the President had sexual relations * * * and who were * * * state or federal employees." 23 In late December the President responded to written discovery requests.24 When asked under oath to identify women with whom he had sexual relations who were state or federal employees during a specified limited time frame, the President responded "none." 25 On January 17, 1998, the President was questioned under oath at a deposition regarding sexual relationships with women in the workplace.26 During the deposition, the President denied that he had engaged in a "sexual affair, a "sexual relationship," or "sexual relations" with Ms. Lewinsky, while also stating that he "had no specific memory of being alone with Ms. Lewinsky, that he remembered few details of any gifts they might have exchanged, and indicated that no one except his attorneys had kept him informed of Ms. Lewinsky's status as a potential witness in the [Jones v. Clinton] case." 27 The evidence shows that the President's testimony during that deposition was perjurious, false, and misleading with the motive to hide the relationship for the

17 The allegations in the Jones v. Clinton case are reminiscent of the facts in the Lewinsky matter. In Jones, the plaintiff alleged that "as she left the room✶✶✶ the Governor "detained" her momentarily, "looked sternly" at her, and said, "You are smart. Let's keep this between ourselves."" Jones v. Clinton, 990 F. Supp. 657, 664 (1998).

18 OIC Referral at 2. Specifically, Ms. Jones alleged that on the night in question in 1991, Governor Clinton exposed his genitals and asked her to perform oral sex on him. Id. at 1 n.3. Ms. Jones was an employee of the Arkansas Industrial Development Corporation at the time of the alleged incident. Îd.

19 Id. at 2.

20 Jones v. Clinton, 117 S.Ct. 1636, 1652 (1997) (holding, inter alia, that the Constitution does not afford a sitting president temporary immunity in "all but the most exceptional circumstances," and that the doctrine of separation of powers does not require the court to stay civil proceedings against the President).

21 The list of "Jane Does" in the Jones v. Clinton case and the evidence on each of them was held by the Judiciary Committee in Executive Session and redacted from public dissemination. 22 OIC Referral at 2.

23 921-DC-00000461 (Dec. 11, 1997 Order at 3).

24 OIC Referral at 2.

25 V002-DC-00000053 (President Clinton's Supplemental Responses to Plaintiff's Second Set of Interrogatories at 2).

26 OIC Referral at 3.

27 Id. at 3.

purpose to defeat the Jones v. Clinton suit and deny Ms. Jones her right to a fair trial as an alleged victim of sexual harassment.

III. THE INVESTIGATION BY THE OFFICE OF THE INDEPENDENT
COUNSEL

On January 12, 1998, the OIC received information that Ms. Lewinsky was attempting to influence the testimony of a witness by the name of Linda Tripp 28 in the Jones v. Clinton case, and that Ms. Lewinsky intended to provide false testimony in the case.29 The information was transmitted to Attorney General Janet Reno, who determined that an independent counsel should examine the matter for criminal wrongdoing.30 Pursuant to the Independent Counsel statute, the Attorney General applied, and received, the authorization the jurisdiction of the OIC. Discovery in the Jones v. Clinton case involving Ms. Lewinsky was then stayed at the request of the OIC,31 which means that Ms. Jones was prevented from establishing facts that may have been otherwise obtainable through Ms. Lewinsky. The criminal investigation commenced,32 and the results of that investigation were reported to Congress as required by 28 U.S.C. 595(c).

IV. THE FINDINGS OF THE INDEPENDENT COUNSEL

In his testimony before the House Judiciary Committee, the Independent Counsel explained how the relationship between the President and Ms. Lewinsky became a matter of public concern. 33 First, the President was a defendant in a sexual harassment case which the Supreme Court ordered to proceed even though the defendant is a sitting President.34 Second, "the law of sexual harassment and the law of evidence allow the plaintiff to inquire into the defendant's relationships with other women in the workplace, which in this case included President Clinton's relationship with Ms. Lewinsky." 35 Third, Judge Wright rejected the President's ob

28 Linda Tripp was also a witness in the OIC open investigation regarding the White House travel office firings and the FBI files.

29 OIC Referral at 3.

30 Id. The Attorney General also received information regarding Ms. Lewinsky's job search and the possible involvement of Vernon Jordan. Id. These allegations were similar to allegations in the ongoing Whitewater investigation regarding possible "hush money" paid to former Deputy Attorney General Webster Hubbel in which Vernon Jordan was involved. Id.

31 Id. at 4; see also Jones v. Clinton, 993 F. Supp. 1217 (1998). The court which granted the Independent Counsel's motion for limited intervention and stay of discovery based its decision on three grounds. Jones v. Clinton, 993 F. Supp. at 1219-1220. Specifically, the court determined that allowing the evidence of the Lewinsky investigation to be used in the Jones case might be unduly prejudicial to the President; see Fed. R. Evid. 403; and might be excluded by the trial judge based on Ms. Jones' burden in proving her sexual harassment claim. Jones, 993 F. Supp. at 1219. Further, the court determined that the trial must be conducted as expeditiously as possible. Id. Lastly, the court noted that the integrity of the independent criminal investigation warranted excluding evidence concerning Ms. Lewinsky. Id. The court determined that the risk of exposing information obtained in the pending criminal investigation outweighed the plaintiff's right to include such information. Id. at 1220.

32 The Independent Counsel was granted jurisdiction to investigate whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law. OIC Referral, Appendices, Part I, H. Doc. 105-311, at 6-7 (1998) [hereinafter H. Doc. 105-311]. Additionally, it had the authority to investigate federal crimes, obstruction of justice, and any material false testimony in violation of criminal law. Id.

33 See Statement of Independent Counsel Kenneth W. Starr Before the House Judiciary Committee, 105th Cong., 2nd Sess. 9-10 (1998).

34 Id. at 9. See also Jones v. Clinton, 117 S.Ct. 1636 (1997).

35 Statement of Independent Counsel Kenneth W. Starr Before the House Judiciary Committee, 105th Cong., 2nd Sess. 9 (1998).