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2. The President did not obstruct justice by concealing gifts that
he gave to Ms. Lewinsky
his counsel characterized Ms. Lewinsky's affidavit to the presid
ing judge during the Jones deposition ............
ing account of events relevant to the Jones suit with an intent
to influence her testimony in any legal proceeding ..............
denying to his staff his inappropriate contacts with Ms.
A. Bias in OIC Investigation .......
1. Unfairness in Conducting Committee Inquiry ...............................
2. Unfairness in the Drafting of the Articles of Impeachment
TERNATIVE TO IMPEACHMENT .....
I. THE CONSTITUTIONAL STANDARD FOR IMPEACHMENT HAS NOT
BEEN SATISFIED Impeachment is only warranted for conduct that constitutes. “Treason, Bribery, or other high Crimes and Misdemeanors” as set forth in Article II, Section 4 of the Constitution. As virtually all constitutional scholars have noted, there is an important distinction between criminal and impeachable offenses—impeachment serves to protect the nation, not to punish the wrongdoer. A review of the language of the Constitution, the history and drafting of the impeachment clause, and subsequent review of its usage all serve to confirm that in all but the most extreme instances, the remedy of impeachment should be reserved for egregious abuses of presidential authority, rather than misconduct unrelated to public office. It is also clear that the President is subject to civil and criminal punishment independently of the impeachment process. The constitutional process of impeachment should not, therefore, be used for punitive purposes.
Members of the Majority have gone to great lengths to misconstrue the power of impeachment as one that is appropriately exercised against a chief executive based on any potentially criminal conduct. This interpretation is flatly inconsistent with the intentions of the Framers and the prior presidential impeachments in this country. It also is contrary to the central conclusions of the Staff Report produced by the Watergate impeachment inquiry staff in 1974.3
3 Staff of the House Comm. on the Judiciary, 93d Cong., 2d Sess (Comm. Print 1974), Constitu. tional Grounds for Presidential Impeachment) (hereinafter, “Watergate Staff Report”). At the November 9, 1998, Constitution Subcommittee Hearing on the Background and History of Impeachment, Mr. Scott asked the panel whether they agreed that every felony falls within the definition of “Treason, Bribery or other high Crimes and Misdemeanors.” The record shows that not one of the 10 panelists agreed that every felony is an impeachable offense.
Although many have inaptly compared the present proceedings to the genuine constitutional crisis brought about by President Richard Nixon, there are far more dissimilarities than parallels. In using the powers granted by the Independent Counsel Act 4 for the first time to justify the submission of a report to Congress outlining possible impeachable offenses, the OIC departed from the traditional deference shown by past presidential prosecutors. As these other prosecutors have recognized, it is Congress constitutional responsibility to determine whether alleged misconduct by a chief executive constitutes grounds for impeachment. Watergate independent prosecutor Leon Jaworski submitted grand jury materials to Congress that consisted only of grand jury transcripts and a “road map” through the allegations being investigated by the grand jury. His report “provided no analysis and drew no conclusions.”5 To this day, that document remains sealed. Congress, in short, recognized that only it had the right and the responsibility to level public charges of impeachable offenses against the President.
The Committee's constitutional responsibility is quite distinct from cataloging laws that may have been violated. The determination of whether to impeach a President is vastly different than the determination of whether there is evidence of a legal offense. The Majority, by invoking the language of criminal statutes to describe the President's alleged misconduct, directly contradicts one of the main conclusions of the Watergate Staff Report, which it purports to endorse:
The impeachment of a President must occur only for reasons at least as pressing as those needs of government which give rise to the creation of criminal offenses. But this does not mean that the various elements of proof, defenses, and other substantive concepts surrounding an indictable offense control the impeachment process. Nor does it mean that state or federal criminal codes are necessarily the place to turn to provide a standard under the United States Constitution. Impeachment is a constitutional remedy. The Framers intended that the impeachment language they employed should reflect the grave misconduct that so injures or abuses our constitutional institutions
and form of government as to justify impeachment.? The assumption that a president's violation of any of a number of laws may trigger the impeachment provisions of Article II, Section 4 of the Constitution is fundamentally misguided. In fact, as virtually all constitutional experts recognize, not all impeachable offenses are crimes and not all crimes are impeachable offenses. Again, the 1974 Watergate Staff Report is instructive on this issue:
Impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process-removal from office and possible disqualification from holding future office. The purpose of im
4 Ethics in Government Act, 28 U.S.C. $8591-99.
Kevin Johnson and Judy Keen, The Case Against the President, USA Today, Sept. 14, 1998, at 1E.
7 Watergate Staff Report at 22.
peachment is not personal punishment; its function is pri-
A. A PRESIDENT MAY ONLY BE IMPEACHED FOR “TREASON, BRIBERY OR
OTHER HIGH CRIMES AND MISDEMEANORS” With regard to the actual text of the Constitution, the juxtaposition of such serious offenses of Treason and Bribery with the phrase "other high Crimes and Misdemeanors” serves as an important indicator of how the latter term should be defined. In other words, such "other high Crimes and Misdemeanors" must constitute abuses of public office similar to treason and bribery—to become impeachable conduct.
It also bears emphasis that the word "high" modifies both “Crimes” and “Misdemeanors.” As the history of the latter term makes clear, the Framers did not entrust Congress with the power to impeach a popularly elected President simply upon a showing that the executive committed a “misdemeanor” crime as we now understand the term-a minor offense usually punishable by a fine or brief period of incarceration. Instead, an examination of the relevant historical precedents indicates that a president may only be impeached for conduct that constitutes an egregious abuse or subversion of the powers of the executive office. 1o
It is evident from the legislative history surrounding the constitutional convention that the Framers intended impeachment to be a very limited constitutional remedy. At the outset, delegates such as Governor Morris and James Madison objected to the use of broad impeachment language. Morris argued that "corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined," 11 and Madison noted that impeachment was only necessary to be used to "defend the Community against the incapacity, negligence or perfidy of the chief Magistrate.” 12
The critical drafting occurred on September 8, 1787. George Mason objected to the fact that the draft was too limited because it applied only to "treason or bribery” and sought to add the term "maladministration.” When Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate,”
8 Watergate Staff Report at
of the standard rule of construction and voccurs after a number
9 This reading is an example of the standard rule of construction known in Latin as "ejusdem generis," or "of the same kind,” providing that when a general word. occurs after a number of specific words, the meaning of the general word is limited to the kind or class of things in which the specific words fall.
10 The 1974 Watergate Staff Report at 12 wrote, “Blackstone's Commentaries on the Laws of England—a work cited by delegates in other portions of the Convention's deliberations and which Madison later described (in the Virginia ratifying convention) as `a book which is in every man's hand-included 'high misdemeanors' as one term for positive offenses 'against the king and government.' * * * 'High Crimes and Misdemeanors' has traditionally been considered a 'term of art,' like such other constitutional phrases as 'levying war' and 'due process.'”
n1 Raoul Berger, Impeachment: The Constitutional Problems, 65 (1973). 12 Id. (emphasis added).
ropped abstantive imigh Crimal power is d early cost
Mason withdrew “maladministration” and substituted "high crimes and misdemeanors agst. the State,” which was accepted by the delegates. 13 The narrowness of the phrase "other high Crimes and Misdemeanors” was confirmed by the addition of the language “against the State,” reflecting the Convention's view that only offenses against the political order should provide a basis for impeachment. Although the phrase "against the United States” was eventually deleted by the Committee of Style that produced the final Constitution, 14 the Committee of Style was directed not to change the meaning of any provision. 15 It is therefore clear that the phrase was dropped as a redundancy and its deletion was not intended to have any substantive impact. 16
The construction that "other high Crimes and Misdemeanors” should be limited to serious abuses of official power is further confirmed by the commentary of prominent Framers and early constitutional commentators. Alexander Hamilton wrote in Federalist No. 65 that impeachable offenses “proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.” He stressed that those offenses "may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” 17 Hamilton's view was endorsed a generation later by Justice Joseph Story in his Commentaries on the Constitution when he wrote, “[impeachable offenses) are committed by public men in violation of their public trust and duties* * *. Strictly speaking, then, the impeachment power partakes of a political character, as it respects injuries to the society in its political character.” 18 Justice Story added that impeachable offenses “peculiarly injure the commonwealth by the abuse of high offices of trust.” 19
Prior impeachment precedents also demonstrate that, for offenses to be impeachable, they must arise out of a president's public, not private, conduct. In 1868, Andrew Johnson was impeached by the House Republicans because he had removed the Secretary of War, Edwin M. Stanton, who had disagreed with his post-Civil War reconstruction policies.20 Although the impeachment of President Andrew Johnson failed in the Senate, it bears note that all of the impeachment articles related to alleged public misconduct.21
The circumstances surrounding the proposed impeachment of President Nixon also support the view that impeachment should be limited to threats that undermine the Constitution, not ordinary criminal misbehavior unrelated to a president's official duties. All three of the articles of impeachment approved by the House Judici
13 Watergate Staff Report at 11-12.
20 Stanton's removal was said to be inconsistent with the Tenure in Office Act, requiring Senate approval for removal of certain officers.
21 The eleven articles of impeachment related to Johnson's removal of Stanton, the impact of that removal on congressional prerogatives and its impact on post-civil war reconstruction. See Cong. Globe Supp., 20th Cong. 2d Sess. V. II, at 139_40 (April 23, 1868) and 286–89 (April 29, 1868). See also Cong. Globe Supp., 40th Cong. 2d. Sess., at 286–310 (1868).
ary Committee involved misuse of the President's official duties.22 Even more telling are the circumstances by which the Committee rejected articles of impeachment relating to allegations of income tax evasion. When the Judiciary Committee debated a proposed article of impeachment alleging that President Nixon had committed tax fraud when filing his federal income tax returns for the years 1969 through 1972 filed under penalty of perjury 23 it was defeated by a vote of 26–12. Although some Members believed this count was not supported by the evidence, the primary ground for rejection was that the Article related to the President's private conduct, not to an abuse of his authority as President.24
A review of the writings by prominent scholars concerning the issue of impeachment further confirms the general principal that for presidential wrongdoing to rise to the level of an impeachable offense it must relate to grievous abuse of office. The question of whether private presidential misconduct could be impeachable was posed twenty-five years ago by Professor Charles Black, in his seminal work, Impeachment: A Handbook, when he posited the following hypothetical:
Suppose a President transported a woman across a state line or even (as the Mann Act reads) from one point to another within the District of Columbia, for what is quaintly called an “immoral purpose.” * * * Or suppose the president actively assisted a young White House intern in concealing the latter's possession of three ounces of marijuana_thus himself becoming guilty of “obstruction of justice.” Would it not be preposterous to think that any of this is what the Framers meant when they referred to “Treason, Bribery, or other high Crimes and Misdemeanors,” or that any sensible constitutional plan would make a president removable on such grounds? 25
22 The First Article alleging that President Nixon coordinated a cover-up of the Watergate : break-in by interfering with numerous government investigations, using the CIA to aid the cover-up, approving the payment of money and offering clemency to obtain false testimonyqualified as a high Crime and Misdemeanor, because "[the President used) the powers of his high office (to) engage * *.* in a course of conduct or plan designed to delay, impede, and obstruct (the Watergate investigation)." The Second Article-alleging that the President used the IRS as a means of political intimidation and directed illegal wiretapping and other secret surveillance for political purposes described “a repeated and continuing abuse of the powers of the Presidency in disregard of the fundamental principle of the rule of law in our system of government.” The Third Article“ alleging that President Nixon refused to comply with subpoenas issued by the Judiciary Committee in its impeachment inquiry-was considered impeachable because such subpoena power was essential to "Congress' (ability) to act as the ultimate safeguard against improper presidential conduct.”
23 The crux of the impeachment article related to allegations that the President understated his income and overstated his deductions for the years 1969 through 1972.
24 Republican congressmen explicitly emphasized that personal misconduct could not give rise to an impeachable offense. Congressman Tom Railsback (R-IL) noted that there was “a serious question as to whether something involving (the President's] personal tax liability has anything to do with his conduct of the office of the President.” Congressman Lawrence J. Hogan (R-MD), quoted from the impeachment inquiry staff report:
As a technical term, high crime signified a crime against the system of government, not merely a serious crime. This element of injury to the commonwealth, that is, to the state itself and to the Constitution, was historically the criteria for distinguishing a high crime or misdemeanor from an ordinary one.
Similarly, Democratic Congressman Jerome Waldie (D-CA) echoed the Republican distinction between public and private conduct, and opposed the proposed article because "the impeachment process is a process designed to redefine Presidential powers in cases where there has been enormous abuse of those powers and then to limit the powers as a concluding result of the impeachment process.”
25 Charles L. Black, Impeachment: A Handbook 35–36 (1974).