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More recently, a large group of legal scholars and academics have offered their views regarding the impeachability of the misconduct alleged by the Majority. On November 6, 1998, 430 Constitutional law professors wrote: “Did President Clinton commit high Crimes and Misdemeanors' warranting impeachment under the Constitution? We * * * believe that the misconduct alleged in the report of the Independent Counsel * * * does not cross that threshold * * * [I]t is clear that Members of Congress would violate their constitutional responsibilities if they sought to impeach and remove the President for misconduct, even criminal misconduct, that fell short of the high constitutional standard required for impeachment.” 26

One week earlier, more than four hundred historians issued a joint statement warning that because impeachment has traditionally been reserved for high crimes and misdemeanors in the exercise of executive power, impeachment of President Clinton based on the facts alleged in the OIC Referral would set a dangerous precedent. “If carried forward, they will leave the Presidency permanently disfigured and diminished, at the mercy as never before of caprices of any Congress. The Presidency, historically the center of leadership during our great national ordeals, will be crippled in meeting the inevitable challenges of the future.” 27

The weight of evidence offered at Committee hearings also supports the view that in all but the most extreme instances, impeachment should be limited to abuse of public office, not private misconduct. This point was made by several of the witnesses at the Constitution Subcommittee Hearing on the Background and History of Impeachment. Chicago Law Professor Cass Sunstein, summarized the standard as follows: "[w]ith respect to the President, the principal goal of the impeachment clause is to allow impeachment for a narrow category of large-scale abuses of authority that come from the exercise of distinctly presidential powers. Outside of that category of cases, impeachment is generally foreign to our traditions and prohibited by the Constitution.” 28 Professor Sunstein went on to review English Parliamentary precedent, the intent of the Framers and subsequent impeachment practice as all supporting this bedrock principle. In his view, the only exception where purely private conduct would be implicated was in the case of a heinous crime, such as murder or rape:

[B]oth the original understanding and historical practice converge on a simple principle. The basic point of the impeachment provision is to allow the House of Representatives to impeach the President of the United States for egregious misconduct that amounts to the abusive misuse of the authority of his office. This principle does not exclude the possibility that a president would be impeachable for an extremely heinous "private” crime, such as murder or rape. But it suggests that outside such extraordinary (and

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26 Letter from more than 400 Constitutional law professors (Nov. 6, 1998) (submitted as part of the Constitution Subcommittee Hearing Record)."

27 Statement Against the Impeachment Inquiry, submitted to the Committee by more than 400 historians (Oct. 28, 1998)(submitted as part of the Constitution Subcommittee Hearing Record).

28 Subcommittee Hearing, (Written Testimony of Cass Professor Sunstein at 2) (emphasis in original).

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unprecedented and most unlikely) cases, impeachment is

unacceptable.29 Father Drinan, a former House Judiciary Committee Member who participated in the Watergate impeachment process, and now a Professor of Law at Georgetown University, reached the same conclusion, testifying that, “the impeachment of a President must relate to some reprehensible exercise of official authority. If a President commits treason he has abused his executive powers. Likewise a President who accepts bribes has abused his official powers. The same misuse of official powers must be present in any consideration of a President's engaging in 'other high crimes and misdemeanors.'30 Eminent historian Arthur Schlesinger similarly distinguished between private and public misconduct:

The question we confront * * * is whether it is a good idea to lower the bar to impeachment. The charges levied against the President by the Independent Counsel plainly do not rise to the level of treason and bribery. They do not apply to acts committed by a President in his role of public official. They arise from instances of private misbehavior. All the Independent Counsel's charges * * * derive entirely from a President's lies about his own sex life. His attempts to hide personal misbehavior are certainly disgraceful; but if they are to be deemed impeachable, then we reject the standards laid down by the Framers in the

Constitution and trivialize the process of impeachment.31 Prominent witnesses called by the White House concurred in these assessments. Former Attorney General Nicholas Katzenbach testified that impeachment must involve "some conduct-some acts—which are so serious as to bring into question the capacity of the person involved to carry out his role with the confidence of the public” and noted that it was clear that “despite the strongly held views of some, the public does not put perjury about sexual relations in the category of 'high crimes or misdemeanors.'" 32 Prince- ton History Professor Sean Wilentz warned the Committee about the dangers of a largely partisan impeachment, and warned that “these proceedings are on the brink of becoming irretrievably politicized, more so even than the notorious drive to remove Andrew Johnson from office one hundred and thirty years ago.” 33

The one witness jointly selected by the Majority and the Minority-William & Mary Law Professor Michael Gearhardt-also testified that impeachment should principally be limited to abuse of public office:

[There is a] widespread recognition that there is a paradigmatic case for impeachment consisting of the abuse of power. In the paradigmatic case, there must be a nexus between the misconduct of an impeachable official and the latter's official duties. It is this paradigm that Hamilton

acts—whichat impeachment torney General Nicus

29 Id. at 5, 7, 8, 11, 12 (emphasis in original).
30 Id. (Written Testimony of Robert F. Drinan, S.J. at 3–7).
31 Id. (Written Statement of Arthur Schlesinger, Jr. at 2).

32 Hearing before the House Comm. on the Judiciary, Dec. 8, 1998 (Statement of Nicholas Katzenbach at 3–4).

33 Id. (Written Testimony of Professor Sean Wilentz, at 5).

captured so dramatically in his suggestion that impeach-
able offenses derive from “the abuse or violation of some
public trust” and are “of a nature which may be peculiar
propriety be denominated POLITICAL, as they relate
chiefly to injuries done immediately to the society itself.
This paradigm is also implicit in the founders' many ref-
erences to abuses or power as constituting political crimes

or impeachable offenses.34 Even some witnesses called by the Majority cautioned that discretion should be applied before applying the impeachment power in all situations. For example, Duke Law Professor William Van Alstyne stated that the allegations by Mr. Starr constituted "low crimes and misdemeanors” and that "[t]he further impeachment pursuit of Mr. Clinton may well not now be particularly worthwhile.” 35 Charles E. Wiggins, a senior judge on the Ninth Circuit, and a former Republican Member of the Judiciary Committee who participated in the Watergate inquiry stated, “I am presently of the opinion that the misconduct admittedly occurring by the President is not of the gravity to remove him from office.” 36 B. THE APPROPRIATE ROLE OF THE HOUSE IN THE IMPEACHMENT

PROCESS It has been repeatedly argued that the House is like a grand jury that simply votes out an article of impeachment based on "probable cause” to believe that impeachable offense have occurred and lets the Senate weigh the actual evidence. This view of the House's role has been offered in support of the proposition that the House does not have to hear evidence or make decisions about who is telling the truth because that is the Senate's job. This cramped view of the appropriate role of the House finds no support in the Constitution and is completely contrary to the great weight of historical precedent. As former Watergate Era Attorney General Elliot Richardson warned:

A vote to impeach is a vote to remove. If members * * * believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach, because if they do * * * the matter is out of your hands * * * 37 During the debate over the articles of impeachment, Rep. Frank reminded the Members that they should not take the House's independent role to remove the President from office lightly: "I have to say that I think it is a grave error constitutionally to denigrate what we are doing. Yes, it is true that, as a consequence of this, the President will not be instantly thrown out of office. It is also true that the only justification and basis for this proceeding and the only basis on which Members can honestly vote for these articles is the conviction that the President ought to be thrown out of office.” 38

34 Id. (Written Testimony of Professor Michael Gearhardt at 13–14) (footnotes omitted) (emphasis added).

35 Id. (Written Testimony of Professor William Van Alstyne at 6).

36 Hearings before the House Comm. on the Judiciary, "The Consequences of Perjury and Related Crimes,” Dec. 1, 1998 (Written Testimony of Hon. Charles E. Wiggins).

37 Id. (Written Testimony of Elliott Richardson).

The argument that the House is merely the body that accuses and the Senate is the body that tries, undermines the dual protection against misuse of the impeachment power that the founders intended. The Constitution requires more than that the House be a mere rubber stamp for sending allegations of wrongdoing to the Senate; rather Article II intends that the House as well as the Senate look to the same evidence with the same standards. As constitutional expert Professor John H. Labovitz concluded with respect to Watergate, in terms that seem as if they were written for today;

* * * there were undesirable consequences if the House voted impeachment on the basis of one-sided or incomplete information or insufficiently persuasive evidence. Subjecting the Senate, the President, and the nation to the uncertainty and potential divisiveness of a presidential impeachment trial is not a step to be lightly undertaken. While the formal consequences of an ill-advised impeachment would merely be acquittal after trial, the political ramifications could be much more severe. Accordingly, the house * * * should not vote impeachments that are unlikely to succeed in the senate * * * the standard of proof applied in the House should reflect the standards of proof in the Senate

* * * 39 Professor Labovitz has meticulously documented how, in the Nixon inquiry, everyone agreed—the Majority, the Minority, and the President's counsel—that the standard of proof for the Committee and the House was “clear and convincing evidence.” When the articles of impeachment are weighed against this standard, it is clear that the constitutional standard has not been satisfied: II. THE MISCONDUCT ALLEGED IN THE ARTICLES WOULD NEVER BE

CHARGED AS A CRIMINAL VIOLATION As discussed above, violations of criminal law are not sufficient to establish an impeachable offense. Much of the misconduct alleged in the articles of impeachment could not be the subject of a successful perjury prosecution and experienced prosecutors have persuasively testified that the misconduct alleged in the articles would never be the subject of a criminal prosecution.

A. THE ALLEGED PERJURIOUS STATEMENTS WERE IMMATERIAL Both the Majority's allegation that the President committed perjury during his grand jury testimony (Article I) and during his testimony in the Jones case (Article II), are predicated on the President's efforts to conceal the nature and extent of his relationship with Ms. Lewinsky. Since so much time of the Committee was taken up with an examination of whether the President's conduct violated criminal law (rather than on whether that conduct amounted to impeachable offenses), some of the relevant issues of

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38 Markup Tr. 12/11/98, at 464. 39 Labovitz, Presidential Impeachments, at 192–3.

law have to be defined. In considering whether such conduct constituted a violation of law, the Committee should have focused on the effect, if any, that this testimony had on the course of that litigation.40 Accordingly, since the first two Articles are largely based on the presumed seriousness of the President's failure to admit the full extent of his inappropriate relationship during his testimony, the relevance of the testimony must be considered.

Paula Jones was seeking to prove unwelcome and unsolicited conduct by the President. Whatever else it was, the President's relationship with Ms. Lewinsky was neither unwanted nor harassing.41 If the President's testimony under oath is what supports the allegation of abuse of constitutional magnitude, then the immateriality of that testimony makes clear the insufficiency of the Articles recommending impeachment on that basis.

Paula Jones, a former Arkansas state employee, filed a civil lawsuit against the President in 1994 alleging that he had sexually harassed her during an encounter in a hotel room during a government conference. After protracted discovery, the President's motion for summary judgment was granted on the basis that, even if one assumed the truth of every allegation made by Jones concerning the President's behavior, Jones failed to prove that she was entitled to any relief as a matter of law. In light of this fundamental weakness in Jones' case, it is exceedingly difficult to establish that the allegedly misleading statements made by the President during his testimony were legally “material” or “capable of influencing” a court.42 Simply put, Mrs. Jones would have lost her lawsuit regardless of the President's deposition testimony.

In evaluating the Majority's charge, the rulings made by Judge Wright in the Jones case must be considered. These are directly relevant to the question whether the President's allegedly false statements could possibly be characterized as violations of the federal law cited by the Referral and relied upon by the Majority. Judge Wright's order excluding evidence concerning Ms. Lewinsky, and her order granting the President's summary judgment motion, clearly establish that any alleged misleading statements by the President concerning his indisputably consensual and nonharassing relationship with Ms. Lewinsky were simply not material matters.

40 A lie under oath becomes a criminal offense only when it is "material” to the proceeding in which it is given. Courts have held a statement to be material if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a (particular) determination. Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects." United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir. 1997) (internal quotation omitted) (brackets in original); see also Uni

also United S v. Moore, 613 F.2d 1029, 1037–38 (D.C. Cir. 1979) (same); United States v. Icardi, 140 F. Supp. 383, 388 (D.D.C. 1956) (same).

Significantly, the Supreme Court's recent decision in United States v. Gaudin, 515 U.S. 506 (1995) strongly suggests the correctness of this standard. There, the Supreme Court considered the question whether, under the federal false statements statute, 18 U.S.C. $ 1001, issues of materiality should be decided by the judge or the jury. In his opinion holding that the issue is for the jury, Justice Scalia endorsed the view that a statement is material only if it has a "natural tendency to influence, or (be) capable of influencing, the decision of the decisionmaking body to which it was addressed.” Gaudin, 515 U.S. at 509 (quoting Kungys v. United States, 485 Ú.S. 759, 770 (1988)) (brackets in original). The Court's interpretation of g 1001 as embodying a "capable of influencing” definition of materiality should be applied to the perjury statutes, which are very similar in scope and purpose.

" See Equal Employment Opportunity Statement: Executive Office of the President; 29 CFR $ 1604.11a.

42 United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir. 1997).

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