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draft only one day before members were to comment on them in open session and near the end of the day that counsel to the President, Charles F.C. Ruff, made his presentation to the Committee. The Majority often complained that the President was ignoring official, Committee procedures and attempting to delay the proceedings, 322 but the Majority itself, failed to identify the charges until the last minute.
Throughout the impeachment process, the Majority has resisted requests to narrow, define or state with precision the allegations of misconduct leveled at the President. While the Independent Counsel's Referral specified eleven possible grounds for impeachment, the Majority Counsel, in his initial presentation to the Committee, declined without explanation to even present some of these grounds to the Committee (e.g., Independent Counsel's Grounds 10 and 11 alleging Abuse of Power). Instead, they rewrote, redefined, or restated the eleven grounds described by the OIC into fifteen somewhat similar, somewhat different allegations of criminal wrongdoing. As an example, the Independent Counsel alleged that the President obstructed justice by encouraging Lewinsky to file a false affidavit in the Jones case.323 In his presentation to the Committee on October 5, however, the Majority Counsel transformed this straightforward allegation into the central underlying factual element of no fewer than five charges of criminal wrongdoing.
This tactic, along with the Majority's subsequent abortive forays into allegations relating to Kathleen Willey, Webster Hubbell and campaign finance, engendered considerable confusion about whether the grounds outlined in the Referral would, in fact, continue to be the basis of any proposed articles of impeachment. The articles of impeachment, when finally drafted, returned to the original allegations and appear to confine themselves to the charges relating to the President's relationship with Ms. Lewinsky. Yet, although the OIC's Referral listed specific allegations, even including the actual statements the prosecutors alleged to be false when they were making false statement charged, and although the Majority Staff's original presentation also included specific charges, the actual Articles of Impeachment abandoned such specificity. Rather the Articles make vague charges, such as accusing the President of making false statement about the “nature and details” of his relationship with Ms. Lewinsky.
This lack of specificity reflects poorly on the impartiality of the process and is totally inconsistent with historical precedent. In the last presidential impeachment proceeding, as pointed out by Rep. Alcee Hastings in his December 9, 1998 letter to Chairman Hyde and Ranking Minority Member Conyers, the Judiciary Committee took pains to ensure that each article of impeachment was accompanied by detailed statements of fact:
Both of you will recall that the Chair and the Ranking Minority member (with the concurrence of the Committee) directed John Doar, Special Counsel for the Majority, and
322 Letter from Thomas E. Mooney, Sr., Chief of Staff, House Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to the President (Dec. 6, 1998); Letter from Thomas E. Mooney, Sr., Chief of Staff, House Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to the President (Dec. 3, 1998).
323 Referral at 173–80 (Ground VI).
Albert Jenner, Special Counsel for the Minority, to produce
Member to review.324 A similar format was used to support the articles of impeachment voted out against Judge Hastings. 325 No such effort has been made in this case to supply a detailed road map of the supporting evidence for the articles of impeachment.
To illustrate, in Article I, the charge is misleading testimony concerning “the nature and details of his relationship,” but the Article declines to identify which statements are at issue. This lack of specificity would be a grave constitutional defect in any indictment delivered by a grand jury against any criminal defendant. This basic measure of due process, however, has been denied to the President. It is fair to presume that the Majority's unwillingness to specifically identify the charges at issue are rooted in a reluctance to make plain the essential triviality of the allegations of personal misconduct at issue and the salacious nature of the issues that the Senate would be condemned to explore at trial. To have to state that the removal of the President is based on his misstating when his relationship with Ms. Lewinsky started, or how many times he had intimate telephone conversations with her, or where he touched her would demonstrate the frivolity of these charges for something as grave as impeachment.
The Articles also display another unfairness; to the extent that the Articles are occasionally specific, they are unnecessarily duplicative. For example, Majority Counsel has adopted the OIC's allegation that the President tried to influence Ms. Lewinsky to file a false affidavit and lists it in subparagraph 1 of Article III as an obstruction of justice; yet, this same event is included again, renamed as perjury in subparagraph 4 of Article I, as a matter about which the President testified falsely during his grand jury appearance. V. CENSURE IS AN APPROPRIATE AND CONSTITUTIONAL
ALTERNATIVE TO IMPEACHMENT Throughout the proceedings, but especially during the debate on the actual Articles of Impeachment, the Majority attempted to blunt the impact of its decision. The Chairman emphasized that “impeachment is not the same as removal.” Rep. McCollum even went so far, before he corrected himself, to reassure the public by stating that a conviction of the President in the Senate would not
324 Letter from Rep. Hastings to Hon. Henry Hyde, Chairman, Committee on the Judiciary, and Hon. John Conyers, Jr., Ranking Minority Member, Committee on the Judiciary, at 1 (Dec. 9, 1998).
sure.” Majority Membering they to for what
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have to lead to his removal from office. Both he and other Republicans called the House vote on impeachment "the ultimate censure."
The Majority Member's statements underscore their discomfort with what they were doing—they too realized that President Clinton should not be removed from office for what, in effect, were his misstatements about a private, extra-marital relationship. Yet, the Majority has put the country on a collision course with the constitution by insisting that impeachment of the President is the only means to address misconduct that is serious but falls below the standard for removal.
There are, unfortunately, partisan reasons behind the Majority's insistence that the House be given an impeachment or nothing option. The Republican leadership understands that there are many Members of both parties who believe that an alternative to impeachment is appropriate. If such an alternative were presented, Republicans would have another means to express themselves on the issue of the President's conduct. This, in turn, would siphon votes away from impeachment-the resolution the leadership desires. Keeping its Members in partisan line, however, should not be the motivation behind a decision that prevents Members of the House to voting their conscience. A censure resolution would provide lawmakers on both sides of the aisle a constitutional and appropriate alternative.
At the December 12, 1998 Hearings, the Representatives Boucher, Delahunt, Barrett, and Jackson Lee introduced a resolution of censure addressing the President's conduct. Almost all of the Democrats on the Committee voted for the resolution and all expressed a desire that their House colleagues have the chance to vote their consciences on this issue. The resolution read:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That it is the sense of Congress that
(1) on January 20, 1993, William Jefferson Clinton took the oath prescribed by the Constitution of the United States faithfully to execute the office of President; implicit in that oath is the obligation that the President set an example of high moral standards and conduct himself in a manner that fosters respect for the truth; and William Jefferson Clinton has egregiously failed in this obligation, and through his actions violated the trust of the American people, lessened their esteem for the office of President, and dishonored the office which they entrusted to him;
(2)(A) William Jefferson Clinton made false statements concerning his reprehensible conduct with a subordinate;
(B) William Jefferson Clinton wrongly took steps to delay discovery of the truth; and
(C) inasmuch as no person is above the law, William Jefferson Clinton remains subject to criminal and civil penalties; and
(3) William Jefferson Clinton, President of the United States, by his conduct has brought upon himself, and fully deserves, the censure and condemnation of the American people and the Congress; and by his signature on this
Joint Resolution, acknowledges this censure and con
demnation. Supporters of that resolution maintained that it would be an appropriate way of bringing closure to events that have too long diverted public and governmental attention from more pressing issues. A vote of censure would. condemn actions that most members of Congress and the general public find reprehensive but not impeachable. Such a formal censure could then spare the country the wrenching disruption and policy paralysis that would accom: pany a full trial in the Senate.
Opponents of censure raised both constitutional and policy objections. The constitutional claim was that censure was not mentioned in the Constitution as an alternative to impeachment. In point of fact, numerous actions by Congress are not explicitly mentioned in the Constitution and yet are indisputably permissible under Congress's general authority. Moreover, Congress expresses its sense on a wide range of issues and the President's conduct would be no different. Indeed, just this most recent Congress, the House expressed its disapproval of President Clinton for: purportedly using White House Counsel office resources for personal legal matters;326 certifying Mexico under the Foreign Assistance Act;327 and invoking certain evidentiary privileges.328
As to the two principal policy objections that Majority members raised, they are inherently inconsistent. Some claimed that a congressional reprimand would be weak and ineffectual. Yet, others claimed that such an action would be capacitating because it would deter the President from making policy decisions that a congressional majority opposed. The first argument is that a censure without penalties would constitute a "toothless resolution," a "copout.” 329 The converse argument is that a censure creates a dangerous precedent that would threaten the independence of executive and judicial officials and upset the separation of powers. Frequent actions of condemnation by Congress could divert attention. from important legislative initiatives and open the way for retaliation based on politically unpopular decisions.
The Minority pointed out how Republicans were arguing both sides of the argument for their own political purposes. In addition, Democratic Members noted that only one President has ever been officially censured. This form of condemnation scarcely has been the means to abuse the separation of powers. The unique aspects of the current impeachment inquiry also insure that this is not a step that Congress would take lightly. This is obviously not a case in which Congress simply disagrees with Presidential policy, as was true in some of this nation's earlier censure controversies. At issue here is misconduct that the President himself has acknowledged and that. a wide margin of the American public and its democratic leaders find offensive. If it takes this type of conduct, followed by this degree of consensus among Congress and the public,
326 H. Res. 397. 327 H. Res. 58. 328 H. Res. 432
329 Remarks of Representative Bill McCollum, 12/12/98 Tr.; remarks of Representative Elton Galleghy, 12/12/98 Tr.
there would be little to fear that this device would be abused in the future.
The Majority's claim that censure would constitute a meaningless wrist slap is equally unpersuasive. Representative Barney Frank, speaking from his own painful experience, noted in Committee hearings:
I am struck by those who have argued that censure is somehow an irrelevancy, a triviality, something of no weight. History doesn't say that. There are two members of this House right now who continue to play a role who were reprimanded for lying, myself and outgoing Speaker Gingrich. We both were found to have lied, not under oath, but in official proceedings and were reprimanded. I will tell you that having been reprimanded by this House of Representatives, where I'm so proud to serve, was no triviality, it is something that when people write about me, they still write about * * * for all of us who are in this business of dealing with public opinion, and courting it, and trying to shape it, and trying to make it into an instrument of the implementation of our values, to be dismissive of the fact that the United States House of Representatives or Senate might vote a condemnation as if that doesn't mean anything? Members know better. I cannot think of another context in which members would have argued that a censure, a solemn vote of condemnation, would not have meant very much. Certainly former Senators Thomas Dodd and Joseph McCarthy would not have
believed that for a minute. So too, as Minority members emphasized, a resolution of censure against the President will be “talked about for generations and will live in history.” 330
A. A CENSURE RESOLUTION IS CONSTITUTIONAL The authority of Congress to pass resolutions expressing condemnation is well established. Article I, Section 5, (d)(2) of the Constitution authorizes both the House and the Senate the power to punish Members for disorderly behavior. Although the constitutional text provides no similar explicit authority for condemnation of behavior by other individuals, Congress has long assumed that it has such authority. The House and Senate have considered at least a dozen resolutions condemning conduct by executive or judicial officials.331 Some of the resolutions use the term "censure,” while others use language such as “reproof” or “condemn.” 332
The power to express such disapproval is rooted in traditional legislative authority to register the sense of the House, the sense
330 Remarks of Representative Boucher, tr. at ????
331 Richard S. Beth, Congressional Research Service, Censure of Executive and Judicial Branch Officials, Legislation Proceedings, 6 (Oct. 2, 1998) (hereinafter Beth); Jack H. Maskell, Congressional Research Service, Censure of the President by Congress, September 29, 1998, 2–4 (hereinafter, Maskell). It is important to note that the Majority repeatedly asked the Committee to turn to proceedings involving federal judges to find precedents for impeachment. Yet, the same Majority apparently now wants the Committee to ignore the fact that Congress has used its censure power to condemn the actions of these same judges when impeachment was too severe.
332 Censure is commonly defined as a legislative, administration or other body reprimanding a person, normally one of the other members. (Black's Law Dictionary 224 (6th Ed. 1990)).