the words of protest from President Jackson, which the Senate refused to enter on its Journal: By an expression of the constitution, before the President of the United States can enter on the execution of his office, he is required to take an oath or affirmation in the following words: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States." The duty of defending, so far as in him lies, the integrity of the constitution, would indeed have resulted from the very nature of his office; but by thus expressing it in the official oath or affirmation, which, in this respect, differs from that of every other functionary, the founders of our republic have attested their sense of its importance, and have given to it a peculiar solemnity and force. Bound to the performance of this duty by the oath I have taken, by the strongest obligations of gratitude to the American people, and by the ties which unite my every earthly interest with the welfare and glory of my country, and perfectly convinced that the discussion and passage of the abovementioned resolution were not only unauthorized by the Constitution, but in many respects repugnant to its provisions and subversive of the rights secured by it to other coordinate departments, I deem it an imperative duty to maintain the supremacy of that sacred instrument, and the immunities of the department intrusted to my care, by all means consistent with my own lawful powers, with the rights of others, and with the genius of our civil institutions. To this end, I have caused this, my solemn protest against the aforesaid proceedings, to be placed on the files of the Executive department, and be transmitted to the Senate. Gales & Seaton's Register, President's Protest, April 17, 1834, Protest of President Andrew Jackson. President Jackson wrote that the very idea of a censure is a "subversion of that distribution of powers of government which [the Constitution] has ordained and established [and] destructive of the checks and safeguards by which those powers were intended on the one hand to be controlled and the other to be protected." Id. It was for this reason that President Jackson argued that censure was "wholly unauthorized by the Constitution and in derogation of its entire spirit." Id. One of the constitutional scholars appearing before the Committee during the course of its impeachment hearings, Gary McDowell, stated this point eloquently: Impeachment is the only power granted by the Constitution to the Congress to deal with errant executives. It is the only means whereby the necessarily high walls of separation between the two branches may be legitimately scaled. Had the Founders intended some other means of punishment to be available to your branch they would have said so, as Chief Justice John Marshall once said, “in plain and intelligible language." That they did not do so should be your only guide in this grave and sensitive mat- The temptation to do anything possible to avoid exercis- Letter of Gary McDowell, Director of the Institute for U.S. Studies, University of London, to Representative William Delahunt (December 3, 1998). It is important to note that the Senate expunged the censure of President Andrew Jackson only three years later. Register of Debates, 24th Congress, 2d Sess. 379-418, 427-506 (1837), see discussion in Fisher, Constitutional Conflicts Between Congress and the President, 54-55 (4th ed. 1997). This is significant because the word expungement, the phrase 'expungement from the record', has legal as well as historical significance. It doesn't mean we just turn our back on it. It means it never happened. If somebody is convicted of a crime and they later go back to court after their conviction is over and they've served their time, if they petition the court to expunge the record, it means they lawfully can answer under oath that they have never been convicted of a crime because it never happened. And on any given date, any future Congress could by a simple majority vote take this piece of paper and erase it from the history books of America, erase its significance, erase its longevity and erase its effect. I don't see that as a significant rebuke at all. Markup Session, Articles of Impeachment of William Jefferson Clinton, Statement of Representative James E. Rogan, December 12, 1998, at 310. Constitutional scholar John O. McGinnis testified before the Committee that: The current interest in creating new forms of sanctions for the President reflects a cavalier attitude toward constitutional governance, and indeed illustrates the kind of lasting damage that the country risks from presidential misconduct. If a President cannot legitimately deny that he has breached the public trust there will be a widespread feeling that he must be punished. He or his supporters then may be willing to trade the prerogatives of his office for their personal or political benefit. Thus one way a President who has committed serious misconduct poses a threat to the Republic, is the increased likelihood that he will agree to disastrous constitutional precedents to protect Hearing on "The Background and History of Impeachment," before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 2d Sess., (Nov. 9, 1998) (written statement of Professor John O. McGinnis, Professor of Law, Yeshiva University Cardozo School of Law) at 19. Representative Canady underscored this point during the markup of Articles of Impeachment: 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. We have made statements, and I have made statements about the President's conduct, which I have concluded more in sorrow than in anger. But the facts point to the conclusion that the President has been more concerned with maintaining his personal power than with maintaining the dignity and the integrity of the high office entrusted to him under our Constitution. Markup Session, Articles of Impeachment of William Jefferson Clinton, Statement of Representative Charles T. Canady, December 12, 1998, at 208-12. VII. ADDITIONAL VIEWS ADDITIONAL VIEWS OF HON. BILL MCCOLLUM CHAIRMAN, SUBCOMMITTEE ON CRIME, COMMITTEE ON THE JUDICIARY INTRODUCTION I have carefully reviewed the entire record regarding the allegations of criminal wrongdoing by President Clinton. And it is with a heavy heart that I have concluded that the evidence establishes clearly and convincingly that President Clinton is an oath breaker and a law breaker and should be impeached. On January 20, 1993, William Jefferson Clinton raised his right hand, placed his left hand on the Bible, and solemnly swore an oath before Congress, the American people, a watching world, and Almighty God to "faithfully execute the Office of President of the United States, and . . . to the best of [his] ability, preserve, protect and defend the Constitution of the United States." That oath obligated the President to faithfully discharge his duties as the chief law enforcement officer of the land and commander-in-chief of the armed forces. Again, on January 17, 1998, before a United States District Court judge in a federal civil rights suit, and on August 17, 1998, before a federal grand jury, President Clinton took an oath to "tell the truth, the whole truth, and nothing but the truth, so help me God." Far from keeping his solemn oaths, President Clinton actively sought to thwart the due administration of justice by repeatedly committing the felony crimes of perjury, witness tampering, and obstruction of justice. He has also repeatedly lied to the American people and to the United States Congress. President William Jefferson Clinton should be impeached. ANALYSIS There are three principal considerations in determining whether President Clinton should be impeached: Did he commit any of the crimes for which he stands accused? If so, are such crimes impeachable offenses under the U.S. Constitution? And if they are impeachable, is there any reason why the U.S. House of Representatives, in its discretion, should not impeach him, and what might be the consequences of such inaction? When considered objectively apart from the hype, the evidence examined by the House Judiciary Committee overwhelmingly establishes that President Clinton committed not one, but numerous serious felony crimes. There is little doubt that a prosecutor could bring the case to trial, and a strong likelihood that the jury would convict President Clinton for several, if not all, the charged crimes. Encouraging Ms. Lewinsky's false affidavit and relying on it Long before Ms. Lewinsky was subpoenaed in the Jones v. Clinton case, President Clinton and Ms. Lewinsky reached an understanding that they would deny any relationship between them. Ms. Lewinsky learned from the President that her name was on the Jones v. Clinton witness list. She asked him what to do if she was subpoenaed, and the President suggested she could submit an affidavit that might keep her from having to testify. Ms. Lewinsky testified that she understood President Clinton's suggestion to mean she might be able to execute an affidavit that would avoid her having to disclose the true nature of their relationship. While saying the President never told her to lie in the affidavit, Ms. Lewinsky took his suggestion to file an affidavit, in conjunction with their previous agreement to deny the relationship, and the absence of any suggestion from him that she tell the truth in the affidavit, to mean that he expected her to deny the relationship in the affidavit. Indeed, in the very same conversation in which President Clinton suggested she file an affidavit if subpoenaed, he reminded her of the cover stories they had previously fabricated and encouraged her to continue using them. Ms. Lewinsky carried out the plan and filed a false affidavit, in which she denied the relationship with President Clinton, in the Jones v. Clinton case. During the President's civil deposition President Clinton's attorney, Robert Bennett, stated that the President was fully aware of the contents of Ms. Lewinsky's affidavit. Whether or not the President explicitly asked her to file the false affidavit, he clearly encouraged her to, planning to rely on it in his civil deposition, and then doing so. As such, President Clinton committed the crime of obstructing justice. Concealing evidence When Ms. Lewinsky was served with a subpoena to testify in the Jones v. Clinton case, she was also served with a subpoena to produce every gift given to her by President Clinton. Nine days later (on December 28, 1997) she met with the President and expressed concern about the gifts being subpoenaed and particularly about the hat pin named in the subpoena-the first gift he had ever given her. The President asked her if she had told anyone about the hat pin and she said no. Ms. Lewinsky testified that she asked President Clinton if she should put the gifts away outside her house or possibly give them to somebody like Betty Currie. She testified that his response was noncommittal. In his testimony before the federal grand jury the President said that he told Ms. Lewinsky that if the lawyers for Ms. Jones asked for gifts she would have to give them what she had. She testified that President Clinton never said anything to give her that impression. On the contrary, she was left with the opposite impression: that she was supposed to deny their existence and do whatever was necessary to conceal them. Ms. Lewinsky testified that later that same day Mrs. Currie called her on a cell phone about picking up "something" from her and then came by Ms. Lewinsky's place, say |