HIGH CRIMES
AND MISDEMEANORS:
THE
CONSTITUTIONAL AND HISTORICAL STANDARD FOR IMPEACHMENT
The Precedent for the Impeachment of President Clinton
Keith
Howell
I.
Introduction
The American federal
impeachment process is a political process utilized only a handful of times
during the last 200 years, and only twice in an attempt to remove a
president. As legal scholar Raoul
Berger has noted, the impeachment process is a Constitutional “safety valve”
providing a “mechanism for ousting the chief executive before his term of
office expires.”[1] Unfortunately, the fact that it is rare,
politically instigated, investigated, tried and punished without an objective
standard defining what constitutes an impeachable offense inspires a certain
amount of trepidation among the American people.[2] What exactly is impeachment? It is quite simply “an official accusation
by the House [of Representatives] of wrongdoing so serious that if the official
doesn’t resign, the Senate must hold a trial to decide whether he or she should
be removed from office.”[3] What constitutes an impeachable
offense? That question has dogged the
trail of American impeachment tradition since the Constitutional Convention of
1787. “High crimes and misdemeanors” is
a term of art with no objectively definable parameters, yet it has been cited
in the articles of impeachment for every American impeachment trial.
To determine best how to
define “high crimes and misdemeanors,” the first step is to briefly examine the
British influence upon the Founding Fathers.
The second step is to look at the Convention debates. The debate records should give guidance as
to how, when and why the term of art was included in the final draft of the
Constitution. The third step is to
track how various historical figures and trials have applied the term –
ultimately, creating an outline of America’s 200-year history of experience
with impeachment. The final step is to
apply that historical standard to the former President Clinton’s impeachment
and to examine the Constitutional validity of the “censure” option.
A. The British Influence
The practice of impeachment
and its procedural elements were inherited from the English, where impeachment
first appeared in 1376 during the reign of Edward III.[4] It was confined to political prosecutions
and “independent of the Crown, which had no part in the proceedings.”[5] The House of Commons and House of Lords,
being newly separated from each other, undertook to prosecute “the most
powerful offenders and the highest officers of the Crown.”[6] Since beheading
was a possible punishment for the offending official, impeachment had “a
chastening effect upon royal actions.”[7]
Parliament’s first notable
experience with impeachment occurred during the reign of Richard II in 1386
with the impeachment of Chancellor Michael de la Pole, Earl of Suffolk for
“high crimes and misdemeanors.”[8] His “high crime and misdemeanor” was
misappropriation of funds.[9] The year 1450 saw the impeachment of the
Duke of Suffolk. His “high crimes and
misdemeanors” included obtaining offices for unfit persons and delaying justice
by stopping writs of appeal.[10]
Impeachment quickly fell
into disuse following the rise of the Tudor dynasty, but the excesses of the
Stuarts motivated Parliament to revive it in the 17th century. The period between 1621 and 1787 saw more
than fifty impeachment trials. In
addition to treason and bribery, “high crimes and misdemeanors” defined
impeachable offenses. As a term of art,
it was non-specific but limited to actions that betrayed the public trust or
brought the official’s position or office into disrespect. Misconduct such as misappropriation of
funds, commencing but not prosecuting suits, procuring titles to self and
family, negligent loss of a Naval ship, and discharging a grand jury before they
made their presentment are historical examples of offenses grave enough for
Parliament to impeach.[11]
Before drafting and
ratifying the federal Constitution, nearly every state’s constitution contained
impeachment provisions and procedures influenced by the British example. Mal-administration, corruption and
misconduct were common constitutional grounds for impeachment among the states.[12]
B. The Impeachment Debates
The Constitutional
Convention began in Philadelphia on May 25, 1787. The debates were held in secret and in the knowledge that
whatever final draft was presented to the states had to be acceptable to the
majority of people in each state.[13] On the subject of federal impeachment, there
were four major areas of controversy:
(1) the proper forum for impeachment trials, (2) whether to make the
President impeachable, (3) the scope of impeachable offenses, and (4) the
number of votes necessary for conviction and removal.[14]
Alexander Hamilton proposed
a plan modeled on both the British system and the New York Constitution. His plan limited the period of service of
the President, senators and federal judges to good behavior. He proposed that the court that tried
impeachment be composed of the “Chief or Judge of the Superior Court of Law of
each state.”[15] James Madison’s proposal called for the
federal judiciary to be the body empowered to try impeachment.[16] The Committee of Detail attempted a
compromise of Madison and Hamilton by proposing that impeachment trials be held
“before the Senate and the judges of the federal judicial Court.”[17]
Eventually a close
approximation of the final form was presented which proposed that the House of
Representatives should have the sole power of impeachment and that the Supreme
Court should have original jurisdiction for impeachment trials. This proposal would have placed the power to
convict the official and remove him from office into the hands of the federal
judiciary.[18] Gouverneur Morris would have none of that;
he viewed the Supreme Court as unsuited for that purpose.[19] Eventually, after providing that an
Electoral College rather than the Senate would select the President, the
delegates proposed the Senate as the body to conduct all impeachment trials. This proposal alleviated the problem that
many had with the obvious conflict of having the same body that appoints
individuals to high office being the one who tries the impeachment cases of
those same individuals.[20] Madison and many other delegates feared that
assigning the power to try impeachment to the Senate would make the President
too dependent upon the legislature.
Ultimately, most disagreed with that fear and voted to accept the
proposal, though Pennsylvania and Virginia dissented.[21]
Nearly all state constitutions
provided that their governors might be impeached. Yet, as previously noted, Madison, Morris and other delegates
expressed concern that the federal impeachment check would make the President
utterly dependent on the whims of the legislature.[22] The delegates seemed satisfied with the
examples of their respective state constitutions on whether the executive
should be removable upon impeachment.
On July 20, 1787, that question was put forth for a vote and the delegates
declared a resounding “yes.”[23]
Every speaker at the
Convention agreed that high-ranking officials, such as the President, should
not have immunity from prosecution for common-law crimes because crimes were to
be heard in the courts of law but impeachment should be reserved to a separate
body of offenses.[24] Violations of the public trust, such as
misconduct in office or misuse of official power made up this separate body of
offenses.[25]
The Convention came close to
proposing that impeachment would be limited to “treason or bribery” but George
Mason questioned the wisdom of that limitation. He argued that the definition of “treason” already approved for
inclusion within the Constitution was so limiting that an official might actually
subvert the Constitution and still not commit “treason.” He then moved to add the general term
“maladministration[sic]” but Madison objected to the ambiguity of so vague a
term. Mason then proposed “bribery and
other high crimes and misdemeanors” as a synonymous substitution. This motion was carried.[26]
The convention delegates’
conception of the Senate was that it would be the more reasoned, wealthier, and
educated branch of the legislature with the House being more inclined to
factionalism.[27] The expectation was that an impeachment
hearing would not be “popular” and, since it was not a trial, the senators were
not jurors but participants in a deliberative session.[28]
As a check on potentially
“hasty and intemperate action” on the part of the House, a proposal for a
two-thirds super-majority vote requirement in the Senate was passed. The super-majority requirement was
significant and “[without] parallel in pre-revolutionary constitutionalism.”[29] This vote solidified the “final Americanization
and republicanization of the impeachment process” which, in itself, was a
thoughtful and purposeful contrast to the British example.[30]
C. The Constitution
The Constitution, as drafted
and ratified, refers to impeachment five times in separate Articles. Article I, section 2 limits the power of
impeachment to the House of Representatives.[31] Article I, section 3 limits the power to try
impeachment to the Senate and limits the available punishments to removal from
office and disqualification from subsequently holding another office.[32]
Article II, section 2 restrains the President’s power to grant reprieves and
pardons by explicitly defining impeachment as an exception.[33] Article II, section 4 defines the parameters
as to who may be impeached.[34]
Article III, section 2 exempts cases of impeachment from the Constitutional
right to a jury trial.[35]
The British parliamentarian
example of divided functions between the Commons as prosecutor and the Lords as
judge is closely paralleled with the House of Representatives and the Senate in
the American model.[36] The punishment limitations, i.e., removal
from office and disqualification from holding office, are sharply contrasted,
though, to the British practice “which wedded criminal punishment and removal
in one proceeding.”[37] The Constitution limits impeachment to cases
involving “[t]reason, [b]ribery, or other high [c]rimes and [m]isdemeanors.”[38] Treason and bribery are both political
crimes; that is, the former is an offense against the State and the latter is
an attempt to corrupt administration of the State. William Hawkins in his 1716 work, History of Pleas of the
Crown, uses bribery, treason and “high crimes and misdemeanors”
interchangeably which supports the broader view that the Framers’ “bribery and
treason” inclusions were not intended as limitations but as examples of obviously impeachable “high crimes and
misdemeanors.”[39]
II.
High Crimes and Misdemeanors
William Blackstone’s position on the subject was that
impeachment be reserved to the prosecution of offenses violating “already known
and established law.”[40] Yet, the first appearance of the phrase was
not in a criminal context but in the impeachment proceeding of the Earl of
Suffolk in 1386 for mal-appropriation of funds, which was not a common law
crime.[41] During the Convention, it is significant
that Madison and John Jay “ceded to Hamilton, a supporter of a strong
presidency, the delicate task of interpreting impeachment as a weapon for
disciplining executives who use their energy in inappropriate ways.”[42] Hamilton, in Federalist number 65
defined the scope of impeachable offenses as those “which proceed from the misconduct of public men, or, in other
words, from the abuse or violation of
some public trust.”[43]
Senator Benjamin F. Butler, of Massachusetts, during the
impeachment trial of President Andrew Johnson, defined an impeachable “high
crime or misdemeanor.” According to
Butler it is misbehavior “in its nature or consequences subversive of some
fundamental or essential principle of government or highly prejudicial to the
public interest, and this may consist of
a violation of the Constitution, of law, of an official oath, or of duty, by an
act committed or omitted, or, without violating a positive law, by the
abuse of discretionary powers from improper motives or for any improper
purpose.”[44] Congressman Gerald R. Ford, proposing the
impeachment of Justice William O. Douglas, asked “[w]hat, then, is an
impeachable offense? The only honest
answer is that an impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history; conviction
results from whatever offense or offenses two-thirds of the other body
considers to be sufficiently serious to require removal of the accused from
office.”[45]
A study, written for the House committee considering
impeachment of President Richard Nixon,[46]
argued that the pedigree of the phrase “high crimes and misdemeanors” pertains
not just to criminal law but includes offenses “growing out of personal misconduct” and a “wide range of . . . noncriminal offenses.”[47] In sum, impeachable offenses encompass
misconduct or violations of trust, violations of oaths or duties, acts
committed by improper motives or improper purpose, and, ultimately, whatever
offense is serious enough for a majority of the House to believe is
impeachable.
The American history of federal impeachment is also a history
of the federal government’s “efforts to define and apply standards for
measuring official misconduct.”[48]
The impeachment and trial of Senator
William Blount began our country’s experience with federal impeachment –
President Clinton the most recent. The
following history of America’s federal impeachment experience further
reinforces the view that impeachable offenses need not include nor exclude
criminally prosecutable offenses.
Senator William Blount (1798) was impeached by the House for
“persistent misconduct” such as alienating the confidences of the Indians
during negotiations regarding land and stirring up Cherokee discontent over
boundary treaties.[49] Blount absconded rather than attend his own
trial but on January 14, 1799, Vice-President Thomas Jefferson announced that
the Senate had concluded that they did not have jurisdiction over the matter
because Blount was a senator and not a civil officer, as defined by the
Constitution. The Senate then exercised
their Constitutional power to expel those with their own ranks and removed him.[50]
The House impeached Federal District Judge John Pickering
(1804) for incompetence and intoxication.[51] Progressive senility and alcoholism made his
manifest unsuitability for office indisputable, but the Senate was hesitant to
convict because of personal sympathy for his afflictions and honor for his
achievements earlier in life.[52] After voting to allow evidence supporting
the contention that Pickering was insane, they overcame their sympathetic
leanings and he became the first United States official convicted and removed
from office under impeachment by the House and Senate.[53]
Associate Justice Samuel Chase of the Supreme Court (1805) was
impeached by the House for misconduct such as (1) behaving arbitrarily,
oppressively and unjustly by announcing his interpretation of the law before
defense counsel had been heard; (2) restraining defense counsel from citing
favorable precedents; (3) prohibiting the defense from addressing the jury on
the legal meaning of treason;[54]
(4) maliciously refusing to excuse from the jury a man who was already
convinced the defendant was guilty; (5) improperly prohibiting a defense
witness from testifying; (6) displaying a clear desire for conviction; (7)
violating Virginia law by having the defendant jailed; and (8) violating
Virginia law by disregarding the amount of time that must elapse between trial
and the presentment of a grand jury.[55] He was found guilty by a majority of the
Senate only on articles three, four and eight but not by the required
two-thirds majority needed for conviction.
Chase was, therefore, declared acquitted of all the Articles.[56]
After three impeachment trials within the first eight years
after the drafting of the Constitution, it was twenty-six years before the
House impeached Federal District Court Judge James H. Peck (1831) over an
inappropriate contempt ruling. The case
that led to the charge arose from a dispute over land policies in the former
Louisiana territory.[57] Luke Lawless, the losing attorney in the
case, believed Peck’s judgment to be in error and politically motivated. He struggled from that point on to have Peck
removed from the bench. He wrote a
sharply critical anonymous letter to a newspaper listing eighteen alleged
errors in Peck’s decision.[58] Peck held Lawless in contempt of court when
it was subsequently revealed that Lawless had authored the letter.[59]
Lawless asserted that Peck’s contempt
ruling and punishment fell within the parameters of “high crimes and
misdemeanors.” A majority acquitted
Peck by one vote.[60]
Thirty-one years later, in the midst of the Civil War, the
House impeached Federal District Judge West H. Humphreys (1862) for (1)
inciting rebellion in a public speech, (2) openly supporting insurrection, (3)
organizing armed rebellion, (4) confiscating United States property and (5)
opposing the authority of the United States.[61] He was convicted by a vote exceeding the
two-thirds majority of the Senate on each charge except that of confiscating
United States property.[62] He was subsequently removed from office and
disqualified from ever again holding a national office.[63]
The disorder and tension that immediately followed the end of
the Civil War and the brutal assassination of President Abraham Lincoln created
a nation-wide antagonistic atmosphere, which contributed to the friction
between the branches of the Federal Government, which ultimately led to the
impeachment of President Andrew Johnson in 1868. He was impeached by the House for, among other offenses,
usurpation of power, corrupt usage of presidential appointment, pardoning, and
veto powers, and violating the Tenure of Office Act for the manner in which he
dismissed Secretary of War Edwin Stanton.[64] After three article votes without achieving
the two-thirds majority necessary, the Senate realized that securing a
conviction on any of the articles was going to be impossible and moved to adjourn
without voting on the rest of them.
Chief Justice Salmon P. Chase ended the proceeding without an
announcement of acquittal or conviction, just adjournment.[65]
Federal District Judge Mark W. Delahay (1873) was impeached by
the House for “unsuitable personal habits and . . . questionable financial
dealings.”[66] He resigned following his impeachment and no
further action was taken against him.[67] Shortly thereafter, the House impeached
Secretary of War William W. Belknap (1876) for general malfeasance, violating
neutrality laws by selling government arms to the French, accepting kickbacks
for appointments, and accepting bribes.[68] Like Humphreys and Johnson, Belknap had been
a participant in the Civil War and the reconstruction period that followed.[69] The charges brought against him were not
tied to Civil War issues but to the scandal-ridden Ulysses Grant
administration.[70] The Senate believed the charges against him
but Belknap had hurriedly resigned, thus it lacked jurisdiction over him.[71]
The first impeachment of the
twentieth century involved Federal District Judge Charles Swayne (1904) who was
impeached by the House for living outside his district, unlawfully claiming
expenses, improperly accepting free transportation and unlawfully sentencing
for contempt.[72] Although a majority found Swayne guilty on a
few articles, none of the votes achieved the two-thirds majority and he was
acquitted on all charges.[73]
The next three impeachments
concerned patterns of misconduct by judges.
One was ultimately convicted, another resigned before he could be tried
and the other was acquitted. The House
impeached Circuit Judge Robert W. Archibald (1913) for corruption, financial
improprieties, and a general pattern of misconduct.[74] He was convicted, subsequently removed from
office and disqualified from ever again holding any position with the federal
government.[75] The House impeached Federal District Judge
George W. English (1926) for misconduct such as unlawfully disbarring two
attorneys, coercing public officials and jurors, and habitually using profane
and vulgar language. The impeachment
proceedings were dropped when he resigned from the bench.[76] A bogus residence to satisfy domicile
requirements[77] and
improperly appointing, removing and determining fees for receivers[78]
led to the 1933 impeachment of Federal District Judge Harold Louderback
(1933). He was acquitted of all
charges.[79]
The House impeached Federal
District Judge Halsted L. Ritter (1936) for improper conduct in a bankruptcy
matter, tax evasion, and practicing law after becoming a judge. The Senate found Ritter guilty on some
articles and not guilty on others but the Senate never could reach the
two-thirds majority on a guilty verdict until the final article.[80] He was convicted on that final article which
was a “catchall article” restating all
the charges as set down in the previous specific articles.[81] Ritter was subsequently removed from office
but was not disqualified from ever
holding a position in the federal government again.[82]
Associate Justice William O.
Douglas of the Supreme Court was the subject of repeated impeachment
attempts. In 1953, a resolution was
introduced to impeach the justice after he granted a stay of execution to
Julius and Ethel Rosenberg.[83] The resolution was unanimously tabled after
a one-day hearing.[84] In 1970, two separate resolutions for his
impeachment were introduced citing possible financial conflicts similar to
those that had recently led to Senate rejection of two Nixon nominees for the
Court.[85] The special House Judiciary Subcommittee
found that grounds for impeachment did not exist and dismissed the charges.[86]
President Richard M. Nixon
(1974) resigned ten days after Judiciary Committee approval of the articles of
impeachment and on the eve of the nearly certain majority adoption of the
articles by the House.[87] The articles charged him with, among other
offenses, abuse of power by unlawfully using governmental agencies to advance
private goals, illegal wiretapping, obstruction of justice by thwarting the
investigations of the Watergate break-in, and suborning perjury. The House never actually impeached the
President because his strategically timed resignation halted the impeachment
process.[88]
In 1986, as he sat in prison
for tax evasion, Federal District Judge Harry E. Claiborne impeachment by the
House was no surprise. The House felt
that “[t]he spectacle of a federal judge sitting in prison, refusing to resign,
drawing his full salary, and possibly remounting the bench after being
released”[89] brought the
federal judiciary into disrepute.[90] This was a strong incentive to impeach and
he was “found guilty by a staggering 92 percent vote in the Senate.”[91]
Federal District Court for
the Southern District of Mississippi Chief Judge Walter Nixon (1989) was convicted by a jury of two counts of perjury
in the context of making false statements before a federal grand jury.[92] While serving his prison sentence, he was
impeached by the House for the perjury and the underlying charge of accepting a
bribe. The Senate convicted Nixon on
the first two counts by the required two-thirds majority and removed him from
office.[93]
IV.
The
Historical Standard as Precedent for the Impeachment of President Clinton
A. President William Jefferson Clinton
On December 19, 1998, President Bill Clinton became the first elected President to be impeached.[94] His highly publicized moral indiscretions
and serial perjury sparked investigations and hearings into whether his actions
are impeachable.[95] Independent
Counsel Kenneth Starr’s report detailed no less than a possible fifteen
offenses and felonies that President Clinton may have committed in his efforts
to “cover up a sordid and irresponsible relationship.”[96] The Starr Report submitted that there was
substantial and credible information that President Clinton lied at least five times under oath as a
defendant in the Paula Jones suit regarding his sexual relationship with Monica
Lewinsky; lied under oath to the
grand jury about his sexual relationship with Lewinsky; lied at least three times under oath during his civil deposition; endeavored to obstruct justice by
engaging in a pattern of activity to
conceal evidence regarding his relationship with Lewinsky from the judicial
process in the Jones case; conspired to
commit perjury with Lewinsky; endeavored
to obstruct justice by helping obtain a job for Lewinsky at a time when she
was likely to be called as witness against him in the Jones case; lied under oath regarding
conversations with Vernon Jordan; endeavored
to obstruct justice by attempting to influence the testimony of his
secretary Betty Currie; endeavored to
obstruct justice during the federal grand jury investigation by lying to
potential grand jury witnesses knowing that they would relay the falsehoods to
the grand jury; and acted inconsistently
with the President’s Constitutional duty to faithfully execute the laws.[97]
Even a cursory examination of these fifteen grounds shows an
almost pathological pattern of misbehavior of the type for which the Framers
intended impeachment to be the remedy.
The past 200 years have seen officials impeached for “persistent
misconduct,” “unsuitable personal habits,” and a “general pattern of
misconduct” as well as indictable criminal offenses like “perjury.” No less than ten of the possible fifteen
individual grounds for impeachment are for lying under oath — perjury.[98] Former Reagan nominee to the Supreme Court
Robert Bork explained “[r]epeated and deliberate lies told under oath, because
they strike at the Constitution and the rule of law, are most certainly [what
Hamilton described as] ‘injuries done immediately to the society itself.’ They are within any intelligible meaning of
the words, ‘high [c]rimes and [m]isdemeanors.’”[99] Supporters of the President maintained that
the issue of perjury by lying under oath is not
one that rises to the level of an impeachable offense. If this is true, there are over one hundred
and fifteen people serving time in federal prisons for perjury who are likely
wondering what special privilege has been bestowed on the President placing him
above the law.[100] If “lying about sex” is excusable, is lying to protect your child, your spouse, your
business partner, your professor, or “fill-in-the-blank” also excusable? Where do the exceptions end?[101] As Florida Representative Charles Canady
said, “[t]he unavoidable consequence of perjury . . . by a president would be
to erode respect for the office . . . [and] inevitably subvert the respect for
the law which is essential to the well-being of our constitutional system.”[102]
B. Congressional Censure of the President: A Constitutional Option?
Former Presidential Chief of Staff Leon E. Panetta, among
others, took the position that the impeachment process was unnecessary to
satisfy the intent of the Framers that the removal of the President must
reflect “both the will of the public and the nation’s interest.”[103] He asserted that the Framers deliberately
set a high bar for Congress to overcome before removing a President, the
election of whom is the only political act the people of the nation perform
collectively.[104] Panetta argues that President Clinton’s lies
were “aimed at concealing a . . . moral failure.”[105] As a result, it did not constitute a policy
failure or crime that went “to the
governing of our democracy.” [106] The solution of “censure” (usually an
official expression of displeasure with no punishment attached)[107]
then, would ensure the stability of the government and be more in keeping with
the spirit of a constitutional form of government rather than a parliamentary
form.[108]
In response, Donald Kochan, an adjunct scholar with the
Mackinac Center,[109]
argued that Panetta’s proposal was “premised on what sounds good and might make
us feel better, rather than on what Congress has the authority to accomplish.”[110] Impeachment is Congress’s only option
because the Framers intentionally drafted the Constitution to form a uniquely
American system of government in contrast to Britain’s parliamentary system.[111] In fact, if Congress asserted a power of
censure of the President it would not underscore the difference between the two
governments, but rather set a precedent drawing the American form of government
toward a more parliamentary style.[112]
Panetta’s support of a censure neglected the fact that
“[p]unishing the [p]resident was meant to be hard.”[113] Censure would create an extra-constitutional
"plea bargain approach” to impeachment proceedings which could drastically
weaken the government because there are no limits on who can be censured and
what offenses are censurable within the Constitution.[114] Whether Congress or the President would
prefer this “plea bargain” approach to impeachment is irrelevant because “[i]t
is not within either’s authority to enlarge the powers of Congress. Congress can choose not to impeach or not to
convict, but it lacks the authority to choose to make an alternative deal.”[115]
V.
Conclusion
Ann Coulter correctly
declared “[e]lections decide policy; impeachments judge character.”[116] The truth of that assertion is clear from
the text of the Constitution and the writings of the Framers. The federal impeachment process was intended
to be a check on the sinful nature of man.
As Bork noted, “[t]he Constitution is the foundation of the American
Republic. It requires political virtue
not only in its citizens but most especially in its highest officers.”[117] The Framers knew that just as the general
citizenry is sinful and imperfect, the President and other high officials are
as well. Their experience with
Britain’s monarchy proved too well that numerous checks on political power were
necessary for a free people to remain free.
The federal impeachment process was particularly the check in place for
occasions when an official had, through moral lapse, dishonored his office and
his country.
This check is the one way to
intervene between elections and remove those who have not maintained the moral
integrity and control that are necessary and expected by a free people. Far from being a “constitutional crisis”
that “tears apart the country,” impeachment is a means of maintaining
stability. Without the availability of
the impeachment option, the American people would be forced to endure even the
reign of a despot until the next election.
This was clearly not the intent of the Framers.
The infrequency with which
impeachment has occurred underscores the seriousness of it. In every instance, impeachment has been
pursued as the result of a moral failing such as alcoholism, behaving
arbitrarily, inciting rebellion, usurping power, behaving unsuitably or
corruptly, bringing the office into disrepute, and exhibiting a general pattern
of personal misconduct. Of course, in
many instances, these moral failings have been coupled with illegal acts as
well such as tax evasion, embezzlement, treason, bribery and perjury.
In light of the history of
the impeachment process and the fact that no other option is Constitutional, it
is clear that the House had no other principled option than to do exactly what
they did — impeach President Clinton.
“High crimes and misdemeanors” are offenses broadly defined but not
ambiguous when one tracks and reviews the historical record. Measured against the standard examined
above, President Clinton was clearly impeachable and should have been removed from office by the Senate. The Framers created the American
constitutional government in direct contrast to the parliamentary government of
Britain and intended the impeachment process to be, in the words of Benjamin
Franklin, our “alternative to assassination.”[118] That is, a uniquely civilized and American
way to intervene and remove unfit leaders without the national trauma and
upheaval of a revolution, an insurrection, or even the tragedy of an
assassination. The impeachment of
President Clinton, regardless of individual American’s subjective opinions as
to whether he should or should not have been removed from office, was the
appropriate application of the historical tradition of the American federal
impeachment process.
[1] Ruth Marcus and Juliet Eilperin, Focus: Judging The President, The Virginian-Pilot, Sept. 11, 1998, at A4.
[2] Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis xi (1996).
[3] Andrew Mollison, Impeachment: What It All Means, The Virginian-Pilot, Sept. 27, 1998, at J1.
[4] Theodore F. T. Plucknett, A Concise History of the Common Law 204 (Little, Brown and Company, 5th edit. 1956) (1929); see generally Thomas Jefferson, The Manual on Parliamentary Practice and Rules of the House of Representatives §§ 601-11, 619-20 in Senate Manual (55th Cong., 1899), reprinted in Why President Richard Nixon Should Be Impeached 36-41 (Am. Civ. Liberties Union Public Affairs Press).
[5] Plucknett, supra, at 204.
[6] Raoul Berger, Impeachment: The Constitutional Problems 1 (1973).
[7] Russell Kirk, The Roots of American Order 198 (1991).
[8] Berger, supra note 6, at 67.
[9] Id.
[10] Id.
[11] Id. at 32, 67-68.
[12] Mass. Const. of 1780, 1 Poore 963; N.H. Const. of 1784, 2 Poore 1286, Conn. Charter of 1662, 1 Poore 254, cited in Why President Richard Nixon Should Be Impeached 30 nn. 14 & 15 (Am. Civ. Liberties Union Public Affairs Press).
[13] See Gerhardt, supra note 2, at 3-4.
[14] See Id. at 5-10; see generally The Anti-Federalist Papers and the Constitutional Convention Debates 38, 114-124 & 165-171(Ralph Ketcham ed., 1986)
[15] Gerhardt, supra note 2, at 5-6.
[16] Id. at 6.
[17] Id.
[18] Id.
[19] Id.
[20] Gerhardt, supra note 2, at 6-7.
[21] Id. at 7.
[22] Id.
[23] 2 M. Farrand, The Records of the Federal Convention of 1787, 61, 69 (1937 ed.), cited in Why President Richard Nixon Should Be Impeached 30 n. 16 (Am. Civ. Liberties Union Public Affairs Press).
[24] Gerhardt, supra note 2, at 8.
[25] Id.
[26] Id. at 8-9.
[27] Id. at 9-10; see also John Eidsmoe, Lecture to Historical and Theological Foundations of Law Class at Regent University School of Law, Virginia Beach, VA (Oct. 23, 1998).
[28] Gerhardt, supra note 2, at 10.
[29] Id. at 9-10.
[30] Id.
[31] U.S. Const. art. I, § 2, cl. 5.
[32] U.S. Const. art. I, § 3, cls. 6 & 7.
[33] U.S. Const. art. II, § 2, cl. 1.
[34] U.S. Const. art. II, § 4.
[35] U.S. Const. art. III, § 3, cl. 3.
[36] Berger, supra note 6, at 54.
[37] Id. at 79.
[38] U.S. Const. art. II, § 4.
[39] Berger, supra note 6, at 65.
[40] Id. at 55(quoting Blackstone).
[41] Id. at 59.
[42] George Will, Impeach Clinton Now, The Virginian-Pilot, Aug. 22, 1998, at B7.
[43] Id., quoting The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis added).
[44] Staff of U.S. House Comm. on the Judiciary, 93d Cong., 1st sess., Impeachment, Selected Materials 27 (Comm. Print 1973) (hereinafter Impeachment Materials) (emphasis added).
[45] 116 Cong. Rec. H. 31113-3114 (daily ed. April 15, 1970), cited in Berger, supra note 6,at 53 n. 1.
[46] Staff of House Comm. On the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93d Cong., 2d sess., 1974. H. Rep. 93-1305 (hereinafter Nixon Impeachment).
[47] Id. (emphasis added).
[48] Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 1 (1992).
[49] Id. at 26; Impeachment Materials, supra note 44, 125-128.
[50] Bushnell, supra note 48, 26-36.
[51] Id. at 44-45; Impeachment Materials, supra note 44, 129-32.
[52] Bushnell, supra note 48, at 43-47.
[53] Id. at 48 & 53.
[54] Id. at 60; Impeachment Materials, supra note 44, 133-34.
[55] Bushnell, supra note 48, at 60-61; Impeachment Materials, supra note 44, 134-35.
[56] Bushnell, supra note 48, at 85.
[57] Id. at 92.
[58] Impeachment Materials, supra note 44, 137-38 (reprinting the complete text of Lawless’ anonymous letter).
[59] Bushnell, supra note 48, at 93.
[60] Id. at 111.
[61] Id. at 118-19; Impeachment Materials, supra note 44, 140-142.
[62] Bushnell, supra note 48, at 121.
[63] Id. at 123.
[64] Id. at 135; Impeachment Materials, supra note 44, 154-161.
[65] Bushnell, supra note 48, at 157.
[66] Id. at 1-2. The House investigating committee reported that Delahay’s “personal habits unfitted him for the judicial office . . . and that his sobriety would be the exception and not the rule.” Id. at 2.
[67] Id. at 2. Unfortunately, although there is the record of the House investigating committee, he was impeached without articles of impeachment ever having been officially drafted. Id.
[68] Id. at 169-70; Impeachment Materials, supra note 44, 143-148.
[69] Bushnell, supra note 48, at 165.
[70] Id.
[71] Id. at 38.
[72] Impeachment Materials, supra note 44, 149-153.
[73] Bushnell, supra note 48, at 195.
[74] Impeachment Materials, supra note 44, 174-183.
[75] Bushnell, supra note 48, 217-20.
[76] Id. at 2.
[77] Id. at 249, Impeachment Materials, supra note 44, 184-187.
[78] Bushnell, supra note 48, at 247-48. Receivers were individuals assigned by a court to be custodians and supervisors of an ailing company. Id. at 247. The handsome compensation made them highly sought after positions during the Great Depression. Id.
[79] Id. at 263-64.
[80] Id. at 282.
[81] Id. at 273 & 282-83.
[82] Id. at 282 & 285. It appears the Senate, motivated by a realization that all of the allegations of misconduct occurred in 1929 or 1930, was not willing to disqualify him since there was no evidence of a continuing pattern of misconduct on the part of Judge Ritter. Id. at 285.
[83] Impeachment Materials, supra note 44, 713-14. Rep. W.M. Wheeler (D Ga.) was likely motivated by a sense of misguided patriotism when he introduced a resolution to impeach Douglas. See also Rosenberg v. U.S., 346 U.S. 273 (1953). Ethel and Julius Rosenberg were convicted and sentenced to execution for having smuggled atomic secrets to the Soviet Union. Id. In consideration of counsel’s claim that the Atomic Energy Act of 1946 superseded the Espionage Act and rendered the District Court without power to impose the death sentence, Justice Douglas was of the opinion that this contention posed a substantial question and granted a stay, effective until the applicability of the Atomic Energy Act could be determined in the District Court and the Court of Appeals. Id. at 282. Ultimately, the Attorney General asked to convene a Special Term of Court and vacate Douglas’s unilateral ruling, which they did. Id.
[84] Impeachment Materials, supra note 44, at 713 (Rep. Wheeler was, unfortunately, his own witness and the only one he had to offer).
[85] Id. at 714. These resolutions calling for Douglas’s impeachment “were introduced in the midst of a bitter conflict between President Nixon and the Senate over Senate rejection of two Supreme Court nominations.” Id.
[86] Id.
[87] Bushnell, supra note 48, at 5; see generally Nixon Impeachment, supra note 46.
[88] See generally Bushnell, supra note 48; see also Marcus, supra note 1.
[89] Bushnell, supra note 48, at 293.
[90] Id.
[91] Id. at 302.
[92] Robert S. Peck, Jurist Before the Bench: Challenging Impeachment Procedures for Federal Judges, 79 A.B.A. J. 56 (Feb. 1993).
[93] Nixon v. United States, 506 U.S. 224 (1993), reprinted in Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 54-60 (13th ed. 1997); noted in Gerhardt, supra note 2, at 25; examined in Peck, supra note 92; see generally Rhonda McMillion, New View: ABA Adopts New Stand on Impeachment of Federal Judges, 79 A.B.A. J. 103, (June 1993) (in response to the Nixon impeachment, the ABA reversed a longstanding policy favoring other means than impeachment for removal of federal judges).
[94] Impeachment is a rather dubious honor for a president so singularly fixated on his “historical legacy.” President Clinton’s well-known desire to be recognized for Kennedy-esque vision and fond remembrance was thoroughly disintegrated by his own actions. For posterity Clinton and his almost pathological obstinacy and narcissism will be linked to Andrew Johnson who, in addition to his impeachment, is remembered most for his disagreeable personality and stubbornness. Ancient philosopher Heraclitus said it best when he wrote: “Character determines destiny.”
[95] Hyde, Other House Members Differ on Need for Impeachment, Nation: The Starr Report, The Virginian-Pilot, Oct. 9, 1998, at A11 (hereinafter Hyde). Rep. Bob Barr, Georgia Republican, during House floor debate introduced a 24 year old quote from Bill Clinton defining an impeachable offense by the President as, “Willful reckless behavior in office.” By any intellectually honest standard of evaluation can any of the “behavior,” for which he was ultimately impeached, not rise to the standard of “willful” and/or “reckless?”
[96] Id. (quote from House floor debate attributed to Rep. Paul McHale, Pennsylvania Democrat); see also The Independent Counsel’s Report to the U.S. House of Representatives (downloaded from internet Sept. 13, 1998) <http://icreport.house.gov/icreport> (hereinafter The Starr Report).
[97] The Starr Report, supra note 96.
[98] Judge Lacey A. Collier, who sentenced a postal supervisor to 13 months in prison for falsely denying in a civil disposition that she had a sexual relationship with a male subordinate, has said: “One of the most troubling things in our society today, is people who raise their hands, take an oath to tell the truth and then fail to do that. An analogy might be made to termites that get inside your house. Nobody sees it, nobody knows about it until the house collapses around you.” William Glaberson, In Truth, Even Those Little Lies Are Prosecuted Once in a While, Nov. 17, 1998.
[99] Robert H. Bork, The Clinton Meltdown, National Review, Oct. 12, 1998, at 32.
[100] Hyde, supra note 95.
[101] William Safire, It’s The Infidelity, Stupid, The Virginian-Pilot, Oct. 30, 1998, at B11.
[102] Hyde, supra note 95 (quote from House floor debate attributed to Rep. Charles T. Canady, Florida Republican).
[103] Leon E. Panetta, Censure Makes Sense, The Wash. Post, Sept. 17, 1998, at A21.
[104]
Id.
[105] Id.
[106] Id.
[107] Noah Webster, Webster’s New 20th Century Dictionary 292 (2d ed. 1979).
[108] Panetta, supra note 101.
[109] Mackinac Center for Public Policy. The Mackinac Center is an organization devoted to advancing sound solutions to public policy by means of the free market. <http://www.mackinac.org> (visited on Oct. 28, 1998.)
[110] Donald J. Kochan, A Deal Between Congress and Clinton is Unconstitutional, The Federalist Society October Hot Topics Bulletin (received by email Oct. 13, 1998) <fedsoc@flash.net>.
[111] Id. “Votes of no confidence or censure in systems like Great Britain allow parliaments to discipline their heads of government.” Id.
[112] Id.
[113] Id.
[114] Id.
[115] Id.
[116] Ann H. Coulter, High Crimes and Misdemeanors: The Case Against Bill Clinton 12 (1998).
[117] Bork, supra note 99, at 32.
[118] Hyde, supra note 95 (quote attributed to Benjamin Franklin by Rep. Zoe Lofgren, California Democrat, during House floor debate).