MEMORANDUM REGARDING
STANDARDS FOR IMPEACHMENT
|
David E. Kendall WILLIAMS & CONNOLLY |
Charles F.C. Ruff OFFICE OF THE WHITE HOUSE COUNSEL |
Early next week the Members of the Judiciary Committee will cast their first votes as participants in a "grand inquest" charged with responsibility for the most grave of constitutional proceedings. They will do so in circumstances unlike those in any proceeding that they have experienced in their professional careers. They will be asked to judge whether the evidence before them (untested by the usual adversarial process) provides any reason to believe that the President has violated a standard of conduct that they have made no effort to define.
No Member ever has ventured, or seen others venture, into any legal process without some understanding of the standards to be applied. Before a prosecutor would even open a grand jury investigation, he would test the information he had against the criminal code to determine whether there was any possibility that a crime actually had been committed. Before a plaintiff's lawyer would file a complaint, she would test the facts her client gave her against the law to determine whether there was a valid claim. Yet, the Members of the Committee are being asked to vote on whether there is any basis for believing that the President has committed impeachable offenses -- but are being told that nothing will be done to define those offenses until after they have voted.
We submit that no lawyer would follow such a course in dealing with any other matter. We submit, as well, that nothing in this unique proceeding -- even acknowledging its special political nature -- should lead the Members of this distinguished body, who should serve as models for other lawyers to emulate, to abandon the principles of fairness and due process that lie at the heart of their profession.
That said, we are convinced that, if the Committee does adopt a definition of impeachable offenses consistent with the clear historical precedents and equally clear intent of the Framers underlying Section 4 of Article II, as well as the standards applied during the Nixon proceedings twenty-four years ago, it will conclude that nothing in the Starr Referral is remotely sufficient to warrant an impeachment inquiry.
Apart from a declaration of war, the most solemn and important responsibility Congress bears is to wield the power of impeachment wisely. The significance of this process can scarcely be overstated. As Prof. Charles Black has noted, "[t]he presidency is a prime symbol of our national unity. The election of the president (with his alternate, the vice-president) is the only political act that we perform together as a nation; voting in the presidential election is certainly the political choice most significant to the American people, and most closely attended to by them."1 It is therefore critical that the process of impeachment, through which 535 people may undo a national decision, both be fair and be perceived to be fair.
Fundamental fairness requires that the House Committee on the Judiciary clarify and define the standard of impeachability that will be applicable to this case before voting to proceed with an inquiry. We respectfully submit that the Starr Referral,2 salacious and prejudicial as it may be, cannot meet any standard that is defined in conformity with precedent, constitutional tradition, and the express intent of the Framers.
The Committee on the Judiciary should first determine what constitutes an "impeachable offense" before it votes on whether to authorize an impeachment inquiry. As we will demonstrate, the Framers of the Constitution did not intend for the definition of "Treason, Bribery or other high Crimes or Misdemeanors" to be open-ended. Even if the standard chosen by the Committee is somewhat abstract,3 it is important that it be agreed upon in advance of voting whether to go forward with an impeachment inquiry. The Committee has a responsibility to measure the allegations and weigh the evidence against an established standard. If the Committee instead seeks to shape the standard to fit the allegations, the public will surely see it as a partisan effort to drive the President from office.
If the rule of law means anything, it means that legal rules and standards are ascertainable in advance of their application to evidence. This basic principle underlies our entire legal system. The Framers of the Constitution explicitly forbade Congress from enacting ex post facto laws and bills of attainder, and they also guaranteed due process of law before life, liberty, or property could be forfeit to the government. Indeed, fair notice is a fundamental component of the Constitutional guarantee of due process. In civil suits and criminal trials, the applicable law and the governing standards are known in advance, and even wide-ranging grand jury investigations are conducted to ascertain whether there is probable cause to believe that specific statutes have been violated.
Impeachment is not, of course, a judicial proceeding. But because of its dramatic potential to reverse a democratic election and overturn the will of the people, due process and fundamental fairness are as plainly required as in any court proceeding. One of the former staff lawyers for the 1974 House Impeachment Inquiry has emphasized the "overarching requirement of fairness to the President in an impeachment proceeding. The proceeding [is] one against the President, and his right to procedural fairness [has] to be recognized . . . . Whether or not impeachment is a `criminal' proceeding, it is an accusatory one . . . ."4
The basic requirement that proceedings with such significant consequences not be initiated or progress in the absence of clearly defined rules is reflected in various doctrines governing the conduct of court proceedings. The judicial system recognizes that power exercised arbitrarily is power abused, and that rules and procedures defined in advance go a long way toward assuring both the appearance and the reality of fairness. It is inconceivable that the courts would permit the filing of a civil complaint, or the return of an indictment, based merely on the promise that the plaintiff or the government would decide along the way what the rules should be, whether those rules were violated, and what burdens of proof and other standards should govern the proceedings as they progressed.
As the Supreme Court has stated, "a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it . . . leaves judges and jurors to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966). Such ad hoc decision-making is necessarily suspect because it creates a strong potential for decisions based on a desired result, not on principled reasoning. These core constitutional doctrines, repeatedly reaffirmed by the Supreme Court and the lower courts, reflect a fundamental belief of our system of justice that the only way to assure that power -- and especially the power to punish -- is exercised fairly and without bias or improper motive is to establish the rules at the outset and to remain faithful to them throughout the process. The fairness of the process legitimizes both the process itself and the outcome. These principles necessarily must guide the actions of the Committee in a decision of the historical and constitutional magnitude that it confronts. A decision by the Committee to vote whether an impeachment inquiry is warranted without first establishing the legal standards which will apply directly contravenes these principles in a deeply disturbing manner.
The need for a working definition of the term "impeachable offense" is underlined by the inflammatory and one-sided presentation of "facts" in the Starr Referral. While that document states that "[i]t is not the role of this Office to determine whether the President's actions warrant impeachment by the House and removal by the Senate," Ref. 5, the OIC, purporting to act under his statutory mandate to submit "substantial and credible information" that "may constitute grounds for an impeachment," 28 U.S.C. §595(c), has in fact submitted a "brief."5 The document is one-sided,6 tendentious, and loaded with unnecessary and prejudicial graphic detail.7 Independent Counsel Starr finds room for hundreds of salacious details but could not find space to quote Ms. Lewinsky's closing comment to the grand jury (elicited by a grand juror, not by the prosecutors): "I would just like to say that no one ever asked me to lie and I was never promised a job for my silence." App. 1161. His failure to explain how the details of the Referral could be deemed relevant to anything this Committee might consider is simply perverse.
Nor did the judicial assent (such as it was) sought by the Independent Counsel prior to sending the Referral to Congress do anything to assure fairness. The contrast to the Watergate experience could not be more striking. In that earlier case, it will be recalled, the Watergate Special Prosecution Force did not send to Congress an argumentative or inflammatory document but rather a simple "road map" which merely summarized and identified the location of relevant evidence. Moreover, this document was submitted for review to Judge Sirica, the supervising judge of the grand jury, before it was sent to the House of Representatives. Counsel for President Nixon was given notice and an opportunity to be heard before the report was sent to Congress. Judge Sirica carefully reviewed the report, explicitly finding that it constituted a fair summary of the grand jury's evidence:
"It draws no accusatory conclusions . . . . It contains no recommendations, advice or statements that infringe on the prerogatives of other branches of government . . . . It renders no moral or social judgments. The Report is a simple and straightforward compilation of information gathered by the Grand Jury, and no more . . . . [The special prosecutor] has obviously taken care to assure that its Report contains no objectionable features, and has throughout acted in the interest of fairness."8
In this case, on the other hand, the Independent Counsel went not to the supervising grand jury judge, Chief Judge Norma Holloway Johnson, but rather to the Special Division for the Purpose of Appointing Independent Counsels of the United States Court of Appeal for the District of Columbia Circuit, which had appointed him Independent Counsel almost exactly four years earlier. There was no notice to counsel for the President, and no opportunity for counsel to be heard on the propriety or fairness of any referral to Congress. Nor did the Independent Counsel submit any report for the Special Division to review, if it had been so inclined.9 Instead, the Independent Counsel sought -- and received -- a blank check from the Special Division to include in its referral (which would not be drafted and submitted to Congress until two months later) "all grand jury material that the independent counsel deems necessary to comply with the requirements of § 595(c)." App. 10 (emphasis added).
Against this backdrop, it is critical that the Committee on the Judiciary define the standard of impeachable conduct. Otherwise, a vote to proceed with a full-scale impeachment inquiry will have all the intelligibility of the Roman Emperor's thumb in the gladiatorial arena. The vote will signal no agreement, bipartisan or otherwise, on whether the national trauma of impeachment hearings is justified on other than purely partisan grounds.
The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, § 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the question confronting the Committee is whether the acts of the President alleged in the Starr Referral could conceivably amount to "high Crimes and Misdemeanors." The Committee has an obligation to consider, before it embarks upon an impeachment inquiry, whether the allegations here could possibly meet that very stringent Constitutional standard.
The Committee's deliberations should be guided by two considerations. First, for reasons going to the very structure of our government, the Framers made the standard of impeachable offenses an especially high one, requiring a showing of injury to our very system of government. Second, historical precedents from the last presidential impeachment inquiry show that only the gravest public offenses can be considered impeachable.
The Framers included specific provisions for impeachment in the Constitution because they understood that only the most serious forms of public wrongdoing warranted the most severe political remedy. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from serious malfeasance in the carrying out of public functions. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.
The English precedents illustrate that impeachment was understood to apply only to fundamental offenses against the system of government. In English practice, the term "high crimes and misdemeanors" had been applied to offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state.10 The English cases included misappropriation of public funds, interfering in elections, accepting bribes, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state."11
The notion that "injury to the state" was the distinctive mark of the impeachable offense was also shared by the Staff of the Impeachment Inquiry when it researched the issue in connection with the investigation of President Nixon in 1974. In early English impeachments, the Staff concluded, "the thrust of the charge was damage to the state. . . . Characteristically, impeachment was used in individual cases to reach offenses, as perceived by Parliament, against the system of government."12
The constitutional and ratification debates confirm that impeachment was limited to only the gravest political wrongs. The Framers plainly intended the impeachment standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate."13 The Framers plainly did not intend to permit Congress to debilitate the executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt language, impeachment was thought necessary to remedy "great and dangerous offenses" not covered by "Treason" or "Bribery" such as "[a]ttempts to subvert the Constitution."14
That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men."15 No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him -- and the Framers were fully aware of this.
The specific harms the Framers sought to redress by impeachment are far more serious than those presented here. During the ratification debates, a number of the Framers addressed the Constitution's impeachment provisions. The following is a list of wrongs they believed the impeachment power was intended to address:
The history on which they relied, the arguments they made in Convention, the specific ills they regarded as redressable -- all these establish that the Framers believed that impeachment must be reserved for only the most serious forms of wrongdoing. They believed, in short, that impeachment "reached offenses against the government, and especially abuses of constitutional duties."21 Fidelity to that understanding requires the Committee to formulate an appropriately high standard to guide its decision whether to launch an inquiry with such potentially grave national consequences.
Ours is a written constitution of separated powers. In that Constitution, the President does not serve at the will of Congress, but as the directly elected,22 solitary head of the Executive Branch. The Constitution reflects a judgment that a strong executive, executing the law independently of legislative will, was a necessary protection for a free people.
These elementary facts of constitutional structure underscore the need for a very high standard of impeachable offenses. It was emphatically not the intention of the Framers that the President should be subject to the will of the dominant legislative party. Our system of government does not permit Congress to unseat the President merely because it disagrees with his behavior or his policies. The Framers' decisive rejection of parliamentary government is one reason why they caused the phrase "Treason, Bribery or other high Crimes and Misdemeanors" to appear in the Constitution itself. They chose to specify those categories of offenses subject to the impeachment power, rather than leave that judgment to the unfettered whim of the legislature.
Although the Committee need not set forth the concept of "impeachable offense" with scientific precision, that concept must be made sufficiently clear and its substance made sufficiently demanding to ensure that any subsequent impeachment inquiry will be reasonably viewed by the public as arising in one of those rare cases when the legislature is compelled to stand in for all the people and remove a President whose continuation in office threatens grave harm to the Republic. Any "standard" short of that will effectuate both a legislative usurpation of a power belonging only to the people (the power to choose and "depose" Presidents by election) and a legislative encroachment on the power of the Executive.
The Committee must articulate such a standard here. It must say just what it is about the alleged conduct in the Starr Referral that amounts to a "great offense[] against the Constitution."23 If it does not posit such a standard and if, in addition, it cannot say clearly and forcefully why such a high standard is conceivably met here, there is no plausible justification for proceeding with an impeachment inquiry. To proceed without such a clear standard is to weaken the President in the absence of the only justification our Constitution permits for such a step -- a demonstrated need to protect the people themselves.
The Framers made the President the sole nationally elected public official, responsible to all the people. He is the only person whose mandate is country-wide, extending to all citizens, all places, and all interests. He is the people's choice.
Therefore, when the issue of impeachment is raised, the House (and ultimately the Senate) confront this inescapable question: is the alleged misconduct so profoundly serious, so malevolent, that it justifies undoing the people's decision? Is the wrong alleged of a sort that not only demands removal of the President before the ordinary electoral cycle can do its work, but also justifies the national trauma that accompanies the impeachment process itself?
The wrongdoing alleged here does not remotely meet that standard.
The remedy of impeachment was designed for only those very grave harms not otherwise politically redressable. As James Wilson wrote, "our President . . . is amenable to [the laws] in his private character as a citizen, and in his public character by impeachment."24 That is why Justice Story described the harms to be reached by impeachment as those "offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence."25
For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms. Again, in Hamilton's words:
the subjects of [the Senate's impeachment] jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.26
The Framers and early commentators on the Constitution are in accord on the question of impeachment's intended purpose. In Justice James Wilson's words, impeachments are "proceedings of a political nature . . . confined to political characters" charging only "political crimes and misdemeanors" and culminating only in "political punishments." 27 And as Justice Story put the matter, "the [impeachment] power partakes of a political character, as it respects injuries to the society in its political character."28 In short, impeachment was not thought to be a remedy for private wrongs -- or even for most public wrongs. Rather, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution."29 Impeachment therefore addresses public wrongdoing, whether denominated a "political crime[] against the state,"30 or "an act of malfeasance or abuse of office,"31 or a "great offense[] against the federal government."32 Ordinary civil wrongs can be addressed through ordinary civil processes. And ordinary political wrongs can be addressed at the ballot box and by public opinion. Impeachment is reserved for the most serious public misconduct, those aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.
That impeachment was reserved for serious public wrongdoing of a serious political nature was no mere abstraction to the authors of the Constitution. The ink on the Constitution was barely dry when Congress was forced to investigate wrongdoing by one of the Framers. In 1792-93, Congress investigated then-Secretary of the Treasury Alexander Hamilton for alleged financial misdealings with James Reynolds, a convicted securities swindler.33 Hamilton was interviewed by members of Congress, including the House Speaker and James Monroe, the future President. Hamilton admitted to making secret payments to Reynolds whose release from prison the Treasury Department had authorized. Hamilton acknowledged that he had made the payments but explained that he had committed adultery with Reynolds' wife; that he had made payments to Reynolds to cover it up; that he had had Mrs. Reynolds burn incriminating correspondence; and that he had promised to pay the Reynolds' travel costs if they would leave town.34
The Members of Congress who heard Hamilton's confession concluded that the matter was private, not public; that as a result no impeachable offense had occurred; and that the entire matter should remain secret. Although President Washington, Vice-President Adams, Secretary of State Jefferson and House Minority leader James Madison (two of whom had signed the Constitution) all eventually became aware of the affair, they too maintained their silence. And even after the whole matter became public knowledge some years later, Hamilton was appointed to the second highest position in the United States Army and was speedily confirmed by the Senate.35
It is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as creating an impeachable offense. It is also apparent that efforts to cover up such private behavior, including even paying hush money to induce someone to destroy documents, did not meet the standard. Neither Hamilton's very high position, nor the fact that his payments to a securities swindler created an enormous "appearance" problem, were enough to implicate the standard. These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable.
Some have responded to the argument that the conduct at issue in the Referral is private by contending that the President is charged with faithfully executing the laws of the United States and that perjury would be a violation of that duty. That argument, however, proves far too much. Under that theory, any violation of federal law would constitute an impeachable offense, no matter how minor and no matter whether it arose out of the President's private life or his public responsibilities. Thus, lying in a deposition in a private lawsuit would, for constitutional purposes, be the equivalent of lying to Congress about significant conduct of the Executive Branch - surely a result those advocates do not contemplate. More importantly, we know from the bipartisan defeat of the tax fraud Article against President Nixon, see Part II.C, infra, that the "faithfully execute" theory has been flatly rejected by this Committee.
Impeachable acts need not be criminal acts. As Professor Black has noted, it would probably be an impeachable act for a President to move to Saudi Arabia so he could have four wives while proposing to conduct the Presidency by mail and wireless from there; or to announce and adhere to a policy of appointing no Roman Catholics to public office; or to announce a policy of granting full pardons, in advance of indictment or trial, to federal agents or police who killed anyone in the line of duty in the District of Columbia.36 None of these acts would be crimes, but all would be impeachable. This, because they are all "serious assaults on the integrity of government."37 And all of these acts are public acts having public consequences.
But the reverse is not true: criminal acts are not necessarily impeachable. Holders of public office should not be impeached for conduct (even criminal conduct) that is essentially private. That is why scholars and other disinterested observers have consistently framed the test of impeachable offenses in terms of some fundamental attack on our system of government, describing impeachment as being reserved for:
Allegations concerning private sexual conduct and efforts to conceal that private conduct simply do not implicate high crimes or misdemeanors.
Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story's words, addresses "offences[] which are committed by public men in violation of their public trust and duties."47 Impeachment is a political act in the sense that its aims are public; it attempts to rein in abuses of the public trust committed by public officeholders in connection with conduct in public office. The availability of the process is commensurate with the gravity of the harm. As one scholar has put it, "[t]he nature of [impeachment] proceedings is dictated by the harms sought to be redressed - `the misconduct of public men' relating to the conduct of their public office - and the ultimate issue to be resolved - whether they have forfeited through that conduct their right to continued public trust."48
When the House Judiciary Committee investigated President Nixon in the 1970's, it too confronted the question of just what constitutes an "impeachable offense."
One of the first tasks assigned to the staff of the Judiciary Committee when it began its investigation of President Nixon was to prepare a legal analysis of the grounds for impeachment of a President. The staff concluded that:
"Impeachment is a constitutional remedy addressed to serious offenses against the system of government. . . . It is not controlling whether treason and bribery are criminal. More important, they are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself, and thus are `high' offenses in the sense that word was used in English impeachments. . . . The emphasis has been on the significant effects of the conduct -- undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government. . . . Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the president office."49
The minority staff of the Nixon impeachment inquiry prepared a memorandum in response to a request by the Republicans on the Judiciary Committee that argued for the notion that only serious misconduct with the appropriate criminal intent was sufficient for impeachment. They stated as follows:
"It is not a fair summary . . . to say that the Framers were principally concerned with reaching a course of conduct, whether or not criminal, generally inconsistent with the proper and effective exercise of the office of the presidency. They were concerned with preserving the government from being overthrown by the treachery or corruption of one man. . . . [I]t is our judgment, based upon this constitutional history, that the Framers of the United States Constitution intended that the President should be removable by the legislative branch only for serious misconduct dangerous to the system of government established by the Constitution."50
Notwithstanding their many differences, the Judiciary Committee investigating President Nixon was in substantial agreement on the question posed here: an impeachable wrong is an offense against our very system, a constitutional evil subversive of the government itself.
That demanding standard is not remotely implicated by the wrongs alleged in the Starr Referral. Nor was it met by all the charges against President Nixon.
Among the charges in the Starr Referral, the one most insistently repeated is the allegation that the President has committed perjury. The historically accepted standard of "high Crimes and Misdemeanors" has particular application to the perjury charge because it closely resembles51 a similar charge alleged - but not finally approved - against President Nixon in 1974.
The Judiciary Committee proposed five articles of impeachment against President Nixon. Three were approved for transmission to the full House, and two were voted down. One of the defeated articles alleged the signing by the President, under oath, of a false tax return. The President was alleged to have failed to report certain income, to have taken improper tax deductions, and to have manufactured (himself or by his agents) false documents to support the deductions taken.
By a bipartisan vote greater than a 2-1 margin, the Judiciary Committee rejected the tax-evasion article. Democrats and Republicans alike, all of whom eventually approved at least one other article of impeachment, spoke against the idea that tax evasion constituted an impeachable offense. Congressman Railsback (R-IL) opposed the article saying that "there is a serious question as to whether something involving his personal tax liability has anything to do with [the] conduct of the office of the President."52 Congressman Owens (D-UT) stated that, even assuming the charges were true in fact, "on the evidence available, these offenses do not rise, in my opinion, to the level of impeachment."53 Congressman Hogan (R-MD) did not believe tax evasion an impeachable offense because the Constitution's phrase "high crime signified a crime against the system of government, not merely a serious crime."54 And Congressman Waldie (D-CA) spoke against the article, saying that "there had not been an enormous abuse of power," notwithstanding his finding "the conduct of the President in these instances to have been shabby, to have been unacceptable, and to have been disgraceful even."55
These voices, and the overwhelming vote against the tax evasion article, underscore the fact that the 1974 Judiciary Committee's judgment was faithful to its legal conclusions. It would not (and did not) approve an article of impeachment for anything short of a fundamental offense against our very system of government. This Committee should observe no less stringent a standard.56
Cognizant of the enormous harm that the very initiation of an impeachment inquiry would engender, the House should pursue such an inquiry if and only if there is an allegation of actions which would constitute fundamental injuries to the governmental process. In the words of Sen. William Pitt Fessenden, one of the seven Senate Republicans who voted against the conviction of President Andrew Johnson, an impeachable offense must be "of such a character to commend itself at once to the minds of all right thinking men, as beyond all question, an adequate cause for impeachment. It should leave no reasonable ground of suspicion upon the motives of those who inflict the penalty."57
The Committee should vote to launch an impeachment inquiry only if it concludes that the Starr Referral has alleged acts which, if proven, would so seriously threaten the integrity of governmental processes as to have made the President's continuation in office a threat to the public order. Impropriety falling short of that high standard does not meet the constitutional measure. It must be left to the court of public opinion and the judgment of history.
CONCLUSION
The Judiciary Committee is poised to vote on a resolution calling for the formal commencement of impeachment proceedings without having offered any benchmark (or indeed any approximation) for impeachable offenses. To proceed in this way is to subordinate the constitutional objective of addressing impeachable wrongs to the partisan political objective of embarking on an open-ended, undefined roving inquiry of the President. As Justice Jackson noted in an analogous setting, "it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him."58 Such a procedure would be unfair in a prosecutor and here it would be deeply unfair and destructive of our constitutional structure.
Three conclusions follow from a failure to set out the standard of impeachable offenses before voting to initiate an impeachment inquiry:
As then-Representative and later President Gerald Ford once expressed the issue, a President can only be removed for "crimes of the magnitude of treason and bribery."59 The Referral alleges no wrongs of that magnitude. The Committee should decline to proceed further.
1 Charles L. Black, Jr., Impeachment: A Handbook 1 (1974).
2 Referral from Independent Counsel Kenneth W. Starr in Conformity with the Requirements of Title 28, United States Code, Section 595(c), House Doc. 105-310 (Sept. 11, 1998) (105th Cong. 2d Sess.) (hereinafter "Starr Referral").
3 Conservative commentator Bruce Fein has noted that:
A reasonably specific definition of an impeachable offense is necessary to guide the committee's investigat[ion] and fact-finding [and requires] something between the exactitude of Euclidean geometry and the opacity of the Rosetta Stone.
"Seeking a Presidential Impeachment Standard," Washington Times at A15 (Sept. 29, 1998).
4 John R. Labovitz, Presidential Impeachment 178 (1978).
5 The statute also requires that such "substantial and credible information" be received "in carrying out the independent counsel's responsibilities under this chapter," 28 U.S.C. § 595(c). In view of the way the OIC contrived to obtain jurisdiction over the Paula Jones case, after spending four years in a fruitless investigation of unrelated "Whitewater" matters, the present referral appears to be statutorily unauthorized. This argument is developed at pp. 67-73 of our Preliminary Memorandum Concerning Referral of Independent Counsel, dated September 11, 1998.
6 The Los Angeles Times observed:
"Two of the 11 potential grounds for impeachment cited in the independent counsel's report stem from inferences that Clinton or someone acting in his behalf asked Monica S. Lewinsky to lie about their sexual relationship and that Lewinsky was promised a job in exchange for her silence. If true, this would support allegations of witness tampering and obstruction of justice. But in her testimony before the grand jury Lewinsky denied both allegations. The Starr report's interpretation of her testimony is that Clinton `never explicitly' told Lewinsky to lie or `explicitly' spelled out the job proposal. In fact, Lewinsky swore in plain words that these things never happened, and so far as is known there is no credible evidence to contradict those assurances. The Starr report can do no better than surmise that wrongdoing was accomplished indirectly, through winks and nods. But where is the proof?
It is significant that in the grand jury room Starr's staff never directly asked Lewinsky whether she had been urged to lie or had been promised a job if she took part in a cover-up. It was left to a grand juror to get Lewinsky's denial of these allegations on the record, by asking whether she had anything more she wanted to say.
In an ordinary criminal case a prosecutor who hid potentially exculpatory evidence from the defense would be in deep trouble. By trying to minimize and obscure the significance of Lewinsky's denials, Starr has shaded the record and buttressed the suspicions of those who question his objectivity".
"It is the way the [Referral] marshals and characterizes the information it presents that converts it into an aggressive piece of legal advocacy. Few of the factual assertions are left to speak for themselves . . . . In short, this is a document with attitude. It serves up a worst-case scenario: conversations that some might find inconclusive, ambiguous, or at worst suggestive . . . are characterized as a criminal obstruction of justice . . . . [T]his [Referral] is notable for its failure to acknowledge that there might be more than one way to view at least some of the evidence."
Greenhouse, "Starr's Aggressive Advocacy," New York Times, at A1 (Sept. 12, 1998.)
8 In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C. 1974).
9 The Independent Counsel's ex parte motion was filed on July 2, 1998, and the Special Division's Order granting the motion was dated July 7, 1998, after an intervening holiday weekend. At this time, neither the President nor Ms. Lewinsky had testified. The Independent Counsel's Referral was not transmitted to Congress until September 9, 1998, over two months after the application. Plainly, no court reviewed for fairness what the Independent Counsel chose to put in the Referral.
10 See Raoul Berger, Impeachment: The Constitutional Problems, 67-73 (1973).
11 Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added). In fact, the first draft of what became Article II Section 4's impeachment provision actually set the standard of impeachment, in addition to treason and bribery as "other high crimes and misdemeanors against the State." (emphasis added) That phrase was ultimately deleted, however, by the Committee on Style and Arrangement, which was charged with making only such changes as did not affect the meaning of the original language.
12 Impeachment of Richard M. Nixon, President of the United States, Report by the Staff of the Impeachment Inquiry, House Comm. on the Judiciary, 93d Cong. 2d Sess. at 5 (Feb. 1974) (hereinafter "Impeachment Inquiry") (emphasis added).
13 2 Max Farrand, The Records of the Federal Convention of 1787 550 (Rev. ed. 1966).
15 The Federalist No. 65 at 331 (Gary Wills ed. 1982).
16 Edmund Randolph, 3 J. Elliot, The Debate in the Several State Conventions on the Adoption of the Federal Constitution 486 (reprint of 2d ed.) (Virginia Convention).
17 George Mason, 3 Elliot 497-98 (Virginia Convention).
18 James Madison, 3 Elliot 500 (Virginia Convention).
19 James Iredell, 4 Elliot 127 (North Carolina Convention).
20 Abraham Baldwin (Georgia), 1 Annals of Cong. 535-36 (debates on the President's removal power).
22 Of course that election takes place through the mediating activity of the Electoral College. See U.S.Const. art. II, § 1, cl. 2-3 and amend. XII.
23 Labovitz, Presidential Impeachment at 94.
24 2 Elliot 480 (emphasis in original).
25 2 J. Story, Commentaries on the Constitution of the United States § 762 at 234 (reprint of 1st ed. 1833).
27 J. Wilson, Works 426 (R. McCloskey, ed. 1967).
28 Joseph Story, Commentaries on the Constitution § 744. And as a contemporary scholar has expressed it, "[c]ognizable `high Crimes and Misdemeanors' in England . . . generally concerned perceived malfeasance -- which may or may not be proscribed by common law or statute -- that damaged the state or citizenry in their political rights." O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis added).
29 Labovitz, Presidential Impeachment at 94.
31 Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
32 Gerhardt, 68 Tex. L. Rev. at 85.
33 See generally Rosenfeld, "Founding Fathers Didn't Flinch," Los Angeles Times, A11, Sept. 18, 1998.
36 Black, Impeachment at 34-35.
38 Labovitz, Presidential Impeachment at 26.
40 Black, Impeachment at 38-39.
42 Labovitz, Presidential Impeachment at 110.
43 Rotunda, 76 Ky. L.J. at 726.
45 Gerhardt, 68 Tex. L. Rev. at 85.
46 Association of the Bar of New York, Committee on Federal Legislation, The Law of Presidential Impeachment 18 (1974) (hereinafter "New York Bar Report").
47 Story, Commentaries § 744 (emphasis added).
48 O'Sullivan, 86 Geo. L.J. at 2220.
49 Impeachment Inquiry 26 (emphasis added).
50 Impeachment of Richard M. Nixon, President of the United States, Report of the House Comm. on the Judiciary, 93rd Cong., 2d Sess., H. Rept. No. 93-1305 (1974), at 364-365 (Minority Views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti and Latta) (final emphasis added).
51 The Nixon tax return was signed under penalty of perjury. Given the underlying facts, that act might have provided the basis for multiple criminal charges, and conviction on, for example, the tax evasion charge, could have subjected President Nixon to a 5-year prison term.
52 Debate on Articles of Impeachment: Hearings on H. Res. 803 Before the House Comm. on the Judiciary 93rd Cong., 2d Sess., (1974) at 524 .
54 Id. at 541 (quoting with approval conclusion of Independent Inquiry).
56 As the New York Bar Report put the matter, "Congress may properly impeach and remove a President . . . only if it would be prepared to take the same action against any President who engaged in comparable conduct in similar circumstances." New York Bar Report at 6.
57 Congressional Quarterly: Impeachment and the U.S. Congress, March 1974.
58 R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940 (discussing the danger of prosecutorial discretion).