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'High Crimes & Misdemeanors': Defining the Constitutional Limits on Presidential Impeachment

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Abstract

This article addresses the problem of defining those offenses for which a President of the United States may constitutionally be impeached and removed from office. It also considers the even more nettlesome questions of whether there are impeachable offenses for which Congress could, but need not, constitutionally remove a President, and if such offenses exist, how Congress should exercise its discretion either to impeach or to hold its hand. The article had its genesis in a statement by the authors submitted to the House Judiciary Committee on behalf of the National Association of Criminal Defense Lawyers during its proceedings regarding the impeachment of President Clinton. This final much-expanded version was written after the conclusion of the Clinton impeachment proceedings in the Senate and is informed by the course those proceedings took, but is not, strictly speaking, an article about the Clinton impeachment. Instead, the article approaches the issue of defining impeachable offenses more generally, reviewing history, text, and scholarship to discern the meaning of the constitutional phrase Treason, Bribery, or other high Crimes and Misdemeanors. In doing so, the article deals principally with five interpretive questions that recurred throughout the Clinton impeachment process, and that will certainly reemerge in any future presidential impeachment controversy: 1. Must an impeachable offense be a crime? 2. If non-criminal conduct is impeachable, what distinguishes impeachable from non-impeachable non-criminal conduct? 3. Is all criminal conduct a proper ground for impeachment? 4. If not all crimes are impeachable offenses, what distinguishes impeachable crimes from non-impeachable crimes? 5. Finally, is there a category of impeachable offenses for which the congress should nonetheless not impeach? The article concludes that there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President. The article proposes a model akin to the exercise of prosecutorial discretion in filing criminal charges for analyzing the congressional decision on impeachment and removal. Finally, the article considers whether Congress ought properly to consider the legal processes and political context in which allegations of impeachable behavior are unearthed and levelled. We conclude that, while Presidents must obey the law, the impeachment calculus may in the extraordinary case require a judgment about the legal process that unearthed or even induced allegedly unlawful presidential behavior. Impeachment is a political tool whose constitutional function is to remove officials whose presence in office disserves the country. As a political process, impeachment can equally aptly, and equally constitutionally, be used as a vehicle to express disapproval of a method of politics more destructive of the public welfare than the continuance in office of a particular officeholder.
Electronic copy available at: http://ssrn.com/abstract=201050
* A prior version of this article was prepared on behalf of the National Association of Criminal Defense
Lawyers (NACDL) and submitted to the Subcommittee on the Constitution of the House Judiciary Committee on
November 9, 1998 in connection with the impeachment proceedings against President Clinton. See, Background and
History of Impeachment: Hearing before the Subcomm. on the Constitution of the House Comm. on the Judiciary,
105th Cong., 2d Sess. 342-72 (Nov. 9, 1999) (statement of Frank O. Bowman, III and Stephen L. Sepinuck). The
article here is presented in an expanded form and expresses views on questions raised by the Clinton impeachment
which seemed inappropriate to voice in a paper commissioned by an organization with a large and diverse
membership. These views are those solely of the authors and are not attributable to the NACDL.
We are grateful to David Porter and Leslie Hagin of the NACDL for asking us to prepare the original
version of this paper, and to Steven Clymer, James Vaché, David DeWolf, and David Conner, for their comments on
earlier drafts. Finally, this work would not have been possible without the characteristic diligence of our research
assistant, Annette Hillman.
Associate Professor of Law, University of Indiana at Indianapolis. J.D., Harvard Law School, 1979;
B.A., The Colorado College, 1976. Formerly Assistant United States Attorney, Southern District of Florida (1989-
96); Deputy District Attorney, Denver, Colorado (1983-87); Trial Attorney, Criminal Division, U.S. Department of
Justice (1979-82); and sometime private defense counsel. This paper was written while I was Visiting Professor of
Law at Gonzaga University and I am grateful to Gonzaga and its people for the support I received on this and other
projects.
Associate Professor of Law and Associate Dean for Academic Affairs, Gonzaga University School of
Law. A.B., Brown University; J.D., Boston University; LL.M. in Taxation, New York University.
1 116 CONG. REC. H3113-3114 (daily ed. Apr. 15, 1970) (statement of Rep. Gerald Ford). The comment
was made in the course of debate over whether to initiate impeachment proceedings against Supreme Court Justice
William O. Douglas.
“High Crimes & Misdemeanors”:
Defining the Constitutional Limits on Presidential Impeachment*
Frank O. Bowman, III & Stephen L. Sepinuck
72 SOUTHERN CALIFORNIA LAW REVIEW 1517 (1999)
I.Introduction
When then-Congressman Gerald Ford made his now-famous remark that an impeachable
offense “is whatever a majority of the House of Representatives considers it to be at a given
moment in history,”1 as a political realist he spoke no more than the plain truth. The Constitution
confers on the House of Representatives the sole power of impeaching a president (and other
“civil Officers of the United States”), and grants the Senate the sole power to remove a President
upon a finding by two-thirds of its members that the president has committed “Treason, Bribery,
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2 There are five constitutional provisions dealing with impeachment, four of which are applicable to
impeachment of a president:
“The House of Representatives shall ... have the sole Power of Impeachment.” (U.S. Const., art. I, § 2, cl.
5.)
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be
on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside:
And no Person shall be convicted without the Concurrence of two thirds of the Members present.” (U.S.
Const., art. I, § 3, cl. 6.)
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party
convicted shall nonetheless be liable and subject to Indictment, Trial, Judgment and Punishment, according
to Law.” (U.S. Const., art. I, § 3, cl. 7.)
“The President and all civil Officers of the United States, shall be removed from Office on Impeachment for
and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (U.S. Const., art. II, § 4.)
3 See Walter Nixon v. United States, 113 S. Ct. 732 (1993); Ritter v. United States, 84 Ct. Cl. 293 (1936),
cert. denied, 300 U.S. 668 (1937) (rejecting as non-justiciable the claim of Judge Halstead Ritter that the Senate
convicted and removed him for non-impeachable offenses). See generally, MICHAEL J. GERHARDT, THE FEDERAL
IMPEACHMENT PROCESS 143-46 (1996).
4 U.S. Const., art. II, § 4.
2
or other high Crimes and Misdemeanors.”2 The decisions to impeach and to convict and remove
from office are almost certainly not reviewable by any court.3 Therefore, a Congress disposed to
do so can indeed displace a president for any reason that will garner sufficient votes, and can act
without fear that its decision will be overridden by any other governmental body.
Nonetheless, to acknowledge that Congress has the final word on what constitutes a
proper ground for impeaching a president is not to concede that Congress is unconstrained by the
Constitution when it makes its choice for or against impeachment. The language of the
Constitution limits the instrument of impeachment to a very particular class of cases – “Treason,
Bribery, or other high Crimes and Misdemeanors”4 – and that language is no more rendered
meaningless by the congressional monopoly on its interpretation than is the remainder of the
Constitution by the fact that the Supreme Court customarily has the last word on its meaning.
Both the Court and the Congress have an obligation of fidelity to the fundamental design of the
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5 Although the Supreme Court has come to be considered the primary guardian of constitutional principles,
Congress has an independent obligation to interepret faithfully and carry out the dictates of the Constitution. See,
U.S. Const. Art. VI, cl.3 ("The Senators and Representatives before mentioned, and the Members of the Several
State Legislatures, and all executive and judicial Officers, both of the United States and the several States, shall be
bound by Oath or Affirmation, to support this Constitution"); INS v. Chada, 462 U.S. 919, 975 (1983) (Congress has
an independent duty to uphold the Constitution, members of Congress "are bound by oath to uphold the
Constitution"); Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine,
21 GA. L. REV. 57 (1986); Neal Devins & Michael A. Fitts, The Triumph of Timing:Raines v. Byrd and the Modern
Supreme Court's Attempt to Control Constitutional Confrontations, 86 GEO. L. J. 351 (1997).
3
Republic embodied in the written Constitution.5
This article addresses the difficult problem of determining what qualifies as an offense for
which a President of the United States may constitutionally be impeached and removed from
office. It also considers the even more nettlesome questions of whether there are impeachable
offenses for which Congress could, but need not, constitutionally remove a President, and if such
offenses exist, how Congress should exercise its discretion either to impeach or to hold its hand.
The article had its genesis in a statement by the authors submitted to the House Judiciary
Committee during its proceedings regarding the impeachment of President Clinton. This final
much expanded version appears after the conclusion of the Clinton impeachment proceedings in
the Senate, and it is certainly informed by the course those proceedings took. Strictly speaking,
however, this is not an article “about” the Clinton impeachment. Although the article draws
some conclusions from the treatment by the House and Senate of the fundamental allegations
against President Clinton, it does not address the specific facts underlying those allegations. The
words “Monica Lewinsky” appear for the first and last time in this sentence. Likewise, it offers
no opinion about whether President Clinton should or should not have been impeached or
removed. Instead, the article approaches the issue of defining impeachable offenses more
generally, reviewing history, text, and scholarship to discern the meaning of the constitutional
phrase “Treason, Bribery, or other high Crimes and Misdemeanors.” In doing so, the article
deals principally with five interpretive questions that recurred throughout the Clinton
impeachment process, and that will certainly reemerge in any future presidential impeachment
controversy:
1) Must an Impeachable Offense be a Crime?
2) If Non-criminal Conduct is Impeachable, What Distinguishes Impeachable From
4
Non-impeachable Non-criminal Conduct?
3) Is All Criminal Conduct a Proper Ground for Impeachment?
4) If Not All Crimes Are Impeachable Offenses, What Distinguishes Impeachable
Crimes From Non-impeachable Crimes?
5) Finally, Is There a Category of Impeachable Offenses for Which the Congress
Should Nonetheless Not Impeach?
II. Sources of Authority
In mapping the limits of the rather inscrutable constitutional phrase “treason, bribery, or
other high crimes and misdemeanors,” this paper conforms to the historical practice of relying on
the same sources one would consult in construing other constitutional provisions: (1) the
language of the constitution itself; (2) the intentions of the founding generation as revealed in the
debates of the convention and thereafter in the debates on ratification; (3) the body of precedent
created by prior American impeachment proceedings; (4) the views of scholars and other
commentators; and (5) considerations of reason, common sense, and sound public policy. The
third of the these categories – precedent – merits some brief additional comment because the
concept of “precedent” in impeachments differs in important respects from its usage in the more
familiar judicial setting.
In the first place, there are few impeachment precedents because there have been very few
impeachments. Until the impeachment of President Clinton, in the nation’s entire history the
House of Representatives had impeached only fifteen federal officials. Of these fifteen, twelve
were judges, one was a Senator, one a Secretary of War, and one was President Andrew Johnson.
A handful of other federal officers, including President Richard Nixon, have resigned or retired
under threat of imminent impeachment. Thus, there are very few cases involving impeachment
of executive branch officials and, as discussed below, the standard for impeaching judges is
arguably quite different than the standard that should be applied when removing a President.
Second, the “decisions” in impeachment cases are merely statements of result. The
officeholder was impeached or not impeached on this ground, convicted or acquitted on that
ground. Although individual representatives or senators, and on occasion the prevailing or
6 See GERHARDT, supra note 3, at 47-53 (discussing the difficulty of using prior impeachments as
precedent).
7 See infra text accompanying Appendix note 3.
8 See infra Appendix notes 33-37 and accompanying text.
9 See, e.g., RAOUL BERGER, IMPEACHMENT 214-23 (1973) (suggesting that legislators are amenable to
impeachment despite the contrary precedent).
5
dissenting faction of a committee, may have given statements of their reasons for voting as they
did, such statements represent only the views of the Members who subscribed to them, not the
collective opinion of the legislature as a whole. Most importantly, no explanation of result from
a congressional source is the equivalent of a judicial opinion because there is no legislative
equivalent of the doctrine of stare decisis binding future congresses to abide by either the choices
or the rationales of their predecessors.6
It is true that some impeachments have been treated as “deciding” certain questions. For
example, in 1789, Senator William Blount was expelled by the Senate and then impeached by the
House. The Senate then dismissed the impeachment proceedings for lack of jurisdiction.7 The
dismissal has been said to stand for the proposition that impeachment may not be used against
legislators. Similarly, in 1876, Secretary of War William W. Belknap was impeached for
bribery. He resigned and was then acquitted in the Senate.8 The acquittal is said to establish that
impeachment may not be used against persons no longer in office. In truth, neither of these
propositions is beyond question and either could probably be ignored with impunity by a
Congress determined to do so.9
The biggest problem may be knowing what use to make of even those impeachment
precedents where both the result and the contemporary reasons for reaching it are fairly clear.
The best example of this difficulty is the impeachment of President Andrew Johnson. Although
President Johnson was acquitted in the Senate, the fact remains that the House approved eleven
articles of impeachment. Does the House vote, standing alone, constitute precedent upon which
succeeding Congresses may rely, to the effect that offenses of the type charged against President
Johnson are properly impeachable? Does the Senate’s vote represent a judgment that none of the
eleven articles charged were impeachable offenses, or a judgment that the offenses charged were
10 See, e.g., Minority Views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott,
Moorhead, Maraziti and Latta, in Impeachment of Richard M. Nixon, President of the United States, Report of the
Comm. on the Judiciary, House of Representatives, H.R. REP. No. 1035, 93d Cong., 2d Sess. 359 (1974)
(hereinafter Nixon Impeachment Report) (“The language of the Constitution indicates that impeachment can lie only
for serious criminal offenses”). Twenty-five years later, then-Congressman Wiggins, now a Senior Judge on the
United States Court of Appeals for the Ninth Circuit, testified before the House Judiciary Committee during the
Clinton impeachment proceedings and reiterated the view that “the misconduct alleged to the officer subject to
impeachment should be a crime.” The Consequences of Perjury and Related Crimes, Before the House Comm. On
the Judiciary, 105th Cong., 2d Sess. 65 (1998) (statement of Hon. Charles E. Wiggins). See also Statement of
Senator Johnson, 3 TRIAL OF ANDREW JOHNSON 51 (1868) (explaining his vote against impeachment in part on the
ground that, “the terms crimes and misdemeanors in the [constitution] mean legal crimes and misdemeanors”).
11 See, e.g., Constitutional Grounds for Presidential Impeachment, Report by the Staff of the Impeachment
Inquiry, House Comm. on the Judiciary, 93rd Cong., 2d Sess. 22-25 (1974); Background and History of
Impeachment, Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d
6
not proven? Or is it fair to conclude that the Senate vote meant neither of those things in light of
the fact that Johnson was acquitted by only one vote and thus a clear majority of the senators cast
votes for impeachment on Articles 2, 3, and 11, thus rendering an opinion that those charges
were both impeachable and proven? The Johnson case raises in particularly acute form the
question of whether we should give greater weight to the judgment of Congress or the judgment
of history. How should one think about what Congress actually did in 1868 in light of the nearly
universal conclusion of later commentators that the Johnson impeachment effort was a misuse of
the impeachment power?
In the end, we believe that prior impeachment actions by Congress are best viewed as a
form of “persuasive authority.” That is, members of Congress are not bound by the actions of
their congressional predecessors, but should view prior impeachment proceedings as a valuable
source of information about the proper and improper exercise of the impeachment power. It is
for this reason that we have attached an appendix to this article detailing the grounds for and
result of each of the prior impeachments.
III. Five Interpretive Problems Considered
A. Impeachable Offenses Are Not Limited to Crimes
Some commentators and advocates have asserted that impeachment may be based only on
conduct that constitutes a crime. Notably, congressional opponents of impeachment in the cases
of Andrew Johnson and Richard Nixon hewed to this line.10 However, the weight of authority is
to the contrary.11 In the first place, the Framers almost certainly intended that presidents be
Sess. 89 (1998) (statement of Cass R. Sunstein).
12 The first vote came on July 19, 1787, and the second on July 26, 1787. MAX FERRAND, 2 RECORDS OF
THE FEDERAL CONVENTION OF 1787 61, 69, 116 (hereinafter Records).
13 Id. at 2:64-69. See also GERHARDT, supra note 3, at 7-9.
14 “Malversation” means “corrupt conduct or fraudulent practices, as in public office.” WEBSTERS NEW
WORLD DICTIONARY 858 (2d coll. ed. 1986).
15 Records, supra note 12, at 2:337.
16 Id. at 2:495.
17 Id. at 2:550
18 Id. at 2:551.
19 Id. at 2:550.
20 Id.
7
impeachable for conduct not technically criminal. During the debates of the Constitutional
Convention in July of 1787, the delegates twice voted in favor of the general proposition that the
president should be removable for “malpractice or neglect of duty.”12 Many delegates spoke of a
body of offenses outside the common law crimes for which presidents and other federal officials
could be impeached, using terms such as “maladministration,” “corrupt administration,” “neglect
of duty,” and “misconduct in office.”13 On August 20, 1787, the Committee on Detail reported
to the convention that federal officers “shall be liable to impeachment and removal from office
for neglect of duty, malversation,14 or corruption.”15
Despite the tenor of these earlier discussions in the convention, in its report of September
4, 1787, the Committee of Eleven proposed that the President be removable only on conviction
of “treason or bribery.”16 On September 8, George Mason made a motion the effect of which was
to restore the thrust of the general proposals previously assented to by adding
“maladministration” as a third ground for impeachment.17 Madison objected to removal of a
President “for any act which might be called a misdemesnor [sic],”18 observing that, “So vague a
term will be equivalent to a tenure during pleasure of the Senate.”19 Mason withdrew
“maladministration,” substituting “other high crimes and misdemeanors against the State.”20 The
21 Id. at 2:551.
22 During the hearings before the House Judiciary Committee on the Clinton impeachment, some scholars
argued that the deletion of the phrase “against the United States” was tremendously significant and signalled an
intention to include within the category of “high Crimes and Misdemeanors” a wide variety of purely private
offenses with no relation to the presidential office. See, e.g., Background and History of Impeachment, Before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. 89 (1998) (statement of
Gary McDowell ). Other scholars contended that the deletion was genuinely one of style, signifying nothing more
than a conclusion by the drafters that “high Crimes and Misdemeanors against the United States” was a redundancy.
See, e.g., id. at 85 (statement of Professor Cass R. Sunstein); Impeachment Inquiry: Pursuant to H.R. 581 Before
the House Comm. On the Judiciary, 105th Cong., 2d Sess. 21 (1998) (statement of Prof. Sean Wilentz). We concur
in the latter view.
23 See BERGER, supra note 9, at 86.
24 Id. at 71, 86-87. See also PETER CHARLES HOFFER AND N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635-
1805 (1984), at 266-70 (arguing that the American understanding of impeachable offenses essentially incorporates
the English understanding); Statement of Professor Gary L. McDowell, supra note 22, at 34-43.
25 See BERGER, supra note 9, at 70-71.
8
phrase “against the State” was later amended to “against the United States,”21 and then deleted
altogether by the Committee on Style in the final draft of the Constitution.22
It is plain that Mason’s substitution of “high Crimes and Misdemeanors” in the face of
objections by Madison and others to “maladministration” represented an effort to limit the reach
of the original proposal.23 And although neither Mason nor anyone else at the Convention
offered any particular views on what “high Crimes and Misdemeanors” meant, evidence suggests
that the words were intended to embrace at least some non-criminal conduct. Raoul Berger has
argued that the phrase was a “technical term” derived from English practice, with which the
Framers would have been familiar, and therefore that its technical meaning “furnishes the
boundary of the [impeachment] power.”24 Among the various kinds of official misconduct that
fell within the English usage of “high misdemeanors” were such non-criminal behavior as abuse
of power, neglect of duty, encroachment on the prerogatives of Parliament, and betrayal of trust.25
Both Berger’s factual premise that all, or even very many, of the Framers were intimately
familiar with the details of English impeachment precedents, and his conclusion that the Framers
were thus conscious of having adopted the particulars of those precedents by reference through
Mason’s amendment seem to us somewhat doubtful. Both premise and conclusion become still
more doubtful when applied to the sixteen hundred ratifiers who debated and approved the
26 In the thirteen state conventions, a total of 1,071 delegates voted for the Constitution and 577 against it.
See 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 29-31 (Merrill Jensen, ed. 1978)
27 Berger’s thesis is rendered somewhat more plausible by the recollection that many of the active political
figures of revolutionary generation were also energetic practical political philosophers for whom English history
provided the principle source of precedent and comparison. For example, in 1773-74, John Adams was casting
about for a means of resisting parliamentary legislation that undermined the independence of Massachusetts judges
by securing them a salary from the Crown rather than, as the Massachusetts charter required, from the colonial
assembly. Adams made a special study of English impeachments before proposing that the assembly impeach the
judges for violating the charter. Acting on Adams’ suggestion and relying on English precedents, the Massachusetts
House of Representatives approved articles of impeachment against the judges, although the Council refused to act
upon them. See PAGE SMITH, JOHN ADAMS 150-52 (1962). Still, it seems unlikely that the particulars of Adams’
pre-Revolutionary legal research lingered in the memory of any member of the Constitutional Convention fourteen
years later, and Adams himself was abroad as ambassador to England while the Constitution was being drafted and
ratified. Id. at 725. On the other hand, the fact that Massachusetts had impeached judges for non-criminal violations
of its charter would certainly have been well-remembered.
28 Of course, presidential incapacity due to drunkenness or other substance abuse might be dealt with
through the provisions of the Twenty-Fifth Amendment, rather than the impeachment process. U.S. Const., amend.
XXV.
9
Constitution in the state conventions.26 Berger is certainly correct, however, that many delegates
to the Philadelphia and ratification conventions would have been sufficiently familiar with
English constitutional history to recognize “high Crimes and Misdemeanors” as a phrase that
embraced territory broader than indictable crime, but more restricted than mere poor performance
in office.27
The conclusion that criminality is not a prerequisite for impeachment makes intuitive
sense. It is hard to imagine that the Framers wished to tolerate -- or that Congress and the
country must suffer -- a President who willfully refuses to perform, or is incapable of performing,
the tasks of the job. To take some extreme examples, a President would certainly be subject to
impeachment for refusing to organize the defense of the country against foreign invasion, or
refusing to cooperate with military officers charged with command and control of the nuclear
arsenal, or firing all cabinet officers and refusing to name replacements. Likewise, it is
inconceivable that Congress could not act to remove a President who on a daily basis drank into
insensibility by lunchtime.28 While it may be difficult to draw a hard and fast line between
impeachable derelictions of duty and the rejected standard of “maladministration,” common
sense demands that the country have some means of self-protection against a Chief Executive
who abandons the constitutional responsibilities of the office but who does not happen to violate
29 It is worth noting that noncriminal considerations may have been very important in the impeachment and
trial of at least two of those accused of criminal conduct. The impeachment of Judge West Humphreys for his role in
the southern rebellion and Confederacy and the impeachment of Judge Walter Nixon following his conviction and
imprisonment for perjury both involved judges who were not holding court. Humphreys was in fact serving as a
Confederate judge and Nixon, although drawing a salary, could hardly preside over cases from his prison cell.
Impeachment and removal of these officials would have been appropriate solely on these grounds, and Nixon’s
incarceration undoubtedly was a factor in his case. See infra text accompanying Appendix note -.
30 See infra text accompanying Appendix note 11.
31 See infra text accompanying Appendix note 45. In recommending impeachment of Judge English, the
House Judiciary Committee expressly dealt with this issue. It wrote:
[I]mpeachment is not confined alone to acts which are forbidden by the Constitution or Federal
statutes. The better sustained and modern view is that the provision for impeachment in the
Constitution applies not only to high crimes and misdemeanors as those words were understood at
common law but also acts which are not defined as criminal and made subject to indictment, but
also to those which affect the public welfare. Thus, an official may be impeached for offenses of a
political character and for gross betrayal of public interests. Also, for abuses or betrayal of trusts,
for inexcusable negligence of duty, for the tyrannical abuse of power, or as one writer puts it, for a
“breach of official duty by malfeasance or misfeasance, including conduct such as drunkenness
when habitual, or in the performance of official duties, gross indecency, profanity, obscenity, or
other language used in the discharge of an official function, which tends to bring the office into
disrepute, or an abuse or reckless exercise of discretionary power as well as the breach of an
official duty imposed by statute or common law.”
House Committee on the Judiciary, Impeachment: Selected Materials on Procedure, 93rd Cong., 2d Sess. 886
(1974) (hereinafter Impeachment Procedure).
32 See infra text accompanying Appendix notes 53-55. See also Ritter v. United States, 84 Ct. Cl. 293
(1936), cert. denied, 300 U.S. 668 (1937) (rejecting as non-justiciable the claim of Judge Halstead Ritter that the
Senate convicted and removed him for non-impeachable offenses).
33 1 TRIAL OF ANDREW JOHNSON 8-10 (1868) (Articles X and XI of the Articles of Impeachment against
President Johnson).
10
a criminal statute.
Indeed, the historical record reveals a consistent pattern of impeachment for non-criminal
conduct.29 For example, Justice Samuel Chase was impeached (though not convicted) for
exhibitions of judicial bias and making improper rulings.30 Judge George English was
impeached for habitual malperformance.31 Judge Halstead Ritter was impeached by the House
on six charges of taking kickbacks and tax evasion, as well as a seventh of bringing his court
“into scandal and disrepute.” The Senate acquitted him of all six of the articles charging criminal
offenses, but nonetheless convicted and removed him on the seventh article.32 President Andrew
Johnson was impeached by the House for, among other things, giving speeches casting
aspersions on Congress.33 The second and third articles of impeachment approved by the House
34 See Nixon Impeachment Report, supra note 10, at 3-4.
35 This view is virtually universal among commentators. For example, Justice Story wrote: “Congress have
unhesitatingly adopted the conclusion that no previous statute is necessary to authorize an impeachment for any
official misconduct. . . . In the few cases of impeachment which have hitherto been tried, no one of the charges has
rested upon any statutable misdemeanor.” JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES, 5th ed., § 799 (1905). See also GERHARDT, supra note 3, at 103; BERGER, supra note 9, at 56-57; C.
BLACK, IMPEACHMENT: A HANDBOOK 33-35 (1974); Statement of Professor Gary L. McDowell, supra note 22, at 37
(“Thus, while an indictable crime may be deemed an impeachable offense, impeachable offenses are not simply
limited to indictable crimes.”).
36 Such modern innovations include the wire and mail fraud statutes, 18 U.S.C. §§ 1341 and 1343; the
RICO statute, 18 U.S.C. § 1962, et seq., the federal false statements statute, 18 U.S.C. § 1001, and many others.
11
Judiciary Committee against President Richard Nixon charged misuse of government agencies
for improper purposes and refusal to comply with lawful subpoenas of the Committee.34
In sum, a showing of criminality is not necessary to establish an impeachable offense.35 It
may nonetheless be important to remember that the historical evidence of the Founders’
intentions must be viewed in the context of their time when there were by modern reckoning very
few criminal laws. At the time the Constitution was ratified, there were no federal crimes at all
unless one counts those few such as treason mentioned in the Constitution itself. The sprawling
federal and state criminal codes of the late twentieth century would have seemed quite foreign to
our eighteenth century forebearers. Much of the official misconduct, particularly “corruption”
and misapplication of public funds, with which the Framers were concerned when they debated
the impeachment clauses, may have violated no criminal law in their day, but would fall squarely
within a battery of modern federal statutes.36 One may well wonder whether Mason, Madison, or
Franklin, if aware of the reach of modern criminal law, would conclude that there was much, if
any, non-criminal conduct that would now merit impeachment.
B. Distinguishing Impeachable Non-criminal Conduct From Non-impeachable
Non-criminal Conduct
1. General Observations
To define the scope of impeachable non-criminal offenses, one must begin by examining
both the text of the impeachment clauses and the place of the impeachment mechanism within
the structure of the Constitution. The text says that a President may be impeached only for the
37 U.S. Const., art. II, § 4 (emphasis added).
38 Giving bribes is not necessarily as serious as taking bribes. Accepting a bribe almost necessarily
involves a public act; that is an act relating to the President’s office. Paying a bribe may not relate to the office, and
thus might be far less serious. For example, a President who bribed a college admissions officer to enroll the
President’s child may not have committed an impeachable offense. Even if the bribe were a criminal act, such as
payment to a foreign official to do something in the best interests of the United States, it might not justify
impeachment. See infra notes 85, 118 & 137-142 and accompanying text (discussing the significance of the
conduct’s relationship to the accused’s office).
39 The canon of statutory construction bearing the Latin title ejusdem generis which holds that “where
general words follow the enumeration of particular classes of things, the general words will be construed as applying
only to things of the same general class as those enumerated.” BLACKS LAW DICTIONARY 464 (5th ed.), See also
Robert J. Araujo, S.J., Method in Interpretation: Practical Wisdom and the Search for Meaning in Public Texts, 68
MISS. L. J. 225, 319-28 (Fall 1998) (discussing ejusdem generis and other canons of statutory construction). Applied
here, ejusdem generis suggests that the phrase “high crimes and misdemeanors” should be construed as applying
only to offenses of the same general class as treason and bribery. In the present case, ordinary rules of English usage
produce the same conclusion. The use of the word “other” is an unequivocal statement that treason and bribery are
merely two examples of the general category of high crimes and misdemeanors. See Statement of Cass R. Sunstein,
supra note 11, at 84 (arguing that application of ejusdem generis to text of constitution suggests “other high Crimes
and Misdemeanors” must be of the same type and degree as treason and bribery).
40 The first treason statute, enacted in 1790, provided death as the penalty for treason. See Act of Apr. 30,
1790, ch. IX, 1796 Laws of the United States I (An Act for the Punishment of Certain Crimes against the United
States). The current treason statute also pemits the death penalty. See 18 U.S.C. § 2381 (providing that one who is
guilty of treason against the United States “shall suffer death” or a term of imprisonment).
41 Bribery was among the first offenses designated by statute as a federal crime following the ratification
of the Constitution in 1789. See Act of April 30, 1790, ch. 9, § 21, 1 Stat. 112 (1845).
12
commission of “Treason, Bribery, or other high Crimes and Misdemeanors.”37 It is a cardinal
error to abbreviate this passage and speak of “high crimes and misdemeanors” in isolation, and
so to ignore the fact that the Constitution gives two concrete examples of the type of offense the
Framers intended to be proper grounds for impeachment. When the Constitution authorizes
impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors,” it is saying that a
President may be removed for committing treason, taking bribes,38 or performing other acts
similar both in type and seriousness to bribery and treason.39
Thus, two things may fairly be inferred from the constitutional text. First, a “high crime
or misdemeanor” must be an offense of the most serious kind. Treason is and always has been
punishable by death.40 And bribery is everywhere thought of as among the gravest of non-violent
crimes.41 Second, impeachable offenses are public offenses, offenses that strike at the heart of
the democratic order. As Alexander Hamilton said in Number 65 of “The Federalist,” they are
42 George Mason, the originator of the phrase “high crimes and misdemeanors,” said earlier in the
Convention that he favored impeachment for “great crimes.” Records, supra note 12, at 2:65.
43 BERGER, supra note 9, at 88.
44 JONATHAN ELLIOT, 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION 113 (2d ed. 1836).
45 James Wilson, Lectures in Law, in 1 THE WORKS OF JAMES WILSON 426 (R. McCloskey ed. 1967).
46 STORY, supra note 35, § 751.
47 BERGER, supra note 9, at 90.
48 Id. at 298.
13
“of a nature which may with peculiar propriety be denominated POLITICAL [capitalization in
the original], as they relate chiefly to the injuries done to the society itself.”
Over the centuries, observers have employed a variety of formulations in an effort to
capture the essence of transgressions meriting removal of a head of state (or in England, of his
chief ministers). The common law called them “great offenses.” 42 An English Solicitor General
stated in Parliament in 1691 that “the power of impeachment ought to be, like Goliath’s sword,
kept in the temple, and not used but on great occasions.”43 In America, James Iredell told the
North Carolina ratification convention that the “occasion for its exercise [impeachment] will
arise from acts of great injury to the community.”44 Shortly after ratification, in 1790-91,
Supreme Court Justice James Wilson described impeachments in the United States as “confined
to political characters, to political crimes and misdemeanors, and to political punishment.”45
Justice Story wrote that impeachment is “intended for occasional and extraordinary cases, where
a superior power, acting for the whole people, is put into operation to protect their rights, and to
rescue their liberties from violation.”46
More recently, Raoul Berger concluded that the Founders intended to “preclude resort to
impeachment of the President for petty misconduct,”47 and that they “conceived that the President
would be impeachable for ‘great offenses’ such as corruption [or] perfidy.”48 And in the most
recent comprehensive treatment of impeachment, Professor Michael Gerhardt observed that the
ratification debates support the conclusion that high crimes and misdemeanors “were not limited
49 GERHARDT, supra note 3, at 104-05. See also, Impeachment Inquiry Hearing Pursuant to H. Res. 581,
Before the House Comm. on the Judiciary, 105th Cong., 2d Sess. 19-20 (statement of Nicholas Katzenbach).
50 See WILLIAM H. REHNQUIST, GRAND INQUESTS, 276 (1992) (discussing the root causes of the Johnson
impeachment effort). See also Statement of Professor Sean Wilentz, supra note 22, at 22.
51 For a brief discussion of the change in the way historians have viewed the Johnson impeachment, see
Bernard A. Weisberger, Impeachment Aftermath: William Jefferson Clinton, Andrew Johnson, and the judgment of
history, 50 AM. HERITAGE 22 (Feb./March 1999).
52 For example, in his written statement explaining his vote in favor of impeachment, Senator Charles
Sumner of Massachusetts characterized President Johnson as “the impersonation of the tyrannical slave power,” and
described the impeachment effort as the “one of the last great battles with slavery.” 3 TRIAL OF ANDREW JOHNSON
247 (1868).
Estimates of the number of men enlisted in the Union Army vary from around 2.1 million to nearly 2.9
million. Compare VERNON BLYTHE, A HISTORY OF THE CIVIL WAR IN THE UNITED STATES 383-385 (1914) (placing
number of Union enlistees at between 2,772,408 and 2,898,304), and MARK MAYO BOATNER, III, THE CIVIL WAR
DICTIONARY 602 (1959) (stating that 2,128,948 men served in the Union Army). There is general agreement that
359,528 Union men were killed by enemy action or died from disease or accident. See Blythe, supra, and Boatner,
supra.
14
to indictable offenses, but rather included great offenses against the federal government.”49
The proposition that impeachment of a President should result only from “great” offenses
seems born out by the actual conduct of the impeachment proceedings against Presidents Johnson
and Nixon. Whatever may be said of the merits of the particular charges against Andrew
Johnson, the true occasion for the effort to remove him was an irreconcilable conflict between
the President and the dominant forces in the ruling Republican party over the issue that would
define America for the next century and more – how to treat the states of the defeated rebellion
and how to regulate the way those states treated their large populations of recently emancipated
African-American slaves.50 Through the lenses of hindsight, the Johnson impeachment effort has
come to be viewed as an exercise in congressional overreaching by a vengeful group of radicals
against a President acting within his rights. Whether or not this a correct view of history,51 the
key point for our purposes is that, at the time, the majority of both houses of Congress perceived
Johnson’s policy of liberality towards rebels and seeming indifference to the political and
economic status of freed slaves as a treasonous betrayal of the cause in which more than two
million northern men fought and over three hundred thousand died.52 The particular charges on
which Johnson was impeached, almost all of which involved the President’s removal of
Secretary of War Stanton in defiance of the Tenure of Office Act, seem to modern eyes both
53 Nixon Impeachment Report, supra note 10, at 1-2.
54 Id. at 3-4.
55 Id. at 4.
56 Id. at 217-19, 338.
15
specious and rather trivial. But for his contemporaries, Johnson’s true offenses were
quintessential “great crimes.”
The impeachment of Richard Nixon likewise turned on “great” questions of constitutional
governance. The three Articles of Impeachment against President Nixon approved by the House
Judiciary Committee concerned grave abuses of executive power. Article 1 charged criminal
obstruction of the investigation of a burglary carried out by paid agents of the President’s re-
election committee to gather political intelligence on the President’s opponents.53 Article 2
alleged pervasive misuse of federal law enforcement and intelligence agencies for political
purposes, notably to collect information on or to discredit persons opposed to the President’s
general political aims or his conduct of the Vietnam War.54 Article 3 sought impeachment based
on the President’s refusal to comply with the Judiciary Committee’s own subpoenas.55
Moreover, as with the case of Andrew Johnson, not far removed from the Nixon impeachment
effort was a deeply divisive quarrel about the conduct of a war and its aftermath. One of the two
articles of impeachment proposed, but not adopted by the Judiciary Committee, charged the
President with concealing the bombing of Cambodia from Congress through the creation of false
military records and the repeated submission to Congress of overtly false official reports.56
The near-universal theme of the Nixon Judiciary Committee report and of formal
supplemental statements by Committee Members from both parties was that a President should
be impeached only for offenses that go to the heart of his constitutional responsibilities, and not
for any transient or venal personal failings. The Judiciary Committee staff prepared a report
entitled, Constitutional Grounds for Presidential Impeachment,” portions of which were
incorporated into the Committee’s final report. In one such portion, the staff concluded:
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
57 Id. at 7-8.
58 Id. at 289.
59 Id. at 327 (Statement of Congresswoman Holtzman, joined by Congressmen Kastenmeier, Edwards,
Hungate, Conyers, Waldie, Drinan, Rangel, Owens, and Mezvinsky).
60 Id. at 297.
61 Id. at 341 (Statement of Congressman Wayne Owens).
62 Id. at 287 (Supplemental Views of Congressman Don Edwards).
16
structure of government, or undermine the integrity of office and even the
Constitution itself, and thus are “high”offenses in the sense the word was used in
English impeachments.
***
Not all presidential misconduct is sufficient to constitute grounds for
impeachment. There is a further requirement -- substantiality. In deciding
whether this further requirement has been met, the facts must be considered as a
whole in the context of the office, not in terms of separate or isolated events.
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 presidential office.57
Among those who voted for impeachment, Congressman Conyers wrote that the
impeachment remedy “was framed with the intention that it be used only as a last constitutional
resort against the danger of executive tyranny.”58 Another group of Members declared that, “In
these proceedings we have sought to return to the fundamental limitations on Presidential power
contained in the Constitution and to reassert the right of the people to self-government through
their elected representatives within that Constitutional framework.”59 Congressman Waldie said,
“Impeachment of a President should not be undertaken to punish a President, but to
constitutionally redefine and to constitutionally limit the powers of the Presidency when those
powers have been dangerously extended and abused.”60 Several Members who voted for
impeachment did so because the President’s conduct, in their view, “violated our guarantees of
liberty,”61 or was a “grave threat to the liberties of the American people.”62 Referring in
particular to Article 3 concerning President’s defiance of congressional subpoenas, Congressman
McClory observed that, “The power of impeachment is the Constitution’s paramount power of
63 Id. at 349 ( McClory was joined by Congressmen Danielson and Fish).
64 Id. at 363.
65 Id. at 495.
66 Of course, technically the Electoral College stands as intermediary between the voters and selection of
the President, but only twice in American history has a candidate won the popular vote, but lost the presidency in the
Electoral College. See LAWRENCE D. LONGLEY & NEAL R. PEIRCE, THE ELECTORAL COLLEGE PRIMER 26 & 46-47
(1996).
67 See THORNTON ANDERSON, CREATING THE CONSTITUTION 143 (1993). The phrase “imperial
presidency” was coined by Arthur M. Schlesinger, Jr. in his 1974 book of that name. See ARTHUR M. SCHLESINGER,
17
self-preservation.”63
The minority report endorsed by those who voted against all of the Nixon articles of
impeachment concluded that impeachment was constitutionally permissible only for the
commission of crimes, and then only for “extremely grave crimes.”64 Congressman Hutchinson
wrote separately to emphasize that, “Impeachment of a President is a drastic remedy and should
be resorted to only in cases where the offenses committed by him are so grave as to make his
continuance in office intolerable.”65
In the Nixon impeachment, the rhetoric of the Judiciary Committee was matched by its
actions. Confronted with evidence that President Nixon may have committed the essentially
private crime of criminal income tax fraud and may have illegally received government money to
pay for improvements on his private estates at San Clemente, California, and Key Biscayne,
Florida, the Committee voted 26-12 against impeaching the President on these grounds.
Thus, both the phrase “Treason, Bribery, or other high Crimes and Misdemeanors” and
the precedent of the two pre-Clinton presidential impeachment proceedings strongly suggest that
presidents are to be impeached only for “great” transgressions that present a real danger to the
constitutional order. This conclusion is also implicit in the role of the Executive in our
Constitution. The President is co-equal with the Congress and the courts. The office is attained
by direct grant of the people,66 and does not rest on any delegation of power from the legislature.
As an original matter, the Framers, fresh from their struggle with the parliamentary tyrannies of
the mother country, were as concerned with legislative overreaching as they were with the
prospect of an “imperial presidency.”67 Any dramatic lowering of the impeachment threshold in
JR., THE IMPERIAL PRESIDENCY (1973). See also ERWIN C. HARGROVE, THE POWER OF THE MODERN PRESIDENCY,
vii (1974) (discussing concern that presidency “has become a kind of republican monarchy”).
68 This point was made forcefully by the dissenting members of the Judiciary Committee in the Nixon
impeachment: “We have never had a British parliamentary system in this country, and we have never adopted the
device of a parliamentary vote of no-confidence in the chief executive. If it is thought desirable to adopt such a
system of government, the proper way to do so is by amending our written Constitution -- not by removing the
President.” (Minority Views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead,
Maraziti and Latta, Nixon Impeachment Report, supra note 10, at 365).
In his testimony before the House Judiciary Committee during the Clinton impeachment inquiry, former
Attorney General Nicholas Katzenbach observed, “If [the impeachment] power is not limited – as it clearly is – then
any President could be removed if a sufficient number of members of the House and Senators simply disagreed with
his policies, thus converting impeachment into a Parliamentary vote of no confidence. Whatever its merits, that is
not our Constitutional system.” Statement of Nicholas Katzenbach, supra note 49, at 19. See also Statement of
James Hamilton, id. at 224. During the debate in the House on the Clinton articles of impeachment, Congresswoman
Jackson Lee declared:
Today, our vote leads into the darkness of a vile attack on the Constitution. We leave here today
void and empty because our president will have been toppled against the will of the people of the
United States. Mr. President, if you can hear me, do not resign. This is not a parliamentarian
[sic] form of government.
House Floor Debate on Four Articles of impeachment Against President Clinton, 1998 WL 883521 (F.D.C.H. Dec.
18, 1998).
Chief Justice Rehnquist, in his book discussing the impeachment trials and eventual acquittals of Supreme
Court Justice Samuel Chase and President Andrew Johnson, concluded that:
The importance of these acquittals can hardly be overstated. With respect to the chief executive,
they have meant that as to the policies he sought to pursue, he would be answerable only to the
country as a whole in the quadrennial presidential elections, and not to Congress through the
process of impeachment.
***
We rightly think of our courts as the final voice in the interpretation of our Constitution, and
therefore tend to think of constitutional law in terms of cases decided by the courts. But these two
“cases” – decided not by the courts but by the United States Senate – surely contributed as much to
the maintenance of our tripartite federal system of government as any case decided by any court.
REHNQUIST, supra note 50, at 271, 278.
18
the direction of converting impeachment into a mechanism for legislative removal of the chief
executive on a vote of no confidence is antithetical to the design of this Constitution.68
2. Judicial Impeachment Precedents
The nation’s experience with impeachment of federal judges arguably supports the view
that federal officers may be removed for non-criminal conduct far different and less grave than
the “great” offenses. As the Appendix details, judges have been impeached for drunkenness,
69 See infra text accompanying Appendix note 4; GERHARDT, supra note 3, at 50 (both describing the
impeachment of Judge John Pickering.)
70 See infra text accompanying Appendix note 11 (describing the impeachment of Supreme Court Justice
Samuel Chase).
71 See infra text accompanying Appendix note 13 (describing the impeachment of Judge James H. Peck).
72 See infra text accompanying Appendix note 45 (describing the impeachment of Judge George English).
73 See infra text accompanying Appendix note 50 (describing the impeachment of Judge Harold
Louderback).
74 See infra text accompanying Appendix note 53 (describing the impeachment of Judge Halstead L.
Ritter).
75 See, e.g., BERGER, supra note 9, at 122-80; GERHARDT, supra note 3; “Constitutional Grounds for
Presidential Impeachment: Modern Precedents, Minority Views,” Report By the Minority Staff of the Impeachment
Inquiry, House Committee on the Judiciary, 105th Cong., 2d Sess., Ser. No. 17 (December 1998) at 16 (judges and
Presidents “are and should be subject to differing impeachment considerations”); Statement of Nicholas
Katzenbach, supra note 49 at 18; Statement of Bruce Ackerman, id. at 44; Statement of Cass R. Sunstein, supra
note 11, at 89 (“[t]he standard for impeaching the President has been much higher [than for impeaching judges], and
properly so.”).
76 The Report of the House Judiciary Committee proposing impeachment of Judge George English
expressly indicated that the constitutional provision limiting the tenure of federal judges to their good behavior
should be considered along with the Article II, § 4 standard applicable to all other civil officers. The Report
19
blasphemy, and entering improper judicial orders,69 bias in charging a grand jury,70 improperly
holding in contempt a lawyer who had criticized the court’s rulings,71 habitual malperformance,72
using favoritism in appointing receivers,73 and bringing the court into scandal and disrepute.74
However, we join with the majority of commentators who have concluded that the impeachment
standard for judges is different than the standard for the President.75 At least five reasons support
this conclusion.
First, the constitutional text creates some ambiguity about the proper impeachment
standard for judges. Article II authorizes impeachment of the “President, Vice President and all
civil Officers” for “Treason, Bribery, or other high Crimes and Misdemeanors.” However,
Article III provides that federal judges “shall hold their Offices during good Behavior.” While
the impeachment standard in Article II certainly does apply to judges, the additional language in
Article III suggests an additional – and perhaps lesser – basis for their impeachment and
removal.76
continued: “[g]ood behavior is the essential condition on which the tenure of judicial office rests, and any act
committed or omitted by the incumbent in violation of this condition necessarily works a forfeiture of the office.”
Impeachment Procedure, supra note 31, at 886.
77 See infra text accompanying Appendix notes 4 & 45 for descriptions of the impeachment of Judges
Pickering (drunkenness, blasphemy, senility, and improper rulings) and English (habitual malperformance).
78 See infra text accompanying Appendix notes 11, 13 & 50 for descriptions of the impeachment of Judges
Chase (bias in charging grand jury and delivering inflammatory political harangue to grand jury), Peck (improperly
holding in contempt lawyer who criticized his rulings), and Louderback (using favoritism in appointing receivers).
79 See infra text accompanying Appendix notes 39, 42, 53 & 60 for descriptions of the impeachment of
Judges Swayne (falsifying expense accounts and using property held in a receivership); Archbald (bribery and
hearing cases in which he had a financial interest); Ritter (taking kickbacks and tax evasion); Claiborne (tax
evasion); Hastings (conspiracy to solicit a bribe). In addition, two judges who resigned to avoid impeachment, Judge
Mark W. Delahay and Judge Robert Collins, were charged with questionable financial dealings and bribery
respectively. See also GERHARDT, supra note 3, at 23, 30, 36.
80 Andrew Johnson was impeached when only about one year remained in his term. The House Judiciary
Committee voted articles of impeachment against President Nixon when he had about 2½ years left on his term and
was ineligible for reelection. President Clinton’s impeachment occurred when he had just over two years left on his
term and was also ineligible for reelection. Indeed, during the trial, President Clinton went past the half-way mark of
his term, thereby guaranteeing that Vice President Gore would be eligible for two full terms as President even if
Clinton had been convicted and removed. See U.S. Const., Amend. XXII, § 1.
20
Second, in marked contrast to the profound political questions and great occasions that
precipitated the impeachment efforts against Presidents Johnson and Nixon, the impeachments of
judges seem rather tawdry affairs generally revolving around charges of personal incapacity,77
political or personal bias,78 or, more commonly, financial dishonesty.79 No president has been
impeached for general failure or incapacity to perform his duties. Several judges have been. No
president has been impeached for being politically biased or for favoring friends in the exercise
of official duties. Several judges have been. Two judges have been impeached and one
convicted of tax evasion, yet the House Judiciary Committee declined to impeach Richard Nixon
for income tax violations. In short, historical precedent suggests that judges are treated
differently -- Congress seems more disposed to impeach judges than presidents for incapacity or
fundamental unsuitability for office.
Third, judges have life tenure: they continue in office until death or resignation unless
removed through impeachment. In contrast, presidential tenure is limited to four years and an
impeachment issue often arises when substantially less than the whole term remains.80 Indeed,
this distinction almost prompted the Constitutional Convention not to subject presidents to
81 During the debates about impeachment, Rufus King argued that the president should not be subject to
impeachment because of the rather short term associated with the office. Benjamin Franklin suggested, however,
that without impeachment a chief magistrate who made himself obnoxious might be assassinated, which deprived the
magistrate not only of life, but also of the opportunity to vindicate his character. He contended it would be better to
provide punishment “when his misconduct should deserve it, and for his honorable acquittal when he should be
unjustly accused.” Records, supra note 12, at 2:65-67. While Franklin’s views carried the day, the point remains
that the different tenures are a reasoned basis for applying the constitutional standard differently. Indeed, the rather
limited debates in the Constitutional Convention regarding impeachment were focused almost exclusively on the
President and other senior officers. Little attention was devoted to removal of judges.
82 See U.S. Const., art. I, § 2; U.S. Const., art. I, § 3; U.S. Const., art. II, § 1.
83 Abraham Lincoln so despaired of his own reelection that in August 1864, he jotted a memorandum that
read:
This morning, as for some days past, it seems exceedingly probable that this Administration will
not be re-elected. Then it will be my duty to so co-operate with the President elect, as to save the
Union between the election and the inauguration; as he will have secured his election on such
ground that he cannot possibly save it afterwards.
ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1859-65, (The Library of America 1989) 624. For a general
discussion of the election of 1864, see STEPHEN B. OATES, WITH MALICE TOWARD NONE: THE LIFE OF ABRAHAM
LINCOLN 412-437 (1977).
84 For example, in the summer of 1944, President Franklin D. Roosevelt declined a request from Winston
Churchill to meet and discuss the post-war fate of Poland, pleading concern about the upcoming presidential
election. MARTIN GILBERT, CHURCHILL, A LIFE 784 (1991).
21
impeachment at all.81
Fourth, judges are appointed while presidents are elected. This is not a trivial distinction.
One of the notable differences between the American constitutional democracy and its English
progenitor is the federal constitution’s textual command that elections be conducted with
metronomic regularity – congressional elections every two years, presidential elections every
four.82 The legitimacy of American government is so dependent on regular ratification by the
electorate that the biennial timetable has never been disrupted, and national elections were
conducted routinely during both the Civil War83 and World War II84 with no apparent thought
that any other option was possible. Because the tenure of any American President is legitimized
only by the ballot box, the mandate conferred by the electorate is not lightly to be repealed. Any
effort to undo the results of an election – which is the practical consequence of presidential, but
not judicial, impeachments -- should be undertaken with great care and only in cases of great
need.
Finally, any effort to remove a President precipitates a constitutional crisis, even if the
85 The staff of the House Judiciary Committee in the Nixon presidential impeachment took the view that
the standard for impeachment of judges is no different than the standard for presidents, but agreed with our reading
of the judicial impeachment cases insofar as we take them to involve “an assessment of the conduct of the officer in
terms of the constitutional duties of his office.” Constitutional Grounds for Presidential Impeachment, Report by
the Staff of the Impeachment Inquiry, Comm. on the Judiciary, House of Representatives, 93rd Cong., 2d Sess. 17
(Feb. 1974). See also Statement of Nicholas Katzenbach, supra note 49, at 18-19 (“Only if one takes the view
articulated by Senator Fessenden in the Johnson impeachment that impeachment is a power ‘to be exercised with
extreme caution’ in ‘extreme cases’ can the same standard apply to both Presidents and judges. One simply needs to
take into consideration the different roles and responsibilities of the offices involved”).
86 BERGER, supra note 9, at 70-71.
22
charges against the President are not themselves of constitutional magnitude. A change in
Presidents requires, or at least permits, a reordering of the executive branch and unforeseeable
changes in national policy. The removal of a lower federal court judge has no necessary
consequence outside his or her own district or circuit, and only modest effects even there. Even
the removal of a Supreme Court Justice may have no noticeable impact on the Court’s decisions.
For all these reasons, it seems that the nature of an impeachable offense under the
constitution depends largely on the nature of the office from which the subject is to be removed.85
For example, judges are expected to be apolitical and impartial. Exercising the powers of one’s
office to favor one’s friends and allies or to advance partisan political goals is conduct
fundamentally incompatible with the judicial role, and is thus impeachable conduct for a judge.
However, the same sort of behavior is often the essence of being a President, and absent violation
of some statute a President will not be impeached for exercising the powers of patronage or using
the office to advance a political agenda.
3. Impeachable Non-criminal Offenses -- Distinguishing Features and Special Cases
What then are the distinguishing features of non-criminal impeachable offenses for
Presidents? Such offenses surely include most of the “great” political infractions recognized
under English common law, including misapplication of funds, abuse of official power, neglect
of duty, or encroachment on the prerogatives of another co-equal branch of government.86
Virtually all of the charges against Presidents Johnson and Nixon were either criminal, fell into
one of the common law “great offense” categories, or both. Articles 1-9 in the Johnson case
were essentially claims of abuse of power, and were also technically criminal because they
87 See infra text accompanying Appendix note 26 (describing the articles of impeachment against
President Johnson).
88 Id.
89 For text of the articles of impeachment against President Nixon approved by the House Judiciary
Committee, see Nixon Impeachment Report, supra note 10, at 1-4. For discussion of the these articles, see supra,
notes 53-56, and accompanying text.
90 Nixon Impeachment Report, supra note 10, at 217-23 (text of articles of impeachment against President
Nixon proposed, but not approved, by the House Judiciary Committee).
23
charged violation of the Tenure of Office Act, which carried criminal penalties.87 Article 11,
which alleged that Johnson had declared the 39th Congress “was not a Congress authorized by
the Constitution to exercise legislative power” and that he was therefore not bound to enforce its
statutes, charged an encroachment on the prerogatives of the legislative branch.88 All three
articles approved by the Nixon Judiciary Committee arguably fall under the rubric of abuse of
power, and Article 1 charging obstruction of justice clearly alleged criminal conduct.89 Of the
two articles proposed but not adopted in 1974, the article concerning concealment of the
bombing of Cambodia implicated both abuse of presidential power and a serious intrusion into
the constitutional warmaking power of Congress, while the article charging tax evasion was
plainly criminal.90
Two charges from the pre-Clinton presidential impeachments raise issues that do not fit
comfortably within the traditional “great offense” categories: Article 3 in the case against
Richard Nixon alleging resistance to congressional subpoenas as an impeachable offense, and
Article 10 against Andrew Johnson asserted that his public speeches casting aspersions on
Congress were grounds for removal. Although Article 10 of the Johnson case can be readily
dismissed as an artifact of the particular virulence of that dispute, Article 3 in the Nixon
impeachment raises the more difficult question of the limits of a President’s power to contest
investigative requests from Congress or other investigators. This same question resurfaced in the
case of President Clinton.
a. Presidential Resistance to Congressional Investigative Efforts
In response to a series of subpoenas issued by the House Judiciary Committee, President
Nixon refused to produce certain tape recordings and documents, asserting the novel theory that
91 The Committee Report noted that, with one possible exception, none of the subjects of the sixty-nine
previous impeachment inquiries had ever asserted a privilege to refuse compliance with a legislative subpoena. Id. at
206.
92 Id. at 190. The Committee report also contains substantial evidence that the disclosures the President
did make contained intentional omissions as well as false and misleading material. E.g., at 203-05.
93 Id. at 209.
94 H.R. 611, 105th Cong. (1998).
95 Id.
96 Id.
24
the doctrine of separation of powers gave him an “executive privilege” to refuse the Committee’s
investigative requests.91 At the same time, the President was resisting criminal subpoenas from
the Watergate Special Prosecutor’s Office seeking some of the same material. It was only after
the Supreme Court ruled unanimously that the President must comply with the criminal
subpoenas that the Judiciary Committee also received materials it had demanded.92 The
Committee felt that the refusal to comply with congressional subpoenas was a transgression
sufficiently grave and sufficiently distinct from the criminal obstruction of justice charged in
Article 1 that it merited a separate article of impeachment. As the Committee Report observed,
“Whatever the limits of legislative power in other contexts -- and whatever need may otherwise
exist for preserving the confidentiality of Presidential conversations -- in the context of an
impeachment proceeding the balance was struck in favor of the power of inquiry when the
impeachment provision was written into the Constitution.”93
In the Clinton case, the House Judiciary Committee reported to the full House four
articles of impeachment, the fourth charging “misuse and abuse” of the office of the Presidency.94
As orginally drafted by majority counsel for consideration in the Judiciary Committee, the fourth
article charged four separate types of abuse of power, including: (1) frivolous assertions of
executive privilege in response to subpoenas directed to White House officials by the Office of
Independent Counsel;95 and (2) failing to respond to a list of eighty-one written questions from
the House Judiciary Committee and making “perjurious, false and misleading sworn statements”
in response to those written questions.96 On December 12, 1998, Congressman Gekas (R-Pa.),
97 House of Representatives, Judiciary Committee, Committee Hearing, Verbatim Transcript, December
12, 1998, 1998 WL 857390.
98 Supra note 94.
99 105 CONG. REC. H12042 (daily ed. Dec 19, 1998) (on the adoption of Art. IV; yeas 148, nays 285, not
voting 2).
100 Nixon Impeachment Report, supra note 10, at 4.
101 Indeed, the fourth article of impeachment against President Clinton in the version reported to the full
House appropriated language directly from Article 3 in the President Nixon case, alleging that Clinton “assumed to
himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the
25
successfully moved in committee to amend the fourth proposed article by deleting its first three
paragraphs, including the allegation of abuse of executive privilege in disputes with the
Independent Counsel.97 As reported to the full House, Article 4 alleged only failures to respond
appropriately to inquiries from the Judiciary Committee itself (the eighty-one questions).98 In the
full House, Article 4 was defeated and did not become a part of the Bill of Impeachment
presented to the Senate.99
The Nixon and Clinton cases present striking parallels and contrasts. First, the Nixon
Judiciary Committee differentiated sharply between President Nixon’s legal contest with the
Watergate Special Prosecutor over criminal subpoenas and his refusal to respond to
congressional subpoenas issued in the course of an impeachment inquiry. At no point did the
Judiciary Committee assert that President Nixon’s battle with the Special Prosecutor over
criminal discovery was a constitutional misdeed. Rather, in its third impeachment article, the
Committee alleged that by defying its own subpoenas, the President “assum[ed] to himself
functions and judgments necessary to the exercise of the sole power of impeachment vested by
the Constitution in the House of Representatives.”100
The Clinton Judiciary Committee, albeit with some obvious reluctance, followed the
same pattern. Republican committee members thought seriously about impeaching President
Clinton for too-vigorously using the tools of the law to frustrate the Independent Counsel’s
investigation, but shrank from it in the end. Like their Watergate-era predecessors, however,
they were willing to defend Congress’s constitutional prerogative of investigating impeachable
offenses by voting to impeach a President who, in their view, defied Congress itself.101
Constitution in the House of Representatives.” H.R. 611, 105th Cong. (1998).
102 See THEODORE H. WHITE, BREACH OF FAITH: THE FALL OF RICHARD NIXON 236 (1975).
103 Nixon Impeachment Report, supra note 10, at 187-213 (discussing Committee’s conclusions regarding
the third article of impeachment against President Nixon). Of particular note are the Committee’s discussion of
executive privilege, id. at 206-12, and its pointed conclusions regarding the untrustworthiness of tape transcripts
provided by the White House, id. at 203-05.
104 See WHITE, supra note 102, at 1-35 (describing how release of the tapes in response to the Supreme
Court’s order of July 24, 1974 led to President Nixon’s resignation on August 9, 1974).
26
Second, a comparison of the Nixon and Clinton cases demonstrates unsurprisingly that
congressional response to presidential “stonewalling” depends heavily on the nature of the
alleged wrongdoing being investigated and the value to the investigation of the information a
President resists providing. In Watergate, there was never any real dispute that the most serious
allegations against President Nixon, if true, would merit impeachment. The question was always
whether the President was guilty, or in Howard Baker’s famous phrase, “What did the President
know, and when did he know it?”102 Until the disclosure of the “smoking gun” White House
tapes proving Nixon’s complicity in criminal obstruction of justice, neither Congress nor the
Special Prosecutor nor the public knew all the critical facts. Consequently, by defying
congressional subpoenas, President Nixon truly was withholding evidence essential to
determination of his suitability to remain in office. Implicit, but unmistakable, in the Nixon
Judiciary Committee report and its vote to approve Article 3 against President Nixon was the
judgment that Nixon’s assertion of “executive privilege” was a flimsy and legally unjustifiable
excuse for selectively withholding evidence that was both central to the resolution of charges of
obviously constitutional magnitude and known by the President to be so.103 Indeed, once
President Nixon produced additional tapes in compliance with the Supreme Court’s order, the
Committee’s surmise about the nature of the withheld material was fully born out by its contents.
The material was so damaging that it led almost immediately to the President’s resignation.104
Clinton’s case was different. From the moment the presidential sex scandal broke in
January 1998, the nation was torn by passionate disagreement over whether the allegations, even
if true, should be investigated at all, much less serve as grounds for impeachment. Moreover, at
least by the time the Independent Counsel submitted his referral to Congress, there was little
105 The eighty-one questions and the President’s responses appear at Impeachment Inquiry Pursuant to H.
Res. 581: Presentations by Investigative Counsel, House Comm. on the Judiciary, 105th Cong., 2d Sess. 251-74
(Dec. 10, 1998).
106 As but one minor example, consider the question and answer to Request No. 75:
75. Do you admit or deny having knowledge that Betsy Wright was contacted or employed to
make contact with or gather information about witnesses or potential witnesses in any
judicial proceeding relating to any matter in which you are or could be involved?
Response to Request No. 75:
Ms. Betsy Wright was my long-time chief of staff when I was Governnor of Arkansas,
and she remains a good friend and trusted advisor. Because of her great knowledge of Arkansas,
from time to time my legal counsel and I have consulted her on a wide range of matters.
Id. at 271.
107 See supra note 99.
108 See Nixon Impeachment Report, supra note 10, at 213. See also, supra notes 91-93 and accompanying
text.
27
question about the facts. The eighty-one interrogatories submitted to President Clinton by the
Judiciary Committee had no real investigative purpose, in the sense that they sought nothing but
admissions concerning President Clinton’s state of mind at the time he answered various
questions in the Jones civil deposition or the Independent Counsel interview before the grand
jury.105 Significantly, Clinton did not dispute the Committee’s right to ask questions, and he did
answer them, albeit in the way civil litigants customarily answer interrogatories -- carefully,
elliptically, evasively, even disingenuously.106 In the end, the full House was unconvinced that
the President’s answers were a sufficient affront to its impeachment authority to warrant a
constitutional confrontation; the House did not approve the fouth article of impeachment
charging abuse of power.107
The Watergate Judiciary Committee was surely correct in concluding that the
impeachment power necessarily implies a congressional power to inquire about presidential
wrongdoing,108 as well as a corresponding obligation on the part of the President to respond to
such inquiries. Moreover, we do not view the refusal of the House of Representatives to impeach
President Clinton for his lawyerly responses to the eighty-one questions as precedent to the
contrary (though a future President faced with with an aggressive congressional impeachment
109 For example, while a President, like any other citizen, would be free to assert his Fifth Amendment
privilege against self-incrimination in an impeachment inquiry due to a well-founded fear of prosecution in the
criminal courts, an impeachment is not itself a “criminal case” for Fifth Amendment purposes and thus Congress may
draw adverse inferences from a refusal to answer. See e.g., Quinn v. United States, 349 U.S. 155 (1955) (Fifth
Amendment available to witnesses testifying before a Congressional committee, to be claimed only when a
reasonable apprehension the answer will lead to a criminal conviction); United States v. Tod, 263 U.S. 149, 155
(1923) (inferences from silence may be drawn during deportation hearings); Harrison v. Wille, 132 F.3d 679, 683
(1998) (adverse influence may be drawn from public employee’s refusal to answer).
110 See supra note 108, and accompanying text.
28
investigation will undoubtedly want to interpret it in just that way). Considered impartially, the
House vote on Article 4 most probably flowed from an evaluation of the specifics of President
Clinton’s answers and a judgment about their significance to the overall controversy, rather than
from a repudiation of the House’s right to demand responses to its questions. This is not to say
that a President could never properly refuse to answer a question posed by a congressional
committee considering impeachment. Nonetheless, judging the propriety of such a refusal would
be a “political” rather than a “legal” choice, in the sense that there is no body of law delineating
proper and improper areas of inquiry. The judgment would be “political” in that Congress is free
to consider any refusal in making its impeachment decision.109
b. Presidential Resistance to Inquiries by an Independent Counsel or Other Non-
Congressional Investigator
As noted above, the House Judiciary Committee distinguished between President Nixon’s
refusals to answer its subpoenas and President Nixon’s legal battles over production of evidence
with the Watergate Special Prosecutor by voting to impeach the President on the former, but not
on the latter. A quarter-century later, the Committee appears to have drawn the same distinction
by deleting from its proposed fourth article of impeachment against President Clinton allegations
of improper assertions of executive privilege in response to subpoenas from the Independent
Counsel.110 Taken together, the Nixon and Clinton impeachment precedents suggest that
presidential resistance to a criminal investigation by a non-congressional investigator is not an
impeachable offense, at least so long as that resistance takes the form of asserting in court
111 An outright refusal to respond to a lawful subpoena or to comply with a judicial order compelling
compliance with such a subpoena would present a different case. For example, if President Nixon had refused to
comply with the Supreme Court’s ruling enforcing Leon Jaworski’s subpoenas, impeachment on that ground alone
would have been appropriate.
112 See 28 U.S.C. § 592 (preliminary investigation and application for the appointment of independent
counsel is governed by the Attorney General); § 594 (an independent counsel has “full power and independent
authority to exercise all investigative and prosecutorial functions”); § 593 (“court shall appoint appropriate
independent counsel”); § 595 (“Congress shall have oversight jurisdiction with respect to the official conduct of the
independent counsel”); § 592 (independent counsel may be removed “only be personal action of the Attorney
General”).
113 For an excellent discussion of the impeachment referral provisions of the Independent Counsel Statute,
see Julie R. O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 GEO. L.J.
2193 (1998). Professor O’Sullivan concludes that the impeachment referral provision of the Independent Counsel
Statute should be abandoned. Id. at 2195-96.
29
colorable claims of privilege.111
Nonetheless, the difference in status between the Watergate Special Prosecutor, a purely
executive branch official appointed by the Attorney General, and the Office of Independent
Counsel, an odd hybrid both in and out of all three constitutional branches of government,112
could give rise to troubling questions in the future. If an Independent Counsel be considered the
current analog of the Watergate Special Prosecutor, then the Nixon and Clinton precedents
suggest that a President’s resistance to subpoenas from either source encroaches on no legislative
prerogative and is thus no ground for impeachment. However, if one were to view the
Independent Counsel Statute as a de jure or at least de facto delegation of a portion of the
Congress’ power to investigate impeachable offenses against high executive officials to the
Office of Independent Counsel, the picture becomes murkier. In this view, resistance to the
investigation of the Independent Counsel becomes tantamount to defiance of Congress itself.
We would find such a construction of the Independent Counsel Statute deeply troubling.
We do not believe that Congress could delegate any part of its constitutional impeachment
authority to an official who is accountable to both the head of an executive department -- the
Attorney General -- and to a panel of judges.113 Nor do we think that conclusions drawn by the
Judiciary Committee in 1974 about President Nixon’s direct challenge to congressional
investigative authority are plausibly transferrable to a contest between a President and an
Independent Counsel. Put simply, we find it difficult to conceive that raising legal objections in
114 See infra text accompanying Appendix note 4.
115 GERHARDT, supra note 3, at 50.
116 Robert Pear, Clinton Lawyers Compare his Travails to Hamilton’s, The Sacramento Bee, October 4,
1998 (reprinted from New York Times). See generally, CLAUDE G. BOWERS, JEFFERSON AND HAMILTON (1925).
30
legal forums to the investigative requests of an Independent Counsel could constitute a high
crime or misdemeanor.
c. Other Forms of Non-criminal Misconduct
Two other forms of non-criminal presidential misbehavior -- personal immorality and
lying -- are often the subject of discussions concerning impeachment and were central to the
Clinton impeachment debate.
(i) Personal immorality.
Before the impeachment of President Clinton, only one person has ever been impeached,
even in part, for conduct that could fairly be characterized as purely personal immorality. In
1804, Judge John Pickering of the New Hampshire District Court was impeached because,
among other things, he “in a most profane and indecent manner, [did] invoke the name of the
Supreme Being, to the evil example of the good citizens of the United States.”114 However,
Pickering was also charged and convicted for making a series of improper rulings and with being
drunk on the bench. Moreover, the true reason for his removal appears to have been that he was
insane.115
As for private sexual immorality, there seems little constitutional basis for concluding
that such behavior could ever constitute an impeachable offense. No federal official has ever
been impeached for sexual misconduct. Such history as there is on the point is negative and
anecdotal, but supports the view that neither the Framers nor anyone since has seriously proposed
impeachment as a remedy for private sexual misbehavior. For example, in 1792-93, Alexander
Hamilton defused a congressional investigation into his financial relationship with a convicted
swindler by telling the congressmen who came to question him that he had committed adultery
with the man’s wife and later paid him to hush up the affair.116 Similarly, the unsuccessful effort
to unseat Justice William O. Douglas began with questions about his character arising from his
117 JAMES F. SIMON, INDEPENDENT JOURNEY: THE LIFE OF WILLIAM O. DOUGLAS 391-409 (Harper & Row
1980). See also GERHARDT, supra note 3, at 107.
118 In the North Carolina ratification debates, Iredell stated that “The President must certainly be
punishable for giving false information to the Senate,” in connection with a proposed treaty and suggested that the
same result would apply if the President failed to give the Senate full information, and instead concealed important
31
supposed promiscuity; however, the impeachment inquiry itself never dignified these scurrilous
allegations with serious attention, focusing instead on the sources of Justice Douglas’ extra-
judicial income.117
Of course, merely because the alleged misconduct of a President has a sexual component
such conduct is not exempt from consideration by this Committee under the impeachment
clauses. Criminal sexual misbehavior such as rape, child sexual assault, and the like would
surely be an impeachable offense. Even consensual sexual conduct might warrant impeachment.
For example, a president’s adulterous entanglement with the spouse of a foreign head of state or
dignitary could significantly impact foreign relations, and thus could relate directly to the
political functions of the presidency so as to subject a President to impeachment. For the present,
however, it is sufficient to say that no actual impeachment case has presented such an unusual
confluence of the sexual and the political.
(ii) Lying.
Even leaving to one side the special problem of perjury, which is discussed below,
presidential lies present a particularly knotty problem. Everyone lies sometimes, and it would be
absurd to hold Presidents to an inhuman standard of unfailing truthfulness. Moreover, a
President is head of state, diplomat, and practicing politician rolled into one. A certain amount
of dissimulation is necessary to the successful practice of statecraft. Nonetheless, certain kinds
of presidential falsehoods are probably high crimes and misdemeanors, even when they are not
delivered under oath.
The best example of an impeachable, but nonperjurious, lie would be a false statement
made in the President’s official capacity to the legislature or the judiciary for the purpose of
deceiving the other branch in its execution of a core constitutional function. As James Iredell,
one of the first Supreme Court Justices said in debate over the impeachment clauses, “The
President must certainly be punishable for giving false information to the Senate.”118 Only one
intelligence which ought to have communicated. ELLIOT, supra note 44, at 4:126-28. Iredell’s comments were
quoted by Congresswoman Holtzman during the proceedings against President Nixon. See Nixon Impeachment
Report, supra note 10, at 327.
119 See, e.g., Additional Views of Mr. Conyers, in Nixon Impeachment Report, supra note 10, at 295:
By the same policies of secrecy and deception [regarding Cambodia], Richard Nixon also violated
a principal tenet of democratic government: that the President, like every other elected official, is
accountable to the people. For how can the people hold their President to account if he
deliberately and consistently lies to them? The people cannot judge if they do not know, and
President Nixon did everything within his power to keep them in ignorance.
32
article of impeachment relying on this principle has ever been advanced, Article IV of the Nixon
impeachment charging concealment of the bombing of Cambodia through the creation of false
military documents and submission to Congress of false official reports on the war in Southeast
Asia. Although the Judiciary Committee did not approve Article IV, we are disposed to think
that the vote resulted from a disinclination to inject the explosive politics of the Vietnam War
into a case where ample ground for impeachment already existed, rather than a rejection of the
principle that the Chief Executive may not intentionally deceive Congress in matters that relate to
the legislature’s own constitutional duties.
The more difficult case to analyze is one involving allegations that a President lied to The
People in public statements on important national issues. Although a few observers have
intimated a general presidential obligation of public candor on pain of impeachment,119 no
impeachment has ever gone forward on this basis and it seems a very malleable and dangerous
doctrine. The more desirable constitutional remedy for falsehoods of this sort probably rests in
the hands of the public itself when it uses the ballot box.
4. Non-criminal Impeachable Offenses -- Summary
The hallmarks of impeachable offenses not technically criminal are their magnitude and
their public, political character. Congressman Danielson of the Nixon Judiciary Committee put it
well when he wrote: “It is enough to support impeachment that the conduct complained of be
conduct which is grossly incompatible with the office held and which is subversive of that office
and of our Constitutional system of government. With respect to a President of the United States
. . . conduct which constitutes a substantial breach of his oath of office, is impeachable
120 Additional Views of Mr. Danielson, id. at 303.
121 See Gerhardt, supra note 3, at 106 (“[n]ot all statutory crimes demonstrate unfitness for office”);
Statement of Prof. Sean Wilentz, supra note 22, at 20 (“[t]he scholars agree that not all criminal acts are necessarily
impeachable acts”).
122 18 U.S.C. § 41.
123 LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 294 (2d ed. 1988) (jaywalking or speeding
“obviously would not be an adequate basis for presidential impeachment and removal”).
124 18 U.S.C. § 112(a).
125 18 U.S.C. § 153(a).
126 18 U.S.C. § 342.
127 18 U.S.C. § 501.
128 18 U.S.C. § 511.
33
conduct.”120
C. Not All Criminal Conduct Is a Proper Ground for Impeachment
Not all violations of criminal statutes are “high Crimes and Misdemeanors.”121 If the
Framers had wanted any crime to be a valid basis for impeachment, they knew how to say so.
Their debates, the original restriction of impeachment by the Committee of Eleven to the crimes
of treason and bribery, and the Convention’s final choice of moderately expanded language all
demonstrate a sensible intention to exclude some crimes from the category of impeachable
offenses. Their judgment was sound. Jaywalking, public drunkenness, and reckless driving are
all crimes, and offenses such as hunting without a license in a wildlife refuge are crimes
punishable by six months imprisonment,122 but a President self-evidently should not be displaced
for commiting them.123
Not even all felonies are necessarily impeachable offenses. For example, punching a
“foreign official” in the nose,124 destroying a document belonging to the estate of a debtor,125
operating a bus or train while intoxicated,126 counterfeiting a postage stamp,127 and obliterating
the vehicle identification number of someone else’s car128 are all federal felonies. One doubts
that any of these are “high Crimes and Misdemeanors.” Thus, not only are some, perhaps many,
indictable crimes not impeachable, but there is no pre-existing division in the criminal law itself,
129 See, e.g., Concurring Views of Congressman Hamilton Fish, Jr., Nixon Impeachment Report, supra note
10, at 356 (“At the very least [the President] is bound not to violate the law; not to order others to violate the law;
and not to participate in the concealment of evidence respecting violations of the law of which he is made aware.”).
130 See Testimony of Impeachment Trial of President William Jefferson Clinton, 105th Cong. 2d Sess.
(Jan. 16, 1999) (closing remarks of Rep. Henry Hyde, Chair of the House Judiciary Committee) (“The rule of law is
what stands between all of us and the arbitrary exercise of power by the state”).
131 Alexander Hamilton, THE FEDERALIST PAPERS, No. 65. While one could argue that criminal conduct by
public officials is particularly troubling and thus deserving of a harsher treatment than the conduct by a private
citizen, such an argument supports having tougher sentences, not a separate-and duplicate-proceeding with a
different burden of proof and the possibility of inconsistent results, as occured in the Alcee Hastings case. See infra
text and accompanying Appendix notes–.
34
such as that between felonies and misdemeanors, which will reliably distinguish impeachable
from non-impeachable crimes.
Still, even if not all crimes and not all felonies are “high Crimes and Misdemeanors,”
does not the President’s unique status broaden the category of criminal violations that ought to be
grounds for impeachment? Article II of the Constitution vests the executive power of the United
States government in the President. Section 3 of the same Article commands that the President
“shall take Care that the Laws be faithfully executed,” and Section 1 of that Article prescribes an
oath of office in which the President must swear that he will “preserve, protect and defend the
Constitution of the United States.” It can be argued that the President’s role as Chief Executive
imposes a special obligation of scrupulous adherence to the law,129 and thus that the failure to
remove a presidential law breaker from office so endangers the rule of law that the remedy of
impeachment ought to be liberally invoked whenever a President commits any significant legal
infraction.130 Such an argument is subject to several powerful criticisms:
First, impeachment is not the only remedy the law provides against a President who
breaks it. As Alexander Hamilton said of those who actually are impeached, “After having been
sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments
of his country, he will still be liable to prosecution and punishment in the ordinary course of
law.”131 The same is true of those who commit crimes, but are not removed from office on that
account. In other words, a refusal to impeach does not mean a refusal to punish. If a President
commits crimes for which he is not impeached, nothing bars his prosecution for those offenses
132 Indeed, there is a body of opinion that a President may be indicted while in office. See, e.g., Eric M.
Freedman, The Law As King and the King As Law: Is a President Immune from Criminal Prosecution Before
Impeachment, 20 HASTINGS CONST. L.Q. 7 (1992).
133 See supra notes 12-22, and accompanying text.
134 See Nixon Impeachment Report, supra note 10, at 220. The rejected article of impeachment against
President Nixon charging tax evasion also alleged that the President improperly received government money to
improve his private estates at San Clemente, California, and Key Biscayne, Florida. This charge was rejected
35
once he leaves office.132
Second, the contention that the President’s special Article II obligation to uphold the law
authorizes his impeachment for virtually all serious criminal infractions is at odds with the
designedly restrictive scope of the Constitution’s impeachment clauses. In effect, the proponents
of this view are arguing that the President’s constitutional role should render him liable to
impeachment for more kinds and degrees of crimes than any other federal officer. But as
discussed above, the Framers adopted the “Treason, Bribery, or other high Crimes and
Misdemeanors” formula precisely in order to limit the occasions on which a President might be
removed.133
There is no inconsistency in the fact that the Constitution imposes on Presidents an
obligation of scrupulous adherence to law and at the same time permits their impeachment and
removal from office only for great infractions which constitute a limited subset of the crimes for
which Presidents and paupers alike may be prosecuted and imprisoned. The Framers were
sophisticated political architects who counted on more than the single and supremely disruptive
mechanism of impeachment to regulate presidential behavior. They assumed that the primary
check on presidential excesses would be the limited tenure of the post and the power of the
electorate to turn Presidents out of office for misbehavior. And for criminal transgressions both
great and small, they expressly contemplated the possibility of ordinary criminal prosecution of
Presidents.
The view that only a restricted class of grave crimes warrant removal of a President was
manifest in several aspects of the impeachment proceedings against President Nixon. The most
obvious of these was the refusal of the Judiciary Committee to impeach the President on the basis
of substantial allegations of income tax evasion,134 a refusal which contrasts sharply with
together with the tax allegation. Id.
135 See infra text accompanying Appendix notes 53 & 57, describing the impeachments of Judge Halstead
Ritter in 1936 and Judge Harry Claiborne in 1986, both for income tax evasion.
136 Nixon Impeachment Report, supra note 10, at 360.
36
congressional readiness both before and after 1974 to impeach federal judges on precisely the
same ground.135 The rejection of the Nixon impeachment article regarding personal tax evasion
may, of course, be explainable as a tactical choice by those favoring the President’s removal to
focus on the more serious and more “political” first three articles, rather than as a judgment that
presidential tax evasion is per se not an impeachable offense. It is interesting to observe,
however, that the minority report by ten dissenting Republican members of the Committee
unequivocally endorsed the view that even proof of multiple crimes by a President acting in
concert with his subordinates would not necessarily compel impeachment. The minority wrote of
the second article of impeachment that “isolated instances of unlawful conduct by presidential
aides and subordinates,” even with “varying degrees of direct personal knowledge or
involvement of the President in these respective illegal episodes” were insufficient to warrant
impeachment and removal of “President Nixon, or any President.”136
A President’s obligation faithfully to execute the laws is certainly relevant to the question
of defining impeachable offenses. However, this presidential obligation provides no panacea to
the definitional problem.
D. Distinguishing Impeachable Crimes From Non-impeachable Crimes
1. Towards a Working Definition of an Impeachable Crime
In the end, neither the Constitution, the Framers, the precedents, nor the commentators
can tell us exactly what differentiates statutory crimes for which a President should be impeached
from those for which he should not. However, careful study of all these sources viewed in the
light of reason and common sense suggests certain tentative conclusions:
a. The Relationship Between Moral Gravity and Political Character
It is tempting to assert categorically that only those crimes that relate to an official’s
public duties are impeachable. This was certainly the view of some noted commentators in the
137 See, e.g., WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES (2d ed. 1829)
(excerpted in 2 THE FOUNDERS CONSTITUTION 169 (Philip B. Kurland & Ralph Lerner, eds. 1987) (“In general
those offences which may ne committed equally by a private person as a public officer, are not the subjects of
impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with the office, except
the two expressly mentioned, are left to the ordinary course of judicial proceeding”).
138 For example, a group of four hundred historians styling themselves “Historians In Defense of the
Constitution” signed a letter asserting that the Constitution authorizes presidential impeachment only “for high
crimes and misdemeanors in the exercise of executive power.” Statement of Historians in Defense of the
Constitution, Background and History of Impeachment, Before the Subcomm. on the Constitution of the House
Comm. on the Judiciary, 105th Cong., 2d Sess. 334 (1998). Similarly, more than three hundred law professors
wrote the Speaker of the House and argued that, while private crimes might in some circumstances merit
impeachment, the crimes alleged against President Clinton were not impeachable because they did not “involve the
derelict exercise of executive powers.” Letter to Newt Gingrich, et al. id. at 374-83.
139 Statement of Cass R. Sunstein, supra note 11, at 89.
140 Id. at 90.
37
first half of the Nineteenth Century,137 and a number of prominent constitutional scholars took
this stance during the Clinton impeachment proceedings.138 Although the relationship of the
misconduct to the offical’s public duties is (one of) the most important considerations, and this
absolutist position has the merit of simplicity, it is very difficult to maintain, either as a matter of
original intent, political theory, or practical politics.
When pushed on the point, almost all modern commentators concede that at least a few
really nasty private crimes would certainly result in impeachment. For example, Professor Cass
Sunstein told the House Judiciary Committee during the Clinton inquiry:
The basic point of the impeachment provision is to allow the House of
Representatives to impeach the President of the United States for egregious
misconduct that amounts to the abusive misuse of the authority of his office. This
principle does not exclude the possibility that a president would be impeachable
for an extremely heinous “private” crime, such as murder or rape. But it suggests
that outside of such extraordinary (and unprecedented and most unlikely) cases,
impeachment is unacceptable.139
Professor Sunstein went on to argue that the criminal allegations against President
Clinton -- perjury and obstruction of justice as part of an effort to cover up an illicit sexual affair
-- are not impeachable because the subject matter of the cover-up was private conduct unrelated
to the office of the presidency and because the allegations do not fall into the narrow category of
“extremely heinous” impeachable private crimes.140 Noticably, this argument leaps nimbly over
141 The apparent reason for this fancy footwork was that Professor Sunstein opposed the removal of
President Clinton, but did not want to be drawn into a debate over whether Clinton’s tawdry and dishonest conduct
was fitting behavior for a President.
142 See 145 CONG. REC. S933-02, S948 (Rep. Henry Hyde, Chair of the House Judiciary Comm.).
38
the question of why the allegations against President Clinton were not sufficiently heinous to
merit impeachment.141
The key to unravelling Sunstein’s argument is his characterization of impeachable private
crimes as particularly “heinous.” This may be an accurate characterization, but it fails to explain
why even heinous crimes should merit impeachment if “high Crimes and Misdemeanors”
embrace only abuses of office. The answer is surely that certain kinds of egregious behavior,
whether connected to the office or not, strip the President of legitimacy and render him unfit in
the eyes of the country to hold office. Murder and rape are the easy exemplars of this truth, but
contrary to Professor Sunstein’s suggestion, the principle extends beyond such extreme cases.
Democratic leadership requires more than an electoral majority and a four-year lease on the
White House. Presidential leadership depends in significant part on the exercise of moral
authority, some inherent in the office of the presidency and some deriving from the character of
its occupant. Presidential leadership also requires integrity, at least insofar as both a President’s
friends and foes must have reasonable confidence that, at least most of the time, the President
speaks the truth and keeps his promises. And presidential leadership demands at least some
modicum of virtue, at least to the degree that the President must not violate the basic social
norms embodied in the law’s proscriptions against very serious criminal offenses. Without at
least some indefinable minimum of these characteristics of moral authority, integrity, and
personal virtue, a President cannot govern.
We do not suggest that the President is to be the spotless High Priest of the nation’s civic
religion who must be cast down for any sin. Nor do we suggest, in the maudlin terms employed
by the House managers in the Clinton impeachment, that a President must be removed whenever
he becomes a bad role model for “the kids.”142 Rather, we endorse the practical view that “high
Crimes and Misdemeanors” includes not only crimes that are “political” in nature, but also
crimes that are “political” in effect. The principal focus of the Constitution’s impeachment
143 Although, as Professor Sean Wilentz has noted, the only pertinent historical case seems to point in the
other direction. Aaron Burr killed Alexander Hamilton in a duel, was indicted in New Jersey for murder, but was not
impeached. See Statement of Sean Wilentz, supra note 22, at 27 n.4.
39
clauses is certainly on offenses involving serious abuses of the powers of office, but a President
may also be impeached for crimes which make it unbearably difficult for the President to perform
the duties of his necessarily political office.
Accordingly, we believe that what makes a crime a “high Crime or Misdemeanor,” and
therefore a proper basis for impeachment, is a concedely difficult to quantify combination of
moral gravity and political character. Some kinds of particularly morally reprehensible crimes,
including but not limited to the oft-cited examples premeditated murder or forcible rape, would
certainly require impeachment even if committed by the President for entirely private motives in
circumstances wholly unconnected with the office of the presidency.143 On the other hand, the
more political the crime, the more it involves abuse of the president’s official position or
subversion of the proper functions of the other branches of government, the less significant will
be its moral depravity. A President who used illegal wiretaps to obtain information with which
to blackmail a Congressman into voting for flood and famine relief would be no less
impeachable because his motives were good. Such conduct imperils honest constitutional
government.
Crimes which are both morally reprehensible and intimately related to the presidential
office are the most obviously impeachable (e.g., murder of a political rival; selling military
secrets to known terrorists). Beyond such extreme examples, however, the more reprehensible
the crime, the more relaxed will be the required nexus to the President’s official duties. The
more direct the connection between the crime and the President’s constitutional functions, the
lower the required level of heinousness.
b. The Severity of the Crime in the Eyes of the Criminal Law
Although not all crimes not even all felonies are impeachable “high Crimes and
Misdemeanors,” the severity of the crime in the eyes of the criminal law is certainly relevant.
Felonies are more serious than misdemeanors. Within the broad class of felonies, Congress has
expressed some rough view of the relative seriousness of different felony offenses through the
144 The real severity ranking of federal offenses may not always be apparent from looking at the statutory
maximum sentences. A better gauge will often be found in the Federal Sentencing Guidelines. For an explanation of
the operation of the Federal Sentencing Guidelines, see Frank O. Bowman, III, The Quality of Mercy Must Be
Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 WISC. L.R. 679, 692-
704 (1996)
145 See Revised Code of Washington, § 9A.56.020(1)(a) and (c) and 9A.56.030(1)(a).
146 See Statement of Professor Gary L. McDowell, supra note 22, at 34-37 . Professor McDowell argues
at length that perjury would plainly have been understood by the Framers to be a “high crime or misdemeanor” for
impeachment purposes. While agreeing that perjury may sometimes be an impeachable offense, we find Professor
McDowell’s argument from original intent unconvincing. He contends that “high crimes and misdemeanors” was, in
effect, a legal term of art drawn from English impeachment cases which the Framers adopted because it had a well-
understood, or at least readily ascertainable, meaning to be found in English common law. Id. at 32-34. He then
refers to numerous English common law authorities which describe perjury as a serious offense. Id. at 34-37. The
difficulty with McDowell’s argument is that none of the English authorities on perjury whom he cites concern either
impeachment in general or the meaning of “high crimes and misdemeanors” in particular; they really say nothing
40
assignment of different levels of punishment.144 On balance, a crime for which the criminal law
prescribes a sentence of ten years is probably more serious than an offense where the likely
punishment is six months. Such distinctions are certainly relevant to an impeachment inquiry.
c. The Relative Importance of the Elements of a Crime and the Circumstances
Under Which It Was Committed
Any consideration of whether allegedly criminal presidential conduct is also an
impeachable “high Crime or Misdemeanor” should not be limited to an abstract assessment of
the statutory elements of the crime, but must also take account of the particular circumstances of
the case. For example, in the State of Washington, wrongfully appropriating a $1500 watch
misdelivered in the mail is the same statutory crime, First Degree Theft, as embezzling $1.5
million from a trust fund for widows and orphans.145 It will often be the circumstances rather
than the label of the crime that determine its true seriousness.
d. Perjury and Obstruction of Justice
Perjury and obstruction of justice are serious felonies that strike at the heart of the judicial
process. In the impeachment setting, an allegation that a President lied under oath or sought to
induce others to do so must be viewed with the utmost seriousness. As with any other crime,
however, the label is not necessarily determinative of the true seriousness of the crime or of the
weight to be accorded the crime in the impeachment calculus. Put plainly, some perjuries and
obstructions are certainly “high Crimes and Misdemeanors,”146 while other perjuries and
more than that perjury was a common law crime prosecutable in the ordinary criminal courts. McDowell cites no
English or early American case or legal commentator holding that perjury was an impeachable offense at common
law. Indeed, McDowell would seem to be defeated by his own premises: If at the time of the adoption of the
Constitution “high crimes and misdemeanors” had a well-understood meaning rooted in English impeachment cases,
the absence of any instance of an English or pre-Revolutionary American impeachment for perjury would seem to
exclude, rather than include, perjury as an impeachable offense.
147 See supra note 118.
148 See infra text accompanying Appendix notes 60-64.
149 See infra text accompanying Appendix notes–.
150 See infra text accompanying Appendix notes–.
41
obstructions may not rise to that terrible level. Both the general principles concerning the
impeachment clauses discussed at length above and several specific impeachment precedents
provide some guidance in analyzing particular cases.
First, consistent with the principle that “high Crimes and Misdemeanors” are political
crimes, the founding generation explicitly contemplated that a President who lied directly to
Congress about matters relating to his office, whether under oath or not, could be impeached.
Recall the declaration of James Iredell, one of the first Supreme Court Justices, that, “The
President must certainly be punishable for giving false information to the Senate.”147
Second, there is ample precedent for removing officials from office for perjury or
obstruction. President Richard Nixon was impeached for obstruction of justice, and within the
last decade two federal judges, Alcee Hastings and Walter Nixon, were impeached and removed
from office for perjury.148 A notable feature of all three of these impeachments was that they
involved lies about underlying conduct that was itself either criminal or involved a corrupt
misuse of office. President Nixon’s case is well known. Judge Hastings was impeached and
convicted for lying at his own criminal trial about his participation in a conspiracy to solicit a
bribe.149 Judge Walter Nixon was impeached and convicted for lying to a grand jury about his
connection to the father of an accusing drug smuggler and his own attempts to influence the
outcome of the son’s case.150
There is no clear guidance in the constitutional text, the debates of the Founders, or prior
impeachment precedents regarding allegations of perjury or obstruction that do not concern lies
151 This point was made repeatedly during the Clinton impeachment proceedings by a parade of
Democratic and Republican ex-prosecutors who testified before the House Judiciary Committee. See, e.g.,
Impeachment Inquiry: Pursuant to H.R. 581 Before the House Comm. On the Judiciary, 105t h Cong. 2d Sess. 289
(1998) (statement of Thomas P. Sullivan, former U.S. Attorney, Northern District of Illinois) (“[i]t is rare that federal
criminal process is used with respect to allegations of perjury or obstruction in civil matters”); Statement of Richard
J. Davis, former Assistant Treasury Secretary for Enforcement and Operations and Task Force Leader in Watergate
Special Prosecution Force, id. at 304 (“[p]rosecutions of individuals for lying in civil depositions is extremely rare.
While in isolated instances such cases have been brought, criminal prosecutions have generally not been used to
police veracity in the civil justice system”); Statement of Edward S.G. Dennis, former Department of Justice official,
id. at 316(“[i]n my experience, perjury or obstruction of justice prosecutions of parties in private civil litigation are
rare”); Professor Ronald K. Noble, former Deputy Assistant Attorney General, id. at 325 (“As a general matter,
federal prosecutors are not asked to bring federal criminal charges against individuals who allegedly perjure
themselves in connection with civil lawsuits”). No present or former federal prosecutor testified to the contrary.
152 See, e.g., Statement of Thomas P. Sullivan, supra note 142, at 289 (“[f]ederal prosecutors do not use
the criminal process in connection with civil litigation involving private parties”).
153 In re Morganroth, 718 F.2d 161, 166 (6th Cir. 1983).
42
told in the President’s official capacity or in an effort to conceal conduct that would itself be a
crime. However, in assessing the seriousness of any particular allegation of presidential perjury
it may be important to consider the treatment of similar cases in the ordinary criminal process.
The Clinton impeachment suggests at least two possible grounds for categorizing perjury cases --
the forum in which the perjury occurred and the subject about which the lie was told.
(i.) The Forum of the Lie
Perjury before federal grand juries and in federal criminal trials is prosecuted with
reasonable frequency, suggesting that lies in these settings are considered particularly egregious.
On the other hand, perjury committed in civil cases is very rarely prosecuted in federal courts.151
Even more rare is a prosecution for perjury or obstruction of justice arising from a civil case to
which the federal government is not itself a party.152
The language of Title 18, U.S.C., Sections 1512, 1621, and 1623 sweeps broadly enough
to embrace false swearing in, and obstruction of, federal civil actions to which the federal
government is not a party. As the Sixth Circuit said, “[t]he possibility of a perjury prosecution
exists whenever an individual takes an oath, in a civil or criminal matter, where the law of the
United States authorizes an oath to be administered.”153 Cases charging perjury or obstruction in
connection with a purely private civil action have been brought in federal court. Nonetheless, as
the Eleventh Circuit noted, the “vast majority of convictions under 18 U.S.C. §1621" involve
154 United States v. Holland, 22 F.3d 1040, 1047 (11th Cir. 1994). In fairness, it should be noted that the
Holland court made this observation in the course of rejecting the district court’s grant of a downward departure
based on the ground that the perjury at issue in the case occurred in a civil proceeding. The civil case in question
was an effort by Morris Dees of the Southern Poverty Law Center to collect a judgment obtained against the
defendant for violating the civil rights of various persons while acting as leader of the Ku Klux Klan.
155 Although the electronic search that produced this result was designed to discover every perjury or
obstruction case reported in the past half century arising from a civil action to which the U.S. was not a party; we
have no doubt that some such cases slipped through the search net. Nonetheless, we suggest that no search, no
matter how exhaustive, will discover a significantly larger group of such cases. The cases identified were: United
States v. Holland, 22 F.3d 1040 (11th Cir. 1994); United States v. McAfee, 8 F.3d 1010 (5th Cir. 1993); United
States v. Markiewicz, 978 F.2d 786 (2d Cir. 1992); United States v. Morales, 976 F.2d 724, 1992 WL 245718 (1st
Cir. 1992) (unpublished); United States v. Maddox, 943 F.2d 53, 1991 WL 164318 (6th Cir. 1991) (unpublished);
United States v. Clark, 918 F.2d 843 (9th Cir. 1990); United States v. Reed, 773 F.2d 477 (2d Cir. 1985); United
States v. Jonnet, 762 F.2d 16 (3d Cir. 1985); United States v. Coven, 662 F.2d 162 (2d Cir. 1981); United States v.
Comiskey, 460 F.2d 1293 (7th Cir. 1972); Brightman v. United States, 386 F.2d 695 (1st Cir. 1967); United States v.
Lester, 248 F.2d 329 (2d Cir. 1957); Roberts v. United States, 239 F.2d 467 (9th Cir. 1956); Schiffman v.
Postmaster of Philadelphia, (E.D.Pa 1997) (unpublished); United States v. Ashley, 905 F. Supp. 1146 (E.D.N.Y.
1995); United States v. Dell, 736 F. Supp. 186 (N.D. Ill. 1990); United States v. Taylor, 693 F. Supp. 828 (N.D. Cal.
1988).
156 There are ninety-three United States Attorney’s Offices. For a complete listing, see FEDERAL STAFF
DIRECTORY 611-15 (Winter 1999).
157 See, e.g., Markiewicz, 978 F.2d 786 (witness tampering and perjury were part of scheme to steal tribal
funds in Indian country); Reed, 773 F.2d 477 (perjury part of securities fraud scheme criminally prosecuted by U.S.);
Ashley, 905 F.Supp. 1146 (perjury part of scheme to defraud Federal Home Loan Mortgage Corp.); Coven, 662 F.2d
162 and Dell, 736 F.Supp. 186 (obstruction, false statements, and perjury part of fraud scheme criminally prosecuted
by U.S.); Comiskey, 460 F.2d 1293 (case referred directly to U.S. Attorney by U.S. District Judge who presided over
civil case); Clark, 918 F.2d 843 (perjury involved case concerning complaint to EEOC); Holland, 22 F.3d 1040
(Southern Poverty Law Center acting as something approximating a government surrogate in long-running federal
fight against bigotry and violence of the KKK).
43
perjury in a criminal proceeding.154 Indeed, a search conducted of all reported federal cases
since 1944 revealed seventeen (17) prosecutions for violations of 18 U.S.C. §§ 1512, 1621, or
1623 arising out of a civil action to which the United States, or some agency thereof, was not a
party.155 If one assumes that the seventeen cases located by search of prior appellate case law
represent only one-sixth of the actual total of such cases filed, and therefore that roughly one
hundred such cases have been brought since 1944, the result would nonetheless be that a case of
perjury or obstruction in a case involving only private parties is brought by any given U.S.
Attorney’s Office, on average, once every half century.156 Among the seventeen cases identified
above, the majority were plainly brought to vindicate a strong, and easily ascertainable, federal
interest.157
158 105 CONG. REC. H12041 (daily ed. Dec. 19, 1998) (on the adoption of Art. II; yeas 205, nays 229, not
voting 1). Of course, as with so many other aspects of the Clinton case, the House vote on proposed Article 2 is
subject to varying interpretations. On the one hand, a dispassionate view of the Jones deposition leads inescapably
to the conclusion that the President lied repeatedly about various aspects of his connection with a White House
intern. See Presentations by Investigative Counsel, Impeachment Inquiry Pursuant to H.R. 581, 105th Cong. 2d
Sess. 103-140 (Dec. 10, 1998) (statement of David Shippers, majority counsel in House Judiciary Comm.). On the
other hand, colorable legal arguments were pressed vigorously by the President’s defenders that the President’s
statements in the deposition, even if untrue, were not material to the Jones proceeding and thus could not constitute
perjury. Id. At 39-42 (statement of Abbe Lowell, minority counsel in House Judiciary Comm.). Thus, some
congressmen who voted against Article 2 may, as we suggest, have done so because they thought lying in a civil
deposition (or at least lying in a civil deposition about consensual sex) is not impeachable, while others may have
voted the same way because they believed the lies legally immaterial, and thus not criminal, and thus not
impeachable.
159 See Background and History of Impeachment, Hearing Before the Subcomm. On the Constitution on
the House Judiciary Comm., 105th Cong., 2d Sess. 101 (statement of Arthur Schlesinger) (“only a cad tells the truth
about his love affairs”).
44
The principle that crimes are more impeachable the more closely they relate to the
functions of the President’s office and to subversion of the interests of the national government
suggests that a lie told in a private civil action to which the government is not a party is less
constitutionally significant than a lie directly affecting the President’s office and the national
interest. This view seems to have carried the day, or at least to have contributed to the outcome,
in the Clinton case. Although the House Judiciary Committee reported out an article of
impeachment charging that President Clinton committed perjury in the Paul Jones civil lawsuit,
the full House of Representatives voted against including this article in the final Bill of
Impeachment.158
(ii.) The Subject Matter of the Lie
The subject matter of the lie also makes a difference. President Clinton’s defenders
suggested that lying about consensual sexual relations, whether in a civil lawsuit or in the grand
jury is not a proper ground for impeachment, regardless of whether it may technically constitute a
crime. Some commentators went so far as to suggest that a “gentleman” is honor-bound to lie
about extra-marital sex.159 Even presidential supporters who were not willing to go quite that far
argued that lies about sex are unlikely to be impeachable because such lies ordinarily concern
private conduct unrelated to public duties, because they are commonly told, and because they are
uncommonly prosecuted. In the Clinton case, the Republican majority of the House Judiciary
160 See The Consequences of Perjury and Related Crimes, Hearing Before the House Comm. On the
Judiciary, 105th Cong., 2d Sess. 6-11 (statement of Pam Parsons) and (statement of Barbara Battalino).
161 As to whether conviction requires removal, see infra Appendix note 9.
45
Committee attempted to refute at least the last of these contentions by calling as witnesses two
persons who had actually been convicted and sentenced to prison for lying under oath about
sexual matters.160 Whatever else one may say of these witnesses, the very rarity of their cases
would seem to have undermined the point their Committee sponsors were trying to make.
E. Describing a Category of Impeachable Offenses for Which the House Should
Nonetheless Not Impeach and the Senate Not Remove a President
One of the conceptual difficulties in debates over impeachment flows from the fact that
the constitutional language seems imperative. Article II says that the President “shall be removed
from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.” Read closely, however, the Constitution does not say that Congress must
impeach if a President commits high crimes or misdemeanors; it says only that the President
must be removed if impeached and convicted.161 This aspect of the impeachment process is
captured better in the common term “impeachable offense” than in the constitutional language
itself. An “impeachable offense” is one for which, consistent with the Constitution, the
legislature could, but need not, impeach and remove an officeholder. We think that there is
indeed a class of such offenses. The difficulty is to articulate a sensible and systematic way of
deciding which cases merit removal and which do not.
1. The Model of Prosecutorial Discretion
A useful model for a Congress deciding whether an impeachable offense warrants
presidential removal is the decisional process of a public prosecutor deciding which of many
technically prosecutable offenses and offenders merit the imposition of the moral opprobrium
and harsh punishments of the criminal law. In such a process, the decisionmaker must consider:
(1) what are the provable facts; (2) whether the facts establish a violation of the law; and (3)
whether prosecution promotes or disserves the goals of criminal law, and more broadly, whether
the interests of society are best served by proceeding or exercising restraint.
In the case of impeachment, two of the four conventionally articulated rationales for
162 For a general account of the conventional justifications of criminal punishment, see ANDREW VON
HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 9-55 (1976). See also Bowman, supra note 143, at 684-96
(discussing the traditional justifications for punishment in connection with the Federal Sentencing Guidelines).
163 See JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 799 (1833) (“an impeachment is a
proceeding of a purely political nature. It is not so much designed to punish an offender, as to secure the state against
gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political
capacity”).
164 Impeachment achieves general, rather than specific, deterrence. That is, once a President is impeached
and removed, he is unable to return to the office of the Presidency and commit more of the transgressions from
which we wish to deter him. (The law would prevent return if the Senate imposed that penalty in addition to
removal; practical politics would almost certainly prevent re-election even in the absence of the Senate bar.) Those
deterred from future wrongdoing in office are therefore the impeached President’s successors.
46
criminal prosecution and punishment -- retribution, rehabilitation, deterrence, and incapacitation
-- are absent.162 The goal of impeachment is neither retribution against nor rehabilitation of the
offender.163 However, the impeachment remedy certainly is designed to deter would-be
presidential miscreants from abusing their office.164 Likewise, and perhaps more importantly,
impeachment serves a function much akin to “incapacitation” in criminal theory -- it is a remedy
designed to put the offender in a place where he can do no more harm. For the ordinary felon,
the goal is served by thrusting him into prison; for a President, Congress incapacitates by
thrusting him out of office. A Congress applying the “prosecutorial discretion” model of
impeachment analysis would, first, ascertain the facts regarding the President’s conduct, second,
decide whether the conduct constituted a “high Crime or Misdemeanor” under the Constitution,
and finally, determine whether to exercise its discretion to impeach or forebear from
impeachment. Carrying the analogy to prosecutorial discretion a step further, a Congress
considering impeachment of a President whose conduct has reached the impeachable threshold
might find it useful to consider:
a) Whether impeachment and removal for the particular conduct at issue is necessary
to deter future Presidents from engaging in similar conduct;
b) Whether impeachment and removal for such conduct might deter others prone to
engage in such conduct from seeking the Presidency in the first place, and whether
the country is better off if such persons are deterred from running;
165 Consider the four principal allegations raised against President Clinton in the House Judiciary
Committee:
Perjury in the civil deposition -- We take as a given that the President lied in the Paula Jones civil
deposition. Thus, the facts of this charge were never truly an issue. The refusal of the full House to impeach on this
ground is most readily explained as a judgment that the lies were not “high Crimes or Misdemeanors” either because
no lie about sex in a private civil lawsuit could ever be impeachable, or because these lies concerned issues so
peripheral to this lawsuit that the President’s falsehoods were either legally immaterial or nearly so.
Perjury in the grand jury -- We also assume, though the case is certainly a closer one, that the President
took some liberties with the truth in his grand jury testimony. For those convinced of the falsity of the President’s
testimony, the difference in setting between the civil deposition and the grand jury clearly made the difference
between the vote by the full House to reject proposed Article 1 regarding the Jones deposition and its vote to
approve proposed Article 2 charging perjury in the grand jury. The shift in setting had two likely effects on the
thinking of wavering House members. First, as noted above, grand jury perjury is regularly prosecuted and
universally accepted as a serious criminal offense. Second, while the President could plausibly claim that his false
answers in the Jones deposition were not legally material to the plaintiff’s civil rights claim, they were certainly
material, in the sense of being relevant, to the focus of the Independent Counsel’s criminal investigation. Thus, in
the House a majority of Members were convinced that the facts proved commission of a crime which was sufficiently
grave to be both impeachable and worthy of a vote for removal.
47
c) Whether “incapacitation” of the President under scrutiny is necessary for the
immediate protection of the Republic, that is, whether removal before the natural
expiration of the presidential term in order to prevent more wrongdoing of a
similar character; and
d) Most importantly, whether the impeachment and removal of this President on
these grounds promotes or disserves the country over the long term.
2. Applying the Model to the Clinton Case
It is possible to explain the result of the Clinton impeachment primarily in terms of the
first two stages of prosecutorial discretion analysis. That is, one can conclude that the
impeachment effort failed because of lingering doubts about the facts of the case or because not
enough legislators were convinced that any of the charges met the constitutional standard of
“high Crimes or Misdemeanors.” Alternatively, the Clinton acquittal may be an example of the
exercise of discretion by the Senate. Some senators may well have believed that the President’s
conduct met the minimum constitutional threshold for impeachment, but have employed
something akin to the deterrence and incapacitation rationales enunciated above. That is, the
House managers failed to show that conviction was necessary to deter this or future presidents
from engaging in similar behavior, or that the country required (or wanted) protection from
further misdeeds by President Clinton through his immediate ouster from the presidency.165
In the Senate, by contrast, the President’s lawyers argued not only that Mr. Clinton’s testimony was truthful,
but that, even if he was not entirely candid or forthcoming about the details of the relationship at issue, the essence of
his testimony confessing an “inappropriate” relationship of a sexual character was truthful. The failure of this article
in the Senate may thus be attributed to a determination by many senators that any untrue portions of the President’s
testimony were “immaterial” in the sense of being insubstantial, thus constituting neither a crime nor an impeachable
offense.
Obstruction of Justice -- The gravamen of the obstruction article passed by the House, but rejected by the
Senate, was that the President in various ways sought to influence, obstruct, and impede both the Jones civil action
and the investigation by the Independent Counsel. The votes on this article in both the House and the Senate yield to
explanation much less readily than the votes on the other articles that emerged from the Judiciary Committee. One
observation does seem fair -- because the obstruction article was more general and less tied in the legislators’ minds
to the rather technical requirements of perjury law, both congressmen and senators found it easier to vote in favor of
a charge alleging in general, non-technical language that the President sought to conceal his own disgraceful
behavior and subvert the ends of justice. Whether the Senate ultimately rejected the article because not enough
senators thought the President’s conduct was an impeachable “high Crime or Misdemeanor,” or because of a
discretionary choice not to remove this President for theoretically impeachable conduct remains unclear.
Abuse of power -- Article 4, approved by the Judiciary Committee but rejected by the full House, which
proposed impeaching President Clinton for incomplete, misleading, or false answers to interrogatories from the
Judiciary Committee, can easily be viewed as failing at all three levels of prosecutorial analysis. First, there was a
real factual issue about whether the responses were false and misleading, or merely permissibly narrow and
unforthcoming. Second, even if one concluded that the answers were impermissibly narrow or downright deceptive,
there was a genuine issue about whether slippery responses to Congress, as opposed to outright defiance, constitute a
“high Crime or Misdemeanor.” Finally, even those ordinarily disposed to defend congressional powers of
impeachment inquiry undoubtedly questioned whether the violation here, even if impeachable in theory, was of
sufficient magnitude to warrant exercising discretion in favor of bringing down a President.
48
As influential as these considerations may have been, we strongly suspect that President
Clinton would have been removed from office had it not been for another factor bearing on the
exercise of congressional discretion: a powerful national consensus opposing impeachment
which took into account not only the gravity of the statutory violations and the subject matter of
the lies and obstructive behavior, but the procedural context in which the occasions for lying and
obstruction arose. While the adultery at the heart of the scandal was the President’s failing alone,
an original sin without which nothing that happened thereafter could have happened, by contrast,
the crimes for which he faced impeachment were the lies and evasions about the sin. And those
crimes were, at least arguably, manufactured for the purpose of destroying the President. These
crimes of falsehood were “manufactured” not in the sense that the President did not commit
them. They were manufactured because, once evidence of the original sin began to surface, the
President’s opponents persistently sought to place him in situations where either a lie or the truth
would be used as a political weapon against him.
It is not the purpose of this article to explore the issue of the propriety of the conduct of
166 See e.g. Closing statement of Rep. Henry Hyde, Chair House Judiciary Comm., supra note 130:
49
the Independent Counsel, or the particulars of the interaction between the Office of Independent
Counsel and the private lawyers working on the Jones lawsuit. The issue here is the relationship
of the emergent culture of politics by investigation to the constitutional process of impeachment.
A confluence of circumstances has created an engine for the destruction of public men and
women. It has grown slowly and its many components, often beneficial in themselves, have
fallen together largely by accident. Congress has passed an ever-more-comprehensive set of laws
that make of virtually every sort of unpleasant, unethical, or merely boorish behavior a legal
cause of action. The courts and Congress have approved rules of civil discovery that allow
intrusive questioning into the most collateral matters. We have laws against perjury and false
statement that are seldom used, but always available. We have an independent counsel statute
that confers on unelected officials who belong to none of the three constitutional branches of
government the power to pursue our highest public officers for any real or suspected
transgression of the sprawling federal criminal code. We have well-funded advocacy groups at
both extremes of the political spectrum who are beyond political control and who will use any
available legal or public relations tool to demonize and destroy those they perceive to be their
enemies.
In combination, these many apparently unrelated developments permit the extremists of
both parties to pull down their opponents. The strategy is plain. Find a mistake or personal
weakness. If it is already criminal, call for an independent counsel. If not criminal yet, file a
civil lawsuit or start a congressional investigation. If no direct evidence of criminality is
unearthed, get the target under oath. Force the victim to admit indiscretions that will embarrass
and potentially bring political ruin, or to lie and commit perjury.
We suspect that the real question on which the Clinton impeachment turned was whether
the constitutional remedy of impeachment was to become merely another weapon in the arsenal
of practitioners of the politics of personal destruction. The most persuasive advocates for
President Clinton’s removal argued with sincerity and passion that adherence to the rule of law
requires a President to conform to the law’s rules.166 To give them their due, while the
The rule of law is the safeguard of our liberties. [it] is what allows us to live our freedoms in ways that
honor the freedom of others while strengthening the common good. The rule of law is like a three-legged
stool: one leg is the honest judge, the second leg is an ethical bar and the third leg is an enforceable oath.
167 White, supra note 102, at 34.
50
President’s oath to see that the laws be faithfully executed may not translate every presidential
violation of a criminal code into an impeachable offense, neither is the oath merely a form of
words. It imposes a special trust the violation of which certainly is germane to the impeachment
calculus. The House Managers prosecuting President Clinton met the argument that
impeachment is principally directed at abuses of official power with the persuasive contention
that a pattern of conscious lawbreaking for personal gain delegitimates a President and renders
him impeachable because it destroys his capacity to lead a free people. Had it not been for the
national revulsion against the process through which President Clinton’s disgraceful conduct was
exposed, this argument might well have carried the day.
At the core of the national consensus that saved President Clinton was the belief that,
while Presidents must obey the law, the impeachment calculus may in the extraordinary case
require a judgment about the legal process that unearthed or even induced allegedly unlawful
presidential behavior. Impeachment is a political tool whose constitutional function is to remove
officials whose presence in office disserves the country. As a political process, impeachment can
equally aptly, and equally constitutionally, be used as a vehicle to express disapproval of a
method of politics more destructive of the public welfare than the continuance in office of one
severely flawed individual.
CONCLUSION
On August 9, 1974, Gerald Ford, the ex-congressman who sought unsuccessfully to
impeach Justice Douglas, took the oath of office as President of the United States, replacing
Richard Nixon who resigned rather than face near-certain impeachment and removal.167 In his
inaugural address, President Ford declared, “Our long national nightmare is over.” He was only
partly right, of course. “Watergate” as a daily drama was indeed over, but no event of real
historical consequence ever ends crisply like a movie or a play with a final fadeout or the close of
a curtain. The fall of Richard Nixon changed the way Americans thought about politics and
168 See supra, note 1.
51
government. It fueled a wave of ethics-in-government reforms, notably including the
Independent Counsel statute, many of which came into play during the Clinton scandal. In the
mythology of American politics, Watergate transformed impeachment of the President from a
faintly disreputable constitutional museum piece into an Excaliber to be wielded by brave
legislator-statesmen against a renegade Chief Executive who besmirched his high office.
Whether the sword of impeachment should have been unsheathed against President
Clinton is a question we leave to others. Regardless of one’s views on the outcome, however, the
Clinton affair does illuminate certain truths about the impeachment process itself. First, the
Framers of the Constitution intended that removal of the President be difficult. They erected two
formidable barriers to impeachment and removal: first, the textual limitation of impeachable
offenses to the narrow category of “high Crimes and Misdemeanors,” and second, the procedural
hurdle of votes by a majority of the House of Representatives and two-thirds of the Senate. In
the Clinton case, the procedural barrier proved insurmountable and thus dispositive of the
controversy. Given this result, one might conclude that Gerald Ford was right all along, that
impeachable offenses are whatever Congress says they are,168 and that all the debate over the
constitutionally proper definition of “high Crimes and Misdemeanors”(including this article) was
and always will be a waste of time. Although there is some undeniable force in such a view, we
remain convinced that the constitutional language matters profoundly.
In the Clinton case, for example, despite much disagreement over important details, the
universally-voiced consensus that the constitutional impeachment threshold is “high” set the
general boundaries of the field on which the battle was fought. This consensus drawn from the
constitutional language and the historical precedents placed an immensely heavy burden of proof
on proponents of impeachment, and it represented an immensely valuable psychological bulwark
for the President’s defenders. Still more importantly perhaps, the very debate over the
constitutional standard -- the meticulous dissections of constitutional language and legislative
history, the enumeration of precedents rooted in dimly remembered controversies from the
Nation’s past, and the sometimes mind-numbing disputes of scholars, journalists, and politicians
52
-- all served an incommensurably valuable function. In the course of debating the meaning of
four words -- “high Crimes and Misdemeanors” -- the Nation wrestled with itself over
fundamental questions about the design of the Republic: the proper relationship between the
branches of government, the nature of presidential leadership, the connection between private
morals and public duties, and the kind of politics appropriate to healthy representative
democracy. In the course of deciding the meaning of four words, the country was able to make
some decisions about itself.
The most common post-mortem on the fall of President Nixon was that, “The
Constitution worked.” The verdict of history has not yet been written on the Clinton
impeachment. If a consensus emerges that “the Constitution worked” yet again it will be because
the impeachment clauses of the Constitution proved supple enough to recognize a distinction
between a President who endangers the constitutional order and a system of personalized politics
every bit as dangerous to the Nation as one bad man.
Article
In January 2021, an unusual precedent was set in the history of the political system of the United States. For the second time in a single term, an incumbent president was impeached by the House of Representatives of the U.S. Congress. Due to the unusual circumstances of the expiration of the president’s term and the change in the balance of power in the upper chamber, the Senate hearing of the charges was accompanied by legal problems of a constitutional nature, for which answers had to be sought in the Constitution itself and in the possible previous practice of Congress. The analysis of Donald Trump’s second impeachment, as the aim of the presented article, seems necessary not only to historically document the specifics of the subsequent acquittal, but also to indicate the dissimilarities accompanying this particular political process.
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Despite a wealth of historical evidence and constitutional, political, and legal theory, impeachment in the United States remains hotly contested and poorly understood. This article argues there is a historical explanation for the confusion. In particular, the confusion stems from two competing ideas about impeachment, one layered atop the other. Constitutionally, impeachment is an important aspect of the separation‐of‐powers system, and a tool Congress can use to remove officials who are shirking their constitutional duties or damaging the polity itself. Soon after the founding, however, a new, competing idea of impeachment began to develop—that of impeachment as a legal device to remove officials who had committed an indictable offense. This idea had roots in civic republican traditions about political opposition being illegitimate. The interplay and tension between these competing ideas can help explain why impeachment politics today is both so fraught with tension and poorly understood.
Chapter
When the delegates to the constitutional convention met in Philadelphia over the summer of 1787, the government they envisioned to replace the failed confederacy was one of enlarged but limited powers. Among the innovations to effectuate that vision was the creation of an Executive Magistracy endowed with broad powers to see to the faithful execution of the laws enacted by the bicameral congress. These powers would be centered in one individual, the newly created President of the United States.
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Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
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When delegates discussed the structure of the presidency at the Constitutional Convention in June 1787, serious objections to a unitary executive were raised. Edmund Randolph warned, for example, that a one-person presidency would become the “foetus of monarchy.” Controversy over the idea of a single president was predictable. Only recently had the framers freed themselves from the tyranny of King George III, and they were firmly committed to creating a new government that would not abuse its powers and oppress its citizens. It must have seemed preposterous to replace a hereditary monarch with an elected monarch.To be sure, the framers invoked important arguments for a unitary executive. While Congress would deliberate, the president would act with decisiveness and dispatch. A single president would bring order and energy to the national government. With the passage of time, however, it has become clear that the founding fathers misjudged the consequences of their choice:They did not anticipate the extent to which executive power would expand and give us an “imperial presidency” that dominates Congress and that too often exercises its authority in ways that are detrimental to the national interest. They did not predict the role that political parties would come to play and how battles to capture the White House would greatly aggravate partisan conflict. They did not recognize that single presidents would represent party ideology much more than the overall public good. And they misjudged the advantages and disadvantages of single versus multiple decision makers.Had the framers been able to predict the future, they would have been far less enamored with the idea of a unitary executive and far more receptive to the alternative proposals for a plural executive that they rejected. Like their counterparts in Europe, they might well have created an executive branch in which power is shared among multiple persons from multiple political parties.If the presidency is to fulfill the founding fathers’ vision and function more effectively, it needs to be reconceived. This need for constitutional change led me to the proposal for reform that I consider in this book — the replacement of the one-person, one-party presidency with a two-person, two-party presidency.A coalition presidency carries the potential for many important benefits — a balancing of power between the executive and legislative branches, a dampening of partisan conflict in Washington, an executive branch more representative of the entire electorate, real opportunities for third-party candidates to win election, and wiser presidential decision making.After more than two hundred years with the Constitution’s one-person presidency, it may seem preposterous to suggest a plural executive. But a coalition presidency would be far more faithful to the framers’ view of executive power. They wanted a president with limited authority who would serve as a co-equal with Congress. They also believed that power should be contained by dividing it and requiring it to be shared. A two-person presidency relies on the framers’ structural devices to promote their core values. And by correcting the dysfunction in Washington and making the executive branch operate more effectively, a two-person, bipartisan presidency can be justified even without reference to original intent.
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Political turmoil sometimes gives courts the opportunity to decide the fate of the top political leadership. Such judicial decisions are difficult and easily backfire. Recently, however, the constitutional courts in South Korea and Taiwan have rendered decisions that have resolved political crises successfully. By examining the two cases in detail, this paper finds that both decisions employ a strikingly similar judicial strategy. Both cases create “win-win” situations, issue a decision with a single voice, use literal interpretations, and adopt self-empowering legal doctrines. This paper argues that these features are critical to their success. In addition, the paper finds that the two political milieus were also similar. Both cases were decided in the context of a divided government; however, the democratic commitments of the political actors had become entrenched. The paper concludes that well-crafted judicial strategies alone will not guarantee success, and judicial solutions, to varying degrees, are dependant on favorable political contexts and always run the risk of politicization.
[t]he scholars agree that not all criminal acts are necessarily impeachable acts " ). 122 18 U 1988) (jaywalking or speeding " obviously would not be an adequate basis for presidential impeachment and removal " )
  • Sean Statement Of Prof
  • Wilentz
Statement of Prof. Sean Wilentz, supra note 22, at 20 ( " [t]he scholars agree that not all criminal acts are necessarily impeachable acts " ). 122 18 U.S.C. § 41. 123 LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 294 (2d ed. 1988) (jaywalking or speeding " obviously would not be an adequate basis for presidential impeachment and removal " ). 124 18 U.S.C. § 112(a).
" [i]t is rare that federal criminal process is used with respect to allegations of perjury or obstruction in civil matters " ); Statement of Richard J. Davis, former Assistant Treasury Secretary for Enforcement and Operations and Task Force Leader in Watergate Special Prosecution Force, id
Democratic and Republican ex-prosecutors who testified before the House Judiciary Committee. See, e.g., Impeachment Inquiry: Pursuant to H.R. 581 Before the House Comm. On the Judiciary, 105 th Cong. 2d Sess. 289 (1998) (statement of Thomas P. Sullivan, former U.S. Attorney, Northern District of Illinois) ( " [i]t is rare that federal criminal process is used with respect to allegations of perjury or obstruction in civil matters " ); Statement of Richard J. Davis, former Assistant Treasury Secretary for Enforcement and Operations and Task Force Leader in Watergate Special Prosecution Force, id. at 304 ( " [p]rosecutions of individuals for lying in civil depositions is extremely rare.
1988) (jaywalking or speeding "obviously would not be an adequate basis for presidential impeachment and removal
  • American Lawrence Tribe
  • Constitutional
LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 294 (2d ed. 1988) (jaywalking or speeding "obviously would not be an adequate basis for presidential impeachment and removal").
As a general matter, federal prosecutors are not asked to bring federal criminal charges against individuals who allegedly perjure themselves in connection with civil lawsuits")
  • Professor Ronald
  • K Noble
Professor Ronald K. Noble, former Deputy Assistant Attorney General, id. at 325 ("As a general matter, federal prosecutors are not asked to bring federal criminal charges against individuals who allegedly perjure themselves in connection with civil lawsuits"). No present or former federal prosecutor testified to the contrary.
United States, 386 F.2d 695 (1st Cir
  • Brightman V
Brightman v. United States, 386 F.2d 695 (1st Cir. 1967);
United States, 239 F.2d 467 (9th Cir
  • Roberts V
Roberts v. United States, 239 F.2d 467 (9th Cir. 1956);
662 F.2d 162 and Dell, 736 F.Supp. 186 (obstruction, false statements, and perjury part of fraud scheme criminally prosecuted by
  • Coven
Coven, 662 F.2d 162 and Dell, 736 F.Supp. 186 (obstruction, false statements, and perjury part of fraud scheme criminally prosecuted by U.S.);
Southern Poverty Law Center acting as something approximating a government surrogate in long-running federal fight against bigotry and violence of the KKK)
  • Holland
Holland, 22 F.3d 1040 (Southern Poverty Law Center acting as something approximating a government surrogate in long-running federal fight against bigotry and violence of the KKK).