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“Uncharted Waters”

September 10, 1998 at 12:00 AM EDT
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JIM LEHRER: What the Constitution says about all of this and to Margaret Warner in Denver.

MARGARET WARNER: The Constitution says that the president may be impeached for committing high crimes and misdemeanors, as well as for treason or bribery. To determine what that means and how the House and Senate go about determining it, we turn to three constitutional law scholars. Paul Campos, director of the Byron White Center for American Constitutional Study at the University of Colorado; Michael Gerhardt at William and Mary – a William and Mary law professor, author of the Federal Impeachment Process, and Ken Gormley, a constitutional law professor at Duquesne University and an author of a book on constitutional law. Professor Gerhardt, what are the grounds for impeaching a president, in your view?

MICHAEL GERHARDT: The Constitution tells us that the grounds are treason, bribery, or other high crimes, or misdemeanors. The latter phrase, “high crimes and misdemeanors,” they are technical terms, terms of art, that describe, at least in my opinion, serious abuses of power or serious misconduct. That language was based on sort of ancient English practice and the practice in America prior to the adoption of the Constitution.

MARGARET WARNER: And Professor Gormley, how would you define what conduct reaches that level? In other words, is it just abuse of presidential powers? Must it be a crime under the law? Can it be something less than a crime?

KEN GORMLEY: Well, Margaret, Gerald Ford – when he was a representative in Congress – once said that a high crime or a misdemeanor is whatever a majority of the House of Representatives determines at any time in history. It’s a really kind of vague standard, but clearly high crimes was referring to certain serious, serious crimes like treason and bribery, which are examples. High misdemeanors goes back to English times and refers to serious political crimes that may undermine the nation, they cause harm to the nation. So these are meant to be very serious offenses, although not necessarily indictable as crimes.

MARGARET WARNER: Professor Campos.

PAUL CAMPOS: Yes. I think that’s quite correct. I think that – to give an example – President Clinton – if he lied under oath – might be found to have committed an impeachable offense, even if that lying under oath didn’t rise to the strict narrow standards of what perjury requires under the federal criminal law, so to say that something is a high crime or misdemeanor is not necessarily to say that it is a crime in a narrow, technical sense, but rather that is a very serious offense and a very serious abuse of his power as president.

MARGARET WARNER: Professor Gerhardt, would you agree with that, that it would not necessarily have to be a crime in a legal sense?

MICHAEL GERHARDT: That’s correct. I think that both in terms of the original understanding of the language in the Constitution, and historical practices suggest that impeachable offenses are not confined to indictable offenses. There is some overlap between some indictable offenses and what might constitute impeachable offenses. But the two are not – two sets are not the same.

MARGARET WARNER: Professor Gormley, what about the other question of whether it has to involve conduct involving the president’s conduct in office, versus private conduct, even if it was criminal private conduct. As I recall, for instance, in the weeks and months leading up to Watergate, President Nixon’s lawyers argued that you could not impeach a president for private conduct.

KEN GORMLEY: That’s still very much an open question, Margaret. I think it’s safe to say, for instance, in Watergate the articles of impeachment that were drafted by the House Judiciary Committee related to primarily obstruction of justice and using the CIA to try to block the Watergate investigation and allegedly paying hush money and things like that. If you go back in history and look at, there have only been seventeen attempts at impeachment and only seven officials – all of them federal judges – have been impeached. They tend to be pretty serious things that do involve their position in office, for instance, sitting as a judge and getting railroads to give you valuable coal property as an enticement in cases or an other case where during the Civil War a judge was wrongfully arresting citizens as a Confederate judge. So they tend to be very serious crimes that involve your position in power. So this is indeed unchartered territory.

MARGARET WARNER: Are there examples of high officials being impeached for things that were personal in nature, that didn’t involve the powers of the office? I’m sorry — Professor Gerhard – I was staying with you.

MICHAEL GERHARDT: Yes. One fairly recent example comes in the late 1980′s, involving Judge Harry Clayburn, who had been convicted of tax evasion. Obviously, that didn’t really relate to his performance of his official duties on the bench. But, nevertheless, that wrongful conduct did, according to the Senate, constitute an impeachable offense.

MARGARET WARNER: So Professor Campos, how does Congress go about determining whether the president’s conduct in a given case, or this case, rises to the level of an impeachable offense?

PAUL CAMPOS: Well, the process begins with a decision on the part of the House Judiciary Committee as to whether they’re going to hold hearings to discover whether, in fact, they should vote out articles of impeachment.

MARGARET WARNER: So let me stop you right there. So it’s not a given that an impeachment process begins. There’s a preliminary step to even decide whether to do that.

PAUL CAMPOS: That’s correct. The fact that the independent counsel has filed this report with the House as he’s required under the statute, given what he has discovered, does not mean that the House is then required in any way to move forward. The House Judiciary Committee must make an independent determination that they wish to hold hearings, that they wish to take testimony and then ultimately that if they decided it’s warranted, that they’re going to vote out an article or articles of impeachment, which would then be considered by the House as a whole.

MARGARET WARNER: And then from there go to the Senate?

PAUL CAMPOS: If a majority of the House, the majority of the members of the House of Representatives vote in the affirmative on one or more of the articles of impeachment, this would then require a trial in the United States Senate. That trial might involve the entire Senate, or the Senate could appoint a smaller committee of its own members to actually undertake the trial. The trial would be overseen by the chief justice of the United States Supreme Court. In any case, whatever procedure is followed within the Senate, the Senate as a whole must then vote by a 2/3 majority to remove the president if he’s actually to be removed through this process.

MARGARET WARNER: Professor Gormley, let’s look at the House side because, of course, that’s going to be the first one. And the Constitution simply says the House of Representatives shall choose their own speaker and other officers and shall have the sole power if impeachment. Is that the extent of constitutional guidance on this question of how the House should go about this process?

KEN GORMLEY: That’s pretty much it, Margaret, although there is history now because we have had these impeachment trials and proceedings in the past, and the procedure is as was pointed out that the House begins in committee usually, and at that point, which would be the first stage here, it really can make its own ground rules. And, for instance, it’s quite possible it does not have to invite the president to participate in any fashion. But the practice has been, for instance, in the Nixon matter, President Nixon was allowed to participate through his lawyer very actively. And in a number of cases of impeachments of judges they’ve actually appeared with their lawyers and participated in this first phase. So custom dictates that that’s likely how it is going to go, though no exact standard is what’s necessary before they vote for articles of impeachment. Some say you need probable cause. Some say you don’t need that. Some say you need an even higher standard, like clear and convincing proof. They can pretty much make up their rules and must based upon this particular case.

MARGARET WARNER: What about that question, Professor Campos, of how you get – how the president gets his interests represented in this process?

PAUL CAMPOS: Well, I’m sure that the president will be given an opportunity by the House Judiciary Committee in the initial matter to file a response to Judge Starr’s report, and then to make whatever proffer of evidence that he wishes to make, up to and including his own testimony, when responding to the charges. I think it’s important to note here that ultimately the House and the Senate each have to pretty much make up their own rules on a case by case basis to deal with this kind of an extraordinary situation, which we’ve only really seen two other times in our national history, and this is not a criminal procedure, it’s not a criminal trial, so we don’t really have sort of strict formal standards as to what precisely is what needs to be done in this sort of situation. It’s more of an ad hoc decision on the part of the two bodies as to what they believe is appropriate to gather the evidence to make what is essentially a kind of a moral and political decision, rather than a narrowly legal one.

MARGARET WARNER: All right. Professor Gerhardt, what — if this full inquiry begins, is Ken Starr’s presentation of the facts accepted as the facts in the case, and then the Judiciary Committee simply has a debate about whether those facts warrant impeachment, or does the committee go back and try to determine the facts on its own?

MICHAEL GERHARDT: Well, it actually may be both. We obviously don’t know yet exactly the facts that will be reflected in the report. I think the committee will look at those, look at the reports. I think the committee recognizes that the product of Ken Starr’s investigation thus far has been produced in a non-adversarial process. And so at some point it may be the committee’s judgment or a majority of the committee’s judgment that some additional fact-finding needs to take place. It’s not likely that the committee will rely exclusively on his report.

MARGARET WARNER: And when you said – staying with you for a minute – when you said that they recognized it was developed in a non-adversarial process, meaning none of these 75 witnesses that went to the grand jury have ever been, for instance, cross-examined.

MICHAEL GERHARDT: Exactly. That’s right.

MARGARET WARNER: Professor Gormley, would you agree with that, that the committee is, or that a committee in this situation is likely to want to develop facts further on its own?

KEN GORMLEY: Absolutely. You have to remember that, in fact, this committee could have – could conduct its own hearings from beginning to end. It can subpoena witnesses. It could even subpoena the president for documents. It can bring in people, gather its own evidence. Some would argue perhaps that more of this should have been done by the House Committee and less of it by Kenneth Starr. But be that as it may certainly at this point Starr’s report, like that of any prosecutor at this point, is just one-sided and it is essential for that committee to gather facts to reflect the president’s viewpoint. That will absolutely happen in this case.

MARGARET WARNER: So in other words, you could have them repeating, at least in some fashion, the work Ken Starr did in terms of calling certain witnesses and trying to get to the bottom of discrepancies between the testimony of different people involved?

KEN GORMLEY: Absolutely. They could do that. And, in fact, for instance, we may see some more televised hearings, which was done during the Nixon Judiciary Committee hearing. So, yes, this — we could have a new replay of all of this Monica Lewinsky testimony. I agree with Professor Gerhardt that I think it’s more likely – it’s going to be some of both. We’re going to see them relying quite a bit on the Starr report as a foundation that saves them a lot of work. But they’re going to have to test the accuracy of that, because we can’t assume that everything that has been stated in that report by any of the witnesses is necessarily true. You have to test it, as in any case.

MARGARET WARNER: And Professor Campos, is there any precedent, for instance, if they wanted to conduct these hearings in private?

PAUL CAMPOS: Yes, I believe that there have been instances in which this kind of proceeding, or at least portions of it, would be held without the presence of the public if they’re dealing with particularly sensitive personal sorts of matters. I think the real precedent here, the one that’s going to guide us more than anything else, will be the Watergate hearings, because it’s really the only thing we have to go on in terms of what makes sense to do in this sort of situation. And I agree with my colleagues that what we’re likely to see is a kind of mixed procedure in which public hearings supplement an investigatory process that will not be redone from start to finish but which will – but which will be tested in a way that it was not tested in the non-adversarial process that unfolded through the Office of Independent Counsel’s investigation.

MARGARET WARNER: But Professor Gerhardt, the Watergate – in the Watergate case there was not such a voluminous and exhaustive report, was there?

MICHAEL GERHARDT: Not at the outset, no. And so the committee – although it did have the benefit of some of the special prosecutor’s work had to do a lot of the fact-finding on its own and to develop the record — and in fact it was really in those hearings that in a sense the case broke open.

MARGARET WARNER: And Professor Gormley, is there a role for the public in this properly or constitutionally? I mean once the Ken Starr report comes out, if the public reads it or learns of it and has a certain view, does that — should that properly be a factor in the deliberations of the House?

KEN GORMLEY: Absolutely. As was pointed out earlier, this was not a criminal proceeding, and it was set up in the Constitution to be quite distinct. Of course, the president could later be criminally prosecuted. It’s wholly separate. It’s important that Congress be able to feel from the public exactly what its view about this thing is. Certainly Congress has to vote in the end. And I think that it’s essential at this point for the whole nation to kind of collect itself and make sure that it isn’t swept up in a national hysteria. I mean, the important thing is to not only look at this in terms of President Clinton but in terms of ourselves. What will it do to us as a country if we put ourselves through a certainly grueling impeachment trial? So we have to make sure and the public has to make sure that Congress looks at this evidence and is clear that it is serious enough and substantial enough if it is going to take that serious step, because, in other words, the punishment has to fit the crime; otherwise, we are doing nothing but damaging ourselves.

MARGARET WARNER: All right. Well, thank you all three very much.