November 9, 1998
KWAME HOLMAN: When the House Judiciary Committee was empowered last month to launch an impeachment inquiry against President Clinton, it had not resolved the question of what constitutes an impeachable offense. Thirteen of those Judiciary Committee members also sit on the subcommittee on the Constitution and for the first time today they formally debated what constitutes an impeachable offense and called on 19 legal and constitutional scholars from across the country to assist them. But even before the testimony began, Subcommittee Chairman Charles Canady asserted the question of what constitutes an impeachable offense never could be answered fully.
REP. CHARLES CANADAY, (R) Florida: At the outset, it should be understood by everyone that the purpose of today's hearing is not to establish a fixed definition of impeachable offenses under the Constitution. The House has never in any impeachment inquiry or proceeding adopted either a comprehensive definition of high crimes and misdemeanors or a catalogue of offenses that are impeachable. Instead, the House has dealt with the misconduct of federal officials on a case by case basis. The House has determined whether impeachable offenses were committed by officials accused of wrongdoing on the basis of a full understanding of the facts of each individual case. That is a model that has been consistently followed throughout the more than 200-year history of impeachment in the United States, and that is the model which the Judiciary Committee is now following in the inquiry with respect to President Clinton.
KWAME HOLMAN: Nevertheless, many of the 19 scholars at today's hearing gave strong personal opinions on the committee's impeachment proceedings. Matthew Holden teaches government at the University of Virginia.
MATTHEW HOLDEN, University of Virginia: The long and short of it is, as I look at this matter, I have a conclusion which the committee may or may not welcome, but my formal statement says that the process has gone sufficiently far and, indeed, should be terminated.
KWAME HOLMAN: Some of the scholars used 200-year-old quotes from the founding fathers and applied them to the charges of today pending against President Clinton. Gary McDowell is operator of the Institute of U.S. Studies in London.
GARY McDOWELL, Institute for U.S. Studies, London: Impeachment is not to be initiated simply for any reason that might occur to this distinguished House but only for treason, bribery, or other high crimes and misdemeanors. It is important to remember that the word "high" in high crimes and misdemeanors was used to emphasize that it was a crime or misdemeanor against the commonwealth. The objects of impeachment - Alexander Hamilton explained - are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust. Based on a review of the historical record, the expressed intent of the framers, the wording of the Constitution, the writings of the principal legal authorities known to the framers and the common law, the conclusion is inescapable that perjury and subornation of perjury must certainly be included as high crimes and misdemeanors and, thus, impeachable offenses under the United States Constitution. Further, the record fails to support the claim that impeachable offenses are limited to only those abuses that occur in the official exercise of executive power.
KWAME HOLMAN: Noted historian Arthur Schlesinger is a professor at the City College of New York.
ARTHUR SCHLESINGER, JR., Historian: The evidence seems to be conclusive as the founding fathers saw impeachment as a remedy for grave and momentous offenses against the Constitution, George Mason said, great crimes, great and dangerous offenses, attempts to subvert the Constitution, and that this is - the questions we confront today - the questions that your committee will confront in the weeks ahead is whether it is a good idea to introduce a new theory of impeachment and to lower the bar to this action. Charges levied against the President by the independent counsel plainly do not rise to the level of treason and bribery. They do not apply to acts committed by the President in his role as public official. They don't involve grave breaches of official duties. At best, if proven, they would perhaps be defined as low crimes and misdemeanors. They rise from instances of private misbehavior. All the independent counsel's charges thus far derive from the President's lies about his sex life. His attempts to hide personal misbehavior are certainly disgraceful, but if they are to be deemed impeachable, then we reject the standards laid down by the framers in the Constitution and trivialize the process of impeachment.
KWAME HOLMAN: Professor Cass Sunstein, from the University of Chicago Law School, adjusted the perjury charges brought by independent counsel Kenneth Starr against President Clinton could be dealt with appropriately after the President leaves office.
CASS SUNSTEIN, University of Chicago Law School: The strongest argument for impeachment does involve the perjury and obstruction charges. Those are extremely serious charges, and no one should deny their magnitude. They rightly subject the President - after he's left office - to a risk of criminal prosecution. That is the constitutionally prescribed solution.
KWAME HOLMAN: But South Carolina Republican Bob Inglis challenged both Sunstein and Schlesinger's assertion that the lying the President is accused of is not an impeachable offense.
REP. BOB INGLIS, (R) South Carolina: We're constituted here as a committee of the Judiciary but we're going to leave it to somebody else to see if maybe later some U.S. District Attorney might like to take up a matter against the President of the United States, Mr. Clinton, and Professor Sunstein may come and assist in that case possibly. But we on the committee - well, we turned the other way because under Mr. Schlesinger's point of view, okay, lie, if you're the President, lie in a case involving sex, because, after all, he says, gentlemen do that. And if you're not a gentleman, apparently, well, you're just not being with it if you didn't lie about sex. So for all those folks out there to question our rule of law dealing with sexual harassment, lie if you wish.
ARTHUR SCHLESINGER, JR., Historian: Far from advocating lying, I think lying is reprehensible. If you'd bothered to listen to my remarks or read my testimony, I say President Clinton's attempts to hide personal behavior are certainly disgraceful, but if they are deemed impeachable, then we reject the standards laid down by the framers of the Constitution. That is, it seems to me, the nub of the case. I conclude my testimony by saying one must hope that any President guilty of personal misconduct falling below the level of impeachable offenses will so rebuke and castigate himself and feel such shame in the eyes of family and the eyes of his friends and his supporters and in the eyes of history that he will punish himself for his own self-indulgence, callousness, and stupidity. I really protest your interpretation of my position.
KWAME HOLMAN: Henry Hyde, chairman of the full Judiciary Committee warned while members debate impeachable offenses, they should not forget the principle of the rule of law.
REP. HENRY HYDE, Chairman, Judiciary Committee: It's important. It's critical. It defines our country for most of the countries throughout history, and anything that erodes, that taints, that corrodes, that diminishes the rule of law is something we ought to be mindful of and be very careful about. I don't want that torn down or diminished or turned into a peace of plastic that could be molded. I really believe that notion that no man is above the law. That's na´ve of me, I suppose. There are some people who are above the law. But they shouldn't be. They shouldn't be. We should have a government of laws, not of men. And we're going in the other direction. All of the sophistries that I hear, rationales, justifications, everybody does it, it was just about sex, it's perjury - I swear to tell the truth - the whole system of justice depends on that, doesn't it?
KWAME HOLMAN: When the afternoon panel of scholars took their seats, Harvard University Law Professor Laurence Tribe responded directly to Chairman Hyde's comments.
LAURENCE TRIBE, Harvard University Law School: The whole argument about the presidential oath and the take care clause and the rule of law which Chairman Hyde spoke so eloquently awhile ago, ultimately comes down to the proposition that if we let the nation's chief law enforcer get away with breaking a law, we will be unable to justify enforcing that law against anyone, and our whole legal system will break down. I call that - with all respect - the Chicken Little argument - the sky is falling. I don't think any of us really believe it. And I don't think there's any basis to assume that the President would get away with it; that no one would bother to prosecute him at the end of his term. Even Judge Starr's jurisdiction would not necessarily have expired. And if you buy that line of argument, let me underscore this, it would follow that the theory would be that any law violation by a sitting President is a violation of his oath and that the take care clause, it would follow that you can impeach the President of the United States more easily than any other civil officer of the government. And making the President uniquely vulnerable to removal, especially on a fuzzy standard like virtue, seems to me to be profoundly unwise.
KWAME HOLMAN: Other scholars argued the House should move forward with impeachment, then let the Senate do its job of deciding whether to remove the President from office. The impeachment issue returns to the full Judiciary Committee on November 19th, with the opening hearing of the inquiry and the testimony of its only announced witness, independent counsel Kenneth Starr.