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Full coverage of the impeachment
trial.
Jan. 8, 1999:
Shields
and Gigot on the Senate deal.
Jan. 7, 1999:
Shield and
Gigot discuss the impeachment trial.
Jan. 6, 1999:
Tom
Oliphant and David Brooks analyze the beginning of the impeachment
trial in the U.S. Senate.
Jan. 6, 1999:
Two
of impeachment managers on the Senate trial.
Jan. 5, 1999:
Four
former senators discuss the format and duration of the upcoming
impeachment trial.
Jan. 4, 1999:
Senators are wrestling with a proposal for a shortened impeachment
trial.
Dec. 23, 1998:
Four
foreign journalists discuss how President Clinton's impeachment
played around the world.
Dec. 21, 1998:
A growing number of voices are calling for a censure
alternative.
Dec. 21, 1998:
A discussion
on the vote to impeach President Clinton.
Dec. 21, 1998:
Some
public reaction from Oregon on the impeachment vote.
Dec. 17, 1998:
Shields
& Gigot give analysis of the House's decision to continue
with the debate on impeachment despite the military action in
Iraq.
Dec. 15, 1998:
More
moderate Republicans came out in favor of impeaching President
Clinton.
Dec. 15, 1998:
Deborah
Tannen and Shelby Steele debate the impeachment proceedings
of President Clinton.
Nov. 27, 1998: President Clinton answers
questions
about the Lewinsky matter put to him by the House Judiciary
Committee.
Browse the NewsHour's coverage of the White
House, Starr
Investigation,and Political
Wrap.
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Mr. Chief Justice and Members of the Senate --
 I
am Representative Charles Canady of the 12th District of
Florida. I rise to conclude the argument that my two fellow managers
have begun, and to address the fundamental question now before the Senate:
Do the offenses charged against the President rise to the level of "high
crimes and misdemeanors" under the Constitution?
Are these crimes -- perjury before a federal grand jury and obstruction
of justice -- offenses for which the President has properly been impeached
by the House of Representatives and for which he may now properly be
convicted by the Senate? Or are these serious felonies offenses for
which a Chief Executive may not constitutionally be called to account
by either the House or the Senate?
To properly answer these questions, it must be understood, as my fellow
manager Mr. Buyer has argued, that perjury and obstruction of justice
are serious offenses against the system of justice. To properly answer
these questions, it must also be understood -- as my fellow manager
Mr. Graham has discussed -- that the Senate has already determined that
as a serious offense against the system of justice, perjury is proper
grounds for removal from office.
There are several additional points that I now ask you to consider as
you deliberate on the momentous issue you must decide.
First, I will argue that restricting the impeachment process to crimes
involving the abuse of Presidential power is contrary to common sense.
This is a key point in this case. The President's defense hinges to
a large extent on his claim that the offenses charged against him do
not involve official misconduct.
I will then review the history and purpose of the impeachment process
to show that its fundamental object is to maintain the supremacy of
law against the misconduct of public officials. After reviewing the
background of the impeachment process, I will briefly discuss the prevailing
views on the seriousness of perjury at the time the Constitution was
adopted, and show that perjury and obstruction of justice are akin to
bribery in their purpose and effect.
To conclude, I will discuss the proper role of the Senate in exercising
the removal power -- emphasizing three essential points:
First, that the removal power is designed to preserve, protect, and
strengthen our Constitution by setting a standard of conduct for public
officers.
Second, that the Senate should not establish a lower standard of integrity
for the President than the standard it has already established for federal
judges.
Third, that the Senate should not allow a President who has violated
his constitutional duty and oath of office, and made himself a notorious
example of lawlessness to remain in office.
The President's lawyers have argued that the "Constitution requires
proof of official misconduct" for impeachment and conviction, and that
removal from office is not proper for crimes that do not involve an
abuse of the power of office. This view is endorsed by various academics
who have signed a letter in support of the President. The Senate must
now decide if this is a proper interpretation of the Constitution.
In deciding this question you should be guided by common sense and good
judgment. It is by no means an abstruse and mysterious matter of constitutional
law.
Nor is it a new question before the Senate. It has been decided in the
recent judicial impeachments which Mr. Graham has discussed. And it
is a question which arose 200 years ago in the course of the first impeachment
trial conducted by the Senate.
 At
that trial in January of 1799, as the Senate met in Philadelphia, an
argument was made by counsel for the respondent, Senator Blount of Tennessee,
that the impeachment power was properly exercised only with respect
to "official offenses." Although Senator Blount escaped conviction on
other grounds, the response to his claim that only official misconduct
could justify impeachment and removal remains noteworthy. Robert Goodloe
Harper of South Carolina, one of the House managers, refuted that claim
by asking a simple question:
"Suppose a Judge of the United States to commit a theft or perjury;
would the learned counsel say that he should not be impeached for it?
If so, he must remain in office with all his infamy . . . ."
Two hundred years to the month after Robert Goodloe Harper posed that
question to the Senate, a very similar question is before the Senate
today. Shall a President -- if found guilty of perjury and obstruction
of justice -- be removed, or must he "remain in office with all his
infamy"?
Although a judge who commits crimes may be subjected to criminal penalties
and prevented from discharging judicial functions, he can be divested
of his office only by impeachment and removal. The tenure of a President
will necessarily expire with the passage of time, but most scholars
of constitutional law agree that while he remains in office he is immune
from the processes of the criminal law. So long as he is President,
the only mechanism available to hold him accountable for his crimes
is the power of impeachment and removal. Unless that power is exercised,
no matter what crime he has committed, he must "remain in office with
all his infamy."
The argument of the President's lawyers that no criminal act by the
President subjects him to removal from office unless the crime involves
the abuse of his power is an argument entailing consequences which --
upon a moment's reflection -- this body should be unwilling to accept.
Would a President guilty of murder be immune from the constitutional
process of impeachment and removal so long as his crime involved no
misuse of official power? Would a President guilty of sexual assault
or child molesting remain secure in office because his crime did not
involve an abuse of office?
In support of their position, the President's lawyers have vigorously
argued that a President who committed tax fraud -- a felony offense
not involving official misconduct -- would not be subject to impeachment
and removal. They erroneously cite the decision of the House Judiciary
Committee rejecting an article of impeachment against President Nixon
for tax fraud. The record of the House proceedings establishes that
the tax fraud article against President Nixon was rejected due to insufficient
evidence that he was in fact guilty of tax fraud. The House Judiciary
Committee never determined that tax fraud by a President would not be
grounds for impeachment.
But, leaving aside the inaccurate characterization of the House Judiciary
Committee's action, the claim of the President's lawyers that a President
could commit tax fraud and remain immune from impeachment and removal
is quite telling. It reveals a great deal about the sort of standard
they would set for the conduct of the President of the United States.
The claim that tax fraud -- a felony -- does not rise to the level of
a high crime or misdemeanor was, as you have heard, unequivocally rejected
by the Senate in 1986 in the case of Judge Harry Claiborne, who was
removed from office for filing false income tax returns.
Then-Senator Albert Gore, Jr., summarized the judgment of the Senate
that Judge Claiborne should be removed from office. The comments of
Senator Gore bear repeating:
"It is incumbent upon the Senate to fulfill its constitutional responsibility
and strip this man of his title. An individual who has knowingly falsified
tax returns has no business receiving a salary derived from the tax
dollars of honest citizens."
 Of
course, the rationale expressed by Senator Gore for the conviction of
Judge Claiborne for his criminal tax offenses applies with equal --
if not greater -- force to similar offenses committed by the President
of the United States. Professor Charles Black, Jr., in his essay on
the law of impeachment, recognized the appropriate application of these
principles to the office of the Presidency. Professor Black said, "A
large-scale tax cheat is not a viable chief magistrate."
I would respectfully submit to the Senate that the argument of the President's
lawyers concerning tax fraud by a President is not a viable argument.
Who can seriously argue that our Constitution requires that a President
guilty of crimes such as murder, sexual assault, or tax fraud remain
in his office undisturbed? Who is willing to set such a standard for
the conduct of the President of the United States? Who can in good conscience
accept the consequences for our system of government that would necessarily
follow? Could our Constitution possibly contemplate such a result? What
other crimes of a President will we be told do not rise to the level
of "high crimes and misdemeanors?" These are grave questions that must
be addressed. The President's defense requires that these questions
be asked and answered.
Contrary to the claims of the President's lawyers, there is not a bright
line separating official misconduct by a President from other misconduct
of which the President is guilty. Some offenses will involve the direct
and affirmative misuse of governmental power. Other offenses may involve
a more subtle use of the prestige, status and position of the President
to further a course of wrongdoing. There are still other offenses in
which a President may not misuse the power of his office, but in which
he violates a duty imposed on him under the Constitution.
Such a breach of constitutional duty -- even though it does not constitute
an affirmative misuse of governmental power -- may be a very serious
matter. It does violence to the English language to assert that a President
who has violated a duty entrusted to him by the Constitution is not
guilty of official misconduct. Common sense indicates that official
misconduct has indeed occurred whenever a President breaches any of
the duties of his office.
As we have been reminded repeatedly, the Constitution imposes on the
President the duty to "take care that the laws be faithfully executed."
The charges against the President involve multiple violations of that
duty. A President who commits a calculated and sustained series of criminal
offenses has -- by his personal violations of the law -- failed in the
most immediate, direct, and culpable manner to do his duty under the
Constitution.
In their defense of the President, his lawyers in essence contend that
a President may be removed for misusing governmental power, but not
for corruptly interfering with the proper exercise of governmental power.
This argument exalts form over substance. It unduly focuses on the manner
in which wrongdoing is carried out and neglects to consider the actual
impact of that wrongdoing on our system of government. Whether the President
misuses the power vested in him as President or wrongfully interferes
with the proper exercise of the power vested in other parts of the government,
the result is the same: the due functioning of our system of government
is in some respect hindered or defeated.
There is no principled basis for contending that a President who interferes
with the proper exercise of governmental power -- as he clearly does
when he commits perjury and obstruction of justice -- is constitutionally
less blameworthy than a President who misuses the power of his office.
A President who lies to a federal grand jury in order to impede the
investigation of crimes is no less culpable than a President who wrongfully
orders a prosecutor to suspend an investigation of crimes that have
been committed. The purpose and effect of the personal perjury and of
the wrongful official command are the same: the laws of the United States
are not properly enforced.
Although neither the Senate nor the House has ever adopted a fixed definition
of "high crimes and misdemeanors," there is much in the background and
history of the impeachment process that contradicts the narrow view
of the removal power advanced by the President's lawyers.
There is no convincing evidence that those who framed and ratified our
Constitution intended to limit the impeachment and removal power to
acts involving the abuse of official power.
The key phrase defining the offenses for which the President, Vice President
and other civil officers of the United States may be removed -- "treason,
bribery or other high crimes and misdemeanors" -- simply does not limit
the removal power in the way suggested by the President's lawyers.
 The
truth is that treason and bribery may be committed by an official who
does not abuse the power of his office in the commission of the offense.
A President might, for example, pay a bribe to a judge presiding over
a case to which the President is an individual party. Or a judge might
commit an act of treason without exercising any of the powers of his
office in doing so. By the express terms of the Constitution those offenses
would be impeachable. And there is no reason to impose a restriction
on the scope of "other high crimes and misdemeanors" that is not imposed
on treason and bribery.
Although having a means for the removal of officials guilty of abusing
their power was no doubt very much in the minds of the framers, the
purpose of the removal power was not restricted to that object.
To properly understand the purpose impeachment process under our Constitution,
consideration must be given to use of impeachment by the English Parliament.
Impeachment in the English system did not require an indictable crime,
but the proceeding was nevertheless of a criminal nature: punishment
upon conviction could extend to imprisonment and death. It was a mechanism
used by the Parliament to check absolutism and to establish the supremacy
of the Parliament. Through impeachment, Parliament acted to curb the
abuses of exalted persons who would otherwise have free reign. Impeachment
was used by the Parliament to punish a wide range of offenses: misapplication
of funds; abuse of official power; neglect of duty; corruption; encroachment
on the prerogatives of the Parliament; and giving harmful advice to
the Crown. In the English practice, "high crimes and misdemeanors" included
all of these.
During the impeachment of Lord Chancellor Macclesfield in 1725, Serjeant
Pengelly summed up the purpose of impeachment. It was, he said, for
the "punishment of offenses of a public nature which may affect the
nation." He went on to say that impeachment was also for use in "instances
where the inferior courts have no power to punish the crimes committed
by ordinary rules of justice . . . or in cases . . . where the person
offending is by his degree raised above the apprehension of danger from
a prosecution carried on in the usual course of justice; and whose exalted
station requires the united accusation of all the Commons."
In the case of Warren Hastings -- which was proceeding at the time the
Constitution was framed -- Edmund Burke described the impeachment process
as ". . . a grave and important proceeding essential to the establishment
of the national character for justice and equity."
As the British legal historian Holdsworth has written, the impeachment
process was a mechanism in service of the "ideal . . . [of] government
in accordance with law." It was a means by which "the greatest ministers
of state could be made responsible, like humble officials, to the law."
According to Holdsworth:". . . [T]he greatest services rendered by this
procedure to the cause of constitutional government have been, firstly,
the establishment of the doctrine of ministerial responsibility to the
law, secondly, its application to all ministers of the crown, and thirdly
and consequently the maintenance of the supremacy of the law over all."
Thus the fundamental purpose of the impeachment process in England was
"the maintenance of the supremacy of the law over all." Those who were
impeached and called to account for "high crimes and misdemeanors" were
those who by their conduct threatened to undermine the rule of law.
This English understanding of the purpose of impeachment serves as a
backdrop for the work of the Framers of our Constitution. Despite some
important differences in the functioning of impeachment in England and
the United States, the fundamental purpose of impeachment remained the
same: defending the rule of law.
The records of the proceedings of the Constitutional
Convention also shed light on the meaning of "high crimes and misdemeanors,"
and the underlying purpose of the impeachment mechanism. The primary
focus of the relevant discussions at the Convention was on the need
for some means of removing the President. Early in the proceedings with
respect to impeachment, the Committee of the Whole agreed to make the
President removable "on impeachment and conviction of malpractice or
neglect of duty," although concerns were expressed that impeachment
would give the legislative branch undue control over the executive,
and violate the separation of powers.
In the course of the proceedings James
Madison stated that "some provision was needed to defend the community
against the President if he became corrupt, incapacitated, or perverted
his administration into a scheme of peculation or oppression."
Arguing for a means of removing the President,
George Mason said, "No point is of more importance than that the right
of impeachment should be continued. Shall any man be above Justice?
Above all shall that man be above it, who can commit the most extensive
injustice?"
Before the Convention settled on the language
that was ultimately adopted, a proposal was considered that would have
limited impeachable offenses to treason and bribery. An effort was made
to broaden this proposal by including "maladministration" as an impeachable
offense. Madison objected that the inclusion of a term as "vague" as
maladministration would result in the President having tenure during
the pleasure of the Senate. As a compromise, the term "maladministration"
was dropped and "high crimes and misdemeanors" was substituted. From
this course of proceedings it can reasonably be concluded that poor
administration -- at least if it does not involve corrupt motives --
is not a sufficient ground for impeachment.
In the debate concerning the Constitution
in the various state ratification conventions, the grounds for impeachment
were with some frequency said to include abuse or betrayal of trust
and abuse of power. "Making a bad treaty" was also frequently mentioned
as justifying impeachment. At the Virginia Convention, Governor Randolph
spoke of "misbehavior" and "dishonesty," and James Madison gave two
examples of impeachable conduct: pardoning a criminal with whom the
President was in collusion, and summoning only a few Senators to approve
a treaty.
One of the most extensive recorded discussions
of impeachment occurred at the North Carolina ratification convention
in remarks made by James Iredell. Iredell, who later served as a Justice
of the Supreme Court, spoke of the supremacy of the law under the system
of government proposed by the Constitution:
"No man has an authority to injure another
with impunity. No man is better than his fellow-citizens, nor can pretend
to any superiority over the meanest man in the country. If the President
does a single act, by which the people are prejudiced, he is punishable
himself . . . . If he commits any misdemeanor in office, he is impeachable
. . . "
Iredell also expressed the view that impeachment
may be used only in cases where there is some corrupt motive:". . .
[W]hen any man is impeached, it must be for an error of the heart, and
not of the head . . . . Whatever mistake a man may make, he ought not
to be punished for it, nor his posterity rendered infamous. But if a
man be a villain, and wilfully abuse his trust, he is to be held up
as a public offender, and ignominiously punished . . . . According to
these principles, I suppose the only instances in which the President
would be liable to impeachment, would be where he had received a bribe,
or acted from some corrupt motive or other."
Iredell's comments buttress the view that
impeachment is not to be used as a political weapon to resolve differences
of policy between the legislative branch and the executive branch. Impeachment
is not an appropriate remedy for errors -- even serious errors -- in
the administration of government.
To justify impeachment, there must be "some
corrupt motive," a willful "abuse of trust," an "error of the heart."
You will note there is nothing in Iredell's comments to suggest that
a President who engaged in a corrupt course of conduct by obstructing
justice and committing perjury would be immune from impeachment and
removal.
Another major discussion of impeachment
during the debate over ratification occurs in the Federalist number
65, where Alexander Hamilton describes the impeachment process as "a
method of national inquest into the conduct of public men" and discusses
the powers of the Senate "in their judicial character as a court for
the trial of impeachments."
Before I discuss his views of impeachment,
I would like to say a word in defense of Alexander Hamilton -- who is
a widely acknowledged expositor and defender of the Constitution. Unfortunately,
the reputation of Hamilton has in recent days been traduced. It is unjust
to the memory of this great man to compare his personal sins with the
crimes of President Clinton. When Hamilton was questioned about his
affair he told the truth. There is no evidence that he ever engaged
in acts of corruption. He never lied under oath. He never obstructed
justice. Notwithstanding the efforts of his lawyers, President Clinton
by no means benefits from a comparison with Hamilton.Hamilton in the
Federalist writes of the Senate:"The subjects of its jurisdiction are
those offenses which proceed from the misconduct of public men, or in
other words from the abuse or violation of some public trust. They are
of a nature which may with peculiar propriety be denominated political,
as they relate chiefly to injuries done immediately to the society itself."
Hamilton recognized that the focus of the
impeachment power is on the "misconduct of public men" or the "abuse
or violation of some public trust." Impeachment is a remedy against
officials for "injuries done . . . to the society itself."
Despite the claims of the President's lawyers,
the comments of Hamilton do not support the view that a President can
be impeached and removed only for an abuse of power. The "misconduct
of public men," and "the abuse or violation of some public trust" to
which Hamilton refers are not restricted to offenses involving the misuse
of official power. The "misconduct of public men" encompasses a whole
range of wrongful deeds committed by those who hold office when those
offenses occur. The "public trust" is violated whenever a public officer
breaches any duty he has to the public. "Injuries done . . . to the
society itself" similarly may occur as the result of misconduct that
does not involve the misuse of the powers of office.
The English precedents, the records of
the Constitutional Convention debates, and the general principles set
forth by Hamilton, Iredell, and others in the debate over ratification
do not provide a definitive list of high crimes and misdemeanors. They
do, however, give broad guidance concerning the scope of the impeachment
power. The theme running through all these background sources is that
the impeachment process is designed to provide a remedy for the corrupt
and lawless acts of public officials.
 Not
surprisingly, those who have been on the receiving end of impeachment
proceedings have been quick to argue for a restrictive meaning of "high
crimes and misdemeanors." President Clinton's lawyers follow in that
well-established tradition.
They attempt to minimize the significance of the charges of perjury
and obstruction of justice against the President. In essence, they argue
that treason and bribery are the prototypical high crimes and misdemeanors,
and that the crimes charged against the President are insufficiently
similar in both their nature and seriousness to treason and bribery.
But, as the comments of my fellow manager, Mr. Buyer, have made clear,
the crimes set forth in the articles of impeachment are indeed serious
offenses against our system of justice. They were certainly viewed as
serious offenses by those who drafted and ratified the Constitution.
In his discussion of "offenses against the public justice," Sir William
Blackstone -- whose work James Madison said was in "every man's hand"
during the creation of the Constitution -- listed the offenses of perjury
and bribery side-by-side, immediately after he listed treason. In 1790,
the First Congress adopted a statute entitled "An Act for the punishment
of certain crimes against the United States" making perjury a crime
punishable as a felony. Nothing could be clearer: perjury is a crime
against the United States; it is not a private matter.
As Mr. Chabot noted yesterday, John Jay, the first Chief Justice of
the United States, said that "there is no crime more extensively pernicious
to Society" than perjury. According to Jay, perjury "discolors and poisons
the Streams of Justice, and by substituting Falsehood for Truth, saps
the Foundations of personal and public Rights . . . . [I]f oaths should
cease to be held sacred, our dearest and most valuable Rights would
become insecure." Given this understanding that was current at the time
the Constitution was adopted, it is impossible to support the conclusion
that perjury and the related offense of obstruction of justice are somehow
trivial offenses that do not rise to the same level as the offense of
bribery which is enumerated in the Constitution.
Moreover, perjury and obstruction of justice are by their very nature
akin to bribery. When the crime of bribery is committed, money is given
and received to corruptly alter the course of official action. When
justice is obstructed, action is undertaken to corruptly thwart the
due administration of justice. When perjury occurs, false testimony
is given in order to deceive judges and juries and to prevent the just
determination of causes pending in the courts. The fundamental purpose
and the fundamental effect of each of these offenses -- perjury, obstruction
of justice and bribery alike -- is to defeat the proper administration
of government. They all are crimes of corruption aimed at substituting
private advantage for the public interest. They all undermine the integrity
of the functions of government.
The use of the impeachment process against misconduct which undermines
the integrity of government is a central focus of two reports prepared
in 1974 on the background and history of impeachment. One of the reports
was prepared by the staff of the Nixon impeachment inquiry. The other
was produced by the Bar of the City of New York. Both of these reports
have gained bipartisan respect over the last 25 years for their balanced
and judicious approach. They provide a well-informed analysis of the
key issues related to impeachments. In doing so they stand in stark
contrast to the recent pronouncements by some academics which substitute
political opinion for scholarly analysis.
A review of these two important documents from 1974 supports the conclusion
that the articles before the Senate set forth compelling grounds for
the conviction and removal of President Clinton.
There has been a great deal of comment on the report on "Constitutional
Grounds for Presidential Impeachment" prepared in February 1974 by the
staff of the Nixon impeachment inquiry. Those who assert that the charges
against the President do not rise to the level of "high crimes and misdemeanors"
have pulled some phrases from that report out of context to support
their position. In fact, the general principles concerning grounds for
impeachment and removal set forth in that report indicate that perjury
and obstruction of justice are high crimes and misdemeanors.
Consider this key language from the staff report describing the type
of conduct which gives rise to the proper use of the impeachment and
removal power:
"The emphasis has been on the significant effects of the conduct --
undermining the integrity of office, disregard of constitutional duties
and oath of office, arrogation of power, abuse of the governmental process,
adverse impact on the system of government."
The report goes on to state:"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."
Perjury
and obstruction of justice clearly "undermine the integrity of office."
I ask you, if these offenses do not undermine the integrity of office,
what offenses would?
Their unavoidable consequence is to erode respect for the office of
the President and to interfere with the integrity of the administration
of justice. Such offenses are "seriously incompatible" with the President's
"constitutional duties and oath of office," and with the principles
of our government establishing the rule of law. Moreover, they are offenses
which have a direct and serious "adverse impact on the system of government."
Obstruction of justice is by definition an assault on the due administration
of justice -- which is a core function of our system of government.
Perjury has the same purpose and effect.
The thoughtful report on "The Law of Presidential Impeachment" prepared
by the Association of the Bar of the City of New York in January of
1974 also places a great deal of emphasis on the corrosive impact of
presidential misconduct on the integrity of government. The report summarizes
the proper basis for impeachment and removal in this way:
"It is our conclusion, in summary, that the grounds for impeachment
are not limited to or synonymous with crimes . . . . Rather, we believe
that acts which undermine the integrity of government are appropriate
grounds whether or not they happen to constitute offenses under the
general criminal law. In our view, the essential nexus to damaging the
integrity of government may be found in acts which constitute corruption
in, or flagrant abuse of the powers of, official position. It may also
be found in acts which, without directly affecting governmental processes,
undermine that degree of public confidence in the probity of executive
and judicial officers that is essential to the effectiveness of government
in a free society."
Perjury and obstruction of justice -- serious felony offenses against
the United States -- by a President are acts of corruption which without
doubt "undermine that degree of public confidence in the probity of
the [the President] that is essential to the effectiveness of government
in a free society." Such acts are "high crimes and misdemeanors" because
they inevitably subvert the respect for law which is essential to the
well-being of our constitutional system.
A similar point is made by a contemporary commentator who has argued:".
. . [T]here are certain statutory crimes that, if committed by public
officials, reflect such lapses of judgment, such disregard for the welfare
of the state, and such lack of respect for the law and the office held
that the occupants may be impeached and removed, for lacking the minimal
level of integrity and judgment sufficient to discharge the responsibilities
of office."
Such a lack of the minimal level of integrity necessary for the proper
discharge of the duties of the Presidency is evidenced by the commission
of the statutory crimes of perjury and obstruction of justice.
Contrary to the claim that has been made by some, the issue before the
Senate is not whether the offenses of this President will destroy our
Constitution. We all know that our system of government will not come
tumbling down because of the corrupt conduct of William Jefferson Clinton.
Our Republic will survive the crimes of this President. No one doubts
that. Of course, the same could be said of all the other federal officials
who have been impeached and removed from office. And the same might
be said of the crimes -- serious as they were -- of President Richard
Nixon.
But the removal power is not restricted to offenses that would directly
destroy our Constitution or system of government. The removal power
is not so limited that it can be brought into play only when the immediate
destruction of our institutions is threatened.
On the contrary, the removal power should be understood as a positive
grant of authority to the Senate to preserve, protect and strengthen
our constitutional system against the misconduct of federal officials
when that misconduct would subvert, undermine, or weaken the institutions
of our government. It is a power that has the positive purpose of maintaining
the health and well-being of our system of government.
This power -- the awesome power of removal vested in the Senate -- carries
with it an awesome responsibility. This power imposes on the Senate
the responsibility to exercise its judgment in establishing the standards
of conduct that are necessary to preserve, protect, and strengthen the
Constitution which has served the people of the United States so well
for more than two centuries.
Thus, the crucial issue before the Senate is what standard will be set
for the conduct of the President of the United States. In this case,
the Senate necessarily will establish such a standard. And make no mistake
about it: the choice the Senate makes in this case will have consequences
reverberating far into the future of our Republic. Will a President
who has committed serious offenses against the system of justice be
called to account for his crimes, or will his offenses be regarded as
of no constitutional consequence? Will a standard be established that
such crimes by a President will not be tolerated, or will the standard
be that -- at least in some cases -- a President may "remain in office
with all his infamy" after lying under oath and obstructing justice?
Regardless of the choice the Senate makes -- whether it acquits or convicts
the President -- a standard will be established, and that standard will
become an important part of our constitutional law. The institutions
of our government will either be strengthened or weakened. And if the
Senate acquits this President, the conduct of future presidents will
inevitably be affected in ways that we cannot now confidently predict.
I would now like to take a few minutes to examine some of the other
specific arguments that this is not a proper case for use of the removal
power.
Some have suggested that in setting a standard in this case the Senate
should be guided by the popularity of the President. It is urged that
a popular President -- regardless of the offenses he may have committed
-- should not be removed from office. Such a view finds no support in
the Constitution. On the contrary, the Framers understood that a popular
President might be guilty of crimes requiring his removal from office.
That is no doubt why they specifically provided that an impeached official
who was convicted and removed might also be perpetually disqualified
"to hold and enjoy any office of honor, Trust, or Profit under the United
States."
The potential threat posed to our institutions by Presidential misconduct
would in fact be heightened by the popularity of the offending President.
The harmful influence and example of a popular President would pose
a far greater danger to the well-being of our government than the influence
and example of an unpopular President.
Moreover, the very framework of our Constitution establishing a representative
democracy is at odds with the notion that the institutions of our government
should respond mechanically to the changing tides of public opinion.
The Senate was particularly designed to act on the basis of the long-term
best interest of the nation rather than short-term political considerations.
When he was tried by the Senate one hundred and thirty years ago, President
Andrew Johnson was overwhelmingly unpopular. If the Senate had used
presidential popularity as its guide in the Johnson case, there is no
doubt that he would have been convicted and removed. Yet today there
is widespread agreement that such action by the Senate would have been
an abuse of the constitutional process, and those who refused to use
presidential popularity as their guide are hailed as great statesmen
and heroes. Those Senators who then stood against the tide of public
sentiment, today are acknowledged as champions of constitutional government.
A popular President guilty of high crimes and misdemeanors should no
more remain in office than an unpopular President innocent of wrongdoing
should be removed from office. Under the standards of the Constitution,
popularity is not a sufficient guide.
Nor should the Senate be swayed by the claims that setting a standard
adverse to this President will weaken the institution of the Presidency.
Describing the role of impeachment under our Constitution, Arthur M.
Schlesinger, Jr. -- who takes a
different view of the matter today --
wisely observed:
"The genius of impeachment lay in the fact that it could punish the
man without punishing the office. For, in the Presidency as elsewhere,
power was ambiguous: the power to do good meant also the power to do
harm, the power to serve the republic also the power to demean and defile
it."
Rather than weakening the Presidency, the removal from office of a President
who violated his constitutional duty and oath of office will reestablish
the integrity of the Presidency. Setting a standard against the acts
of perjury and obstruction of justice committed by President Clinton
will reaffirm the dignity and honor of the office of Chief Executive
under our Constitution. That will strengthen -- not weaken -- the institution
of the Presidency.
It has even been argued that the impeachment and removal of President
Clinton would result in the virtual alteration of our system of government.
It is contended that following the constitutional process in this case
would move us toward a transformation of our Constitution: a quasi-parliamentary
system, with the President serving at the pleasure of the legislative
branch, would replace the framework based on the separation of powers.
I am reluctant to dignify this argument by responding to it. Richard
Nixon was driven from office for his crimes under threat of impeachment
and removal. The disruption of the framework of our government did not
ensue. President Clinton may be removed from office for his crimes.
The constitutional system will remain sound.
Who has so little confidence in the durability of the institutions of
our government that he would allow a President guilty of perjury and
obstruction of justice to remain in office simply out of an irrational
fear of the consequences of his removal?
The Constitution contains wise safeguards against the misuse of the
impeachment and removal power. As a practical matter, the requirement
of a two-thirds vote for conviction virtually ensures that a President
will only be removed when a compelling case for removal has been made.
And the periodic accountability to the people of members of both the
House and Senate serves as a check on the improvident use of the impeachment
process for unworthy and insubstantial reasons. Those who would abuse
the power of impeachment and removal will be deterred by the certain
knowledge that they ultimately must answer to the people.
The ultimate safeguard against the abuse of this power is in the sober
deliberation and sound judgment of the Senate itself. The framers of
the Constitution vested the removal power and responsibility in the
Senate because, as Hamilton observed, they "thought the Senate the most
fit depositary of this important trust." The Senate was, in the view
of the framers, uniquely qualified to exercise the "awful discretion,
which a court of impeachment must necessarily have." As Hamilton explained:
"Where else, than in the Senate could have been found a tribunal sufficiently
dignified, or sufficiently independent? What other body would be likely
to feel confidence enough in its own situation, to preserve unawed and
uninfluenced the necessary impartiality between an individual accused,
and the representatives of the people, his accusers."
Ladies and Gentlemen of the Senate, this is the great trust which the
Constitution has reposed in you. It is a trust you exercise not only
for those who elected you, but also for all other Americans, including
generations unknown.
As you carry out this trust, we do not suggest that you hold this President
or any President to a standard of perfection. We do not assert that
this President or any President be called to account before the Senate
for his personal failings or sins. We will leave the President's sins
to his family and to God. Nor do we suggest that this President or any
President should be removed from office for offenses that are not serious
and grave.
 But
we do submit that when this President or any President has committed
serious offenses against the system of justice -- offenses involving
the stubborn and calculated choice to place personal interest ahead
of the public interest -- he must not be allowed to act with impunity.
Mr. Manager Graham has reviewed the recent precedents of the Senate
establishing that offenses such as those committed by the President
are grounds for removal from office. Those precedents which were set
in the impeachment trials of federal judges, are rejected as irrelevant
by the President's lawyers. They urge that a lower standard of integrity
be established in this case for the President of the United States than
the standard which the Senate has already established for federal judges.
But the Constitution contains a single standard for the exercise of
the impeachment and removal power. Article II, Section 4, provides:
"The President, Vice 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."
And there is nothing in the Constitution suggesting that criminal offenses
which constitute high crimes and misdemeanors if committed by one federal
official will not be high crimes and misdemeanors if committed by another
federal official. There is nothing in the Constitution to suggest that
the President should be especially insulated from the just consequences
of his criminal conduct.
Justice Story warned long ago against countenancing "so absolute a despotism
of opinion and practice, which might make that a crime at one time,
or in one person, which would be deemed innocent at another time, or
in another person." (Commentaries, § 795, Vol. II, p. 264.) The Senate
should heed the warning of Justice Story and refuse to arbitrarily establish
a different standard for judging William Jefferson Clinton than the
standard it has imposed on others brought before the bar of the Senate
sitting as a court of impeachment.
The Senate has never accepted the view that a separate standard applies
to the impeachment and removal of federal judges. Indeed, the Senate
has specifically rejected attempts to establish such a separate standard
for judicial officers. Every judge who has been impeached and removed
from office has been found guilty of treason, bribery, or high crimes
and misdemeanors.
Contrary to the argument advanced by some, the Constitutional provision
that judges "shall hold their offices during good Behaviour" does not
establish any authority to remove a judge for misconduct other than
for those offenses involving treason, bribery, or other high crimes
and misdemeanors. Rather than establishing a standard for removal, the
"good behavior" clause simply provides for life tenure for all Article
III judges. To accept the "good behavior" clause as a separate basis
for the removal of federal judges would pose a serious threat to the
independence of the judiciary under our Constitution.
The integrity of the administration of justice depends not only on the
integrity of judges, but also on the integrity of the President. A President
who has committed perjury and obstruction of justice is hardly fit to
oversee the enforcement of the laws of the United States. As Professor
Jonathan Turley has pointed out:
"As Chief Executive the President stands as the ultimate authority over
the Justice Department and the Administration's enforcement policies.
It is unclear how prosecutors can legitimately threaten, let alone prosecute,
citizens who have committed perjury or obstruction of justice under
circumstances nearly identical to the President's. Such inherent conflict
will be even greater in the military cases and the President's role
as Commander-in-Chief."
It would indeed be anomalous for the Senate to now hold the President
of the United States to a lower standard of integrity than the standard
applied to members of the judiciary. There is no sensible constitutional
rationale for such a lower standard.
Who could successfully defend the view that in the framework established
by our Constitution the integrity of the Chief Executive is of less
importance than the integrity of any one of the hundreds of federal
judicial officers? It is the President who appoints Justices of the
Supreme Court and all other federal judges. It is the President who
appoints the Attorney General. It is the President who appoints the
Director of the Federal Bureau of Investigation. It is the President
who has the unreviewable power to grant pardons.
The power of the President far surpasses the power of any other individual
under our Constitution. The authority and discretion vested in him under
the Constitution and laws is great and wide-ranging. The requirement
that he act with integrity and that he be a person of integrity is essential
to the integrity of our system of government.
Soon after the adoption of the Constitution, Alexander Hamilton wrote
that "an inviolable respect for the Constitution and the Laws" is the
"most sacred duty and the greatest source of security in a Republic."
Hamilton understood that respect for the Constitution itself grows out
of a general respect for the law. And he understood the essential connection
between respect for law and the maintenance of liberty in a Republic.
Without respect for the law, the foundation of our Constitution is not
secure. Without respect for the law, our freedom is at risk. Thus, according
to Hamilton, those who "set examples which undermine or subvert the
authority of the laws lead us from freedom to slavery . . . ."
Early in this century, Justice Brandeis spoke of the harm to our system
of government which occurs when officials of the government act in a
lawless manner. Justice Brandeis said:
"Decency, security and liberty alike demand that government officials
shall be subjected to the same rules of conduct that are commands to
the citizens. In a government of laws, existence of the government will
be imperilled if it fails to observe the law scrupulously. Our Government
is the potent, the omnipresent teacher. For good or ill, it teaches
the whole people by its example. Crime is contagious. If the Government
becomes a lawbreaker, it breeds contempt for law; it invites every man
to become a law unto himself; it invites anarchy."
In the case before it now, the Senate must decide if William Jefferson
Clinton as President will be "subjected to the same rules of conduct
that are commands to the citizens." It is no answer that he may one
day after leaving office perhaps be called to account in a criminal
court proceeding somewhere. Justice delayed is justice denied. Because
he has taken and violated the oath as President, William Jefferson Clinton
is answerable for his crimes to the Senate here and now.
Will he as President be vindicated by the Senate in the face of crimes
for which other citizens are adjudicated felons and sent to prison?
Or will this Senate acting in accordance with the provisions of the
Constitution bring him as President into submission to the commands
of the law? Will the Senate give force to the constitutional provision
for impeachment and removal which Justice Story said "compels the chief
magistrate, as well as the humblest citizen, to bend to the majesty
of the laws"?
"For good or ill" William Jefferson Clinton "teaches the whole people
by [his] example" as President. The President is not only the head of
government but also the head of State. As President he has a unique
ability to command the attention of the whole nation. In his words and
his deeds he represents the American people and the system of government
in a way that no other American can. Great honor and respect accrue
to him by virtue of the high office he holds. The influence of his example
is far-reaching and profound. By his conduct President William Jefferson
Clinton has set an example the Senate cannot ignore. By his example
he has set a dangerous and subversive standard of conduct. His calculated
and stubbornly persistent misconduct while serving as President of the
United States he has set a pernicious example of lawlessness -- an example
which by its very nature subverts respect for the law. His perverse
example has the inevitable effect of undermining the integrity of both
the office of President and the administration of justice.
Ladies and Gentlemen of the Senate, I humbly submit to you that his
harmful example as President must not stand. The maintenance in office
of a President guilty of perjury and obstruction of justice is inconsistent
with the maintenance of the rule of law.
In light of the historic purpose of impeachment, the offenses charged
against the President demand that the Senate convict and remove him.
He must not "remain in office with all his infamy." Our Constitution
requires that this President who has shown such contempt for the truth,
such contempt for the law, and such contempt for the dignity of his
high office be brought to justice for his high crimes and misdemeanors.
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