President Clinton’s lawyers have rested his defense not on any serious contention that he is innocent of the perjuries and other crimes alleged in Kenneth Starr’s report, but on the argument that even if he is guilty, impeachment would violate the spirit of the Constitution.
The Framers, suggest Clinton’s lawyers and an extended gaggle of liberal law professors, excluded such conduct as lying about sex from the category of impeachable offenses. This has a veneer of plausibility: The Constitution lists only ”treason, bribery, or other high crimes and misdemeanors” as grounds for impeachment, and the president’s lies about making it with the office help don’t seem very ”high.”
On inspection, however, this argument falls apart. Nothing in the Constitution, the Framers’ debates, or the precedents justifies reading ”high crimes and misdemeanors” so narrowly as to exclude crimes such as perjury and witness tampering, even if they grow out of private matters.
The impeachment provisions were adopted by the Constitutional Convention of 1787 in accordance with James Madison’s assertion that it was ”indispensable” to guard against presidential ”incapacity, negligence or perfidy.” An early draft listed only ”treason and bribery” as grounds for impeachment. George Mason, stressing that this would not reach ”many great and dangerous offenses,” moved to add ”or maladministration.” Madison objected that ”so vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason then substituted ”treason, bribery, and other high crimes and misdemeanors.” And that was that.
It’s clear that the Framers did not intend to authorize Congress to impeach presidents over policy or personal differences. But it’s also clear, most scholars have agreed, that the phrase ”high crimes and misdemeanors”–which traced back to 1386 in English law–encompassed a broader range of misconduct in the Framers’ minds than it might in modern minds.
President Nixon’s argument that he could be impeached only if proven guilty of actual crimes was rejected, for example, both by scholars and by the House Judiciary Committee. The committee’s staff said in a February 1974 analysis that the conduct ”need not be criminal.”
Alexander Hamilton wrote in Federalist 65 that impeachment would deal with ”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.”
While this suggests that impeachment was designed ”chiefly” to remedy abuses of power, it seems to cast a broader net. And most studies have concluded that serious crimes rooted in private conduct are grounds for impeachment.
That was the conclusion of the 1974 staff analysis, which said that the post-1787 precedents support impeachment for ”behaving in a manner grossly incompatible with the proper function and purpose of the office.” It was also the view of Professor Charles L. Black, whose acclaimed 1974 book, Impeachment: A Handbook, said that ”serious income-tax fraud by a president . . . would seem definitely impeachable.” And it was the view of Professor Michael Gerhardt, whose 1996 book, The Federal Impeachment Process, said that even crimes ”plainly . . . unrelated to the responsibilities of a particular office” are impeachable if they show ”serious lack of judgment or disdain for the law” and thus lower ”respect for the office.”
This comports with common sense. It seems most unlikely, for example, that the Framers intended to immunize from impeachment a president who engaged in such ”private” misconduct as murdering a rival for a woman’s affections. It’s equally unlikely, of course, that the Framers intended to authorize impeachment for petty personal misconduct, including minor illegalities, such as (until recent decades) adultery.
But perjury is no petty offense. In the Framers’ world, it was viewed as, ”of all crimes whatsoever, the most infamous and detestable,” as W. Hawkins put it in A Treatise of the Pleas of the Crown (1724). Then, as now, perjury (like bribery) brought serious criminal penalties. Now, as then, perjury and other assaults on the judicial system’s truth-seeking mission are properly regarded as uniquely grave when committed by the one official who is most responsible for enforcing and upholding the laws, and who embodies (in the words of Watergate Special Prosecutor Archibald Cox) ”the nation’s image of itself.”
Before President Clinton got caught, no serious scholar had ever suggested that it would be improper to impeach a president for crimes such as lying under oath (even about sex), encouraging others to lie, and obstructing both a civil rights lawsuit and a criminal investigation. All the president’s lawyers and law professors have turned up not a single unambiguous statement to that effect before 1998. That’s telling.
Clinton’s lawyers also suggest that his actions are not ”high crimes” because they are comparable to a tax-evasion charge that the House Judiciary Committee omitted from the articles of impeachment against President Nixon in 1974. But while a few members doubted that the tax charge was impeachable, the main reason for the 26-12 vote to leave it out was not that it was not a ”high crime,” but that it ”would have complicated the case enormously” and was ”based on evidence that might be considered inconclusive,” according to Presidential Impeachment, a 1978 book by John R. Labovitz.
As if to prove the point, both the House and Senate voted overwhelmingly in 1986 to impeach and remove Judge Harry Claiborne for tax evasion, and in 1989 to impeach and remove Judge Walter Nixon for perjury. It may well be that Congress should, as a matter of discretion, be more hesitant to impeach a president than a judge. But it’s manifest nonsense to suggest that tax evasion and perjury are ”high crimes” when committed by a judge but not when committed by a president.
Clinton’s lawyers also make meretricious use of a scandal involving Alexander Hamilton. In that case, Congress decided not to impeach after investigating then-Treasury Secretary Hamilton in 1792-93 for alleged financial misdealings with James Reynolds, a convicted securities swindler whose release from prison had been approved by the Treasury Department. Hamilton ”admitted to making secret payments to Reynolds,” the Clinton brief notes, ”but explained that he had committed adultery with Reynolds’ wife; that he had made payments to Reynolds to cover it up”; and that he had gotten Mrs. Reynolds to burn their letters and promised to pay the couple’s travel costs if they would leave town.
But Hamilton obstructed no legal proceeding; he apparently committed no crime at all (other than adultery), having paid the extortionist with his own money; he did not abuse his office; and he told congressional investigators and (later) the public the whole, embarrassing truth.
To imagine a case more like Clinton’s, let’s suppose a lawsuit against Hamilton analogous to the Paula Jones suit. Since women in those days did not sue powerful officials for sexual harassment or discrimination, let’s make it a suit by the cuckolded Reynolds for alienation of affections. Suppose further that instead of settling the lawsuit, Hamilton falsely denied the allegations in sworn court pleadings; that he used his government-paid secretary to arrange and conceal assignations in his government office with another woman; that when Reynolds called that woman as a witness, Hamilton encouraged her and the secretary to lie; that he used his connections to find her a job; that he himself lied under oath to the nation and to official investigators; that he enlisted government-paid subordinates and other surrogates to repeat his lies; that he used government lawyers and privileges to conceal the true facts; that he made a partial confession only when confronted with irrefutable proof; and that he continued to lie even then. Would Congress have seen no grounds for impeachment in such facts? I doubt it.
In this regard, what matters is ”the totality of (the) conduct and the common patterns that emerge, not . . . whether this or that act of wrongdoing, viewed in isolation, is an impeachable offense,” in the words of the Labovitz book. The case for impeachment is far stronger than it would be had he retracted his Jan. 17 perjuries and come clean, even a few months later. Instead, he proceeded on the calculated course of lying to his aides, the public, and the grand jury that continues today.
That’s what Madison might call ”perfidy.” It’s what Hamilton might call ”violation of some public trust.” And in light of the damage done to the legal system and the nation by Clinton’s efforts to legitimize lying, it brings to mind even the more grandiose words of George Mason. From the tiniest, tawdriest affairs can ”great and dangerous offenses” grow. Three things caused the Great Depression: bad monetary policy, bad trade policy and bad regulation of banks.