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THE IMPEACHMENT TRIAL
Statement of Sen. Biden (D-Del.)

Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.

Mr. BIDEN. Let me begin by stating what I believe the American people view as the obvious. There are no good guys in this sordid affair. Rightly or wrongly, the public has concluded that the President is an adulterer and liar; that Ken Starr has abused his authority by unfair tactics born out of vindictiveness; that the House Managers have acted in a narrowly partisan way and are now desperately attempting to justify their actions for their own political reputation. Finally, they have concluded that Monica Lewinsky was both used and a user, while Linda Tripp, Lucianne Goldberg, Paula Jones and her official and unofficial legal team are part of a larger political plot to `get the President'.

All of that is beyond our ability to effect. Our job is not to dissect the motives or even the tactics of Ken Starr, the trial lawyers, Linda Tripp, and others. Our only job is to determine whether the President of the United States by his conduct committed the specific acts alleged in the two Articles of Impeachment. Not generally, but specifically: Did he do what is alleged? And if he did, do these actions rise to the level of high crimes and misdemeanors necessary to justify the most obviously anti-democratic act the Senate can engage in--overturning an election by convicting the President.

It is very important--both for history's sake and for fairness' sake--that we keep our eye on the ball. When I tried cases, I learned from a man named Sid Balick--he used to say at the outset to the jury:

Keep your eye on the ball. The issue is not whether my client is a man you would want your daughter to date--a man you would invite home to dinner. The issue is did my client kill Cock Robbin--period.

But if we listen to the oft-times confusing presentation of the House Managers--they would have us think that it is sufficient for us to conclude that we would not trust him with our daughters and not invite him home for dinner in order to convict.

Much more is required. The House set the standard we must repair to in the Articles--did he commit a criminal offense? That is what they allege; that is what they must prove.

The Managers keep saying that this case is about what standards we want our President to meet. We hear Flanders Fields intoned--the honor of our most decorated heroes. How incredibly self-serving and autocratic such a plea is.

The American people are fully capable--without our guidance or advice--to determine what standards they want our President to meet. That is an appropriate question to ask ourselves when we enter the voting booth to vote--it is not when we rise on this floor to vote.

Spare me from those who would tell the American people what standard they must apply when voting for President. Ours is an Impeachment standard and our oath to do justice under that standard.

Impeachment is about what standard to use in deciding whether or not to remove a President duly elected by the people.

These are two very different questions and we must not, we cannot, get them confused. You and I and the American people can apply any standard we want our President to meet when we go to the polls on election day.

Only the Constitution can supply the standards to use in deciding whether or not to remove the President--and--in my view, this case does not meet that standard, for two reasons.

First, the facts do not sustain the House Managers' case. According to the House's own theory, we must find that the President has violated federal criminal statutes--not just that he did bad things. In all good conscience, I just cannot believe that any jury would convict the President of any of the criminal charges on these facts. I also believe that it is our constitutional duty to give the President the benefit of the doubt on the facts. To me, the allegations that the President violated Title 18 were left in a shambles on this floor.

But I do not have time to dwell on the facts. So let me turn to the second reason: the President's actions do not rise to the level required by the Constitution for the removal of a sitting President.

We have heard it argued repeatedly that the Constitution does not create different standards for Judges and the President. But that argument fails to comprehend the organizing principle of our constitutional system--the separation of powers. The framers divided the power of the federal government into three branches in order to safeguard liberty. This innovation--the envy of every nation on earth--can only serve its fundamental purpose if each branch remains strong and independent of the others.

We needed a President who was independent enough to spearhead and sign the Civil Rights Act. We needed a President who was independent enough to lead the nation and the world in the Persian Gulf War. We still need an independent President.

The constitutional scholarship overwhelmingly recognizes that the fundamental structural commitment to separation of powers requires us to view the President as different than a federal judge. Consider our power to discipline and even expel an individual Senator. In such a case, we do not remove the head of a separate branch and so do not threaten the constitutional balance of powers. To remove a President is to decapitate another branch and to undermine the independence necessary for it to fulfill its constitutional role.

Only a President is chosen by the people in a national election. No Senator, no Representative can make this claim. To remove a duly elected President clashes with democratic principles in a way that simply has no constitutional parallel. By contrast, there is nothing anti-democratic in the Senate removing a judge, who was appointed and not elected by the people.

Another contention we continue to hear is that the Framers clearly thought that obstruction of justice of any kind by a President was a high crime and misdemeanor. For this they cite the colloquy between Colonel George Mason and James Madison, who argued that a President who abused his pardon power could be impeached. That colloquy illustrates that it is not any obstruction that would satisfy the Constitution--rather, that the framers were immediately concerned about abuses of official power, such as the pardon power.

The House Managers have relied repeatedly on Alexander Hamilton's explanation of impeachment found in Federalist No. 65. But careful reading demonstrates that these articles of impeachment are a constitutionally insufficient ground for removing the President from office. Federalist No. 65 states:

The subjects of [the impeachment court's] 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 had the word `political' typed in all capital letters to emphasize that this is the central, defining element of any impeachable offense. Having emphasized its meaning, he did not leave its definition to chance. While all crimes by definition harm society, impeachable offenses involve a specific category of offenses. Using Hamilton's terms, these are offenses committed when `public men' who `violat[e] some public trust' cause `injuries done immediately to the society itself.' The public trust that resides in, to use Hamilton's hoary phrase, `public men' is what we would call today official power.

What other construction can be given these words? Hamilton did not define an impeachable offense to be any offense committed by public men. He did not define an impeachable offense to be any reprehensible act committed by a bad man. Only those acts that abuse public office and so harm the public directly and politically are impeachable.

While I would like to take credit for this insight into Hamilton's meaning, I actually stand in a line of interpretation that stretches back to the founding era. William Rawle wrote the first distinguished commentary on the Constitution, `A View of the Constitution of the United States of America.' In this treatise, he came to precisely the same interpretation I have described. He said, `The causes of impeachment can only have reference to public character and official duty. . . . In general those which may be committed equally by a private person as a public officer are not the subject of impeachment.'

Joseph Story was not only a long-serving and important Justice of the Supreme Court of the United States, he was a preeminent constitutional scholar and author of a treatise that remains an important source for understanding the Constitution's meaning. He too emphasized that `it is not every offense that by the constitution is . . . impeachable.' Which offenses did he regard to be impeachable? `Such kinds of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust.' Justice Story tied the definition of impeachable offenses to the purpose that underlies the separation of powers--safeguarding the liberty of the people against abusive exercise of governmental power. He observed that impeachment `is not so much designed to punish an offender as to secure the state against gross official misdemeanors.'

There is no question that the Constitution sets the bar for impeachment very high--especially where the President is involved. Federalist 65 bears this out, as do numerous other commentaries.

But Federalist 65 also sounds a warning--again, it is a warning that has been invoked over and over again--that impeachments inevitably risk being hijacked by partisan political forces.

Federalist 65 worried that the `animosities, partialities, influence, and interest on one side or the other' would enable partisans to find a way to interpret words such as high crimes and misdemeanors to match the outcome they otherwise wished to reach--not necessarily out of any malevolence, but simply because of the great capacity that we all have to rationalize.

Here the rationalization is pretty easy--the President is a disgrace to the office, I honor and revere the office of the Presidency, so there must be some way to get this man out of that office. Therefore, his actions must rise to the level of high crimes and misdemeanors.

It is tempting to go down that road --but this is precisely the temptation that the Framers urged us to avoid.

In Federalist 65, Hamilton defended the United States Senate as the only body that could possibly hear a presidential impeachment. `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 . . . his accusers?'

Hamilton was placing the responsibility to be impartial squarely upon us--a responsibility that has become embodied in the oath we took when the trial began.

Charles Black, the renowned constitutional law professor from Yale, boiled down the attitude that we as Senators must adopt in order to achieve an impartiality and independence sufficient to the responsibilities of impeachment. He said we must act with a `principled political neutrality.'

That is a tough standard to meet. In the Johnson impeachment, for example, James Blaine originally voted for the impeachment of the President in the House. Years later he admitted his mistake, saying that `the sober reflection of after years has persuaded many who favored Impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict.'

And in our contemporary situation, former President Ford and our distinguished colleague and former majority leader, Robert Dole, have both urged us not to go down the road to impeachment, but to seek other means to express our displeasure.

Charles Black knew that principled political neutrality was hard to achieve, so he suggested one approach. He suggested that prior to voting, a Senator should ask:

Would I have answered the same question the same way if it came up with respect to a President towards whom I felt oppositely from the way I feel toward the President threatened with removal?

In reaching a final decision, the question I wish to pose to my colleagues is this: Can you legitimately conclude that you would vote to remove a sitting President if he were a person towards whom you felt oppositely than you do toward Bill Clinton?

Given the essentially anti-democratic nature of impeachment and the great dangers inherent in the too ready exercise of that power, impeachment has no place in our system of constitutional democracy except as an extreme measure--reserved for breaches of the public trust by a President who so violates his official duties, misuses his official powers or places our system of government at such risk that our constitutional government is put in immediate danger by his continuing to serve out the term to which the people of the United States elected him.

In my judgment, trying to assume a perspective of principled political neutrality, the case before us falls far, far short on the facts and on the law.

I ask unanimous consent that the text of a more comprehensive statement be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

SENATOR JOSEPH R. BIDEN'S COMPREHENSIVE STATEMENT ON IMPEACHMENT DELIBERATIONS

There are no good guys in this sordid affair. Rightly or wrongly, the public has concluded that the President is an adulterer and liar. Ken Starr has abused his authority by unfair tactics born out of vindictiveness. The House Managers have acted in a narrowly partisan way and are now desperately attempting to justify their actions for their own political reputation and that Monica Lewinsky was both used and a user, while Linda Tripp, Lucianne Goldberg, Paula Jones and her official and unofficial legal team are part of a larger political plot to `get the President'.

At this point, all that occurred before this is beyond my ability to affect. My job as a United States Senator hearing an impeachment trial is not to dissect the motives or even the tactics of Ken Starr, the trial lawyers, Linda Tripp and others. My only job is to determine whether the President of the United States, by his conduct committed the acts alleged in the two Articles of Impeachment before us. Not generally, but specifically, did he do what is alleged--and if he did, do these actions rise to the level of high crimes and misdemeanors necessary to justify the most obviously anti-democratic act the Senate can engage in overturning an election.

THE ARTICLES OF IMPEACHMENT

When the Framers designed our elected branches of government, they established a system of separate but equal branches. The independence of the President from the Congress, and vice versa, is constitutionally anchored in the fact that each answers directly to the people through the ballot box. The people determine who will serve in either branch.

As I said in a speech last September at Syracuse Law School and in another on the floor of the United State Senate, the independence of the President from the Congress was no minor detail in the constitutional design. The single major goal and idea that best explains how the Framers constructed the office of the Presidency was to make the presidency as politically independent of the Congress as they could. They believed his independence vital to the protection of our liberties.

It takes a strong and independent President to sign the Emancipation Proclamation in the face of congressional opposition, as Abraham Lincoln did. It takes a strong and independent President to sign the executive order integrating the Armed Services in the face of congressional resistance, as Harry Truman did. It takes a strong and independent president to veto legislation in the face of strong majorities, as Ronald Reagan, George Bush and all of our Presidents have done.

We can, and we do, disagree about the wisdom of any particular presidential decision, but none of us can doubt that the institution of a strong and independent presidency has enhanced our freedoms and made us a stronger nation.

For us to remove a duly elected president will unavoidably harm our constitutional structure.

Accordingly, for this Senator, the starting point in my thinking about the articles of impeachment must begin with giving the President the benefit of the doubt, and to err on the side of sustaining the independence of that office so vital to the Framers and to the constitutional system they designed. Impeachment must be used against a President only as an extreme measure, when the President has so breached the public trust that our system of government is put in danger by his continuing to serve out the term to which the people of the United States elected him.

Have the House Managers presented a case of sufficient severity, and have they proved it with sufficient clarity, to justify the drastic and awesome, step of convicting a duly elected President?

On January 12, when the House Managers walked across the rotunda to the Senate and presented their case against the President, the country moved from the realm of sound bites and political attacks to a serious and sober consideration of the precise nature of the House's allegations against the President, and of the full extent of the record evidence against him.

The House Managers have told us that in their judgment two dangers to our system of government justify taking this unprecedented and awesome step.

First, they said that failing to remove the President will undermine the rule of law and the administration of justice. Permitting a serial perjurer and obstructor of justice to escape punishment will bring disgrace on the oath `to tell the truth.' It will mean that we can no longer with good conscience punish other people who have committed perjury or obstructed justice. The ultimate effects would be felt throughout the judicial system. Like a pebble dropped into a pond, they said, it will send out ripples to all corners of our judicial system.

Second, they said that failing to remove the President will also condone his plot or scheme to deny a specific civil rights plaintiff--Paula Jones--of a full opportunity to litigate her civil rights claims against the President. Regardless of the ripple effects of his actions, the acts themselves were violations of law that amounted to a failure of the President to `take care that the laws be faithfully executed,' in violation of his oath of office.

MULTIPLE VIOLATIONS OF THE CRIMINAL LAW NECESSARY

As I have said in earlier speeches on the impeachment power, not all crimes are impeachable, and an impeachable offense does not have to be a crime.

In this case, however, the House Managers have made it quite clear that their case against the President depends entirely on proving that he has committed crimes, and not just a few crimes, but an elaborate scheme that included `lots and lots of perjury' and `many obstructions of justice,' to quote Mr. McCollum. The dangers the President supposedly poses flow not from the President's reprehensible conduct, or from the fact that he misled his family, his aides, his cabinet and the nation about that conduct. This impeachment is not about sex, they have insisted.

I asked Mr. Barr about this during the trial, and he said `What brings us here . . . is the belief by the House of Representatives in lawful public vote that this President violated, in numerous respects, his oath of office and the Criminal Code of the United States of America--in particular, that he committed perjury and obstruction of justice.' Mr. McCollum made the same point in his opening presentation, when he said, `The first thing you have to determine is whether or not the president committed crimes. It's only if you determine he committed the crimes of perjury, obstruction of justice and witness tampering, that you ever move on to the question of whether he is removed from office. . . . None of us would argue to you that the president should be removed from office unless you conclude he committed the crimes that he is alleged to have committed.'

THE BURDEN OF PROOF IN ASSESSING THE HOUSE'S CASE

So the question before the Senate is whether the President is a serial perjurer and a massive obstructor of justice.

What standard of proof should a Senator apply in deciding whether the record supports the accusations contained in the articles of impeachment--the accusations that the President violated the federal criminal law? The House Managers quite correctly pointed out that the Senate has never sought to determine for the entire body what the burden of proof should be in an impeachment. In effect, we have left it to the good judgment of each Senator to decide whether or not they are convinced by the evidence presented to us.

For this Senator, fundamental fairness as well as the nature of the House's case dictate that I ought to be convinced beyond a reasonable doubt that the President violated the laws that the House alleges. Proof beyond a reasonable doubt is the same standard applied in criminal cases--it is the standard that would apply if the President were tried in a criminal court for perjury or obstruction of justice.

It seems to me that fundamental fairness counsels that I apply the same standard as a criminal court precisely because the House asserts that what makes his actions impeachable is that he has violated federal criminal statutes regarding perjury and obstruction of justice. It strikes me as absurd that the Senate would have the arrogance to throw out a duly elected President on these grounds unless it was convinced that he would be convicted of those charges. Otherwise, we would be saying in effect that even though the President would not be convicted on these crimes, we are nevertheless throwing him out of office because he committed those crimes. That would clearly be giving the President less protection than we provide any other citizen when charged with a crime.

Someone else can try to explain the logic of that decision, but not me.

In addition, the standard of proof beyond a reasonable doubt seems to me compelled by the fact that in the House's explanation of the harm to our system of government if the President is not thrown out, their entire explanation rises and falls depending upon whether or not the President would be convicted in a court of law for the crimes alleged. If he could not be convicted in a court of law, then the Senate is not `condoning' perjury or obstruction of justice any more than a criminal court is condoning those crimes when someone is acquitted on such charges. But if the Senate is not condoning those crimes, there is no conceivable basis for concluding that the public will be harmed by the President's remaining in office.

Furthermore, in applying the standard of proof beyond a reasonable doubt, the Senate simply must pay attention to the precise legal definitions of the crimes. What the pundits have condemned as legal hair splitting, and what the public rightly condemns in the president's penchant for evasive answers when responding to questions in a public setting, must now necessarily occupy our attention with regard to the President's answers under oath, such as a deposition or a grand jury proceeding because the claim made by the House is that the President violated specific criminal laws. If your aim is to respect the rule of law, you must also respect the rules of law--the precise legal definitions of the crimes, as found in 18 U.S.C. 1623, the federal perjury statute, and in 18 U.S.C. 1503 and 1512, the applicable federal obstruction of justice statutes.

I have now studied the record sent to us by the House, listened to the presentations and arguments of the House Managers and the President's counsel, reviewed the videotape testimony of Monica Lewinsky, Vernon Jordan and Sidney Blumenthal, and listened to the views of my colleagues.

On that basis, I have reached the conclusion that the House has not presented evidence that could persuade a criminal jury beyond a reasonable doubt that the President has violated the applicable federal criminal statutes. There are too many holes, too many conclusions reached only by drawing negative inferences against the President, and too much evidence that apparently contradicts or is inconsistent with the House's case.

Now, let me be frank with you. I do not know for sure what actually occurred. Notwithstanding that, I am forced to make a judgment. In order to preserve the constitutional separation of powers, the independence of the presidency and the sovereignty of democratic elections, the President deserves the benefit of the doubt. This record falls well short of the certainty required to remove a President from office.

THE CONSTITUTIONAL BALANCE THE SENATE MUST STRIKE

While I believe that I must apply a standard of proof beyond a reasonable doubt because of the nature of the charges that the House has brought to us, it is also quite true--and I have said as much on prior occasions--that the Senate does not sit as a court of law when it tries an impeachment. As Alexander Hamilton stated in Federalist 65, impeachment is a political process.

`Political' in Hamilton's usage had two meanings as it relates to impeachments. The first I have mentioned already, and I have spoken about in this chamber before: impeachable offenses are offenses against the body politic. In the words of James Wilson, `in the United States . . . impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.'

The Senate's judgment in an impeachment trial is ultimately political in a second sense, too. It is political in the sense that the Senate has the responsibility to weigh the all the consequences to the body politic in making its decision--the consequences that might flow from removing the President as well as the consequences that might flow from failing to remove him.

That is what I mean, and what Hamilton meant, by the ultimate judgment being a political one. As Senator Bumpers reminded us, the consequences of the decision we make will live on long after Bill Clinton has left office and long after each of us has left office. We must hand our constitutional structure on to our children and to future generations with its foundation as solid as it was when it was handed to us. It is our responsibility as Senators to make a judgment as to how best to accomplish that objective.

The obligation to evaluate the competing costs of retention and removal, incidentally, is what clearly distinguishes judicial impeachments and presidential impeachments--very different institutional and long term consequences weigh in the balance in these two cases.

Removing the President from office without compelling evidence would be historically anti-democratic. Never in our history has the Senate overturned the results of an election and removed a President from office. History could not more plainly demonstrate what a dramatic step removing an elected President would be. The founding of our republic was the most dramatic assertion of the sovereignty of the people that the world had ever known. Abraham Lincoln dedicated the battlefield at Gettysburg to this proposition recalling that our union stands for `government of the people, for the people, and by the people.'

The sovereignty of the people is exercised through national elections. All citizens, but particularly those of us who have had the honor to stand for election, have an instinctive respect for the will of the people as expressed through national elections. Thomas Jefferson, in his first inaugural address, aptly called this democratic instinct a `sacred principle.' Reversing the people's sovereign decision would be in radical conflict with the principle on which our nation is founded as understood and applied throughout our history.

For one branch to remove the head of a co-equal branch unavoidably harms our constitutional structure. The framers intentionally chose not to create a parliamentary system of government. They meant for the President and Congress to be independent of and co-equal with one another. Maintaining each of those branches as strong and independent is fundamental to the Constitution's very structure--a structure they designed to safeguard the liberty of the governed against abuses of power by those who govern.

It is true that impeachment is part of this structure. Removing a president from office for sufficient reasons and upon sufficient proof is therefore consistent with that structure. At the same time, the great dangers inherent in the too ready exercise of that power mean that impeachment should be seen as an extreme measure.

The framers were accomplished, practical statesmen. They recognized that impeachment could be misapplied to undermine the primary structural guarantee of liberty--the separation of powers. They worried that Congress would be tempted to use the impeachment power to make the President `less equal.' As Charles Pinckney warned his colleagues at the Philadelphia Convention, Congress could hold impeachment `as a rod over the Executive and by that means effectively destroy his independence.'

How are we to keep the impeachment power within its constitutional boundaries, so that it stands ready to be used appropriately but does not become a `rod' in the hands of a partisan Congress, threatening the independence of the Presidency, as Charles Pinckney worried during the Constitutional convention?

The solution to this problem must lie in approaching the Senate's ultimate decision from as much of a position of bipartisanship as we can possibly achieve. This is the only way in which we can possibly focus primarily on the institutional consequences of our actions to see them in terms of their long term consequences instead of their short term partisan ones.

Nonpartisan faithfulness to the Constitution's structure, which protects the liberty of the governed must determine our action today.

This was my view of our role in 1974, when I rose on the floor of the United States Senate and made a `plea . . . for restraint on the part of all parties involved in the affair.' That was in the case of the possible impeachment of Richard Nixon. And it was my view last year, when I urged restraint and bipartisanship as the attitude I hoped my colleagues would adopt. And it remains my view.

Viewed from that perspective, it is hard for me to see how the harms flowing from keeping Bill Clinton in office outweigh the harms to our constitutional democracy that would result from removing him.

HARMFUL CONSEQUENCES RECONSIDERED

I have listened attentively to the House Managers' case. In all honesty, I can sympathize with their sense of outrage at the President's actions and his unwillingness to be fully accountable for those actions for so many months. Notwithstanding that, from the vantage point of a restrained view, and as nonpartisan a view as I can muster, the dangers they see from keeping President Clinton in office seem less dire than they claim. At the same time the harms to our system of government from removing him seem to me to be quite serious.

The House Managers warn that failure to remove the President would destroy or undermine the sound administration of justice and threaten the rule of law. If true, that would be a big deal.

But we need to step back a moment and cool down the rhetoric. Manager Graham suggested as much when he reminded us all of the resiliency of the American system of government. `So when we talk about the consequences of this case,' he said, `no matter what you decide, in my opinion, this country will survive. If you acquit the President, we will survive. If you convict him, it will be traumatic, and if you remove him, it will be traumatic, but we will survive.'

That same calmer judgment ought to apply to the administration of justice and the rule of law. The House Managers presented no evidence whatsoever of the dire consequences they predict. And there is no evidence of such dire consequences that they could present--because their evaluation of the consequences is nothing but speculation.

I would submit to you that the consequences of failing to remove the President will most likely be very different from those described by the House. This is one pebble whose ripples will in all likelihood simply wash up harmlessly on the shores and be forgotten forever. I, frankly, do not see how failing to remove the President will alter the conduct of the next prosecutor having to decide whether to bring a perjury indictment, nor do I think that juries will be persuaded by a lawyer's argument that because the President `got away with it' the jury should acquit his client. The fact of the matter is, lots of perjury trials result in acquittals without impacting the ability of the criminal justice system to bring such charges where appropriate.

The House Managers' cry of alarm ignores the fact that we are in an impeachment trial. This is not a criminal proceeding and thus the manner in which the Senate deals with the question has no implications at all for how a court of law would deal with it.

The Constitution is very clear about this. In Article I, 3, cl. 7, the Constitution provides that whether or not a person is removed from office through impeachment that party `shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.' If the evidence is as overwhelming as the Managers say, the President can be prosecuted for perjury and obstruction after he leaves office.

The American people have a very robust understanding that impeachment is a political process--and a particularly clear understanding that this impeachment has been thoroughly politicized until it got to the Senate--I don't think anyone is confusing it with a legal process. No one, therefore, will take any solace from the President's acquittal in terms of their ability to commit perjury or obstruct justice and thereby avoid criminal charges.

Now don't misunderstand me--I am not suggesting that letting a guilty person off from a crime he or she has committed is OK. I am saying, first, that the President has not been charged with a crime in a criminal court, so that failing to acquit him is not at all letting him off from a crime, and second, that our decision will not have the kind of `sky is falling' consequences described by the House in any event. In my judgment, the rule of law and the sound administration of justice in this country will be unaffected by the action we take in the Senate, one way or the other.

The House Managers have also warned that failing to remove the President will also condone his plot or scheme to deny a specific civil rights plaintiff--Paula Jones--her day in court, by withholding from her, through acts of perjury and obstruction, full information about the `nature and details' of his relationship with Monica Lewinsky. Just how accurate and complete a description is this one? In order to answer that question, we need a fuller picture of the `nature and details' of the Jones litigation itself.

If you listened just to the House Managers, you would think that the Jones lawsuit was just a run-of-the-mine typical sexual harassment civil rights case.

It was not. From the very beginning, that lawsuit had been politically motivated. All the facts we know about this case, even taking Paula Jones at her word that the incident in the Excelsior Hotel actually occurred, demonstrate that the lawsuit was also without merit. She had never been harmed in any way in her job, and the President had never repeated anything remotely resembling an unwanted sexual advance on her again. She had received merit pay raises in her state employment and she had received good job performance reviews. She was unable to prove that she had been damaged in any way by the President's actions.

Actually, what damages she did assert--what caused her to file the lawsuit, according to her testimony--was the result of the publication of a hatchet-job article against President Clinton run in the American Spectator. The article was one salvo in an on going right wing probe into Clinton's life in Arkansas, aimed simply at digging up anything that could be politically damaging to the President. When the American Spectator ran a story making an unflattering reference to a `Paula,' Jones found a lawyer to file suit in order to `reclaim her good name.'

The lawyers Paula Jones eventually found were also underwritten by right wing conservative Republican money. In fact, investigative reporters as recently as this past Sunday continue to reveal more and more details of the tightly knit web of conservative lawyers and conservative financial backers who have hounded this President relentlessly since the day he took the office.

Now the President knew that the lawsuit was without merit--he might have behaved obnoxiously with Paula Jones, but he did not commit sexual harassment. He also knew that the real motivation of the lawsuit, the motivation that funded it and kept it going, was a political assault on him, not a legal assault. The law suit and its powers of discovery were being used to engage in a fishing expedition throughout Arkansas in search of political dirt. Leaks from that discovery appeared regularly in the Washington press.

The President knew something else, as well. He knew that his illicit relationship with Monica Lewinsky had nothing to do with the merits of the Jones litigation. On this matter, you do not have to rely on the President's assessment or mine, because the court independently concluded the same thing. In the order denying the plaintiff's discovery into the Lewinsky facts, Judge Wright said that the Lewinsky facts, even if the allegations concerning them were true, had nothing to do with the essential or core elements of Paula Jones lawsuit.

So keeping Lewinsky out of the politically motivated Jones case did not jeopardize Paula Jones' chances of prevailing, which were non-existent in any event. What it did do was to prevent the president's political enemies from using the Jones discovery procedures to pry open that secret relationship and expose it, all to the political damage of the President.

In this context, it is understandable that the President wanted to frustrate the Jones litigation. What is more, the President can hardly be said to have prevented Paula Jones from presenting a case, because there was no meritorious case to present.

That doesn't justify perjury or obstruction, of course, but it does provide an accurate context for appraising the House Managers' second claim. If they are permitted to convert a meritless and politically motivated lawsuit into a presidential conviction for impeachable offenses, the Senate will be rewarding behavior that we ought to condemn. We need to think more than once about rewarding this kind of political witch hunt.

All of what I have just said informs this Senator's judgment concerning the harms to the country that would be caused by failing to convict a President who had committed the acts alleged by the House.

In fact, if the rule of law and the fair administration of justice will not be destroyed--contrary to the House Managers' assertions--and if the American people understand that the President's actions were in the context of a politically-motivated lawsuit and involved concealing an embarrassing improper relationship that was irrelevant to that lawsuit--then it is very hard for this Senator to see how the President's continuing in office poses the sort of grave danger to our system of government that the Framers had in mind when they gave the Congress the awesome power to impeach and remove an elected President.

In weighing the competing consequences of removal and retention in office, we must honor the constitutional obligation we undertook when we swore to do `impartial justice.'

To that end, I think we all could benefit from the wisdom on several participants in the impeachment of Andrew Johnson, 131 years ago.

Two of them--Chief Justice Salmon Chase and Congressman James G. Blaine--both of whom historians record as being highly critical of Johnson and initially favoring his removal--were nevertheless able to step back from the partisanship of that moment and weigh the competing harms in the way I have suggested is proper.

Chief Justice Salmon Chase, who himself had political presidential ambitions, wrote to a friend on the day the trial ended, saying, `What possible harm can result in the country from continuance of Andrew Johnson months longer in the presidential chair, compared with that which must arise if impeachment becomes a mere mode of getting rid of an obnoxious President?'

And years later, James G. Blaine, who had voted for impeachment in the House, said, `The sober reflection of after years has persuaded many who favored Impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions that Andrew Johnson in his utmost endeavor was able to inflict.'

And in our contemporary situation, former President Ford and our distinguished colleague and former majority leader, Robert Dole, have both urged us not to go down the road to impeachment, but to seek other means to express our displeasure.

We ought to follow these lessons, and to be attentive to the damage that removing a duly elected President on these charges will inflict on our system of government.

A decision to remove Bill Clinton will not destroy our system of government. But it will stand as a precedent--the very first time the United States Senate has removed any president from office. If we vote to convict and remove the President after a highly partisan impeachment for conduct that appears to be private and non-official, we will create an opportunity for impeachments to become a tool of partisan politics by other means.

CONCLUSION

Engaging in the balance that the Constitution requires, I cannot vote to convict the President. The evidence of proof beyond a reasonable doubt that the President violated federal criminal statutes has not been presented. Even were the evidence stronger, the Constitution demands that we weigh the competing considerations in a nonpartisan manner.

The President deserves our condemnation. He has brought shame to himself.

But we have not reached this point due to his failings alone. It has taken the volatile combination of his blameworthiness and the unalloyed animosity of others toward him that have brought us to the brink of a profound constitutional moment.

Given the essentially anti-democratic nature of impeachment and the great dangers inherent in the too ready exercise of that power, impeachment has no place in our system of constitutional democracy except as an extreme measure--reserved for breaches of the public trust by a President who so violates his official duties, misuses his official powers or places our system of government at such risk that our constitutional government is put in immediate danger by his continuing to serve out the term to which the people of the United States elected him.

I urge my colleagues to remain faithful to the constitutional design and to our obligation to do impartial justice.

Below are significant issues of constitutional law, positive law, or Senate procedure that have arisen during the impeachment trial of President Clinton. As the impeachment process moved forward in the House to the point where its arriving in the Senate appeared likely, I began an intensive study of the Constitution, the Framers' understanding, and our historical constitutional practices in the Senate to prepare for a possible impeachment trial, which I continued once the Senate assumed jurisdiction over the matter. Over the past several months, I have shared some of my conclusions with my colleagues and the public in speeches and memoranda, portions of which are below. (Bracketed comments are additions to the original text, inserted to assist in comprehension.)

BIPARTISANSHIP

Mr. President, during the past twenty-six years as a United States Senator, I have been confronted with some of the most significant issues facing our nation. Issues ranging from who sits on the highest court in the land to whether we should go to war. These are weighty issues. But none of these decisions has been more awesome, more daunting, more compelling, than the issue confronting us at the present time.

The issue of whether to impeach a sitting President is a monumental responsibility. A responsibility that no Senator will take lightly.

And as imposing as this undertaking is, I am sad to say that I have had to contemplate this issue twice during my service in the Senate; once during President Nixon's term and now.

And while the circumstances surrounding these two events are starkly different, the consequences are starkly the same. The gravity of removing a sitting President from office is the same today as it was twenty-five years ago. Listen to what I said on the floor of the United States Senate on April 10, 1974 during the Watergate crisis:

`In the case of an impeachment trial, the emotions of the American people would be strummed, as a guitar, with every newscast and each edition of the daily paper in communities throughout the country. The incessant demand for news or rumors of news--whatever its basis of legitimacy--would be overwhelming. The consequential impact on the federal institutions of government would be intense--and not necessarily beneficial. This is why my plea today is for restraint on the part of all parties involved in the affair.'

I could have said these same words today. It is uncanny how much things stay the same.

Furthermore, in 1974 I urged my colleagues in the United States Senate to learn from the story of Alice in Wonderland. Then I cautioned that we remember Alice's plight when the Queen declared `sentence first, verdict afterwards.'

But the need for restraint is even greater today than it was in 1974. In 1974, the impeachment question was not as politically charged as it is today. In 1974 we were willing to hear all the evidence before making a decision. Today, I hope, for our nation's sake, that we do not follow the Queen's directive in Alice in Wonderland and that we will make a wise judgment after deliberate consideration.

My legal training combined with more than a quarter century of experience in the United States Senate has taught me several important lessons. Two of these lessons are appropriate now.

First, an ordered society must first care about justice.

Second, all that is constitutionally permissible may not be just or wise.

And it is with these two very important lessons guiding me, that I embark upon a very important decision regarding our country, our Constitution, and our President.

The power to overturn and undo a popular election of the people, for the first time in our nation's history, must be exercised with great care and sober deliberation.

We should not forget that 47.4 million Americans voted for our President in 1996, 8.2 million more than voted for the President's opponent: [Speech, 10/2/98]

* * * * *

Let me now stand back from the issues of substance and procedure, and look at the impeachment mechanism as it has actually functioned in our country's history. The proof of the framers' design, after all, will be in how the mechanism has worked in practice.

As we have seen, the framers worried that impeaching a sitting president would most likely be highly charged with partisan politics and pre-existing factions, enlisting all the `animosities, partialities, and influence and interest' that inevitably swirl around a sitting president. History shows that they had a right to be worried.

Prior to the case of President Nixon, presidential impeachment had only been used for partisan reasons.

History tells us that John Tyler was an enormously unpopular president, facing a hostile Congress dominated by his arch political enemy, Henry Clay. After several years of continual clashes, numerous presidential vetoes and divisive conflicts with the senate over appointments, a select committee of the House issued a report recommending a formal impeachment inquiry.

President Tyler reached out to his political enemies: he signed an important bill raising tariffs which he had formerly opposed--and he found other means of cooperating with the Congress. In the end, even Henry Clay, speaking from the Senate, urged a slowdown in the impeachment proceedings, suggesting instead the lesser action of a `want of confidence' vote rather than formal impeachment proceedings. In early 1843, the resolution to proceed with an impeachment inquiry was defeated on the House floor, 127 to 83.

In 1868, Andrew Johnson came much closer to conviction on charges of serious misconduct. Although Johnson's impeachment proceedings ostensibly focused on his disregarding the tenure in office act, historians uniformly agree that the true sources of opposition to president Johnson were policy disagreements and personal animosity. [Text note: The conflict this time was between Johnson's moderate post Civil War policies toward the Southern states and the overwhelming Radical Republican majorities in both chambers. One especially volatile division was over whether Southern Senators and Representatives ought to be admitted to Congress prior to the enactment of Constitutional amendments expressly denying the right of state succession. The Republicans feared dilution of their voting strength if the southerners were seated, especially since on effect of President Lincoln's Emancipation Proclamation would be to increase House representation for the Southern states, by virtue of the fact that each freed slave would count as a whole person, instead of the abandoned constitutional formula of three-fifths.

The Tenure in Office Act had been enacted over his veto to restrict his ability to remove the Secretary of War --who was allied with the Radical Republicans--from that office without the Senate's consent. Johnson fired Edwin M. Stanton anyway, claiming that the restriction on his removal authority was unconstitutional.]

The conflict this time was between Johnson's moderate post-Civil War policies toward the southern states and the overwhelming Republican majorities in both chambers. The Republicans feared dilution of their voting strength if the southerners were seated.

Johnson's defenders in the Senate were eventually able to hold on to barely enough votes to prevent his conviction. In professor Raoul Berger's view, `Johnson's trial serves as a frightening reminder that in the hands of a passion-driven congress, the process may bring down the very pillars of our constitutional system.'

Yet, if the cases of Tyler and Johnson substantiate the framers' fears, the Nixon situation vindicates the utility of the impeachment procedures. Notice how different the Nixon proceedings were from Tyler's and Johnson's. As the Nixon impeachment process unfolded, there was broad bipartisan consensus each step of the way.

While it would be foolish to believe that Members of Congress did not worry about the partisan political repercussions of their actions, such factional considerations did not dominate decision making.

Political friends and foes of the president agreed that the charges against the president were serious, that they warranted further inquiry and, once there was definitive evidence of serious complicity and wrongdoing, a consensus emerged that impeachment should be invoked. The president resigned after the House Judiciary Committee voted out articles of impeachment by a 28-10 vote.

For me, several lessons stand out from our constitutional understanding of the impeachment process and our historical experience with it. Furthermore, I believe that a consensus has developed on several important points.

While the founders included impeachment powers in the Constitution, they were concerned by the potential partisan abuse. We should be no less aware of the dangers of partisanship. As we have seen, the process functions best when there is a broad bipartisan consensus behind moving ahead. The country is not well served when either policy disagreements or personal animosities drive the process.

Many scholars who have studied the Constitution have concluded that it should be reserved for offenses that are abuses of the public trust or abuses that relate to the public nature of the President's duties. Remember, what is impeachable is not necessarily criminal and what is criminal is not necessarily impeachable: [Speech, 10/2/98]

* * * * *

I am here today to call for bipartisanship in the impeachment process. It is a concept many will say they agree with. But actions speak louder than words.

The framers of the Constitution knew that the greatest danger associated with impeachment was the presence of partisan factions that could dictate the outcome.

It is clear from the debates and from the commentaries on the Constitutional Convention that the framers were concerned that anything less than bipartisanship could, and would, do great damage to our form of government. They knew that to contemplate an action as profound as undoing a popular election requires at a
minimum that members of both parties find that the alleged wrong is grave enough to overturn the will of the majority of the American people.

The framers also understood the sentiment expressed nearly 200 years later by Congresswoman Barbara Jordan during the impeachment proceedings of Richard Nixon.

She said, `it is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.'

But the current debate is guided by faction, not reason. One example: The House Judiciary Committee this month heard a battery of witnesses address the question of what is an impeachable offense. Democrats called legal experts who testified that the President's acts are not impeachable offenses, and Republicans called witnesses who were just as certain they were. By the end of the hearing, anyone listening would have the overwhelming impression that there was no consensus in the legal community on the issue, that it was an open question.

Yet the vast majority of historians and legal scholars have concluded--and stated publicly--that nothing that President Clinton has been accused of rises to the level of an impeachable offense. The hearing was a political charade. We are told that ultimately, this is a political process. Ultimately, it is. The question is whether it is going to be a fair process. I argue that it can, and must be fair.

In his marvelous book on the impeachment process, published while the country was in the throes of President Nixon's Watergate troubles, Professor Charles Black alerted us to the danger of partisanship.

Because the constitution and its history provide us with more questions about impeachment than answers, he said, `it is always tempting to resolve such questions in favor of the immediate political result that is palatable to us, for one can never definitely be proved wrong, and so one is free to allow one's prejudices to assume the guise of reason.'

Black was echoing Alexander Hamilton, who warned in Federalist 65 that impeachments:

`will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on the one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of guilt or innocence.'

I don't think I am being partisan myself in warning about the risks of partisan excess. As a 32 year-old Senator, I expressed this same concern about the fate of a Republican President. On April 10, 1974, I rose on the floor of the United States Senate and said:

`In the case of an impeachment trial, the emotions of the American people would be strummed, as a guitar, with every newscast and each edition of the daily paper in communities throughout the country.

The incessant demand for news or rumors of news--whatever its basis of legitimacy--would be overwhelming. The consequential impact on the federal institutions of government would be intense--and not necessarily beneficial. This is why my plea today is for restraint on the part of all parties involved in the affair.'

I make the same plea for restraint today. And while the circumstances surrounding these two events are starkly different, the consequences for our Nation are the same. The gravity of removing a sitting president from office is the same today as it was twenty-four years ago.

The American people understand that the consequences of impeaching a sitting President are grave and, thus far, they have shown a remarkable restraint--more than some of the pundits and experts. But I believe they have reached two clear conclusions: Congress should resolve the matter expeditiously and resolve the matter in a fair and non-partisan manner.

These conclusions have great significance to the impeachment process. I believe the American people will ultimately make their judgment about the proceedings and the outcome based in part, on whether the House Judiciary Committee votes along strict party lines and whether the House of Representatives acts in a similar manner.

That may not be fair, but I believe that is how they will judge it. Therefore, it seems clear to me that for history's sake, and with the Committee's legacy in mind, Chairman Hyde and the Republican majority in the House must bend over backwards to demonstrate that they have conducted this proceeding based on principle, not politics.

There is yet another issue where public opinion comes into play. That is the question of whether the President's transgressions warrant impeachment. We know from survey after survey that the American people believe the President's actions do not justify impeaching him.

Should that have any bearing on the outcome? Many of my colleagues say they will ignore public opinion. In most cases, this is a sound position for a member of Congress to take. When we are elected to the House and the Senate, we are sent here to exercise judgment, not simply to be weathervanes that shift with the political winds. The fact that this is an impeachment proceeding doesn't change that--it makes it even more important that we exercise our best judgment.

But I believe it is a serious mistake to take the position that public opinion should have no bearing on how we act and what we do. Let me explain. Many people--and many legal scholars--have said that impeachment should be reserved for grave breaches of the public trust. Surely, if we are trying to decide whether an offense is a breach of the public trust, it is important to know what the public thinks. If the American people think the President's actions do not warrant impeachment, we should listen to their views, and take them seriously.

It would be a serious mistake to ignore public opinion for another, more fundamental reason. This is their President we are talking about. The President of the United States doesn't serve at the pleasure of the legislature, as a prime minister does in a parliamentary system. He is elected directly by the people of the United States.

The election of a President is the only nationwide vote that the American people ever cast. That is a big deal. If the American people don't think they have made a mistake in electing Bill Clinton, we in the Congress had better be very careful before we upset their decision.

This was brought home to me several weeks before the elections at a filling station in Wilmington. The woman working the cash register looked up at me with something of a scowl on her face. I assumed--incorrectly, it turned out--that she had voted against me the last time I ran. She said, `You're Joe Biden, aren't you?' I nodded. She said, `What are you going to do to President Clinton on this Lewinsky thing?' I started to give her a noncommital answer about the process needing to go forward, but she brought me up short. `Don't you or anyone else take my vote away, Joe. He's my President! If you remove him, I will never vote again.'

This woman--and the American people--understand the genius of the American system in their bones. They know that the Congress and the President are separate branches of government. They understand that each branch is responsible to them, not to the other branch of government. Just as they know that the Senators from their state are theirs, and the Representative from their district is theirs, they know that the President is theirs, too.

Anyone who wants to impeach Bill Clinton needs to keep in mind what the American people think about it, because he is their President.

Let me be absolutely clear. This does not mean just doing what the opinion polls say. It means proceeding in a manner that the American people understand to be fair. In the case of an impeachment, fair means bipartisan. It means putting aside the disagreements that stem from partisan factions. The time for partisan factions to play a role is in the process of elections, where candidates advance competing policies and platforms and the people vote. Once the election is held, our leaders hold office until the next election. It is simply antithetical to our constitutional democracy to use impeachment to overturn an election on partisan grounds. It violates the independence of the Presidency and it usurps the people's voice.

The Framers saw this danger when they wrote the impeachment power into the Constitution. Hamilton warned that an impeachment would `connect itself with pre-existing factions,' just as Black much later saw that impeachment was an occasion for `prejudices to assume the guise of reason.'

So those who wish to proceed with impeachment in the face of the public's contrary opinion bear a special obligation and confront a special risk. The obligation they face is that they must proceed in a bipartisan manner, so that we can defend the Congress's actions as fair and consistent with the constitutional framework--so that if impeachment goes forward, those who support it can look my constituent, or their constituent, straight in the eyes and defend the process as fair and just.

Should they fail to do this, the risk they face is the chance that they will inflict more damage on our system of government and induce more cynicism and disgust with politics than anything the President has done so far.

So we must be prudent. Otherwise we will succumb to the danger the Framers warned against. We will subject the President to what amounts to a vote of no confidence. If you disapprove of his presidency and its policies, or if you do not like the man, vote to impeach. If, on the other hand, you support his presidency and his policies, or if you do like the man, vote to acquit. But that is not our system of government.

When Benjamin Netanyahu returned home after signing the Wye accords, he faced a vote of no confidence. If he had lost, he would have been out of office and another government would have to be formed.

That is simply not our system of government. Ours is not a parliamentary system. That is not how impeachment is supposed to operate.

Reflect for just a moment on how different our government is. Here, the President and the Congress are separate branches of government. Each is elected directly by the people. The President and Vice President are the only officials elected by ALL the people. Through the electoral process, they answer to all the people. In such a system, a vote of no confidence, as a means of removing the head of government when the Congress disapproves of his leadership, contradicts the theory of separated powers. It would trample on the choice made by the people through the electoral process.

This is no small matter. It goes to the heart of the constitutional design. As Jack Rakove, the Stanford historian, noted during the recently held House hearings on the standard for impeachment, the prevailing principle that guided the Framers in shaping the institution of the Presidency during the Philadelphia Convention, the one major goal and idea that best explains how that office took shape over the summer of 1787, was their intention on `making the presidency as politically independent of the Congress as they could.'

The Framers saw the system of separated powers and checks and balances as a bulwark in support of individual liberty and against government tyranny. The separation of powers prevents government power from being concentrated in any single branch of government. Permit one branch of government to subjugate another to its partisan wishes, and you permit the kind of concentration of power that can lead to tyranny.

So the system the Framers established is utterly incompatible with the idea that sharp partisan divisions could be sufficient to impeach. Preserving our system, with its checks and balances and separation of powers, ought to be part of our consideration as we attempt to resolve the current controversy.

How do we ensure that impeachments do not become the partisan showdowns that the Framer's warned about? The answer is both simple and elusive. The only thing that prevents the impeachment power from being abused is the good faith of Members of Congress.

Professor Black proposed a simple test. He said that for the purposes of impeachment, members take off their party's hat--shed their partisan identity--and then try to take on the identity of a member of the other party. In other words, Republicans who favor Clinton's impeachment should try to pretend they are Democrats, and see if they still hold that same conclusion. Democrats who scoff at impeachment in the present instance should try to see it from the Republican's point of view.

It is very difficult to perform this test, especially in the highly charged partisan atmosphere in which we live, but you get the point. Before we undertake such a solemn act as impeachment, we should examine our reasoning very carefully to be sure we are not simply following partisan instincts.

Impeachment can be legitimate if and only if it emanates from a bipartisan
conviction that the president has committed high crimes and misdemeanors--when people of opposing viewpoints can come together in agreement over the seriousness of the offense and the appropriateness of the sanction.

Partisanship need not disappear entirely--that would be impossible. It simply must be held in check for a time--a few weeks, perhaps a month--and by a relatively small number of people, so that a bipartisan consensus can take shape.

Look back at the Nixon impeachment. It took on legitimacy when a core of Republicans on the House Judiciary Committee were moved by the nature of President Nixon's offenses to break party ranks and vote for articles of impeachment. In the Senate, it was the stark reality of eroding Republican support that prompted President Nixon to resign. There was bipartisan consensus that what Nixon did was impeachable.

Partisanship did not evaporate entirely during the impeachment trial of Andrew Johnson. In fact, the entire episode was riddled with partisanship, and overall it stands as an excellent example of how not to conduct an impeachment.

Still, seven Republican Senators did vote with the Democrats for acquittal, shedding their partisan preferences, to prevent that impeachment from succeeding. It took only that amount of bipartisanship to save the country from an impeachment that most people--in retrospect--have concluded would have been a terrible mistake. The fact that a conviction in the Senate requires a two-thirds majority guarantees a measure of necessary bipartisanship except in all but the most lopsided Senates.

But bipartisanship should not wait until the matter reaches the Senate chamber. In previous impeachments the votes in both the House and the Senate have been by overwhelming majorities. In the past, except for the Johnson impeachment, the only times articles of impeachment reached the floor were in cases of tremendous bipartisan consensus that the offenses satisfy the constitutional standard and that the officer ought to be removed.

As for the Johnson impeachment itself, according to James Blaine, one of the Republican House members who voted for impeachment, he and others came in time to regret the effort. In private correspondence, Blaine wrote that, `the sober reflection of after years has persuaded many who favored impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict.'

The conclusion I reach is this. The burden is, as it always has been, on those who seek to impeach and convict a President. To overturn a popular election, they must convince the American people and at least some in the President's party that the President's actions meet the high standard for impeachment settled upon by our founders in the Constitution.

This is what I mean by bipartisanship.

The standard is `principled political neutrality.'

And one measure of whether a member has met that principle is to ask in Professor Black's words: `Would they have answered the same question the same way if it came up with respect to a president towards whom [they] felt oppositely from the way [they] feel toward the President threatened with removal.'

The American people will know whether each member met that test. They will not demand unanimity, but they will demand consensus.

Thus far, the House Judiciary Committee has proceeded without dignity, causing the American people to lose respect for the Committee.

As a result, the burden of demonstrating that they are proceeding with a standard of `principled political neutrality' will be politically difficult to meet.

Ken Starr will make his case, the President should be allowed to make his. Then let them decide if the President's conduct meets the test of what the framers had in mind by `high crimes and misdemeanors.'

The choice is not whether the President's self-evidently shameful and possibly criminal conduct must be punished by impeachment or be condoned. The choice is whether the process for dealing with his conduct is removal from office or some other means--censure, or perhaps even a criminal trial after he has left office.

To those who say that failure to bring articles of impeachment against the President would amount to condoning his immoral behavior or overlooking a criminal act, notwithstanding the fact it does not meet the test of an impeachable offense, I say they do not understand our system of government. For the Constitution contemplates and the law provides for such a circumstance--it is called a criminal trial after his term is served. It is a way to punish the President without doing damage to the system of separated powers or overruling the judgment of the American people.

Failure to impeach, even failure to proceed with a criminal action, does not mean that the President has not paid for his immoral behavior--he has already been sentenced to a hundred years of shame in the history books, which is not an insignificant penalty.

So I say to my colleagues in the House, do your duty. Proceed with principled political neutrality. For if you do, history will judge you kindly. And if you do not, it will judge you harshly.

And for those of us who hold high public office and the public trust, history is a judge: [Speech, 11/18/98]

BURDEN OF PROOF

What is the standard of proof? The Constitution does not set forth an express standard of proof that the evidence must meet in order to allow the Senate to convict the president. Practice has left to each Senator to determine for him or herself what standard to apply.

From the judicial setting there are three major standards from which to choose. Most civil trials require a plaintiff to prove his or her case by a preponderance of the evidence. This means that the plaintiff must prove that it is more likely than not that the plaintiff's assertions are true. Criminal trials require the most exacting degree of proof. The prosecution must prove the defendant's guilt beyond a reasonable doubt. A third, middle course is applied in some cases. This standard, clear and convincing evidence, requires proof that substantially exceeds a mere preponderance but that does not eliminate all reasonable doubt. There must be a very high degree of probability that the evidence proves what the plaintiff asserts, but the proof may fall short of certainty.

Many Senators, analogizing to a criminal trial, have expressed that they would require the House Managers to prove their case `beyond a reasonable doubt.' In anticipation of an impeachment trial of President Richard Nixon, Senators Sam Ervin, Strom Thurmond, and John Stennis all declared that they would apply the beyond a reasonable doubt standard. But it is clear that individual Senators may opt for a civil standard.

This issue may not have more than rhetorical significance for the impeachment trial of President Clinton. These standards are meant to guide juries in their fact-finding capacity. Insofar as the trial focuses on the question whether the President's conduct justifies conviction and removal from office, the proceedings will call on the Senate in its judicial character. Resolving that question requires the Senate to exercise its legal and political judgment in order to determine whether the constitutional punishment fits the misconduct. It does not call upon the Senate to make a factual determination about what conduct actually occurred: [Memorandum, 12/28/98]

* * * * *

THE BURDEN OF PROOF IN ASSESSING THE HOUSE'S CASE

But can the President rightly be charged with having committed the massive number of crimes that the House Managers allege? As Mr. McCollum said, if we cannot conclude that the President has violated the law, even the House Managers would agree that he should not be removed from office. Even if you accept their recitation of the dire consequences of President Clinton remaining in office, if the President cannot be shown to have been a serial perjurer and a massive obstructor of justice, the Senate should acquit.

What standard of proof should a Senator apply in deciding whether the record supports these charges? Both the House Managers and the President's counsel addressed this significant issue. The House Managers quite correctly pointed out that the Senate has never sought to determine for the entire body what that burden of proof should be in an impeachment. In effect, we have left it to the good judgment of each Senator to decide whether or not they are convinced by the evidence presented to us.

For this Senator, fundamental fairness as well as the nature of the House's case indicate that I ought to be convinced beyond a reasonable doubt that the President violated the laws that the House alleges. Proof beyond a reasonable doubt is the same standard applied in criminal cases--it is the standard that would apply if the President were tried in a criminal court for perjury or obstruction of justice.

It seems to me that fundamental fairness counsels that I apply the same standard a criminal court would apply precisely because the House asserts that what makes his actions impeachable is that he has violated the criminal statutes regarding perjury and obstruction of justice. It strikes me as absurd that the Senate would have the arrogance to throw out a duly elected President on these grounds unless it was convinced that he would be convicted of those charges. Otherwise, we would be saying in effect that even though the President would not be convicted on these crimes, we are nevertheless throwing him out of office because he committed those crimes. Someone else can try to explain the logic of that decision to the voters, but not me.

In addition, the standard of proof beyond a reasonable doubt seems to me compelled by the fact that in the House's explanation of the harm to our system of government if the President is not thrown out, their entire argument rises and falls depending upon whether or not the President would be convicted in a court of law for the crimes alleged. If he could not be convicted in a court of law, then the Senate is not `condoning' perjury or obstruction of justice any more than a criminal court is condoning those crimes when someone is acquitted on such charges. The Senate, like a court, is simply saying, `not proven.' But if the Senate is not condoning those crimes, there is no conceivable basis for concluding that the public will be harmed by the President's remaining in office.

[There is another way to look at this: In any impeachment, a Senator must simply be convinced to his or her satisfaction that the defendant committed the acts alleged. That standard never changes. However, when the articles of impeachment allege that offenses rise to an impeachable level because these actions violate the law and have harmful consequences to the country because the defendant has violated the law and would not be punished, in that case a Senator must be convinced that a defendant would in fact be punished by a criminal court. In other words, the Senator must simply be convinced that a court would find that there is proof beyond a reasonable doubt.

In contrast, if the charges were that the president had lied to the American people, the Congress or foreign leaders, and that the harmful consequences flowed from being unable to rely upon his word, then a Senator must simply be convinced that the President lied, relying upon whatever level of proof is sufficient to convince him or her of that fact.]--[Memorandum, 1/21/98]

CENSURE

In recent days, some have suggested that because the Starr report provides prima facie evidence of what are arguably impeachable offenses, the House and the Senate have a constitutional responsibility to see the impeachment process through to its conclusion. In my view, the constitutional history that I have sketched here this evening shows this position to be entirely mistaken. Indeed, if anything, history shows a thoroughly understandable reluctance to have the procedure invoked.

Stopping short of impeachment would not be reaching a solution `outside the Constitution,' as some suggest--it would be entirely compatible and consistent with the Constitution.

The 28th Congress [which contemplated but then terminated impeachment proceedings against President Tyler] hardly violated its constitutional duty when the House decided that, all things considered, terminating impeachment proceedings after cooperation between the Congress and the President improved was a better course of action than proceeding with impeachment based on his past actions, even though it apparently did so for reasons no more laudable than those that initiated the process.

Impeachment was and remains an inherently political process, with all the pitfalls and promises that are thus put into play. Nothing in the document precludes the Congress from seeking means to resolve this or any other putative breach of duty short of removing him from office. In fact, the risky and potentially divisive nature of the impeachment process may counsel in favor of utilizing it only as a last resort.

Of course, impeachment ought to be used if the breach of duty is serious enough--what the Congress was prepared to do in the case of Richard Nixon was the correct course of action. However, nothing in the Constitution precludes the congress from resolving this conflict in a manner short of impeachment.

The crucial question--the question with which the country is currently struggling--is whether the President's breaches of conduct--which are now well-known and which have been universally condemned--warrant the ultimate political sanction. Are they serious enough to warrant removal?

In answering that, we need to ask ourselves, what is in the best interest for the country?

And while I have not decided what ultimately should happen, I do want to suggest that it is certainly constitutionally permissible to consider a middle ground as a resolution of this matter. Such an approach might bring together those of the President's detractors who believe there needs to be some sanction, but are willing to stop short of impeachment, as well as those of the President's supporters who reject impeachment, but are willing to concede that some sanction ought to be implemented.

As a country, we have not often faced decisions as stark and potentially momentous as the impeachment of a president. On the other hand, we would be wise not to overstate such claims--surely we have faced some moments just as stark and serious as this one. We have survived those moments, and we will survive this one.

Whatever the outcome of the present situation, I am confident that our form of government and the strength of our country present us not with any constitutional crisis, but rather with the constitutional framework and flexibility to deal responsibly with the decisions we face in the coming months: [Speech, 10/2/98]

CRIMES AND MISDEMEANORS, HIGH

Let me say at the outset, that what President Clinton did was reprehensible. It was a horrible lapse in judgment and it has brought shame to him personally and to the office of the president. His actions have hurt his family, his friends, his supporters and the country as a whole. President Clinton has said this himself.

Let me also say that I have not made any decision as to what I think should happen. I have not come to any conclusion as to what consequences the President should face for his shameful behavior. I believe the oath I have taken precludes me and other Senators from prejudging, as I may be required to serve as a judge and juror in the trial of the century.

I can only make an assessment after hearing all of the evidence: evidence against the President, and evidence in support of the President.

No one knows how this will turn out. However, I have given the topic some thought and would like to explore some of the issues that surely will confront responsible Members of Congress and all Americans as we enter this difficult period in our history.

The framers of the Constitution who met in Philadelphia in the summer 1787 considered offering the country a constitution that did not include the power to impeach the president. After all, any wrongs against the public could be dealt with by turning the president out in the next election.

One delegate to the constitutional convention, Charles Pinckney of South Carolina, worried that the threat of impeachment would place the president under the thumb of a hostile congress, thereby weakening the independence of the office and threatening the separation of powers. According to James Madison's notes, Pinckney called impeachment a `rod' that congress would hold over the president.

In being reluctant to include an impeachment power, the framers were not trying to create an imperial presidency. In fact, what they were worried about was protecting all American citizens against the tyranny of a select group.

In their view, the separation of powers constituted one of the most powerful means for protecting individual liberty, because it prevented government power from being concentrated in any single branch of government. To make the separation of powers work properly, each branch must be sufficiently strong and independent from the others.

The framers were concerned that any process whereby the legislative branch could sit in judgment of the president would be vulnerable to abuse by partisan factions. Federalist No. 65 begins its defense of the impeachment process by warning of the dangers of abuse. It argues that impeachments:

`Will seldom fail to agitate the passions of the whole community, and to divide them into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of guilt or innocence.'

So the framers were fully aware that impeachment proceedings could become partisan attacks on the president--charged with animosities generated by all manner of prior struggles and disagreements, over executive branch decisions, over policy disputes, over resentment at losing the prior election. Federalist No. 65 expresses the view that the use of impeachment to vindicate these animosities would actually be an abuse of that power.

This sentiment is as true today as it was when the constitution was being written. It was also true when Richard Nixon faced impeachment in 1974. In fact, it would have been wrong for Richard Nixon to have been removed from office based upon a purely partisan vote. No president should be removed from office merely because one party enjoys a commanding lead in either house of the congress.

Yet while the framers knew that impeachment proceedings could become partisan, they needed to deal with strong anti-federalist factions.

The anti-federalists strenuously argued that the federal government would quickly get out of step with the sentiments of the people and become vulnerable to corruption and intrigue, arrogance and tyranny. This charge proved close to fatal as the ratifying conventions in the states took up the proposed constitution.

The framers of the Constitution knew that the Constitution would have been even more vulnerable to charges of establishing a government remote from the people if the president were not subject to removal except at the time of re-election.

James Madison's notes of the Philadelphia constitutional convention record his observations of the debate. He:

`Thought it indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the chief magistrate [that is, the president]. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of speculation or oppression. He might betray his trust to foreign powers.'

So in the end, the framers of the Constitution risked the abuse of power by the congress to gain the advantages of impeachment.

Once the decision to include the power of impeachment had been made, the remainder of debate on the impeachment clauses focused on two issues:

1. What was to constitute an impeachable offense or what were the standards to be?

2. How was impeachment to work or what were the procedures to be?

As we shall see, the framers proved unable to separate these two issues entirely. Understanding how they are intertwined, however, helps us to understand the full implications of the power.

The Constitution provides that `the House of Representatives shall. . . have the power of impeachment.' (Article I, Section 2, Clause 5).

The framers decision that the House of Representatives would initiate the charges of impeachment follows the pattern of the English Parliament--where the House of Commons initiates charges of impeachment. Beyond this, the choice must have seemed fairly compelled by two related considerations.

The first, already mentioned, was the need to provide the people as a whole with assurances that the government they were being asked to create would be responsive to the interests and concerns of the people themselves.

The second was the framer's substantive understanding of the impeachment power. It was a power to hold accountable government officers who had, in Hamilton's terms, committed `an abuse or violation of some public trust' thereby committing an injury `done immediately to the society itself.'

If the gravamen of an impeachment is the breach of the public's trust, no branch of the federal government could have seemed more appropriate to initiate such a proceeding than the House, which was conceived and defended as the chamber most in tune with the people's sympathies and hence most appropriate to reflect the people's views.

The Constitution further provides that the president shall be `removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.' (Article II, Section 4).

This language went through several changes during that summer of 1787. In initial drafts, the grounds for impeachment were restricted to treason and bribery alone. When the matter was brought up on September 8, 1787, George Mason of Virginia inquired as to why the grounds should be restricted to these two provisions.

He argued that `attempts to subvert the constitution may not be treason as above defined.' Accordingly, he moved to add `maladministration' as a third ground.

James Madison objected to Mason's motion, contending that to add `so vague a term will be equivalent to a tenure during the pleasure of the senate.' Here again, we see the worry that impeachment would be misused by the congress to reduce the independence of the president, allowing partisan factions to interfere at the expense of the larger public good.

The objection apparently proved effective because mason subsequently withdrew the motion and substituted the phrase `or other high crimes and misdemeanors.'

What does the phrase mean? It is clear the framers thought it to be limited in scope. But beyond this, constitutional scholars have been debating the meaning of this phrase from the very early days of the republic.

Yet despite this on-going dialogue, I believe there are two important points of agreement as to the original understanding of the phrase, and a third issue where the weight of history suggests a settled practice.

First, as we have already seen, the framers did not intend that the president could be impeached for `maladministration" alone.

Second, a great deal of evidence from outside the convention shows that both the framers and ratifiers saw `high crimes and misdemeanors' as pointing to offenses that are serious, not petty, and offenses that are public or political, not private or personal.

In 1829, William Rawle authored one of the early commentaries on the Constitution of the United States. In it, Rawle states that `the legitimate causes of impeachment. . . can only have reference to public character and official duty.'

He went on to say, `in general, those offences which may be committed equally by a private person as a public officer are not the subjects of impeachment.'

In addition, more than one hundred fifty years ago, Joseph Story, in his influential Commentaries on the Constitution, stated that impeachment is:

`Ordinarily' a remedy for offenses `of a political character,' `growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.'

The public character of the impeachment offense is further reinforced by the limited nature of the remedy for the offense. In the English tradition, impeachments were punishable by fines, imprisonment and even death. In contrast, the American constitution completely separates the issue of criminal sanctions from the issue of removal from office.

The Constitution states that `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.' (Article I, Section 3, Clause 7).

The remedy for violations of the public's trust in the performance of one's official duties, in other words, is limited to removal from that office and disqualification from holding future offices. Remedies that I might add, correspond nicely to the public nature of the offenses in the first instance.

Additional support comes from yet another commentator, James Wilson, a delegate to the convention from Pennsylvania. In his lectures on the Constitution, Wilson wrote that `in the United States and Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.'

All in all, the evidence is quite strong that impeachment was understood as a remedy for abuse of official power, breaches of public trust, or other derelictions of the duties of office.

The third point to make about the scope of the impeachment power is this: to be impeachable, an offense does not have to be a breach of the criminal law.

The renowned constitutional scholar and personal friend and advisor, the late Phillip Kurland, wrote that `at both the convention that framed the constitution and at the conventions that ratified it, the essence of an impeachable offense was thought to be breach of trust and not violation of the criminal law. And this was in keeping with the primary function of impeachment, removal from office.'

If you put the notion that an impeachable offense must be a serious breach of an official trust or duty, together with the point that it does not have to be a criminal violation, you reach the conclusion that not all crimes are impeachable, and not every impeachable offense is a crime. [Speech, 10/2/98]

* * * * *

Reference has been made to an exchange between George Mason and James Madison at the Virginia Ratifying Convention. Mason is reported to have worried that a president might `stop [an] inquiry' into wrongdoing involving the president. Madison is reported to have replied that this concern was not substantial because the House of Representatives could impeach the president if he did so. The exchange, it has been argued, proves that the Framers viewed obstruction of justice as clearly an impeachable offense.

A more extended look at the colloquy shows that Mason's precise concern was that the President would use his pardon power to pardon people whose investigations might reveal presidential involvement in criminal activities. Mason used this concern as the basis for arguing that the pardon power should be placed in the House, and not with the President. To this concern, Madison replied that if the President so abused the pardon power, he could be impeached. So it was an action that abused an official power of the President that Madison thought was impeachable.

Here is a condensed version of the exchange as reported in Eliot's Debates.

Mr. GEORGE MASON, animadverting on the magnitude of the powers of the President, was alarmed . . . Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

Mr. MADISON, adverting to Mr. Mason's objection to the President's power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate. . . . There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him. . . . This is a great security.' [Memorandum, 2/9/99]

* * * * *

II. THE MEANING OF `HIGH CRIMES AND MISDEMEANORS' UNDER THE CONSTITUTION

The Constitution establishes that the President `shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.' That instrument, by design, does not contain an express definition of the phrase `other high Crimes and Misdemeanors.' The framers intended the Constitution to endure for centuries and recognized that they could not provide a more specific definition that would justly serve the nation's interest into an unknowable future. Instead, they wisely entrusted the construction and adaptation of that phrase to the judgment and conscience of the people's chosen representatives in Congress. Thus, the Senate is left to exercise what Alexander Hamilton termed our `awful discretion' to judge whether the President's conduct warrants removing him from office.

While the Constitution calls upon each Senator to bring his or her good faith political judgment to bear on the meaning of the constitutional standard of `other high Crimes and Misdemeanors,' it does not abandon us to an ad hoc or partisan exercise of our discretion. Indeed, the framers strongly urged in both the Philadelphia convention and the state ratifying conventions that the constitutional standard is not properly understood to allow impeachment to be used as a tool of partisan punishment. The Constitution itself, the history of its framing and ratification, and the construction given through faithful interpretation and practice since its ratification converge to provide powerful guidance for determining what offenses justify impeachment and conviction. These touchstones of constitutional interpretation reveal that high crimes and misdemeanors are great offenses characterized by two elements: (1) grave harm to the constitutional system of government that (2) results from official misconduct.

A. THE HISTORY OF IMPEACHMENT

The framers met in Philadelphia in 1787 because the government under the Articles of Confederation was so ineffectual as to have brought the fledgling union to `the last stage of national humiliation.' They intended to establish a government through which the people could effectively define and pursue the general welfare. To do so, the framers understood that the government whose charter they were about to write would have to be entrusted with broad coercive powers to act directly upon American citizens. At the same time, the framers were practical statesmen who understood that the powers necessary to make a government effective could be misused make it potentially an instrument of oppression. Madison explained the dilemma:

`If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.'

To meet this potential threat to liberty, the framers divided the federal government into three co-equal branches and further divided the legislative branch into two houses in order to require the concurrence of the branches before the government's coercive power could be brought to bear on the people. Thus, while Article 1, Section 1 of the Constitution vests the legislative power in Congress, this power is subject to presidential veto and judicial review for constitutionality. Executive action generally requires a legislative basis or appropriations or other legislative support and is subject to judicial review.

Finally, the establishment and jurisdiction of the federal courts generally depends upon legislative authorization, subject again to presidential veto. Within this structure each branch is to be independent and is `armed' to defend itself against encroachments by the others. As Justice Robert Jackson observed, `the Constitution diffuses power the better to secure liberty . . . . It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.'

Maintaining the independence of the three branches of government dominated the debates regarding impeachment at the Constitutional Convention. Initially, the framers considered offering the country a constitution that did not include the power to impeach the president. After all, any wrongs against the public could be dealt with by turning the president out in the next election. One delegate to the constitutional convention, Charles Pinckney of South Carolina, worried that the threat of impeachment would place the president under the thumb of a hostile congress, thereby weakening the independence of the office and threatening the separation of powers. According to James Madison's notes, Pinckney called impeachment a `rod' that congress would hold over the president.

In being reluctant to include an impeachment power, the framers were not trying to create an imperial presidency; they were concerned about protecting all American citizens and the nation as a whole. In their view, the separation of powers constituted one of the most powerful means for protecting individual liberty, because it prevented government power from being concentrated in any single branch of government. To make the separation of powers work properly, each branch must be sufficiently strong and independent from the others.

The framers' worry was largely animated by the concern that any process whereby the legislative branch could sit in judgment over the president would be vulnerable to abuse by partisan factions. Federalist No. 65 begins its defense of the impeachment process by warning of its potential for abuse. It argues that impeachments:

`Will seldom fail to agitate the passions of the whole community, and to divide them into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of guilt or innocence.'

The framers were fully aware that impeachment proceedings could become partisan attacks on the president charged with animosities generated by all manner of prior struggles and disagreements over executive branch decisions, over policy disputes, over resentment at losing the prior election. Federalist No. 65 expresses the view that the use of impeachment to vindicate these animosities would actually be an abuse of that power.

Although the framers were concerned about impeachment proceedings becoming partisan, they needed to deal with strong anti-federalist factions. They were very aware that the anti-federalists strenuously urged that the federal government would quickly get out of step with the sentiments of the people and would become vulnerable to corruption and intrigue, arrogance and tyranny. This charge proved close to fatal as the ratifying conventions in the states took up the proposed constitution. The
framers of the constitution knew that the constitution would have been even more vulnerable to charges of establishing a government remote from the people if the president were not subject to removal at all except at the time of re-election.

James Madison's notes of the Philadelphia Constitutional Convention record his observations of the debate where he:

`Thought it indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the chief magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of speculation or oppression. He might betray his trust to foreign powers.'

So in the end, the framers of the constitution risked the abuse of power by the Congress to gain the advantages of impeachment.

B. THE CONSTITUTION'S TEXT AND STRUCTURE

The Constitution does not define impeachable offenses, yet its text and structure provide clear manifestation that these words refer to official misconduct causing grave harm to our constitutional system of government. The starting point for any analysis of the Constitution's meaning must be its text, which in relevant part reads, `the President . . . shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.'

Here, the text sets forth a list that begins with terms that have definite meaning (treason, which is defined in the Constitution itself, and bribery, whose definition was fixed at common law) and proceeds to relatively indefinite terms, high crimes and misdemeanors. In this setting, two rules of construction, ejusdem generis and noscitur a sociis, instruct that the meaning of the indefinite terms are to be understood as similar in kind to the definite terms. Application of these canons of construction is bolstered here by the text itself. The indefinite element, `high Crimes and Misdemeanors,' is introduced by the term `other.' This specifically refers the reader back to the preceding definite terms, treason and bribery, as supplying the context and parameters for the meaning of the indefinite phrase, `high Crimes and Misdemeanors.'

Every criminal offense, including such trivial infractions as parking offenses, involves public or societal harm. It is for this reason that criminal cases are titled, `The State versus . . .' or `The Government versus. . . .' Each of the definite impeachable offenses, treason and bribery, are distinct in that they cause grave harm to the public not in some undifferentiated sense but in a way that strikes directly at our system of constitutional government. The Constitution defines treason as `levying War against [the United States] or in adhering to their Enemies, giving them Aid and Comfort,' which plainly involves the most serious offense against our system of government. Similarly, bribery inescapably involves a serious subversion of the processes of government. In describing the common characteristics of treason and bribery, Professor Charles Black of Yale Law School explained that each offense `so seriously threaten[s] the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.'

Furthermore, Professor Edwin Corwin quoted with approval the statement of Justice Benjamin Curtis who said in defense of President Andrew Johnson that `treason and bribery . . . these are offenses which strike at the existence of [the] government. `Other high crimes and misdemeanors.' Noscitur a sociis. High crimes and misdemeanors; so high that they belong in this company with treason and bribery.'

In this constitutional setting, the terms treason and bribery take on a second distinctive aspect. As used in Article II, Section 4, each term involves official misconduct. Bribery, by definition, occurs only where a public official undertakes an official act in return for payment or some other corrupt consideration. Likewise, treason necessarily involves official misconduct in the impeachment context. To be sure, it is possible for a private citizen to commit treason by giving aid and comfort to the enemies of the United States. It must be remembered that impeachment proceedings may be pursued only against civil officers of the United States. By limiting impeachable treason to civil officers, the Constitution expressly contemplates that treason will provide a grounds for impeachment and conviction only where a civil office is used to adhere to or aid the enemies of the United States.

The textual construction expressed above--that high crimes and misdemeanors refer to grave harms to our constitutional system of government that result from official misconduct--comports with and draws significant support from the Constitution's structure. First, the structure reflects the framers' conscious decision not to adopt a parliamentary system of government, in which the executive power is subordinate to and controlled by the legislature. The structure also reflects the framers' judgment that the executive branch not be accorded primacy; their experience with the tyranny of the British monarchy was too recent to have permitted them to accept executive supremacy. Instead, the Constitution establishes three branches that are independent, strong, and co-equal. Construing the category of high crimes and misdemeanors too broadly would threaten the independence of the executive and judicial branches. This specific concern animated James Madison in the Philadelphia Convention and moved him to object to vague and potentially expansive formulations of the grounds upon which the President could be impeached and removed from office.

The formulation of high crimes and misdemeanors must be understood as consistent with the Constitution's overall structure. In as much as the Constitution's structure specifically rejects the parliamentary form, the power of impeachment and removal must be construed and exercised in a way that respects this fundamental constitutional judgment. Understanding the grounds for impeachment to be limited to cases of official misconduct that cause serious harm to our system of government allows the Congress to protect the public against oppressive official action without undermining the necessary independence of the President or the judiciary.

The Constitution's structure also supports limiting the category of impeachable offenses to those involving official misconduct. The constitutional separation of powers is designed to safeguard liberty against tyrannical or oppressive exercise of the government's power. In advocating the specific governmental structure erected in the Constitution, Madison repeatedly described the motivating concern to be establishing internal mechanisms, specifically the system of checks and balances, to control the federal government's power and minimize threat to the liberty of the people. This supports limiting the scope of impeachable offenses to official misconduct; that is, to conduct in which the civil officer misuses his or her official power. Other sorts of misbehavior by civil officers are simply beyond the concern of the separation of powers, of which the impeachment powers are a significant component. Indeed, the Constitution specifically provides that civil officers, including the President, remain subject to criminal prosecution and punishment for wrongdoing that does not involve official conduct.

C. HISTORY OF THE DEBATES AND RATIFICATION OF THE CONSTITUTION

Moving beyond the text and structure of the Constitution itself, the debates at the Philadelphia Convention of 1787, where the Constitution was drafted, and those in the subsequent state ratifying conventions provide important insight into the meaning of `high Crimes and Misdemeanors.' Close examination of these proceedings demonstrates that the framers gave careful consideration to Congress's impeachment powers. This consideration led them to understand the Constitution as setting forth a very narrow category of impeachable offenses.

Through most of the convention, the drafts of the Constitution denominated treason and bribery as the exclusive grounds for impeachment and removal of civil officers. In September 1787, as the convention was drawing to a close, Colonel George Mason and James Madison undertook colloquy that gave this provision its ultimate formulation. Because treason was expressly and narrowly defined in the Constitution itself, Mason was concerned that the impeachment power would not reach `great and dangerous offenses' and that `attempts to subvert the Constitution may not be treason' as defined in Article III of the Constitution. Mason moved to add `maladministration' as a catchall category. Significantly, this offense, which had been an accepted ground for impeachment in British practice, comprises exclusively official misconduct.

Madison objected to this addition, not because it was too restrictive, but because it was too vague and so potentially too expansive. He feared that `so vague a term will be equivalent to a tenure during the pleasure of the Senate.' Here again it is clear that the framers were concerned that impeachment would be misused by the Congress to reduce the independence of the President. In response Mason withdrew his own original motion and moved to add `or other high Crimes and Misdemeanors.' His motion was quickly approved.

The purpose of Mason's motions was to include all offenses that pose a threat to our system of constitutional government similarly to that posed by treason. Madison expressed the important concern that the expansion not be left so far open as to erode the essential independence of the other branches, and particularly of the President. In responding to Madison's concern, Mason must be understood to have intended to narrow a definition that already applied solely to official misconduct. The colloquy between Mason and Madison, then, strongly supports construing the phrase high crimes and misdemeanors to cover only official misconduct that threatens grievous harm to our governmental system.

Madison was not alone in his concern that Congress might use impeachment as a tool for encroachments upon the executive branch. This concern was raised in various state ratifying conventions as well. For example, in supporting the Constitution at the Pennsylvania Convention, James Wilson repeatedly assured the delegates that only `great injuries' could serve as a basis for invoking impeachment. In his lectures on the Constitution, Wilson went on to say that `in the United States and Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.' In the North Carolina Convention, several defenders of the Constitution, including James Iredell who was a delegate to the Philadelphia Convention and later became a Justice of the Supreme Court, argued that impeachment would `arise from acts of great injury to the community.' The debates surrounding ratification in New York produced the Federalist Papers. Alexander Hamilton explained that,

`[t]he subjects of [the Senate's impeachment] 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 with peculiar propriety may be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.'

Like Hamilton, the founding generation understood impeachment to be a political remedy for political offenses. It is important to bear in mind what they meant by `political.' They meant that which relates to government and the pursuit of the general welfare; that which involves the system of government or `society in its political character.' They specifically did not mean political in the sense of partisan which the framers affirmatively feared. Charles Pinckney, James Wilson, and Alexander Hamilton, for example, each decried construing the impeachment powers in ways that would allow these powers to be put to partisan ends. They lodged the power to try impeachments in the Senate precisely because they thought the Senate would have the necessary independence, stature, and impartiality to prevent the impeachment powers from becoming a tool of factionalism and partisanship. The framers expected that the Senate was, among government institutions, uniquely capable of fidelity to the constitutional limits partisanship that the framers understood to be implicit in the phrase high crimes and misdemeanors.

Leading constitutional scholarship of the founding era reflects the same view of the intended narrow scope of high crimes and misdemeanors. Justice Joseph Story, in his pathbreaking Commentaries on the Constitution, looked to British practice to understand the scope of impeachment in the United States Constitution. Recognizing that the U.S. Constitution intended to confine impeachment to a narrower set of offenses than those permitted under British law, he observed that even in Great Britain, `such kinds of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust are the most proper and have been the most usual ground for this kind of prosecution in parliament.' Story went on to say that impeachment is a remedy for offenses `of a political character,' `growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.'

The public character of the impeachment offense is further reinforced by the limited nature of the remedy for the offense. In the English tradition, impeachments were punishable by fines, imprisonment and even death. In contrast, the American Constitution completely separates the issue of criminal sanctions from the issue of removal from office. The Constitution states that `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.' The remedy for violations of the public's trust in the performance of one's official duties, in other words, is limited to removal from that office and disqualification from holding future offices.

Therefore, the Constitution contemplates both an impeachment and a criminal action as consequences for Presidents who commit impeachable offenses. This differs from the English model which only provides for criminal punishments after an impeachment conviction. If, however, a President engages in egregious but non-impeachable activity, the Constitution subjects the President to criminal liability. Impeachment therefore, is viewed not as a mechanism to punish a President, but rather a device to protect the populace. As Story said, impeachment proceedings are `not so much designed to punish an offender as to secure the state against gross official misdemeanors.'

Impeachment, therefore, is intended to preserve the constitutional form of government by removing from office an official who subverts the Constitution and is not intended to be a remedy for someone who breaks the law in connection with a private matter.

At least one important early treatise writer, William Rawle, concluded that only official misconduct could provide a basis for impeachment. He contended that `the causes of impeachment can only have reference to public character and official duty. . . . In general those which may be committed equally by a private person as a public officer are not the subject of impeachment.' Additional support for this proposition comes from the renowned constitutional scholar, Phillip Kurland who wrote that `at both the convention that framed the Constitution and at the conventions that ratified it, the essence of an impeachable offense was thought to be breach of trust and not violation of the criminal law. And this was in keeping with the primary function of impeachment, removal from office.' Finally, additional support for this proposition comes from the United States Department of Justice. As a legal memorandum produced by the Justice Department's Office of Legal Counsel during impeachment proceedings against President Nixon observed, `[t]he underlying purpose of impeachment is not to punish the individual, but is to protect the public against gross abuse of power.'

D. CONSTITUTIONAL PRACTICE AND PRECEDENT

Another important guide to the meaning of the Constitution is the construction applied throughout our history by those who have been charged with applying its provisions. The significance of constitutional practice is heightened in the absence of applicable judicial interpretation. As Justice Frankfurter stated:

`The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.'

In the history of the United States, the Senate has never convicted any President of an impeachable offense. This fact stands out as the sum total of the Senate's practical construction of the Constitution's impeachment provisions as they relate to the President of the United States. It must serve as a chilling call to self-restraint in construing those provisions.

The Senate has convicted other civil officers of impeachable offenses, including high crimes and misdemeanors. There is reason to doubt whether these cases, mostly involving federal judges, provide directly analogous precedent for cases involving the President. First, the Madison-Mason colloquy and the debates in the state ratifying conventions demonstrate the framers' primary concern was with the use of impeachment as a vehicle for encroachments on the President's structurally necessary independence from the legislature. Second, federal judges serve life terms and are not elected. The automatic removal of the President upon conviction of high crimes and misdemeanors has the widely remarked upon consequence of artificially altering the expected result of an election and thus is regarded as in tension with democratic principles. Moreover, because the President serves a limited term of four years, the need for an artificial removal mechanism is less urgent than it is in the case of judges who would otherwise serve an illimitable term.

These caveats aside, an examination of congressional practice in the case of the fifteen officers who have been impeached by the House strongly supports construing high crimes and misdemeanors as aimed primarily at official misconduct that results in grave harm to our constitutional system of government. In every case, the misconduct cited as impeachable involved the misuse of office or the power of office. No case involved impeachment for conduct that did not involve the exercise of the impeached person's office or official power. The closest the Congress has come to impeaching and convicting an officer for conduct not involving abuse of office was the case of Judge Harry Claiborne. Judge Claiborne was impeached, convicted, and removed from office for committing tax evasion. Superficially, this conduct did not itself involve his judicial office in any direct way. The income he was convicted of withholding, however, allegedly came from improper payments to him, which were made because of his judicial office. In their essence, then, the charges against him were charges of serious abuse of office involving what amounted to bribery, though the articles of impeachment did not formally recount the source of the income at the heart of the tax evasion case against Judge Claiborne. [Memorandum, 12/22/98]

EVIDENCE, RULES OF

Are the Federal Rules of Evidence Applicable? Neither the Senate nor its presiding officer, the Chief Justice, is required to follow the Federal Rules of Evidence in ruling on evidentiary objections during an impeachment trial. As a matter of practice these decision makers have relied upon the Federal Rules in considering evidentiary objections, but have not always excluded evidence that the Federal Rules would exclude or admitted evidence that the Federal Rules would allow. The Senate's approach has been to receive all evidence except where doing so would be unfair to one of the parties. In determining what is fair, the Senate has placed great weight on the Federal Rules.

The refusal to adopt the Federal Rules of Evidence is apparently based on the judgment that the Senate is highly sophisticated as a jury examining political crimes and weighing political remedies. Consequently, the Senate does not need the sort of protections that juries commonly require. The concern raised by not adopting the Federal Rules is that, where the only limit on the discretion of individual Senators is their sense of fairness, party-line voting may emerge and the impeachment process could come to be viewed as lacking the necessary impartiality.

While the Senate has never accepted that it is bound by the Federal Rules, it may vote to require their application in a given case. In fact, the Senate did just that on at least one occasion. During the Rule XI committee deliberations in the impeachment trial of Judge Harry Claiborne, Senator Orrin Hatch argued that the committee should accept the Federal Rules as binding. Then-Senator Albert Gore argued against accepting the Federal Rules.

Is the Starr Report Admissible? Either or both parties may seek to introduce the referral and supporting documentation that independent counsel Kenneth Starr submitted to the House Judiciary Committee. Much of this material would not be admissible in a judicial proceeding. The referral itself is not evidence, but a summation of evidence contained in the attachments. The attachments include grand jury testimony where witnesses were not subject to cross-examination and other material could represent hearsay.

There is some precedent for admitting the record and proceedings from a judicial proceeding as substantive evidence in an impeachment trial. In the impeachment trial of Judge Harry Claiborne, one of the House Managers, then-Representative Michael DeWine, argued that the Rule XI committee should accept the record of the criminal trial in which Judge Claiborne was convicted of tax evasion charges. Specifically, Manager DeWine argued that accepting the evidence would establish an important precedent in favor of economy and efficiency in impeachment proceedings. The committee accepted DeWine's argument and received the trial record as substantive evidence.

In Judge Claiborne's case, the committee agreed to receive evidence that had been subject to cross-examination by Judge Claiborne's attorneys. If the President's counsel objects to the Senate receiving the Starr report and supporting materials, he could distinguish the Claiborne precedent on the ground that the President's lawyers had no opportunity to cross examine grand jury witnesses.

Is Evidence of Prosecutorial Misconduct Admissible? The President's counsel may seek to introduce evidence of prosecutorial misconduct. The House Managers or Senators may object on the grounds that such evidence is irrelevant. Either the President committed high crimes or misdemeanors, or he did not; evidence relating to what the independent counsel may have done to investigate the President is beside the point.

The President, however, would have a powerful contrary argument, particularly if the Starr report and supporting documents are admitted as substantive evidence. The report itself represents the conclusions drawn by the independent counsel. The supporting documents represent evidence and testimony collected by the independent counsel without opportunity for supplementation, challenge or cross-examination by the President. Understanding the independent counsel's bias or impartiality is crucial to assessing the weight and credibility of this type of evidence. For example, the independent counsel's office will have chosen to pursue certain lines of questioning with witnesses before the grand jury. If the independent counsel acted from bias, there is a reasonable inference that the roads the prosecutor chose not to follow would have revealed evidence favorable to the President. If, on the other hand, the independent counsel is impartial, one may reasonably infer that he sought to uncover all relevant information whether favorable or unfavorable to the President.

In addition, if officials in the Office of the Independent Counsel threatened witnesses, that fact is relevant to assessing the credibility of the testimony and evidence given by those witnesses.

In one previous case, the Rule XI committee voted to allow the defense to present evidence of prosecutorial misconduct, although it did not allow the defense to pursue elements of its theory that were purely speculative and highly dubious: [Memorandum, 12/28/98]

FINDINGS OF FACT

Various proposals to have the Senate vote on `findings of fact' prior to a final vote on the articles of impeachment are circulating. The most onerous of these would ask the Senate to `find' that the President had violated federal laws against perjury and obstruction of justice.

Under one presumed scenario, the findings of fact would pass, while the subsequent vote on the articles would fail. Thus, while the President would remain in office, his legacy would be besmirched by an impeachment trial's finding that he was guilty of crimes.

There are several constitutional arguments against this procedure, each based on the fact that it is either equivalent to, or tantamount to, separating a vote on guilt or innocence from a vote on removal.

Very early in the Senate's history, the Senate did in fact separate these two votes, notably in the case of Judge John Pickering. Pickering was charged with drunkenness, among other things, but not with any crimes. The Senate voted separately on whether he was guilty under the articles and then on whether or not he should be removed from office. (They voted to convict and to remove.)

This procedure might signal that the Senate believed that in an impeachment trial a person could be found guilty by the Senate of offenses that did not rise to the level of `treason, bribery, or other high crimes and misdemeanors.' Under that interpretation, the second vote would be necessary to establish whether or not the offenses justified removal from office.

However, this possible interpretation of the trial procedure was repudiated in the 1936 impeachment trial of Judge Halstead Ritter, when the chair ruled that removal followed automatically from a finding of guilty, so that a separate vote on removal was not in order. The ruling was based on the text of Article II, Section 4, of the Constitution which provides that `The President [and other civil officers] shall be removed from Office on Impeachment for, and Conviction of, treason, bribery, or other high Crimes and Misdemeanors.'

The dominant view of constitutional scholars is that the chair's ruling in the Ritter case was correct. Notice that there are two significant components of the Ritter interpretation: (1) the president, vice president or other civil officers can only be impeached for `treason, bribery, or other high crimes and misdemeanors,' and (2) removal then follows by operation of Constitutional law upon conviction.

Against this background, the proposed findings of fact could produce substantial constitutional mischief. Suppose they received a 2/3 's vote. If the offenses outlined in the findings of fact are high crimes and misdemeanors, the President would have been removed from office by operation of Constitutional law.

Suppose, further, that the Senate then took the final vote on the articles and on that vote the yeas were less than 2/3 's. Looking strictly at this vote, the President has been acquitted, and remains in office.

Who, then, is the President of the United States after these two votes have been cast--Bill Clinton or Al Gore? In other words, who decides whether the first vote convicted the President of high crimes and misdemeanors?

Senators might well argue that the very fact that the Senate took the second vote proves that the first vote was not on offenses that justified removal. That would be an ironic position for many Republican Senators to be in, however, as many of them are on record defending the proposition that perjury and obstruction of justice are clearly impeachable offenses.

One argument against the proposed findings of fact, then, is that it could create enormous uncertainty about who occupies the office of President. The impact of that uncertainty on foreign and domestic policy would potentially be quite great, infecting every official action the President might undertake. (Perhaps Bill Clinton and Al Gore could do everything in tandem--co-sign all official documents, co-attend all foreign negotiations, etc. --thereby eliminating the legal ambiguities by creating a true co-presidency.)

The uncertainty would, in all likelihood, result in litigation. Suit could be brought by someone adversely affected by a law `signed' by Bill Clinton that would otherwise have been pocket vetoed due to the adjournment of Congress, claiming that the bill never became law. Or it could be brought by someone seeking the benefits of a law that Bill Clinton had `vetoed,' claiming that the veto had no effect because Bill Clinton was not President.

Even if such litigation would eventually lead to a resolution of the uncertainty, the country would suffer during the interim.

There is a real possibility, however, that the Supreme Court would find the question of what constitutes a `high crime and misdemeanor' to be nonjusticiable. In United States v. Nixon, the Court held that nearly all questions regarding the Senate's power to try impeachments are nonjusticiable, and it might well so find in this instance, as well.

Even if the findings of fact did not garner 2/3 's support, a second argument against the findings of fact can be based on the two-part Ritter interpretation of the impeachment power (i.e., impeachment available only for high crimes and misdemeanors; removal follows automatically from conviction). The contemplated bifurcated vote provides a mechanism for doing exactly what the Ritter interpretation and the prevailing view among scholars say the constitution does not permit: impeaching and convicting a person of lesser offenses than high crimes and misdemeanors.

The consequences of sanctioning impeachment for `low' crimes and misdemeanors in this way are spelled out nicely in a draft op-ed by Jed Rubenfeld. He argues that if the Senate proceeds with the proposed findings of fact,

`[t]he Senate would then have taken another big step toward transforming impeachment into a tool of partisan politics.

`The Clinton Impeachment would then establish the proposition that it is a legitimate senatorial function in an impeachment proceeding to `find' that the President committed crimes or serious misconduct (but not high crimes). In that case, why shouldn't a majority of the House impeach every President who has engaged in conduct worthy of censure? It would no longer matter whether this conduct rose to the level of high crimes and misdemeanors, for after all, one of the Senate's legitimate and proper functions would be to find that the President had committed `low' or `medium' crimes or other serious misconduct not requiring removal from office.

`If the Senate wants to censure the President, let it. But impeachment is not about finding criminal guilt or innocence, and it is not about censure. It is about removal from office. The Senate must vote, up or down, on conviction and removal. Anything less or in-between is more partisan mud.'

The idea that the House could routinely start up the Senate impeachment trial apparatus on the basis of offenses insufficient to constitute high crimes and misdemeanors because the bifurcated vote procedure supplied the Senate with a way to cope with such charges would probably have been anathema to the Framers, who thought that impeachment ought to be rarely used and reserved for the most serious breaches of public trust.

Judge Bork agrees that the bifurcated approach poses serious separation of powers problems. He wrote in the February 1, edition of the Wall Street Journal:

`That course would also create an unconstitutional political weapon in the permanent struggle between the legislative and executive branches. Had the Isenbergh-Kmiec proposition been accepted during Iran-Contra, is there any doubt that the Democratic House and Senate would have impeached Ronald Reagan and, unable to convict him by a two-thirds vote, adopted findings of fact by a majority vote that effectively condemned him as the perpetrator of high crimes and misdemeanors? This is precisely what the separation of powers does not allow and what anyone who thinks ahead should disavow.'

(The Isenbergh-Kmiec proposition mentioned by Judge Bork refers to a law review article by Professor Isenbergh of Chicago Law School arguing that the Ritter interpretation is wrong--that in fact people can be impeached under the Constitution for offenses less than high crimes and misdemeanors, in which case lesser sanctions than removal are also available to the Senate.)

These are powerful arguments. There are responses to them, however, which I believe make the ultimate judgment as to whether or not the bifurcated procedure passes constitutional muster open to reasonable disagreement.

As to the complaint that the procedure unconstitutionally bifurcates a unitary vote, the complaint just misconceives what the findings of fact motion is. It is not a vote on guilt or innocence of impeachable offenses at all because it doesn't by its terms convict the President of anything. It is antecedent to any question of conviction for impeachable offenses or of remedy. It leaves Senators free to vote any way they wish on guilt or innocence and thus does not split up the conviction/remedy questions. If necessary, this could be made crystal clear through careful drafting, such as by phrasing the motion as, `Without prejudice to the final question of guilt or innocence on any of the articles of impeachment, the Senate finds . . .'

This interpretation also responds to the complaint urged by Rubenfeld and echoed by Bork. Because the findings of fact are toothless as regards guilt or innocence, passing such a motion is not equivalent to convicting the President of low crimes and misdemeanors. The Rubenfeld-Bork objection would lie if and only if the Senate purported to convict the President of such offenses, and then sought to avoid removing him by rejecting the articles. But it is not doing that when it makes findings of fact. Because such findings lack any conceivable juridical effect, they are no more offensive to the Constitution than a censure resolution.

One could even imagine a findings of fact motion serving a purpose that would be beneficial to the impeachment process. Findings of fact could help provide a clear historical record as to what this United States Senate believed did not rise to the level of impeachable offenses (or did rise to that level, depending upon the outcome of the vote on conviction). Historically, the Senate has left to each individual Senator the responsibility to make an overall unitary determination as to the facts that have been proven, the requisite burden of proof as to those facts, and the ultimate consequences that flow from those facts, taking into account both the costs of retaining the civil officer in office as well as the costs of removing him or her. It could be argued that our constitutional practices would be just as well served if the basis for the final judgment was expressed in more discrete and articulated collective judgments, first as to the facts proven, and then as to their consequences.

This last point runs counter to the Senate's current rules and practices, of course. Rule XXIII of the rules of impeachment provides that `an article of impeachment shall not be divisible for the purpose of voting thereon at any time during
the trial.' This provision was adopted in 1986. Some of its legislative history is pertinent:

`The portion of the amendment effectively enjoining the division of an individual article into separate specifications is proposed to permit the most judicious and efficacious handling of the final question both as a general matter and, in particular, with respect to the form of the articles that proposed the impeachment of President Richard Nixon. The latter did not follow the more familiar pattern of embodying an impeachable offense in an individual article but, in respect to the first and second of those articles, set out broadly based charges alleging constitutional improprieties followed by a recital of transactions illustrative or supportive of such charges. The wording of Articles I and II expressly provided that a conviction could be had thereunder if supported by `one or more of the' enumerated specifications. The general view of the Committee at that time was expressed by Senators Byrd and Allen, both of whom felt that division of the articles in question into potentially 14 separately voted specifications might `be time consuming and confusing, and a matter which could create great chaos and division, bitterness, and ill will . . . .'

The rule and its history suggests that the Senate currently operates under a norm of maximum individual Senatorial autonomy in reaching an overall unitary judgment as to guilt or innocence, without the interposition of potentially divisive antecedent motions seeking to clarify exactly what acts the Senate as a body has found the accused to have committed.

It is possible to object to the proposed findings of fact as being inconsistent with Rule XXIII. The rejoinder to that objection, of course, is a version of what has already been stated: the findings need not be construed as `dividing' any article of impeachment, but rather as a motion antecedent to an eventual vote on the articles. Still, the findings do seem inconsistent with the spirit of Rule XXIII and with its evident intention to avoid divisive preliminary votes of this kind.

Putting aside constitutional or rule-based objections to the proposed findings of fact, Rubenfeld-Bork make a very powerful practical argument that this bifurcation will have pernicious consequences. We are currently living through proof of how all-consuming an impeachment and trial of a President can be. The country loses time and attention that could be devoted to constructive matters of public interest, trust in the ability of elected officials to work together by placing the nation's business first is eroded, and the Presidency is placed under a cloud of uncertainty during the pendency of the proceedings. Lowering the impeachment bar through the use of this bifurcated procedure would be unwise and, as suggested earlier, would most likely be viewed with alarm by the Framers who drafted the impeachment power into the Constitution.

There is, finally, an argument that such findings would amount to an unconstitutional Bill of Attainder. The risk that such findings would be found to be an unconstitutional `trial by legislature' is enhanced (a) by the fact that under some of the proposals, the finding would be that the President had violated the law; (b) by the fact that the findings would occur in the context of a Senate trial.

Such Senate action could well have an adverse effect on President Clinton's bar membership. Bar rules disqualify individuals who have been convicted of perjury or obstructed justice. If those consequences followed from the Senate action, they could be construed as punishment, thus bringing the findings of fact within the constitutional prohibition on bills of attainder: [Memorandum, 2/2/99]

IMPEACHMENT RULES, CHANGES TO

The existing Senate Rules establish the basic contours of how an impeachment trial will proceed. Many questions remain open, however--just as in civil cases, the federal rules of civil procedure provide the basic contours, but the actual route traveled by any trial depends upon the particular facts and law of each case, the motions that parties choose to bring, and, in general, the manner in which the parties choose to litigate the matter.

This section highlights the major questions that deserve examination before the trial begins. It also discusses the available mechanisms for resolving outstanding procedural issues.

Should any of the existing rules be modified? The existing Rules were last amended in 1986. Should the Senate wish to revise any of them, motions to do so would be in order on the first day and would be fully debatable. Once actual the trial begins motions are not debatable, and a motion to suspend, modify, or amend the rules would require unanimous consent. Before the trial begins (the period between the exhibition of the articles of impeachment and the presentation of opening statements by the parties), Senate precedent supports allowing debate on preliminary motions that relate to how the Senate will organize itself to conduct the trial. It appears that such motions are subject to the Standing Rules of the Senate, and not the limitations on debate contained in the impeachment Rules. Thus, they could be filibustered during the pre-trial stage. As a motion to suspend, modify, or amend the rules, any such motion would be subject to a heightened cloture requirement. Standing Rule XXII requires a two-thirds vote to invoke cloture and end debate on a motion to suspend, modify, or amend the rules.

The impeachment rules provide for the proceedings to be `double-tracked' (with legislative business conducted in the morning session and the impeachment trial conducted in the afternoon). Even after the trial has commenced, then, a motion to suspend, modify, or amend could be made in a morning legislative session, but would be subject to filibuster with a two-thirds cloture requirement: [Memorandum, 12/28/98]

OBSTRUCTION OF JUSTICE

The House relies on two different federal obstruction of justice statutes. The first, 18 U.S.C. 1503, is the general obstruction of justice statute. The second, 18 U.S.C. Sec. 1512(b), addresses witness tampering.

A. Elements of the General Obstruction of Justice Statute

To establish a violation of the general obstruction of justice statute ( 1503), the government must prove each of the following:

(1) that there was a pending judicial proceeding;

(2) that the defendant knew this proceeding was pending; and

(3) that the defendant corruptly influenced, obstructed, or impeded the due administration of justice or endeavored to corruptly influence, obstruct, or impede the due administration of justice.

The first two elements are straightforward. The third element is more complex. In general:

`Corruptly' means to engage in an act voluntarily and deliberately for the purpose of improperly influencing, obstructing, or interfering with the administration of justice.

`Endeavor' means that the defendant also knowingly and deliberately acted or made an effort which had a reasonable tendency to bring about the desired result of interfering with the administration of justice.

The defendant must engage in misconduct that has the `natural and probable effect' of interfering with the due administration of justice. He need only `endeavor' to obstruct justice; he need not succeed.

B. Elements of the Witness Tampering Statute

To establish a violation of the witness tampering statute ( 1512(b)), the government must establish that the defendant:

(1) knowingly

(2) corruptly persuaded another person or attempted to do so, or engaged in misleading conduct toward another person

(3) with the intent

to influence, delay, or prevent a witness's testimony from being presented at official federal proceedings,

to cause or induce any person to withhold testimony or physical evidence from an official federal proceeding; or

to prevent a witness from reporting evidence of a crime to federal authorities.

Unlike the general obstruction of justice statute, the witness tampering statute does not require that the defendant's misconduct be committed during the pendency of federal proceedings. Thus, the defendant need not be aware of any pending or contemplated federal proceedings or investigations at the time he engages in his obstructive conduct. Nonetheless, it must be proved that the defendant intended by his prohibited conduct to obstruct a federal proceeding or the reporting of a federal crime.

There is no judicial consensus as to the meaning of `corrupt persuasion,' but several courts have defined the term to mean that the defendant's attempts to persuade `were motivated by an improper purpose.'

The term `misleading conduct' is defined in 18 U.S.C. 1515 to include (A) knowingly making a false statement; (B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement; (C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity.

At least one court has held that a defendant violates the witness tampering statute when he tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it before the grand jury: [Memorandum, 1/15/99]

PERJURY

Under federal law, a witness commits grand jury perjury if shown, when under oath before a federal grand jury, to have made a: knowingly false declaration that is of a material matter that the grand jury has the power to investigate. Proof only of an intent to mislead is not sufficient for a perjury conviction.

`Knowingly false declarations' can be proved by evidence that the individual did not believe a declaration to be true at the time it was made.

Only unambiguous questions can form the basis of perjury convictions. If a question can reasonably be interpreted in multiple ways, perjury can not be based only on the questioner's intended meaning and there must be evidence of what the person answering understood when responding.

Grand jury perjury can not be based on an answer that was literally true even if misleading and nonresponsive to the question asked. The burden is on the questioner to identify evasive answers and press for clarity at the time rather than let it pass and charge perjury later.

Grand jury perjury convictions can be based on the testimony of a single uncorroborated witness. And, even if no single statement can be shown to be knowingly false, perjury can be shown if the individual knowingly made multiple material declarations under oath that are `inconsistent to the degree that one of them is necessarily false.'

A `material matter' for perjury convictions under federal law must have had some bearing on the substantive elements of the issues that the grand jury was convened to investigate and would have some bearing on influencing or impeding that investigation, regardless of whether the statement actually was misleading on a particular point.

The Minority Views in the House Report argue that because the judge in the Jones sexual harassment case ruled in January 1998 that evidence relating to Monica Lewinsky was not `essential to the core issues in that case,' Jones' lawyers could not have introduced evidence about her relationship with the President in order to attack his credibility in that suit, so that his statements on the subject are not material under perjury law: [Memorandum, 12/30/98]

PRESIDENT, INDICTMENT OF

The New York Times recently reported that Ken Starr and his staff have recently concluded that the Constitution does not prohibit them from indicting and prosecuting President Clinton while he is still in office. The independent counsel has a legitimate reason for seeking an indictment before the end of President Clinton's term. The grand jury that is currently impaneled and that has heard all the evidence will
expire by August. If the Independent Counsel waits until the President leaves office, he will have to impanel a new grand jury and present evidence all over again.

This memorandum reviews the constitutional issues that would be raised if a prosecutor were to attempt to indict and prosecute a sitting President. It concludes that the Constitution permits a prosecutor to indict a sitting President, but does not allow the prosecutor to proceed to prosecute the indictment until the President's term has expired. Although the Constitution does not forbid indictment of a sitting President, there are significant prudential arguments counseling against such a move. Moreover, there may be a statutory impediment to indicting the President.

I. TEXT

Until recently, numerous commentators interpreted the Constitution's text to prohibit criminal prosecution of any officer before the officer was impeached and removed. The only provision on point states, `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 nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.' Article I, section 3. This interpretation reads the phrase `the party convicted shall nevertheless . . .' to mean that only parties who have been convicted are subject to judicial process. In other words, impeachment and conviction is a prerequisite to judicial process.

The better reading has always been that the Constitution's text is ambiguous. It can just as easily be understood to mean that impeachment and conviction, if that should occur first, are not a bar to judicial process. This interpretation has been vindicated by recent practice. The three judges impeached and convicted in the late 1980s were all indicted and prosecuted criminally first. In addition, Vice President Spiro Agnew was indicted while in office, as was sitting Vice President Aaron Burr in 1804. The provision cited does not distinguish between the President and other officers subject to impeachment. Thus, if the President is to be treated differently than other impeachable officers, it must be on some basis other than the Constitution's text.

II. STRUCTURE

Even the most originalist minded cosntitutional scholars do not limit their arguments to those based on language alone. They also argue based on the structure of the document taken as a whole. Shifting the focus from text to structure, there is strong reason to conclude that the Constitution does not forbid indictment of a sitting President but that it does prohibit taking the further step of prosecuting him criminally.

The Constitution structures the federal government by dividing it into three branches. In order to safeguard liberty, each of these branches must be fully functioning at all times. Anything that significantly impairs the President's ability to act as a check on the other branches may violate the Constitution's structural safeguards. By contrast, there are hundreds of district court judges. A criminal proceeding against one of them has only remote ramifications for the constitutional role of the judiciary as an collective institution.

The constitutional status of the President is unique, and materially distinguishable from that of other impeachable officers, such as district court judges or even the Vice President. First, the President, of course, is the head of one of the three constitutional branches of government. The other branches have collective heads. The legislative branch is headed by the entire Congress, while the judiciary is headed by the Supreme Court. To indict and prosecute the President is in this sense the constitutional equivalent of indicting and prosecuting the entire Congress or the entire Supreme Court.

Second, the presidency is a uniquely consuming office. Its occupant is perpetually on duty. Nearly every President from George Washington through George Bush has expressed just how consuming the office is. For example, Lyndon Johnson related that `Of the 1,885 nights I was President there were not many when I got to sleep before 1 or 2 a.m. and there were few mornings when I didn't wake up by 6 or 6:30.' The Twenty-Fifth Amendment to the Constitution, which provides for presidential succession in the case of disability, recognizes not only how consuming the office is, but how critical it is that the office be filled at all times.

Third, the President acts as the embodiment of the nation on the international stage and even in domestic matters. As Justice Robert Jackson reminded us, the presidential office locates the executive power `in a single head in whose choice the whole nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.'

Against this structural argument stand rule of law considerations. The continuing vitality of the rule of law as a fundamental principle requires that the President be subject to law as are all citizens. This commitment is voiced in the President's constitutional duty to `take care that the laws be faithfully executed.' The primary purpose of this provision is to make it clear that the President, unlike the King of England, has no `dispensing power,' that is, no power to declare a law inapplicable to himself or anyone else. Similarly, the courts have placed great weight on the integrity of the criminal justice system. In a variety of executive privilege cases, the courts have placed a great premium on according prosecutors access to evidence and on preserving evidence.

Determining whether the Constitution permits either indictment or prosecution of a sitting President requires balancing these considerations.

PUNISHMENTS UPON CONVICTION OF HIGH CRIMES AND MISDEMEANORS

If the Senate convicts the President of high crimes and misdemeanors, the Constitution requires that he be removed from office. `The President--shall be removed from office upon impeachment for and conviction of--high crimes and misdemeanors.' The Constitution allows the Senate to impose an additional punishment upon convicting the President; it may disqualify the President from holding any office of honor, trust or profit. Odd as it sounds, this disqualification probably does not apply to membership in the House of Representatives of the Senate. This is because the text of the Constitution, in several clauses, makes it clear that members of Congress are not `officers.' The very first impeachment trial proceeded against Senator Blount. Senator Blount was acquitted and many Senators refused to convict on the basis of their constitutional interpretation that a senator is not an officer and so is not subject to impeachment: [Memorandum, 12/28/98]

* * * * *

Very early in the Senate's history, the Senate did in fact separate these two votes, notably in the case of Judge John Pickering. Pickering was charged with drunkenness, among other things, but not with any crimes. The Senate voted separately on whether he was guilty under the articles and then on whether or not he should be removed from office. (They voted to convict and to remove.)

This procedure might signal that the Senate believed that in an impeachment trial a person could be found guilty by the Senate of offenses that did not rise to the level of `treason, bribery, or other high crimes and misdemeanors.' Under that interpretation, the second vote would be necessary to establish whether or not the offenses justified removal from office. However, this possible interpretation of the trial procedure was repudiated in the 1936 impeachment trial of Judge Halstead Ritter, when the chair ruled that removal followed automatically from a finding of guilty, so that a separate vote on removal was not in order. The ruling was based on the text of Article II, Section 4, of the Constitution which provides that `The President [and other civil officers] shall be removed from Office on Impeachment for, and Conviction of, treason, bribery, or other high Crimes and Misdemeanors.'

The dominant view of constitutional scholars is that the chair's ruling in the Ritter case was correct. Notice that there are two significant components of the Ritter interpretation: (1) the president, vice president or other civil officers can only be impeached for `treason, bribery, or other high crimes and misdemeanors,' and (2) removal then follows by operation of Constitutional law upon conviction: [Memorandum, 2/2/99]

ROLE OF CHIEF JUSTICE

The Chief Justice of the United States is the Presiding Officer over the Senate's deliberations when the President has been impeached. His role is loosely analogous to that of a trial judge, but with less ultimate authority. He directs preparations for the trial, as well as the trial proceedings themselves. Under the precedent of the Johnson trial, the Chief Justice can make rulings on all evidentiary and procedural motions and objections, although he can also refer them directly to the Senate for its determination (this was in fact Chief Justice Chase's practice on evidentiary motions made during the Johnson trial). His rulings can be overruled by majority vote of the Senators present and voting.

The Constitution dictates that the Chief Justice acts as the presiding officer during an impeachment trial of the President. The extent and content of his role is subject to determination by the Senate. There could be sentiment to expand his powers, such as by making him the chair of a Rule XI committee, on the theory that the Chief Justice will be non-partisan and impartial. Other powers that might be granted to the Chief could include authority to conduct pre-trial proceedings or to oversee settlement negotiations. If the Chief Justice is perceived as impartial, his rulings on evidence and other motions will carry great weight and place a heavy burden on anyone seeking to overrule them. On the other hand, a determined majority can substantially minimize the effect of the Chief Justice on the proceedings by reversing his rulings and refusing to grant him powers beyond the inherent powers of the presiding officer: [Memorandum, 12/28/98]

ROLE OF HOUSE MANAGERS

The House of Representatives appoints a delegation of its own members to serve as prosecutors of the impeachment. These managers exhibit the articles of impeachment and perform all functions normally performed by a prosecutor. They make an opening and closing statement on the case, decide what evidence to present and what witnesses to call, subject to the Senate's decision to issue a subpoena to compel attendance of involuntary witnesses. The managers lead examination of witnesses they offer and cross-examine witnesses called by the President's counsel. They may also make procedural, evidentiary, and other motions: [Memorandum, 12/28/98]

ROLE OF PRESIDENT'S COUNSEL

The President may choose an attorney or agent to present his defense. These attorneys perform the same functions in defense of the President as the house Managers perform in behalf of the impeachment. Neither the President's Counsel nor the House Managers may appeal a ruling of the Chief Justice. Only a member of the Senate may do that: [Memorandum, 12/28/98]

ROLE OF THE SENATE

[The constitutional text, the Framer's understanding, and our constitutional practices] Provide important anchors for any impeachment inquiry, but they do not resolve all questions of scope that may arise. Much remains to be worked out--and only to be worked out--in the context of particular circumstances and allegations.

As Hamilton explained in the Federalist No.65, impeachment `can never be tied down by . . . strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges. . .'

After all of the legal research, we are still left with the realization that the power to convict for impeachment constitutes an `awful discretion.'

This brings us directly to the Senate's role. To state it bluntly: I believe the role of the Senate is to resolve all the remaining questions. Let me elaborate.

The Senate's role as final interpreter of impeachments was recognized from the beginning of the republic. For example, to refer again to Joseph Story, after he devoted almost fifty sections of his commentaries to various disputed questions about the impeachment power, he concluded that the final decision on the unresolved issues `may be reasonably left to the high tribunal, constituting the court of impeachment.'

The court of impeachment he refers to is the United States Senate. Similarly, the Federalist papers refer to Senators as the judges of impeachment.

Speaking of the Senate as the jury in impeachment trials is perhaps a more common analogy these days, but the judge analogy is more accurate.

In impeachment trials, the Senate certainly does sit as a finder of fact, as would a jury. But it also sits as a definer of the applicable standards, as would a judge.

The Senate, in other words, determines not only whether the accused has performed the acts that form the basis for the House's Articles of Impeachment, but
also whether those actions justify removal from office.

Once again we find support for this view from the country's history. In 2 of the first 3 impeachments brought forward from the House to the Senate, the Senate acquitted the accused.

In each of the two acquittals, however, the Senate did not disagree with the House on the facts. One case involved a senator, William Blount, the other an Associate Justice of the Supreme Court, Samuel Chase. In neither one was there any question that the individuals had done the deeds that formed the basis of the House's Articles of Impeachment.

In each case, however, the Senate concluded that the deeds were not sufficient to constitute valid grounds for impeachment and so they acquitted.

Eventually, then, if the current impeachment proceeds, it will fall to the Senate to decide not only the facts, but the law, and to evaluate whether or not the specific actions of the president are sufficiently serious to warrant impeachment.

The framers intended that the senate have as its objective doing that what was best for the country, taking context and circumstance fully into account.

I should try to be as clear as I can be about this point, because the media discussion has come close to missing it. It seems to be widely assumed that if the President committed perjury, then he must be impeached and convicted.

Conversely, you may think that unless it can be proven that the President committed perjury or violated other laws, impeachment cannot occur.

Both statements are wrong. Not all crimes are impeachable, and not every impeachable offense is a crime.

The Senate could decline to convict even if the President has committed perjury, if it concluded that under the circumstances, this perjury did not constitute a sufficiently serious breach of duty to warrant removal of this President. On the other hand, the Senate could convict the President of an impeachable offense even if it were not a violation of the criminal law. For instance, if the Senate concluded that the President had committed abuses of power sufficiently grave, it need not find any action to amount to a violation of some criminal statute: [Speech, 10/2/98]

* * * * *

The Senators have a multifaceted role that defies a simple label. They act in part as a jury, which considers evidence and makes the ultimate determination of whether to convict or acquit the President. This role explains the limitations that the rules impose on the ability of Senators to debate or discuss motions and evidence in open session.

Senators also act as judges, with authority to decide whether a ruling by the Chief Justice should stand. This law interpreting role is also a component of the ultimate decision on conviction or acquittal. Senators must determine not only whether the factual allegations against the President are true, they must also determine whether the facts alleged, if true, represent a high crime and misdemeanor.

Senators may also take actions that resemble those typically undertaken by counsel for the parties. They may propound questions (though only in writing) of witnesses or of counsel; they may make objections to questions by counsel or to evidence sought to be introduced; and they make any motion that a party may make.

The Senate has the power to compel the attendance of witnesses by instructing the Chief Justice to issue subpoenas and to enforce obedience to its orders. The Senate also has authority to punish summarily contempts of and disobedience to its orders, although the rules of impeachment do not specify the penalties it may impose. Under the Standing Rules of the Senate, the Senate can also refer a contempt citation to the United States Attorney for the District of Columbia for prosecution pursuant to 2 U.S.C. 191-194 for criminal prosecution: [Memorandum, 12/28/98]

TRIAL, NATURE OF

The Constitution assigns the Senate the sole power to try all impeachments. This power imposes upon the Senate a duty to adjudicate every case in which the House of Representatives impeaches a civil officer of the United States. The framers were deeply concerned that impeachment could become a partisan tool used to gain control and influence over civil officers, and the President in particular. They entrusted to the Senate the role of adjudicating impeachments because the Senate's structurally conferred capacity for deliberation, independence, and impartiality would allow it to act as a check against partisanship. The Constitution fortifies the Senate in this role by providing that conviction requires a vote of two-thirds of the members present.

The Constitution, however, does not define the Senate's power to `try' impeachments and appears to leave broad discretion for the Senate to interpret it as allowing whatever method of inquiry and examination is best suited to a given case. Justice White declared emphatically that `the Senate has very wide discretion in specifying impeachment trial procedures . . . .' The constitutional power, and corresponding duty, to try impeachments does not absolutely require the full Senate or a committee to take live witness testimony subject to cross examination. The Senate has routinely entertained and voted on motions for summary adjudication. Indeed, it is difficult to imagine that the Senate would be constitutionally required to hold live evidentiary proceedings in every conceivable impeachment case. If, for example, the House were to impeach an official who is not a civil officer, it would be absurd to construe the Constitution to require the Senate to go forward with an evidentiary proceeding. Similarly, if the House were to impeach a civil officer on the grounds of misconduct that is not properly considered a high crime or misdemeanor, no constitutional purpose is served by an evidentiary hearing.

Even if an impeachment meets all of the constitutional criteria to invoke a Senate trial, evidentiary proceedings may be unnecessary. It is well-established that the House managers charged with prosecuting the impeachment may introduce the record of other proceedings as substantive evidence in the Senate trial. The House managers have independent discretion over their prosecution of the case, and may decide to rest their case on the documentary record. In addition, the impeached defendant may choose to present no affirmative evidence in his defense. Where the parties have decided that the documentary record is sufficiently encompassing to allow adjudication, the Constitution does not require the Senate to ferret out additional evidence.

Strong support for summary adjudication as a faithful discharge of the Senate's constitutional duty to try impeachments can also be found in the operation of the federal judiciary. The constitution guarantees `the right of trial by jury' in `suits at common law.' There is a tension between the right to trial by jury and summary adjudication by the court. Where a federal court grants summary judgment or dismisses a lawsuit, for example because it fails to state a claim, there is no trial at all, let alone a trial by jury. Nevertheless, the Supreme Court has upheld the authority of the federal courts to grant motions to dismiss and motions for summary judgment. There would seem to be even less concern regarding summary adjudication in the context of a Senate impeachment trial. This is because the Senate acts as both judge (finder of law) and juror (finder of fact) so there is no concern about the proper allocation of the adjudicative function between judge and jury.

The Constitution imposes upon the Senate a duty to try impeachments so that the Senate can act as a check against partisan abuse of the impeachment process. Fidelity to the Constitution requires the Senate carefully to interpret the law of impeachment as set forth in the Constitution and to apply that law to the facts and circumstances of every impeachment approved by the House of Representatives. As with the federal judiciary, this adjudicative duty, however, does not require the Senate to discover new evidence or to hold evidentiary proceedings where the record does not warrant: [Memorandum, 12/22/98]

* * * * *

I. THE HISTORY OF PRESIDENTIAL IMPEACHMENT TRIALS

We have had exactly one impeachment trial of a President, Andrew Johnson, in 1868. This resulted in his acquittal by a single vote. In 1974, the House Judiciary Committee voted to send articles of impeachment with respect to President Richard Nixon to the House floor, but President Nixon resigned shortly thereafter, and the articles were never voted on by the full House.

However, fourteen other impeachment trials have been held in the Senate over the country's history. In preparation for these trials, almost all of which involved federal judges, the Senate has developed a set of standing Rules of Procedure and Practice for such trials, as well as a body of precedent concerning questions of procedure that have arisen and been answered in previous trials. These rules and precedent provide a good basic outline to how the trial of President Clinton will proceed in the Senate, unless they are altered or amended prior to the beginning of President Clinton's trial.

II. CURRENT SENATE RULES OF PROCEDURE AND PRACTICE

Senate procedures while hearing an impeachment are strikingly different from those that operate during normal legislative and executive business. Senators are combinations of judges and jurors. Senators take an oath to do `impartial justice.' They cannot debate or discuss matters in open session. They are expected to commit questions to writing and send them to the Presiding Officer. The Senate when sitting to consider impeachment is a very different body than the Senate we are used to seeing on C-SPAN.

Major points to bear in mind:

The trial and its rules take precedence over normal business. Once the trial begins, the rules set forth a schedule for continuing the trial until conclusion. The fundamental provisions are Rule III, stating that the Senate shall continue in session from day to day (Sundays excepted) until the trial is concluded, and Rule XIII, stating that the trial proceedings shall begin at 12 noon each day, unless otherwise provided by the Senate.

Majority rules. Motions and objections during the proceedings are governed by majority vote.

There are few opportunities to filibuster. Unlike the normal Senate, almost all trial motions, decisions, and orders are resolved under strict time limits--although these time limits would not prevent a determined effort to prolong the trial through repeated motions, whether by counsel or by a group of Senators. In fact, during the trial itself, motions, objections or challenges to rulings by the chair raised by Senators (which must be submitted in writing to the Presiding Officer) are voted on without debate at all, unless the Senate elects to go into closed session. In that case, each Senator is entitled to speak once for no more
than 10 minutes.

Where the impeachment Rules are silent, the Standing Rules of the Senate apply. Precedents extending back at least to the Johnson impeachment support this.

III. HOW MIGHT THE MATTER BE RESOLVED WITHOUT A FORMAL TRIAL?

A. The Senate's duty to try the impeachment. The Constitution provides that `the Senate shall have sole power to try all impeachments.' Some consider this provision to impose a duty upon the Senate to try or adjudicate all impeachments. Even if the Constitution imposes such a duty, the Senate has not understood this duty to adjudicate as necessarily requiring a formal trial. There is precedent for the Senate considering dispositive motions that would allow the Senate to render a judgment without holding a trial. (In the impeachment proceedings against Judges Ritter, Claiborne, and Nixon, the Senate entertained motions to strike articles of impeachment or to summarily adjudicate the matter.) Although such a motion is not specifically discussed in the impeachment rules, the Senate has not viewed dispositive motions as seeking to suspend, modify, or amend the rules. As a result, dispositive motions are ordinary trial motions subject to the limits on debate set forth in the impeachment rules and governed by simple majority vote.

An additional method available to resolve the matter is adjournment sine die. In the case of Andrew Johnson, the Senate voted on three articles of impeachment, acquitting on each. Rather than vote on the remaining eight articles, the Senate simply adjourned the impeachment proceedings sine die. The impeachment rules allow for a vote to adjourn sine die. Adjournment sine die does not specifically pass judgment on the articles of impeachment and so may not be satisfactory to those who consider the Senate duty-bound to try the impeachment.

B. Different motions to adjudicate the matter without an evidentiary trial. Several different motions would seem possible, some drawing on analogies to judicial proceedings.

1. A motion to dismiss would assert that the articles of impeachment fail as a matter of law to state actions upon which a conviction may constitutionally be based. Such an assertion could be based upon the claim that the articles do not state `high crimes and misdemeanors.' Because the articles accuse President Clinton of committing perjury before a grand jury and of obstructing justice (among other things), a `motion to dismiss' would assert that such actions can never support conviction for high crimes or misdemeanors. Additionally, a `motion to dismiss' could be a vehicle for the President to raise the contention that the articles of impeachment lapsed when the 105th Congress adjourned sine die.

While there are no Senate rules governing the timing of motions, analogy to the Federal Rules of Civil Procedure would require a motion to dismiss to be made before the President submits his answer to the summons, or along with his answer to the summons.

2. In contrast to the motion to dismiss, a motion for summary judgment asserts (1) that the parties agree on all material facts and (2) that those facts compel judgment for the moving party. A party submitting a motion for summary judgment is agreeing to have the dispute finally adjudicated on the basis of the facts asserted in his moving papers. The opposing party has the option of filing a cross motion for summary judgment or of objecting that the parties are not in agreement as to all material facts and that a trial is required on the disputed facts. If the opposing party chooses the first course of action (and this could be done by prior agreement between the parties), then the Senate could enter judgment in the case without holding any evidentiary trial.

On a motion for summary judgment, the Senate by majority vote could issue a judgment for the President if it concluded that the undisputed facts fail to establish the existence of a high crime or misdemeanor warranting the President's removal from office. Because this motion rests on a view of the undisputed facts in the specific case, granting the President's motion for summary judgment would mean only that the specific perjury and obstructions charged in these articles of impeachment do not warrant conviction and removal from office (or that the facts failed to establish that these offenses had actually been committed). It would not imply that perjury or obstruction of justice could never serve as grounds adequate to impeach, convict, and remove a President from office.

3. The trial might also be ended by a motion for a directed verdict. Such a motion in civil litigation is brought after the plaintiff has concluded his case, and before the defendant mounts a defense. The motion asserts that the plaintiff's evidence is insufficient to sustain the claim, and that no reasonable fact finder would disagree. Were the House Managers to decide to submit the impeachment to the Senate based solely on evidence already gathered by Starr, the President could bring a `motion for a directed verdict' prior to an evidentiary trial involving any live witness testimony.

4. Finally, the Senate's own precedents supply the possibility of a fourth option, a motion for summary disposition. Such a motion might be entertained as an alternative to any of the motions just discussed, in order to avoid contending with the technicalities of such motions.

In the impeachment trial of Judge Harry Claiborne, for example, the House Managers introduced a motion for summary disposition. Both sides argued this motion without invoking the federal rules of civil procedure or judicial opinions relating to summary dispositions. The parties disputed only whether the facts warranted further evidentiary proceedings in the Senate or if the matter could be decided solely on the basis of Judge Claiborne's conviction for tax evasion. The Senate considered the motion without reference to judicial standards.

This approach is consistent with the Senate's position that it is not bound by the federal rules of civil procedure. Removing the motion from the technical categories and requirements under those rules allows each Senator the discretion to consider whether additional evidentiary proceedings, including live testimony, will serve the public interest.

C. Should the Senate appoint a committee? If the matter is not resolved on a summary basis, Rule XI provides that the Senate can appoint a committee to `receive evidence and take testimony' rather than having the Senate as a whole do so. This procedure has been employed in the case of trials of federal judges, and has been sustained by the Supreme Court. Such a committee would not and could not decide the case, but it could assemble the evidence submitted, prepare a transcript of all testimony and submit it to the Senate. The committee meetings could be televised so that noncommittee Senators would be able to watch them as they occurred, and videotapes could also be prepared for subsequent review. A number of the early proponents of what is now Senate Rule XI option are on record stating their view that such a committee should not be used for a presidential trial.

Composition of a Rule XI committee would be very important. Traditionally, these committees have been composed of twelve members, six from each party with the committee chair chosen from the committee members in the majority party. The Chair exercises the same role within the committee that the Chief Justice fulfills in the full Senate. This is significant because the decisions of the chair may be reversed only by a majority vote. If the votes in committee are on straight party lines, the ruling of the chair will be upheld in every instance. A complicating factor in a presidential impeachment is the requirement that the Chief Justice preside. This may require that the Chief Justice serve as the chair of a rule XI committee if one is appointed. In this event, the rulings of the Chief Justice would be upheld on any party-line vote: [Memorandum, 12/28/98]

* * * * *

House Managers have asserted repeatedly that live witness testimony will resolve discrepancies between the testimony of witnesses, and therefore they ought to be called. There are several points to be made against this point of view.

Demeanor evidence is notoriously unreliable. Recall, for example, Alger Hiss/Whittaker Chambers. Some people were convinced by one side, some people by the other.

Demeanor evidence is not necessarily dispositive, in any event. Both witnesses can come across as reliable, honest and trustworthy. Witnesses often give credible performances while dissembling.

The House Managers are poorly situated to claim the necessity of hearing from live witnesses in order to resolve credibility issues. The House Judiciary Committee heard from no live witnesses, except Ken Starr, and yet the managers have had no difficulty in deciding all credibility disputes against the President or anyone giving testimony favorable to his story.

Any gains from live witnesses need to be assessed against the costs. The costs will come when the Senate chamber descends into the facts of the case with the specificity that will come from live testimony.

For example, one prominent disagreement that the House Managers have cited is that between President Clinton and Ms. Lewinsky regarding whether the President ever touched Ms. Lewinsky's breasts or genitalia. If both witnesses are called and reiterate their prior testimony, the Senate will certainly get the opportunity to observe their demeanor. This might shed some additional light on the question, but it probably won't. The possibility of securing the additional credibility data must be weighed against the serious negative ramifications such proceedings would likely have.

A. INDICTMENT

The Supreme Court engaged in a similar balancing exercise in deciding Clinton v. Jones. In that case, the court held that requiring the President to submit to judicial process in a civil case and go through an entire civil trial would not so damage the presidency as to justify interfering with the ordinary judicial process that vindicates the rule of law. Considering only indictment, as distinct from prosecution of a criminal trial, seems to impose less of a burden on the President. Indictment alone imposes no demands on the President's time.

An attempt to distinguish indictment could proceed on two bases. First, the President is apt to be more concerned about being criminally convicted than found civilly liable. Thus, an indictment could be a greater distraction from the President's duties than is a civil suit. Second, criminal indictment, unlike filing a civil complaint, stigmatizes the President.

Each of these distinctions is subject to dispute. As the Paula Jones suit itself demonstrates, a civil case can be ex tremely distracting. If a criminal indictment is more distract ing, it seems doubtful that it is so much more distracting as to be constitutionally significant. A distinction based on stigma seems particularly weak in this case.

President Clinton has been impeached. Correctly or not, the House of Representatives has construed this impeachment as analogous to a grand jury indictment. It is thus not obvious that an actual criminal indictment would add materially to the stigma the President has already suffered.

Even accepting these grounds of distinction, the independent counsel may seek a sealed indictment. A sealed indictment would not be made known either publically or to the President. If an indictment remains sealed until the President leaves office, it is difficult to see how it could either distract the President or stigmatize him.

B. PROSECUTION

Prosecution presents a different matter. Unlike an indictment with nothing more, proceeding to an actual prosecution would place significant physical and temporal burdens on the President. Preparing for trial and then actually presenting a defense would consume the President's time and attention over a lengthy period. During the pendency of criminal proceedings, the President would repeatedly face a choice between spending the time necessary to mount a meaningful defense and devoting time to fulfilling his constitutional and statutory duties. Even if the President were to choose to spend no time on his defense, it is difficult to imagine that his mind could be fully focused on his official duties.

To so stigmatize and distract the President would seriously undermine his ability to act as a check on the legislative branch. It would also impose significant costs in terms of the nation's standing internationally.

The Supreme Court's decision in Clinton v. Jones could be taken to support subjecting the President to criminal prosecution while in office. In that case, the President had argued that the civil lawsuit should be stayed until the President's term in office expired. He based this position on concerns that the demands of defending a civil lawsuit would impermissibly inter fere with his ability to discharge his official duties. Admittedly, it is unlikely that defending against a criminal prosecution is any more time consuming than defending a civil lawsuit.

There are, however, several crucial distinctions between a civil and a criminal lawsuit. In the Jones case, the Supreme Court emphasized that the burden imposed on the President could be minimized through proper case management by the trial judge. A court does not have the same broad array of options available in a criminal proceedings. Perhaps most significantly, the options for settling the suit without a trial are quite different. President Clinton settled the Paula Jones case by making a cash payment with no admission of wrongdoing. The rough equivalent of settlement in a criminal proceeding is a plea bargain. Such a `settlement,' however, requires the defendant to admit to some criminality. As such, there is far greater pressure on the
president to proceed to trial in a criminal prosecution as opposed to a civil prosecution. Moreover, the President's attendance at a civil trial is not nearly so crucial as is his attendance at a criminal prosecution. The Sixth Amendment expresses the constitutional commitment to allowing a criminal defendant's presence at trial. Finally, consider what follows a judgment in a criminal trial as opposed to a civil trial.

The Paula Jones suit threatened the President with nothing more than an assessment of monetary compensation. An adverse verdict at a criminal trial threatens imprisonment. It is clear that the Constitution does not allow the judiciary to order the imprisonment of the President. Thus, at the very least, sentencing would have to be stayed until the President leaves office.

Extending the holding in Clinton v. Jones to cover criminal prosecutions is subject to an additional objection. The course of events since the Court rendered that decision casts significant doubt upon the conclusions the Court drew in that case. In Clinton v. Jones, the Supreme Court doubted that the civil lawsuit would consume much time or attention of the President. It could not be plainer that this prediction was wrong. While there is no reason to believe that the Court is considering overruling Clinton v. Jones, there is very powerful reason to apply the practical lessons we have learned since that decision to any claim for extending the Clinton v. Jones holding to criminal prosecutions. In light of all that has occurred since that ruling, it is wildly implausible to contend that a criminal proceeding against the President would not significantly disrupt his ability to fulfill his constitutional and statutory duties.

Against this significant disruption is concern for the rule of law. As a practical matter, it is critical to recall that sentencing would be stayed until the President leaves office. Given this, it is doubtful that staying the trial as well would add significant concern from the standpoint of the rule of law. It is important to bear in mind what the rule of law requires. It demands that similarly situated citizens be treated similarly. In light of the President's unique constitutional role, it is error to contend that the President must be treated identically to a private citizen. The rule of law must encompass the fundamental law of the Constitution, and account for the peculiar role of the President within the constitutional structure. Accommodating that role by staying criminal proceedings until the President is out of office respects the rule of law as long as the President is subject to criminal prosecution once out of office. Under these circumstances, the President is subject liability in the same way as any citizen.

The New York Times reports that these conclusions accord with the view of most scholars. According to the Times, most scholars accept that the President may be indicted while in office, but that he may not be prosecuted. This assessment of the state of scholarship is probably accurate, but there is significant dissent as to each conclusion. In other words, the scholarship does not betray a consensus.

III. PRACTICE

There is very little practical experience dealing with the question of indicting or prosecuting a sitting President. The only precedent is the investigation of President Richard Nixon. The biographer to special counsel Archibald Cox reports that Cox had concluded that the separation of powers forbids indicting a sitting President. Cox's successor, Leon Jaworski, decided against seeking to indict President Nixon, although his decision was based on prudential considerations and he did not reach a certain constitutional interpretation.

In 1972, Vice President Spiro Agnew argued to the Supreme Court that a sitting Vice President could not be indicted. Then-Solicitor General Robert Bork submitted an amicus brief on behalf of the United States in which he argued that a sitting Vice President could be impeached, but a sitting President could not be. Judge Bork repeated this position yesterday in an op-ed published in the New York Times.

IV. HISTORY

A number of framers made statements that appear to assume that the President may not be indicted while in office. In The Federalist Alexander Hamilton claimed that the President would be `liable to be impeached, tried, and removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.' In two other numbers of The Federalist Hamilton repeated this sequence and that criminal process comes `after' impeachment and conviction. In none of these passages, however, is Hamilton addressing the specific question of whether the President could be subject to criminal process while in office. It may represent no more than Hamilton's assumption as to what the ordinary sequence would in fact be.

Another framer, Gouverneur Morris, explained that the Constitution vests the power to try impeachments in the Senate rather than the judiciary because the judiciary would `try the President after the trial of impeachment.' In the First Congress, Vice President John Adams and Senator (later Justice) Oliver Ellsworth expressed the view that `the President personally is not . . . subject to any [judicial] process whatever.' But their view was disputed, for example by Senator William Maclay.

The Supreme Court reviewed this historical record in Clinton v. Jones. They concluded that history provides no answer to this question. These comments reflect the view of only a few, albeit influential, individuals and either were not made in the context of whether a sitting President could be indicted or were disputed.

V. PRUDENTIAL CONSIDERATIONS

Even if the Constitution does not prohibit indictment, that does not mean there are not powerful prudential arguments against indictment. Brett Kavanaugh, who was Associate Independent Counsel in Ken Starr's office for three years, put this argument most succinctly in a recent article he published in the Georgetown Law Journal:

The President is not simply another individual. He is unique. He is the embodiment of the federal government and the head of a political party. If he is to be removed, the entire government likely would suffer, [and] the military or economic consequences to the nation could be severe. . . . Those repercussions, if they are to occur, should not result from the judgment of a single prosecutor--whether it be the Attorney General or special counsel--and a single jury. Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act.

Thus, as the Constitution suggests, the decision about the President while he is in office should be made where all great national political judgments in our country should be made--in the Congress of the United States.

There is an additional, closely related, consideration--protecting Congress's constitutional impeachment power. If an independent counsel can indict a sitting President, this act alone tends to force Congress's hand with respect to impeachment. The mere fact of an indictment is an additional factor that generates some pressure to impeach and convict a sitting President. That pressure is even more coercive in the context of a prosecution and verdict than of indictment alone.

VI. DEPARTMENT OF JUSTICE POLICY

Professor David Strauss recently argued that there is no need to address the constitutional issues because the independent counsel is statutorily barred from indicting a sitting President. The United States Code instructs that the independent counsel `shall except where not possible comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws.' 28 U.S.C. 594(f). Professor Strauss argues Judge Bork's Supreme Court brief in the Spiro Agnew case established the Department's policy on indicting a sitting President and that this policy is confirmed in the practice of special counsels Cox and Jaworski.

This is a strong argument, but there is a response: the brief in the Agnew case represents not a policy but an interpretation of the Constitution. That interpretation, the response would continue, has been demonstrated to be in error by the subsequent decision in Clinton v. Jones. An article published by Ken Starr's advisor on constitutional law, Professor Ronald Rotunda, argues that Clinton v. Jones makes clear what had previously been obscure--namely that a sitting President may be indicted and prosecuted: [Memorandum, 2/4/99]


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