THE IMPEACHMENT TRIAL
Jan. 16: Canady on Constitutional Law
From the Congressional Record
Mr. Manager CANADY. Mr. Chief Justice, distinguished counsel, ladies and gentlemen of the Senate, I am Representative Charles Canady of the 12th District of Florida, and I rise now to conclude the argument that my two fellow managers have begun and to address the fundamental question now before the Senate: Do the offenses charged against the President rise to the level of "high crimes and misdemeanors'' under the Constitution?
Are these crimes--perjury before a federal grand jury and obstruction of justice--offenses for which the President has properly been impeached by the House of Representatives and for which he may now properly be convicted by the Senate? Or are these serious felonies offenses for which a Chief Executive may not constitutionally be called to account by either the House or the Senate?
To properly answer these questions, it must be understood, as my fellow manager Mr. Buyer has argued, that perjury and obstruction of justice are serious offenses against the system of justice. To properly answer these questions, it must also be understood--as my fellow manager Mr. Graham has discussed--that the Senate has already determined that as a serious offense against the system of justice, perjury is proper grounds for removal from office.
There are several additional points that I now ask you to consider as you deliberate on the momentous issue you must decide.
First, I will argue that restricting the impeachment process to crimes involving the abuse of Presidential power is contrary to common sense. This is a key point in this case. The President's defense hinges to a large extent on his claim that the offenses charged against him do not involve official misconduct.
I will then review the history and purpose of the impeachment process to show that its fundamental object is to maintain the supremacy of law against the misconduct of public officials. After reviewing the background of the impeachment process, I will briefly discuss the prevailing views on the seriousness of perjury at the time the Constitution was adopted, and show that perjury and obstruction of justice are akin to bribery in their purpose and effect.
To conclude, I will discuss the proper role of the Senate in exercising the removal power--emphasizing three essential points:
First, that the removal power is designed to preserve, protect, and strengthen our Constitution by setting a standard of conduct for public officers.
Second, that the Senate should not establish a lower standard of integrity for the President than the standard it has already established for federal judges.
Third, that the Senate should not allow a President who has violated his constitutional duty and oath of office, and made himself a notorious example of lawlessness to remain in office.
The President's lawyers have argued that the "Constitution requires proof of official misconduct'' for impeachment and conviction, and that removal from office is not proper for crimes that do not involve an abuse of the power of office. This view is endorsed by various academics who have signed a letter in support of the President. The Senate must now decide if this is a proper interpretation of the Constitution.
In deciding this question you should be guided by common sense and good judgment. It is by no means an abstruse and mysterious matter of constitutional law.
Nor is it a new question before the Senate. It has been decided in the recent judicial impeachments which Mr. Graham has discussed. And it is a question which arose 200 years ago in the course of the first impeachment trial conducted by the Senate.
At that trial in January of 1799, as the Senate met in Philadelphia, an argument was made by counsel for the respondent, Senator Blount of Tennessee, that the impeachment power was properly exercised only with respect to "official offenses.'' Although Senator Blount escaped conviction on other grounds, the response to his claim that only official misconduct could justify impeachment and removal remains noteworthy. Robert Goodloe Harper of South Carolina, one of the House managers--and who, incidentally, subsequently served as a Member of this Senate representing the State of Maryland--refuted that claim by asking a simple question:
"Suppose a Judge of the United States were to commit a theft or perjury; would the learned counsel say that he should not be impeached for it? If so, he must remain in office with all his infamy * * * .''
Two hundred years to the month after Robert Goodloe Harper posed that question to the Senate, a very similar question is before the Senate today. Shall a President--if found guilty of perjury and obstruction of justice--be removed, or must he "remain in office with all his infamy''?
Although a judge who commits crimes may be subjected to criminal penalties and prevented from discharging judicial functions, he can be divested of his office only by impeachment and removal. The tenure of a President will necessarily expire with the passage of time, but most scholars of constitutional law agree that while he remains in office he is immune from the processes of the criminal law. So long as he is President, the only mechanism available to hold him accountable for his crimes is the power of impeachment and removal. Unless that power is exercised, no matter what crime he has committed, he must "remain in office with all his infamy.''
The argument of the President's lawyers that no criminal act by the President subjects him to removal from office unless the crime involves the abuse of his power is an argument entailing consequences which-- upon a moment's reflection--this body should be unwilling to accept.
Would a President guilty of murder be immune from the constitutional process of impeachment and removal so long as his crime involved no misuse of official power? Would a President guilty of sexual assault or child molesting remain secure in office because his crime did not involve an abuse of office?
In support of their position, the President's lawyers have vigorously argued that a President who committed tax fraud--a felony offense not involving official misconduct--would not be subject to impeachment and removal. They erroneously cite the decision of the House Judiciary Committee rejecting an article of impeachment against President Nixon for tax fraud. The record of the House proceedings establishes that the tax fraud article against President Nixon was rejected due to insufficient evidence that he was in fact guilty of tax fraud. The House Judiciary Committee never determined that tax fraud by a President would not be grounds for impeachment.
But, leaving aside the inaccurate characterization of the House Judiciary Committee's action, the claim of the President's lawyers that a President could commit tax fraud and remain immune from impeachment and removal is quite telling. It reveals a great deal about the sort of standard they would set for the conduct of the President of the United States.
The claim that tax fraud--a felony--does not rise to the level of a high crime or misdemeanor was, as you have heard, unequivocally rejected by the Senate in 1986 in the case of Judge Harry Claiborne, who was removed from office for filing false income tax returns.
Then-Senator Albert Gore, Jr., summarized the judgment of the Senate that Judge Claiborne should be removed from office. The comments of Senator Gore bear repeating:
It is incumbent upon the Senate to fulfill its constitutional responsibility and strip this man of his title. An individual who has knowingly falsified tax returns has no business receiving a salary derived from the tax dollars of honest citizens.
I would respectfully submit to the Senate that the argument of the President's lawyers concerning tax fraud by a President is not a viable argument.
Who can seriously argue that our Constitution requires that a President guilty of crimes such as murder, sexual assault, or tax fraud remain in his office undisturbed? Who is willing to set such a standard for the conduct of the President of the United States? Who can in good conscience accept the consequences for our system of government that would necessarily follow? Could our Constitution possibly contemplate such a result? What other crimes of a President will we be told do not rise to the level of "high crimes and misdemeanors?'' These are grave questions that must be addressed by this Senate. The President's defense requires that these questions be asked and answered.
Contrary to the claims of the President's lawyers, there is not a bright line separating official misconduct by a President from other misconduct of which the President is guilty. Some offenses will involve the direct and affirmative misuse of governmental power. Other offenses may involve a more subtle use of the prestige, status and position of the President to further a course of wrongdoing. There are still other offenses in which a President may not misuse the power of his office, but in which he violates a duty imposed on him under the Constitution.
Such a breach of constitutional duty--even though it does not constitute an affirmative misuse of governmental power--may be a very serious matter. It does violence to the English language to assert that a President who has violated a duty entrusted to him by the Constitution is not guilty of official misconduct. Common sense indicates that official misconduct has indeed occurred whenever a President breaches any of the duties of his office.
As we have been reminded repeatedly, the Constitution imposes on the President the duty to "take care that the laws be faithfully executed.'' The charges against the President involve multiple violations of that duty. A President who commits a calculated and sustained series of criminal offenses has--by his personal violations of the law--failed in the most immediate, direct, and culpable manner to do his duty under the Constitution.
In their defense of the President, his lawyers in essence contend that a President may be removed for misusing governmental power, but not for corruptly interfering with the proper exercise of governmental power. This argument exalts form over substance. It unduly focuses on the manner in which wrongdoing is carried out and neglects to consider the actual impact of that wrongdoing on our system of government. Whether the President misuses the power vested in him as President or wrongfully interferes with the proper exercise of the power vested in other parts of the government, the result is the same: the due functioning of our system of government is in some respect hindered or defeated.
There is no principled basis for contending that a President who interferes with the proper exercise of governmental power--as he clearly does when he commits perjury and obstruction of justice--is constitutionally less blameworthy than a President who misuses the power of his office. A President who lies to a federal grand jury in order to impede the investigation of crimes is no less culpable than a President who wrongfully orders a prosecutor to suspend an investigation of crimes that have been committed. The purpose and effect of the personal perjury and of the wrongful official command are the same: the laws of the United States are not properly enforced.
Although neither the Senate nor the House has ever adopted a fixed definition of "high crimes and misdemeanors,'' there is much in the background and history of the impeachment process that contradicts the narrow view of the removal power advanced by the President's lawyers.
There is no convincing evidence that those who framed and ratified our Constitution intended to limit the impeachment and removal power to acts involving the abuse of official power.
The key phrase defining the offenses for which the President, Vice President and other civil officers of the United States may be removed--"treason, bribery or other high crimes and misdemeanors''-- simply does not limit the removal power in the way suggested by the President's lawyers.
The truth is as we have heard already today, that treason and bribery may be committed by an official who does not abuse the power of his office in the commission of the offense. A President might, for example, pay a bribe to a judge presiding over a case to which the President is an individual party. Or a judge might commit an act of treason without exercising any of the powers of his office in doing so. By the express terms of the Constitution those offenses would be impeachable. And there is no reason to impose a restriction on the scope of "other high crimes and misdemeanors'' that is not imposed on treason and bribery.
Although having a means for the removal of officials guilty of abusing their power was no doubt very much in the minds of the framers, the purpose of the removal power was not restricted to that object.
To properly understand the purpose impeachment process under our Constitution, consideration must be given to use of impeachment by the English Parliament. Impeachment in the English system did not require an indictable crime, but the proceeding was nevertheless of a criminal nature: punishment upon conviction could extend to imprisonment and even death. It was a mechanism used by the Parliament to check absolutism and to establish the supremacy of the Parliament. Through impeachment, Parliament acted to curb the abuses of exalted persons who would otherwise have free reign. Impeachment was used by the Parliament to punish a wide range of offenses: misapplication of funds; abuse of official power; neglect of duty; corruption; encroachment on the prerogatives of the Parliament; and giving harmful advice to the Crown. In the English practice, "high crimes and misdemeanors'' included all of these.
During the impeachment of Lord Chancellor Macclesfield in 1725, Serjeant Pengelly summed up the purpose of impeachment. It was, he said, for the "punishment of offenses of a public nature which may affect the nation.'' He went on to say that impeachment was also for use in "instances where the inferior courts have no power to punish the crimes committed by ordinary rules of justice . . . or in cases . . . where the person offending is by his degree raised above the apprehension of danger from a prosecution carried on in the usual course of justice; and whose exalted station requires the united accusation of all the Commons.''
In the case of Warren Hastings--which was proceeding at the time the Constitution was framed--Edmund Burke described the impeachment process as ". . . a grave and important proceeding essential to the establishment of the national character for justice and equity.''
". . . [T]he greatest services rendered by this procedure to the cause of constitutional government have been, firstly, the establishment of the doctrine of ministerial responsibility to the law, secondly, its application to all ministers of the crown, and thirdly and consequently the maintenance of the supremacy of the law over all.''
Thus the fundamental purpose of the impeachment process in England was "the maintenance of the supremacy of the law over all.'' Those who were impeached and called to account for "high crimes and misdemeanors'' were those who by their conduct threatened to undermine the rule of law.
This English understanding of the purpose of impeachment serves as a backdrop for the work of the Framers of our Constitution. Despite some important differences in the functioning of impeachment in England and the United States, the fundamental purpose of impeachment remained the same: defending the rule of law.
The records of the proceedings of the Constitutional Convention also shed light on the meaning of "high crimes and misdemeanors,'' and the underlying purpose of the impeachment mechanism. The primary focus of the relevant discussions at the Convention was on the need for some means of removing the President. Early in the proceedings with respect to impeachment, the Committee of the Whole agreed to make the President removable "on impeachment and conviction of malpractice or neglect of duty,'' although concerns were expressed that impeachment would give the legislative branch undue control over the executive, and violate the separation of powers.
In the course of the proceedings, James Madison stated that "some provision was needed to defend the community against the President if he became corrupt, incapacitated, or perverted his administration into a scheme of peculation or oppression.''
Arguing for a means of removing the President, George Mason said, "No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?''
Before the Convention settled on the language that was ultimately adopted, a proposal was considered that would have limited impeachable offenses to treason and bribery. An effort was made to broaden this proposal by including "maladministration'' as an impeachable offense. Madison objected. He objected that the inclusion of a term as "vague'' as maladministration would result in the President having tenure during the pleasure of the Senate. As a compromise, the term "maladministration'' was dropped and "high crimes and misdemeanors'' was substituted. From this course of proceedings it can reasonably be concluded that poor administration--at least if it does not involve corrupt motives--is not a sufficient ground for impeachment.
In the debate concerning the Constitution in the various state ratification conventions, the grounds for impeachment were with some frequency said to include abuse or betrayal of trust and abuse of power. "Making a bad treaty'' was also frequently mentioned as justifying impeachment. At the Virginia Convention, Governor Randolph spoke of "misbehavior'' and "dishonesty,'' and James Madison gave two examples of impeachable conduct: pardoning a criminal with whom the President was in collusion, and summoning only a few Senators to approve a treaty.
One of the most extensive recorded discussions of impeachment occurred at the North Carolina ratification convention in remarks made by James Iredell. Iredell, who later served as a Justice of the Supreme Court, spoke of the supremacy of the law under the system of government proposed by the Constitution. He said:
No man has an authority to injure another with impunity. No man is better than his fellow-citizens, nor can pretend to any superiority over the meanest man in the country. If the President does a single act, by which the people are prejudiced, he is punishable himself. . . . If he commits any misdemeanor in office, he is impeachable . . .
Iredell also expressed the view that impeachment may be used only in cases where there is some corrupt motive. He said:
. . . [W]hen any man is impeached, it must be for an error of the heart, and not of the head. . . . Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuse his trust, he is to be held up as a public offender, and ignominiously punished. . . . According to these principles, I suppose the only instances in which the President would be liable to impeachment, would be where he had received a bribe, or acted from some corrupt motive or other.
Iredell's comments buttress the view that impeachment is not to be used as a political weapon to resolve differences of policy between the legislative branch and the executive branch. Impeachment is not an appropriate remedy for errors--even serious errors--in the administration of government.
To justify impeachment, there must be "some corrupt motive,'' a willful "abuse of trust,'' an "error of the heart.'' You will note there is nothing in Iredell's comments to suggest that a President who engaged in a corrupt course of conduct by obstructing justice and committing perjury would be immune from impeachment and removal.
Another major discussion of impeachment during the debate over ratification occurs in the Federalist number 65, to which reference has already been made in those proceedings, where Alexander Hamilton describes the impeachment process as "a method of national inquest into the conduct of public men'' and discusses the powers of the Senate "in their judicial character as a court for the trial of impeachments.''
Now, before I discuss his views of impeachment, I would like to say a word in defense of Alexander Hamilton--who is a widely acknowledged champion of our Constitution, widely acknowledged as one of the most eloquent expositors and defenders of the Constitution. Unfortunately, the reputation of Hamilton has in recent days been traduced. It is unjust to the memory of this great man to compare his personal sins with the crimes of President Clinton. When Hamilton was questioned about his affair he told the truth. He took responsibility for his conduct. There is no evidence that he ever engaged in acts of corruption. He never lied under oath. He never obstructed justice. Notwithstanding the efforts of his lawyers, President Clinton by no means benefits from a comparison with Hamilton.
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.
Hamilton recognized that the focus of the impeachment power is on the "misconduct of public men'' or the "abuse or violation of some public trust.'' Impeachment is a remedy against officials for "injuries done . . . to the society itself.''
Despite the claims of the President's lawyers, the comments of Hamilton do not support the view that a President can be impeached and removed only for an abuse of power. The "misconduct of public men,'' and "the abuse or violation of some public trust'' to which Hamilton refers are not restricted to offenses involving the misuse of official power. The "misconduct of public men'' encompasses a whole range of wrongful deeds committed by those who hold office when those offenses are committed. The "public trust'' is violated whenever a public officer breaches any duty he has to the public. "Injuries done . . . to the society itself'' similarly may occur as the result of misconduct that does not involve the misuse of the powers of office.
Now, I would submit to the Senate that the English precedents, the records of the Constitutional Convention debates, and the general principles set forth by Hamilton, Iredell, and others in the debate over ratification do not provide a definitive list of high crimes and misdemeanors. But they do provide broad guidance concerning the scope of the impeachment power. The theme running through all these background sources is that the impeachment process is designed to provide a remedy for the corrupt and lawless acts of public officials.
Not surprisingly, those who have been on the receiving end of impeachment proceedings have been quick to argue for a restrictive meaning of "high crimes and misdemeanors.'' President Clinton's lawyers follow in that well-established tradition.
They attempt to minimize the significance of the charges of perjury and obstruction of justice against the President. In essence, they argue that treason and bribery are the prototypical high crimes and misdemeanors, and that the crimes charged against the President are insufficiently similar in both their nature and seriousness to treason and bribery.
But, as the comments of my fellow manager, Mr. Buyer, have made clear, the crimes set forth in the articles of impeachment are indeed serious offenses against our system of justice. They were certainly viewed as serious offenses by those who drafted and ratified the Constitution.
As Mr. Buyer has mentioned, in his discussion of "offenses against the public justice,'' Sir William Blackstone--whose work James Madison said was in "every man's hand'' during the creation of the Constitution--listed the offenses of perjury and bribery side-by-side, immediately after he listed treason. In 1790, the First Congress adopted a statute entitled "An Act for the punishment of certain crimes against the United States'' making perjury a crime punishable as a felony. Nothing could be clearer: perjury is a crime against the United States; it is not a private matter.
As Mr. Chabot noted yesterday, John Jay, the first Chief Justice of the United States, said that "there is no crime more extensively pernicious to Society'' than perjury. According to Jay, perjury "discolors and poisons the Streams of Justice, and by substituting Falsehood for Truth, saps the Foundations of personal and public Rights. . . . [I]f oaths should cease to be held sacred, our dearest and most valuable Rights would become insecure.'' Given this understanding that was current at the time the Constitution was adopted, it is impossible to support the conclusion that perjury and the related offense of obstruction of justice are somehow trivial offenses that do not rise to the same level as the offense of bribery which is enumerated in the Constitution.
Moreover, perjury and obstruction of justice are by their very nature akin to bribery. When the crime of bribery is committed, money is given and received to corruptly alter the course of official action. When justice is obstructed, action is undertaken to corruptly thwart the due administration of justice. When perjury occurs, false testimony is given in order to deceive judges and juries and to prevent the just determination of causes pending in the courts. The fundamental purpose and the fundamental effect of each of these offenses--perjury, obstruction of justice and bribery alike--is to defeat the proper administration of government. They all are crimes of corruption aimed at substituting private advantage for the public interest. They all undermine the integrity of the functions of government.
The use of the impeachment process against misconduct which undermines the integrity of government is a central focus of two reports prepared in 1974 on the background and history of impeachment, and I would humbly bring these reports to your attention. I commend them to you for your consideration. One of the reports was prepared by the staff of the Nixon impeachment inquiry. The other was produced by the Bar of the City of New York. Both of these reports have gained bipartisan respect over the last 25 years for their balanced and judicious approach. They provide a well-informed analysis of the key issues related to impeachments. In doing so they stand in stark contrast to the recent pronouncements by some academics which substitute political opinion for scholarly analysis.
A review of these two important documents from 1974 supports the conclusion that the articles before the Senate set forth compelling grounds for the conviction and removal of President Clinton.
There has been a great deal of comment on the report on "Constitutional Grounds for Presidential Impeachment'' prepared in February 1974 by the staff of the Nixon impeachment inquiry. Those who assert that the charges against the President do not rise to the level of "high crimes and misdemeanors'' have pulled some phrases from that report out of context to support their position. In fact, the general principles concerning grounds for impeachment and removal set forth in that report indicate that perjury and obstruction of justice are high crimes and misdemeanors.
Consider this key language from the staff report describing the type of conduct which gives rise to the proper use of the impeachment and removal power:
In the report, they said:
The emphasis has been on the significant effects of the conduct--undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.
The report goes on to state:
Perjury and obstruction of justice, I submit to you, clearly "undermine the integrity of office.'' I ask you, if these offenses do not undermine the integrity of office, what offenses would?
Their unavoidable consequence is to erode respect for the office of the President and to interfere with the integrity of the administration of justice. Such offenses are "seriously incompatible'' with the President's "constitutional duties and oath of office,'' and with the principles of our government establishing the rule of law. Moreover, they are offenses which have a direct and serious "adverse impact on the system of government.'' Obstruction of justice is by definition an assault on the due administration of justice--which is a core function of our system of government. Perjury has the same purpose and effect.
The second report, to which I have referred, the thoughtful report on "The Law of Presidential Impeachment'' prepared by the Association of the Bar of the City of New York in January of 1974 also places a great deal of emphasis on the corrosive impact of presidential misconduct on the integrity of government. The report summarizes the proper basis for impeachment and removal in this way. It says:
It is our conclusion, in summary, that the grounds for impeachment are not limited to or synonymous with crimes. . . . Rather, we believe that acts which undermine the integrity of government are appropriate grounds whether or not they happen to constitute offenses under the general criminal law. In our view, the essential nexus to damaging the integrity of government may be found in acts which constitute corruption in, or flagrant abuse of the powers of, official position. It may also be found in acts which, without directly affecting governmental processes, undermine that degree of public confidence in the probity of executive and judicial officers that is essential to the effectiveness of government in a free society.
A similar point is made by a contemporary commentator who has argued:
Such a lack of the minimal level of integrity necessary for the proper discharge of the duties of the Presidency is evidenced by the commission of the statutory crimes of perjury and obstruction of justice.
Contrary to the claim that has been made by some, the issue before the Senate is not whether the offenses of this President will destroy our Constitution. We all know that our system of government will not come tumbling down because of the corrupt conduct of William Jefferson Clinton. Our Republic will survive the crimes of this President. No one doubts that. Of course, the same could be said of all the other federal officials who have been impeached and removed from office. And the same might be said of the crimes--serious as they were--of President Richard Nixon.
But the removal power is not restricted to offenses that would directly destroy our Constitution or system of government. The removal power is not so limited that it can be brought into play only when the immediate destruction of our institutions is threatened.
On the contrary, the removal power should be understood as a positive grant of authority to the Senate to preserve, protect and strengthen our constitutional system against the misconduct of federal officials when that misconduct would subvert, undermine, or weaken the institutions of our government. It is a power that has the positive purpose of maintaining the health and well-being of our system of government.
This power--the awesome power of removal vested in the Senate-- carries with it an awesome responsibility. This power imposes on the Senate the responsibility to exercise its judgment in establishing the standards of conduct that are necessary to preserve, protect, and strengthen the Constitution which has served the people of the United States so well for more than two centuries.
Thus, the crucial issue before the Senate is what standard will be set for the conduct of the President of the United States. In this case, the Senate necessarily will establish such a standard. And make no mistake about it: the choice the Senate makes in this case will have consequences reverberating far into the future of our Republic. Will a President who has committed serious offenses against the system of justice be called to account for his crimes, or will his offenses be regarded as of no constitutional consequence? Will a standard be established that such crimes by a President will not be tolerated, or will the standard be that--at least in some cases--a President may "remain in office with all his infamy'' after lying under oath and obstructing justice?
Regardless of the choice the Senate makes--whether it acquits or convicts the President--a standard will be established, and that standard will become an important part of our constitutional law of this Nation. The institutions of our Government will either be strengthened or weakened as a result. And if the Senate acquits this President, the conduct of future Presidents will inevitably be affected in ways that we cannot now confidently predict.
I would now like to take a very few minutes to examine some of the other specific arguments that have been made that this is not a proper case for use of the removal power.
Some have suggested that in setting a standard in this case the Senate should be guided by the popularity of the President. It is urged that a popular President--regardless of the offenses he may have committed--should not be removed from office. Such a view finds no support however, in our Constitution. On the contrary, the framers understood that a popular President might be guilty of crimes requiring his removal from office.
That is why they included the power of impeachment and removal in the Constitution. And that, no doubt, is why they specifically provided that an impeached official who was convicted and removed might also be perpetually disqualified "to hold and enjoy any office of honor, trust, or profit under the United States.''
The potential threat posed to our institutions by Presidential misconduct would, in fact, be heightened by the popularity of the offending President. The harmful influence and example of a popular President would pose a far greater danger to the well-being of our Government than the influence and example of an unpopular President.
Moreover, the very framework of our Constitution establishing a representative democracy is at odds with the notion that the institutions of our Government should respond mechanically to the changing tides of public opinion. The Senate, in particular, was designed to act on the basis of the long-term best interests of the Nation rather than short-term political considerations.
When he was tried by the Senate 130 years ago, President Andrew Johnson was overwhelmingly unpopular. If the Senate had used Presidential popularity as a guide in the Johnson case, there is no doubt that he would have been convicted and removed from office. Yet today there is widespread agreement that such action by the Senate would have been an abuse of the constitutional process, and those who refused to use Presidential popularity as their guide are hailed as great statesmen and heroes. Those Senators who then stood against the tide of public sentiment today are revered as champions of constitutional government.
A popular President guilty of high crimes and misdemeanors should no more remain in office than an unpopular President innocent of wrongdoing should be removed from office. Under the standards of the Constitution, popularity is not a sufficient guide.
Nor should the Senate be swayed by the claims that setting a standard adverse to this President will weaken the institution of the Presidency. Describing the role of impeachment under our Constitution, Arthur M. Schlesinger, Jr.--who I will candidly admit takes a different view of the matter today--wisely observed that:
Rather than weakening the Presidency, the removal from office of a President who has violated his constitutional duty and oath of office will reestablish the integrity of the Presidency. Setting a standard against the acts of perjury and obstruction of justice committed by President Clinton will reaffirm the dignity and the honor of the office of Chief Executive under our Constitution. That will strengthen--not weaken--the institution of the Presidency.
It has even been argued that the impeachment and removal of President Clinton would result in the virtual alteration of our system of government. It is contended that following the constitutional process in this case would move us toward a transformation of our Constitution: a quasi-parliamentary system, with the President serving at the pleasure of the legislative branch, would replace the framework based on the separation of powers.
I am, frankly, reluctant to dignify this argument by responding to it. President Nixon was driven from office for his crimes under threat of impeachment and removal. The disruption of the framework of our Government did not ensue. President Clinton may be removed from office for his crimes. The constitutional system will remain sound.
Who has so little confidence in the durability of the institutions of our Government that he would allow a President guilty of perjury and obstruction of justice to remain in office simply on the basis of a fanciful and irrational fear of the supposed consequences of his removal?
The Constitution contains wise safeguards against the misuse of the impeachment and removal power. As a practical matter, as we all know, the requirement of a two-thirds vote for conviction virtually ensures that a President will only be removed when a compelling case for removal has been made. And the periodic accountability to the people of Members of both the House and the Senate serves as a check on the improvident use of the impeachment power for unworthy or insubstantial reasons. Those who would abuse the power of impeachment and removal will be deterred by the certain knowledge that they ultimately must answer to the people.
But, of course, the ultimate safeguard against the abuse of this power is in the sober deliberation and sound judgment of the Senate itself. The framers of the Constitution vested the removal power and responsibility in the Senate because, as Hamilton observed, they "thought the Senate the most fit depositary of this important trust.'' The Senate was, in the view of the framers, uniquely qualified to exercise the "awful discretion, which a court of impeachment must necessarily have.'' As Hamilton explained:
Ladies and gentlemen of the Senate, this is the great trust which the Constitution has reposed in you. It is a trust you exercise not only for those who elected you but for all other Americans, including generations yet unborn.
As you carry out this trust, we do not suggest that you hold this President or any President to a standard of perfection. We do not assert that this President or any President be called to account before the Senate for his personal failings or his sins. We will leave the President's sins to his family and to God. Nor do we suggest that this President or any President should be removed from office for offenses that are not serious and grave.
But we do submit that when this President, or any President, has committed serious offenses against the system of justice--offenses involving the stubborn and calculated choice to place personal interest ahead of the public interest--he must not be allowed to act with impunity.
Mr. Manager Graham has reviewed the recent precedents of the Senate, establishing that offenses such as those committed by this President are grounds for removal from office. Those precedents, which were set in the impeachment trials of Federal judges, are rejected as totally irrelevant by the President's lawyers. They urge that a lower standard of integrity be established in this case for the President of the United States than the standard which the Senate has already established for Federal judges.
But the Constitution contains a single standard for the exercise of the impeachment and removal power. You have heard it before, but I will repeat. Article II, section 4, provides:
And there is nothing in the Constitution suggesting that criminal offenses which constitute high crimes and misdemeanors if committed by one Federal official will not be high crimes and misdemeanors if committed by another Federal official. There is nothing in the Constitution to suggest that the President should be especially insulated from the just consequences of his criminal conduct.
Justice Joseph Story warned long ago against countenancing "so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.''
The Senate should heed the warning of Justice Story and refuse to arbitrarily establish a different standard for judging William Jefferson Clinton than the standard it has imposed already on others brought before the bar of the Senate sitting as a Court of Impeachment.
The Senate has never accepted the view that a separate standard applies to the impeachment and removal of Federal judges. Indeed, the Senate has specifically rejected attempts to establish such a separate standard for judicial officers. Every judge who has been impeached and removed from office has been found guilty of treason, bribery, or other high crimes and misdemeanors.
Contrary to the argument advanced by some, the constitutional provision that judges "shall hold their offices during good Behaviour'' does not establish any authority to remove a judge for misconduct other than for those offenses involving treason, bribery, or other high crimes and misdemeanors. Rather than establishing a standard for removal, the "good behavior'' clause simply provides for life tenure for all article III judges. To accept the "good behavior'' clause, I would caution you to accept it as a separate basis for the removal of Federal judges would pose a serious threat to the independence of the judiciary under our Constitution.
Members of the Senate, the integrity of the administration of justice depends not only on the integrity of judges, but also on the integrity of the President. A President who has committed perjury and obstruction of justice is hardly fit to oversee the enforcement of the laws of the United States. As Professor Jonathan Turley has pointed out:
It would indeed be anomalous for the Senate to now hold the President of the United States to a lower standard of integrity than the standard applied to members of the judiciary. There is no sensible constitutional rationale for such a lower standard.
Who could successfully defend the view that in the framework established by our Constitution the integrity of the Chief Executive is of less importance than the integrity of any one of the hundreds of federal judicial officers? It is the President who appoints Justices of the Supreme Court and all other federal judges. It is the President who appoints the Attorney General. It is the President who appoints the Director of the Federal Bureau of Investigation. It is the President who has the unreviewable power to grant pardons.
The power of the President far surpasses the power of any other individual under our Constitution. The authority and discretion vested in him under the Constitution and laws is great and wide-ranging. The requirement that he act with integrity and that he be a person of integrity is essential to the integrity of our system of government.
Soon after the adoption of the Constitution, Alexander Hamilton wrote that "an inviolable respect for the Constitution and the Laws'' is the "most sacred duty and the greatest source of security in a Republic.'' Hamilton understood that respect for the Constitution itself grows out of a general respect for the law. And he understood the essential connection between respect for law and the maintenance of liberty in a Republic. Without respect for the law, the foundation of our Constitution is not secure. Without respect for the law, our freedom is at risk. Thus, according to Hamilton, those who "set examples which undermine or subvert the authority of the laws lead us from freedom to slavery. . . .''
Early in this century, Justice Brandeis spoke of the harm to our system of government which occurs when officials of the government act in a lawless manner. Justice Brandeis said:
To conclude, I would observe in the case before it now, the Senate must decide if William Jefferson Clinton as President will be "subjected to the same rules of conduct that are commands to the citizens.'' It is no answer that he may one day after leaving office perhaps be called to account in a criminal court proceeding somewhere. Justice delayed is justice denied. Because he has taken and violated the oath as President, William Jefferson Clinton is answerable for his crimes to the Senate here and now.
Will he as President be vindicated by the Senate in the face of crimes for which other citizens are adjudicated felons and sent to prison? Or will this Senate acting in accordance with the provisions of the Constitution bring him as President into submission to the commands of the law? Will the Senate give force to the constitutional provision for impeachment and removal which Justice Story said "compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws''?
"For good or ill'' William Jefferson Clinton "teaches the whole people by [his] example'' as President. The President is not only the head of government but also the head of State. As President he has a unique ability to command the attention of the whole nation. In his words and his deeds he represents the American people and the system of government in a way that no other American can. Great honor and respect accrue to him by virtue of the high office he holds. The influence of his example is far-reaching and profound.
By his conduct President William Jefferson Clinton has set an example the Senate cannot ignore. By his example he has set a dangerous and subversive standard of conduct. His calculated and stubbornly persistent misconduct while serving as President of the United States he has set a pernicious example of lawlessness --an example which by its very nature subverts respect for the law. His perverse example has the inevitable effect of undermining the integrity of both the office of President and the administration of justice.
Ladies and Gentlemen of the Senate, I humbly submit to you that his harmful example as President must not stand. The maintenance in office of a President guilty of perjury and obstruction of justice is inconsistent with the maintenance of the rule of law.
In light of the historic purpose of impeachment, the offenses charged against the President demand that the Senate convict and remove him. He must not "remain in office with all his infamy.'' Our Constitution requires that this President who has shown such disrespect for the truth, such disrespect for the law, and such disrespect for the dignity of his high office be brought to justice for his high crimes and misdemeanors.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, if there is no objection, I ask unanimous consent that the court of impeachment proceedings stand in recess for one hour. We will return at 2:10 p.m.
There being no objection, at 1:08 p.m., the Senate recessed until 2:11 p.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to proceed now with the next manager. I believe it is Mr. Manager Gekas.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Gekas.
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