Washington Post Staff Writers
Tuesday, September 8, 1998; Page A01
With the investigation of President Clinton becoming a central concern for Congress this week, lawmakers have begun to grapple with the question that independent counsel Kenneth W. Starr's report will force them to confront: Do Clinton's actions amount to impeachable offenses?
For only the second time this century, Congress -- starting with the House Judiciary Committee -- will have to decide what the Constitution means by "high crimes and misdemeanors" when it comes to the president. Members must sift through more than 200 years of history while calibrating the politics of the moment to reach consensus on whether this president's conduct in the Monica S. Lewinsky matter warrants expulsion from his post.
The Judiciary Committee is scheduled to meet today to discuss how it will receive Starr's report, which is expected to arrive on Capitol Hill within the next several weeks. Meetings among leaders of both parties are planned for later in the week to hash out the intricate series of procedural steps that would set the impeachment process in motion.
"This is what we call in the deep South new ground that we're plowing. We've never been through this before," said Rep. Howard Coble (R-N.C.), a senior Judiciary Committee member and one of several members of that panel who offered their varying interpretations of impeachment in interviews last week.
The framers created a strong president but included in the constitutional scheme what legal scholar Raoul Berger once called a "safety valve" in the form of impeachment, providing a mechanism for ousting the chief executive before his term of office expires. The Constitution states that the president may be impeached by a majority of the House for "treason, bribery, or other high crimes and misdemeanors" and, upon conviction by two-thirds of the Senate, removed from office.
Conversely, are some criminal actions either not significant enough or not closely enough related to the president's official duties to warrant impeachment and removal from office?
Clinton's critics can be expected to argue that his actions constituted either criminal violations or an abuse of power so grave as to warrant his removal. His defenders will likely counter that his misconduct involved his personal life, not his official duties, and that -- however reprehensible -- they do not reflect presidential misbehavior so severe as to deserve that ultimate sanction.
Rep. Zoe Lofgren (D-Calif.), a Judiciary Committee member who served as an aide to a panel Democrat during the impeachment proceedings against President Richard M. Nixon 24 years ago, emphasized that impeachment is meant not to punish a president but to protect the nation and its citizens against abuses of power.
"It's very clear that impeachment was really meant to be a between-elections remedy for behavior that endangered the system of government on the part of the chief executive," Lofgren said. "It's not to punish the chief executive, it's to save the Constitution. Criminal law, by the way, has nothing to do with this whole process."
Others took a broader view. "A felony crime would definitely constitute a 'high crime,' " said Rep. Bill McCollum (R-Fla.), chairman of the Judiciary crime subcommittee. "If at the end of the day, I were to conclude that the president lied under oath in a deposition in the Paula Jones case with criminal intent and committed perjury, I would vote to impeach him because if we don't do that, he will have broken the rule of law and undermined the rule of law and we would be setting a terrible precedent."
But Coble offered an illustration of the warring impulses that lawmakers feel on the topic. "If a president committed perjury, I think he's committed an offense that warrants impeachment," Coble said, immediately adding, "That doesn't mean I'm going to vote for impeachment."
As the debate moves forward, both sides will marshal arguments derived from centuries-old English impeachment cases, from the debates over the Constitution itself, and from the various impeachments that the House has carried out. Already, the majority and minority staffs of the Judiciary Committee have conducted extensive legal research on the issue.
In an effort to shape members' views, Majority Whip Tom DeLay (R-Tex.), who has already called for Clinton's resignation, has begun researching the precedents -- including the opinions expressed by first lady Hillary Rodham Clinton when she was a young lawyer on the Nixon impeachment staff.
In the end, it will be up to individual members to sort out what John Labovitz, who worked on the Nixon impeachment staff and wrote a book on the topic, described as "a complicated and sometimes contradictory tangle of legal and political considerations."
The House has voted for impeachment only 16 times, deciding to remove one president, Andrew Johnson in 1868, one cabinet officer, one senator and 13 federal judges. Johnson, whose impeachment stemmed from a power struggle between the president and Congress over his power to remove cabinet officials, survived when the Senate fell a single vote short of the two-thirds majority required for conviction.
More than a century later, in 1974, Nixon resigned from office, sparing the country a vote by the full House and a Senate trial, after the House Judiciary Committee voted three articles of impeachment against him.
Nixon was accused of "using the powers of his high office" to obstruct justice by interfering with the investigation of the Watergate break-in; one of the many elements cited in the impeachment article was that Nixon made "false or misleading public statements for the purpose of deceiving the people of the United States."
He was also charged with violating his constitutional duty to "take care that the laws be faithfully executed" by misusing the Internal Revenue Service, FBI and other agencies to investigate political enemies; and with defying a congressional subpoena.
The independent counsel statute enacted in the wake of Watergate specifically provides a mechanism for the prosecutor to send to Congress evidence of impeachable offenses, but Starr would be the first to submit such a report. The law requires the independent counsel to report to Congress "any substantial and credible information . . . that may constitute grounds for impeachment." Some legal scholars have suggested that this provision grants too much power to the independent counsel to decide for himself what might constitute an impeachable offense because that is ultimately a congressional determination.
"Impeachment is a mechanism that is a political check and it seems to me inappropriate or troubling to have an independent counsel . . . influence the impeachment inquiry to that extent," said Georgetown University law professor Julie O'Sullivan.
Nonetheless, with Starr's report soon to arrive at the House, lawmakers will have to address whether the evidence he has amassed amounts to "high crimes and misdemeanors" -- a term that is nowhere defined in the Constitution and that, as House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) said in January shortly after the Lewinsky scandal erupted, the framers left "deliberately vague."
As then-Rep. Gerald R. Ford put it in 1970, during the impeachment investigation of Justice William O. Douglas, "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."
In 1992, when he was the Bush administration solicitor general, Starr himself argued to the Supreme Court in a case involving a judicial impeachment that Congress, if it chose, could impeach a president for poisoning his neighbor's cat.
The authors of the Constitution believed that they needed a mechanism for, as James Madison put it, "defending the community against the incapacity, negligence or perfidy of the chief magistrate." But they also did not want to make the president subject to removal on a mere congressional whim.
Originally, the impeachment provision was limited to treason and bribery, prompting George Mason to complain that it "will not reach many great and dangerous offenses." The compromise was to resort to a phrase lifted from four centuries of English parliamentary impeachments, "high crimes and misdemeanors." Those sound like technical legal terms referring to specific crimes, and, indeed, during the Watergate impeachment proceedings, Nixon's lawyer, James St. Clair, contended that a president may be impeached "only for indictable crimes clearly set forth in the Constitution."
However, most legal scholars agree that the phrase does not necessarily require a criminal offense. Rather, they say, the phrase "high crimes" suggests abuses against the state.
Reviewing the relatively scant historical examples of U.S. impeachment proceedings in 1974, the House Judiciary impeachment staff said they fell into three broad categories: exceeding the constitutional bounds of the powers of the office; behaving in a manner "grossly incompatible with the proper function and purpose of the office"; and using the office for an improper purpose or personal gain.
"Not all presidential misconduct is sufficient to constitute grounds for impeachment," the report concluded. "Because impeachment of a president is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of presidential office."
Since then, three federal judges have been impeached and removed from office, two of them for actions that did not directly involve their official duties. U.S. District Judge Harry E. Claiborne was removed from office in 1986 for filing false income tax returns and thereby "bringing the federal courts and the administration of justice by the courts into disrepute." And U.S. District Judge Walter L. Nixon Jr. was convicted in 1989 of making false statements to a grand jury investigating allegations that he accepted an illegal gratuity in exchange for influencing a state criminal prosecution.
However, the judicial impeachments may not provide a clear guide for how to handle allegations against presidents because the Constitution grants judges lifetime tenure subject to their "good behavior" in office, a provision that does not apply to presidents.
Some legal scholars expressed skepticism about whether Clinton's actions, at least as much as is known, would rise to the level of impeachable offenses. Labovitz said that even if Clinton were alleged to have lied to the grand jury investigating his conduct, he did not think that would be related closely enough to his presidential duties to warrant impeachment.
In a widely read book at the time of the Nixon impeachment, Yale Law School professor Charles L. Black Jr. used two hypotheticals relevant to Clinton's current circumstances: a president who brought a female minor across a state line for an "immoral purpose" in violation of the Mann Act or who obstructed justice by helping a young White House intern conceal possession of marijuana.
Black termed those "preposterous" scenarios for removing a president and argued that impeachment should be confined to offenses that are "extremely serious," "in some way corrupt or subvert the political and governmental process" and are "plainly wrong."
But College of William and Mary law professor Michael Gerhardt, author of a recent book on impeachment, said: "The president of all people should have a higher duty here. If you look at the broader picture, the real questions come down to this: 'Is whatever he's done . . . has it injured the Republic? Has it seriously breached the trust that he holds?' . . . It's quite legitimate to talk about, 'has he hurt the office? Is the office worse off because he now holds it?' "
David O. Stewart, who represented Walter Nixon in his impeachment proceeding, noted that Congress's assessment of what constitutes impeachable offenses appears to have been expanding in recent years.
"If you look at both Claiborne and Nixon, they were impeached for conduct off the bench that did not relate to abuse of their office," he said. "Nevertheless they were prosecuted in ways that 80 years ago they probably wouldn't have been and they were impeached and 50 years ago they wouldn't have been. There has been some evolution in our standards there. This notion that you go back to 17th-century England to find the standards is not what's going to happen."
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