Senate Hearing Debates Impeachment Process
Washington Post Staff Writer
Thursday, September 10, 1998; Page A13
On a day when independent counsel Kenneth W. Starr ended months of speculation about whether he would seek to indict President Clinton or pursue congressional impeachment proceedings, one of Clinton's most persistent Senate critics convened a hearing yesterday to showcase legal arguments on how to punish presidential misdeeds.
Sen. John D. Ashcroft (R-Mo.), a presidential hopeful in 2000 who already has demanded that Clinton resign, told the Senate Judiciary subcommittee on the Constitution he chairs, that while a president can be prosecuted for grave misconduct, the prudent course is to defer to impeachment proceedings as special prosecutors did in the Watergate scandal.
The key question at the hearing was whether a sitting president can be indicted on criminal charges or whether impeachment must come first. Legal scholars on one panel at the hearing and former Watergate prosecutors and Justice Department officials on another offered sharply different opinions.
"Those who claim that the president is immune from the criminal process focus on the provision of the Impeachment Clause, which specifies that indictment and criminal punishment may follow impeachment," Ashcroft said in his opening statement.
"However," he added, "the fact that indictment may follow impeachment in no way suggests that indictment must follow impeachment. Indeed, a number of federal judges have been indicted and convicted prior to impeachment and the clause draws no distinction between judges and the president.
"In the end, this provision seems primarily designed to clarify that there is no due process or double-jeopardy obstacle to imposing punishments through the criminal process after impeachment."
Yale law professor Akhil Reed Amar argued, however, that an incumbent president is "constitutionally immune from ordinary criminal prosecution, state or federal, [because] the presidency is constitutionally unique -- in the president, the entirety of the power of a branch of government is vested."
While other officials subject to congressional impeachment -- the vice president, Cabinet officers, federal judges and Supreme Court justices -- may be indicted while in office, Amar said, the Constitution's impeachment clause "sensibly means something different as applied to presidents on the one hand and other officials on the other. . . . The president is elected by the entire nation and should be judged by the entire nation. His true grand jury is the House, his true petit [trial] jury is the Senate and the true indictment he is subject to is called an impeachment."
Another witness, Hofstra University law professor Eric M. Freedman, rejected the notion of blanket immunity and said criminal prosecution of a president was actually less likely to amount to a removal from office than an alternative to it.
"If, for instance, Lyndon Johnson drove drunk," Freedman said, "he should have been convicted of drunk driving, not impeached. In this way, society would have expressed its disapprobation of his conduct while retaining a leader who had done nothing to undermine his political legitimacy."
To read the Constitution as insulating an incumbent president from criminal liability, Freedman concluded, "would not only feed the imperial delusions to which too many high officials in this century have succumbed but would undermine the concept of the president as an ordinary citizen temporarily exercising power delegated by we the people."
Sen. Robert G. Torricelli (D-N.J.) emphasized Alexander Hamilton's statements in the Federalist Papers about how a president subject to impeachment and removal from office "would afterwards be liable to prosecution . . . in the ordinary course of law."
Torricelli deplored the unanimous Supreme Court decision that permitted Paula Jones's sexual harassment lawsuit to proceed against Clinton as opening the door to a flood of civil suits against future presidents.
If a president can also be indicted without being impeached, Torricelli maintained, "we are devaluing the presidency [and] opening the door to enormous mischief" by prosecutors out to make a name for themselves.
Ashcroft told reporters that the constant legal harassment of the president that Torricelli envisioned hasn't happened for the past 200 years and that even the Jones ruling hasn't caused it to happen to Clinton.
But while he tentatively concluded that a president can be indicted, Ashcroft said he agrees with special Watergate prosecutor Leon Jaworski, who wrote in his memoirs that when the underlying criminal conduct was already under investigation by the House, the safe course was to defer to the impeachment proceedings.
Former assistant Watergate prosecutor Peter F. Rient said he believed that in Nixon's day and also now a sitting president can be indicted and that in any case, impeachment should "not be regarded as a substitute for indictment." The criminal justice process, he said, "ought to be allowed to continue to its conclusion."
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