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Managers to Make Their Case for Removal

Rehnquist Chief Justice William H. Rehnquist presides over the second day of opening statements in the impeachment trial of President Clinton. (AP)

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  • By Joan Biskupic
    Washington Post Staff Writer
    Saturday, January 16, 1999; Page A14

    For the past two days, the House managers have stood in the well of the Senate and tried to present their best evidence against President Clinton. Today, their task will be far different, and in many ways more difficult: proving that the charges against the president, if true, are serious enough to warrant his removal from office.

    In effect, because so much numbing detail about Clinton's behavior already fills the public record, and because many senators probably have a good sense of whether or not they believe Clinton broke the law, this is arguably the most critical question. Only the Senate can decide whether Clinton must leave office, yet what guides the 100 jurors sitting in judgment is a constitutional standard for "high crimes and misdemeanors" that has never been made clear by Congress, the courts or history.

    As the House managers open their arguments today on what the standard should be to expel a president, the three members making the case for removal -- Reps. Charles T. Canady (Fla.), Steve Buyer (Ind.) and Lindsey Graham (S.C.) -- will argue against an especially high threshold for impeachment.

    "The president's crimes need not arise directly out of his official duties," asserts the House in a memorandum to the Senate. "Two of the three judges removed in the 1980s were removed for perjury that had nothing to do with their official duties."

    The White House counter-argument, which will be formally offered next week, is that "high crimes and misdemeanors" means nothing less than presidential actions that endanger the national security of the country or attempt to subvert the Constitution.

    "Impeachment . . . was intended to be a method of removing a president whose continued presence in the office would cause grave danger to the nation and our constitutional system of government," Clinton's lawyers have said in a written brief, adding that last fall more than 400 historians signed a statement declaring that impeachment should be reserved for wrongdoing in the exercise of executive power.

    The dichotomy is as old as impeachment itself. Yet while there is no case law or definitive interpretation of that phrase anywhere in the nation's legal annals, sheer history indicates that the threshold for ousting a president towers high. Over the course of two centuries, only once before has the House ever found a president's conduct so inappropriate that it voted to bring charges against him (Andrew Johnson in 1868), and never has the Senate convicted.

    "It's one thing to say this person has done something that should be punished," Georgetown University law professor Mark Tushnet said yesterday, "and another to say this person has done something so bad that he can no longer be president, even though he is the person who we voted for."

    Chief Justice William H. Rehnquist, who is presiding over the Clinton trial, suggested in his 1992 book about the historic impeachment of Johnson that a heightened standard directed at a president's actions in office must prevail, lest impeachment be diminished and hang like "a sword of Damocles" over the president.

    But Rehnquist separately commented that, had it gone that far, the charges against Richard M. Nixon would have warranted his conviction.

    "The counts relating to the obstruction of justice and to the unlawful use of executive power were of the kind that would surely have justified removal from office," Rehnquist wrote of the man who put him on the Supreme Court, in 1972.

    Still, as Pepperdine University law professor Douglas Kmiec observed yesterday, there may be different degrees of alleged obstruction. He noted that Nixon was accused of misusing the FBI, CIA and other agencies -- charges that would seem to go beyond those leveled at Clinton.

    But Kmiec is also among those law professors who think the House managers have a worthy case, if for no other reason than the importance of a president telling the truth to the nation's judicial system. "It really does go to the heart of the president's oath, as he testified [before the grand jury], and for the presidency of the United States."

    However, there are numerous law professors on the other side who believe the case never should have come to a Senate trial. "My test is whether he abused his constitutionally conferred power as president," said Jesse Choper, a law professor at the University of California at Berkeley. "And this isn't worth the candle, in my judgment. 'High crimes and misdemeanors' was used as a term of art . . . encompassing conduct that was detrimental to the state."

    Rehnquist in his book noted that the House managers and presidential defenders in the Johnson impeachment trial both tried to draw on English law -- from which the impeachment provisions of the Constitution were borrowed -- and the words of the Constitution's framers for their respective arguments.

    That remains the pattern today.

    "The framers intended that a president be removable from office for the commission of great offenses against the Constitution," the Clinton White House has told the Senate, quoting George Mason and Alexander Hamilton and specifically mentioning political crimes against the state or abuse of office.

    From the House: "Nothing in the text, structure, or history of the Constitution suggests that officials are subject to impeachment only for official conduct." And the managers remind the Senate that the Constitution allows removal "for treason, bribery, or other high crimes and misdemeanors," and assert that perjury and obstruction of justice are like bribery in undermining the judicial system.

    But, to the dilemma of today's Senate, history offers no clear answer. There have been 14 impeachment trials in U.S. history -- only one of a president. And he was acquitted.

    Today in the Senate Trial

    10 a.m. House GOP prosecutors begin their final day of arguments, which were limited to 24 hours.

    Reps. Charles T. Canady (Fla.), Steve Buyer (Ind.) and Lindsey Graham (S.C.) argue why President Clinton's conduct rises to the level of impeachable offenses under constitutional law.

    Reps. Henry J. Hyde (Ill.) and James E. Rogan (Calif.) present concluding statements.

    © Copyright 1999 The Washington Post Company

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