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Impeachment Provision in Counsel Law Could Become Crucial

By Ruth Marcus
Washington Post Staff Writer
Monday, January 26, 1998; Page A08

As independent counsel Kenneth W. Starr pursues allegations involving President Clinton and former White House intern Monica Lewinsky, a little-known provision of the independent counsel law could quickly become of huge importance to the president's legal and political future.

Put in place when the law was written 20 years ago, in the wake of the Watergate scandal that drove President Richard M. Nixon from office, Section 595(c) of the United States Code provides: "An independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for impeachment."

In the whirlwind five days since the story first broke, nothing has been conclusively proven about the truth of the allegations that Clinton had an affair with Lewinsky, urged her to lie about it in an affidavit in the Paula Jones sexual harassment lawsuit, and then lied about it himself under oath when questioned by Jones's lawyers.

But it is a measure of the political and legal explosiveness of the allegations that they immediately provoked discussions of impeachment, a prospect raised the morning the story broke by former presidential adviser George Stephanopoulos and discussed at length on yesterday's TV talk shows.

If the allegations were to pan out, the independent counsel act requires that Starr report to the House. The House then could begin an impeachment inquiry.

Experts on the independent counsel law said it would mark the first time that provision was invoked, a move that could allow Starr to finesse the difficult constitutional question of whether a sitting president can be prosecuted and to act relatively quickly. Although the independent counsel law did not exist at the time, Watergate special prosecutor Leon Jaworski followed a similar course in 1974, when the Watergate grand jury named Nixon as an unindicted co-conspirator and referred its report to the House Judiciary Committee. The committee approved three articles of impeachment against Nixon shortly before he resigned, avoiding a vote by the House and trial by the Senate.

It is too soon to know whether the allegations against Clinton will result in a similar inquiry.

"It's in the bosom of the independent counsel," House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) said on CBS's "Face the Nation." "He has the resources, the personnel, the deposition authority, access to the grand jury, immunity power. Let him do his job. And then when he does that, we will do ours."

If the House were to institute impeachment proceedings against Clinton, the rules under which it would proceed would be far less clear than those in any courtroom. The Constitution provides that the president may be removed from office for "treason, bribery, or other high crimes and misdemeanors." It provides that the House votes to impeach and the Senate then holds a trial, presided over by the chief justice of the United States and requiring a two-thirds majority for removal from office.

But the Constitution does not define "high crimes and misdemeanors" or set down any other rules, such as what the burden of proof might be or what evidence can be admitted.

As Hyde said yesterday, the framers left the subject of what constitutes impeachable offenses "deliberately vague." Asked about the potential charges facing Clinton -- committing perjury or encouraging someone else to do so -- Hyde said, "Certainly it is serious and would be considered."

It is essentially up to the House and Senate to decide for themselves what that might be. 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."

Although Nixon's lawyers disagreed, Yale Law School professor Akhil Amar said a president could be impeached for conduct that does not legally constitute a crime. Conversely, he said, not all actions that technically constitute a crime would rise to the level of impeachable offenses. "It's about people abusing their power, demeaning themselves in such a way that we do not feel they're trustworthy to hold an office," Amar said.

As the House committee staff considering Nixon's impeachment wrote in a memorandum at the time, "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."

Among the attorneys on the impeachment staff was a young lawyer named Hillary Rodham.

The remedy of impeachment was important to the framers of the Constitution because, in establishing a system of checks and balances, they wanted a mechanism for "defending the community against the incapacity, negligence or perfidy of the chief magistrate," as James Madison put it. But at the same time, the framers wanted to protect the president against being subject to removal at the whim of the legislature.

As the Constitution was being drafted, George Mason asked why the impeachment provision was limited to treason and bribery, saying it "will not reach many great and dangerous offenses." He proposed adding the term "maladministration," prompting Madison to complain that "so vague a term will be equivalent to a tenure during pleasure of the Senate."

To satisfy those concerns, Mason substituted the language about high crimes and misdemeanors, a phrase lifted from English common law and generally limited to what the British considered "great offences" such as misapplication of funds, neglect of duty and corruption.

Only two U.S. presidents have been the target of impeachment proceedings, Andrew Johnson in 1868 and Nixon more than a century later.

Johnson was impeached by the House on the ground that he dismissed his secretary of war in defiance of a new law that sought to prohibit a president from firing Senate-confirmed officials. The charges were politically motivated, and the attempt to oust Johnson failed by a single vote short of the required two-thirds Senate majority.

If the evidence against Clinton were to develop so far, the matter might be resolved politically rather than legally.

"I do not believe the Congress is going to impeach the president unless there is an open-and-shut case," Sen. Arlen Specter (R-Pa.) said on NBC's "Meet the Press." "And I believe if there is an open-and-shut case, conclusive, that the president will resign. So I do not think that the country's going to be put through this trauma."

Staff writer Susan Schmidt and researcher Mary Lou White contributed to this report.

© Copyright 1998 The Washington Post Company

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