THE IMPEACHMENT TRIAL
Statement of Sen. Moynihan (D-N.Y.)
Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.
Mr. MOYNIHAN. Mr. Chief Justice, Senators, I speak to the matter of prudence. Charles L. Black, Jr. begins his masterful account Impeachment: A Handbook with a warning: `Everyone must shrink from this most drastic of measures. . . . [t]his awful step.'
For it is just that. The drafters of the American Constitution had, from England and from Colonial government, fully formed models of what a legislature should be, what a judiciary should do. But nowhere on earth was there a nation with an elected head of an executive branch of government.
Here they turned to an understanding of governance which marks the American Constitution as a signal event in human history--what the Framers called `the new science of politics.' What we might term the intellectual revolution of 1787. The victors in the Revolution could agree that no one, or not many, wanted another monarchy in line with the long melancholy succession since Rome. Yet given what Madison termed `the fugitive and turbulent existence of . . . ancient republics,' who could dare to suggest that a modern republic could hope for anything better?
Madison could. And why? Because study had produced new knowledge, which could now be put to use. This great new claim rested upon a new and aggressively more `realistic' idea of human nature. Ancient and medieval thought and practice were said to have failed disastrously by clinging to illusions regarding how men ought to be. Instead, the new science would take man as he actually is, would accept as primary in his nature the self-interestedness and passion displayed by all men everywhere and, precisely on that basis, would work out decent political solutions.
This was a declaration of intellectual independence equal to anything asserted in 1776. Until then, with but few exceptions, the whole of political thought had turned on ways to inculcate virtue in a small class that would govern. But, wrote Madison, `If men were angels, no government would be necessary.' We would have to work with the material at hand. Not pretty, but something more important: predictable. Thus, men could be relied upon to be selfish; nay, rapacious. Very well: `Ambition must be made to counteract ambition.' Whereupon we derive the central principle of the Constitution, the various devices which in Madison's formulation offset `by opposite and rival interests, the defect of better motives.'
Impeachment was to be the device whereby the Congress might counteract the `defect of better motives' in a President. But any such behavior needed to be massive and immediately threatening to the state for impeachment ever to go forward. Otherwise a quadrennial election would serve to restitute wrongs.
Further, they had a model for this process in the impeachment of Warren Hastings which had begun in April of 1786 with Edmund Burke presenting twenty-two `Articles of Charge of High Crimes and Misdemeanors.' The debate in the House of
Commons continued into 1787 and was reported in the Pennsylvania Gazette.
Burke was hardly a stranger to the Americans at Philadelphia. He had championed the cause of the American colonies during the Revolution, and was now doing much the same as regards the governance of British India. He accused the Governor General of the highest crimes possible against, inter alia, the peoples of India.
At Philadelphia, the standard for impeachment was discussed only once--on Saturday, September 8, 1787. At that point in the convention, the draft of the clause in the Constitution pertaining to impeachment referred only to `treason and bribery.'
Here are Madison's notes of the debate that day:
The clause referring to the Senate, the trial of impeachments against the President, for Treason & bribery, was taken up.
Col. MASON. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He mov.d to add after `bribery' `or maladministration.' Mr. GERRY seconded him.
Mr. MADISON So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr. GOV.r MORRIS, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.
Col. MASON withdrew `maladministration' & substitutes `other high crimes & misdemeanors ag.st the State.'
The convention later replaced the word `State' with `United States.' And on September 12, 1787, the Committee of Style--which had no authority to alter the substantive meaning of the text--deleted the words `against the United States.'
Thus the Framers clearly intended that a President should be removed only for offenses `against the United States.' It may also be concluded that the addition of the words `high Crimes and Misdemeanors' was intended to extend the impeachment power of Congress so as to reach `great and dangerous offences,' in Mason's phrase.
The question now before the Senate is whether the acts that form the basis for the Articles of Impeachment against President Clinton rise to the level of `high Crimes and Misdemeanors.' Which is to say, `great and dangerous offences' against the United States.
Over the course of 1998, as we proceeded through various revelations, thence to Impeachment and so on to this trial at the outset of 1999, I found myself asking whether the assorted charges, even if proven, would rise to the standard of `great and dangerous offences' against the United States. More than one commentator observed that we were dealing with `low crimes.'
Matters that can be tried in criminal courts after the President's term expires. Early in his address to the Senate our distinguished former colleague Dale Bumpers made this point:
Colleagues, you have such an awesome responsibility. My good friend, the senior Senator from New York, has said it well. He says a decision to convict holds the potential for destabilizing the Office of the Presidency.
The former Senator from Arkansas was referring to an article in The New York Times on December 25th in which I said this:
We are an indispensable nation and we have to protect the Presidency as an institution. You could very readily destabilize the Presidency, move to a randomness. That's an institution that has to be stable, not in dispute. Absent that, do not doubt that you could degrade the Republic quickly.
This could happen if the President were removed from office for less than the `great and dangerous offences' contemplated by the Framers.
In Grand Inquests, his splendid and definitive history of the impeachments of Justice Samuel Chase in 1804, and of President Andrew Johnson in 1868, Mr. Chief Justice Rehnquist records how narrowly we twice escaped from a precedent that would indeed have given us a Presidency (and a Court) subject to `tenure during the pleasure of the Senate.'
It is startling how seductive this view can be. In 1804 it was the Jeffersonians, including Jefferson himself, who saw impeachment as a convenient device for getting rid of a Justice of the Supreme Court with whose opinions they disagreed. Not many years later Radical Republicans sought the same approach to removing a President with whom they disagreed over policy matters.
It could happen again. Impeachment is a power singularly lacking any of the checks and balances on which the Framers depended. It is solely a power of the Congress. Do not doubt that it could bring radical instability to American government.
We are a blessed nation. But our blessings could be our ruin if we do not see how rare they are. There are two nations on earth, the United States and Britain, that both existed in 1800 and have not had their form of government changed by force since then. There are eight--I repeat eight--nations which both existed in 1914 and have not had their form of government changed by violence since then: the United States, the United Kingdom, Australia, Canada, New Zealand, South Africa, Sweden, and Switzerland.
Senators, do not take the imprudent risk that removing William Jefferson Clinton for low crimes will not in the end jeopardize the Constitution itself. Censure him by all means. He will be gone in less than two years. But do not let his misdeeds put in jeopardy the Constitution we are sworn to uphold and defend.
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