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Wednesday, September 16, 1998

For only the second time this century, members of the House Judiciary Committee must sort through more than 200 years of history to determine just what the Constitution means by "high crimes and misdemeanors."

William and Mary law professor and former Clinton adviser Michael J. Gerhardt has written a book on impeachment and answered users' questions on Wednesday, Sept. 16. A transcript of the discussion follows.

washingtonpost.com: Welcome to washingtonpost.com's "Direct Access" with impeachment scholar Michael Gerhardt. He will be online for the next half-hour answering your questions. Welcome, Professor Gerhardt.

New York, N.Y.: Humpty Dumpty said something like, "A word is to mean exactly what I want it to mean, no more and no less." Congressman Gerald Ford is reported to have said something like, "'High crimes and misdemeanors is to mean exactly what the Congress wants it to mean at a certain moment in history." I'm not suggesting any similarities between Gerald Ford and Humpty Dumpty; only in what they say, which for me is identical. Is the U.S. Constitution anchored upon some more solid rock? Or is she all sail?

Michael Gerhardt: Yes. I think that what Gerald Ford meant was that the Congress' judgments regarding impeachment are final. In other words, whatever Congress has to say about what constitutes impeachable offenses is final, and its final decisions about impeachments are final. I don't think it means that Congress will simply make up things.

Fairfax, Va.: If Congress chooses to do nothing, can Starr indict a sitting president?

Michael Gerhardt: That's the question of the day. Scholars are divided over this. My understanding is that Starr believes that is not permissible to indict a sitting president. But, he has hired Ron Rotunda from the University of Illinois, and Ron, I believe, thinks that it is permissible to indict a sitting president.

The basic argument against indictment is that it would cripple the Executive Branch.

Baltimore, Md.: What is the equivalent to impeachment for congressmen and the Senate?

Michael Gerhardt: Expulsion. The Constitution provides that each house has the power to expel its members for certain kinds of misdeeds. This is spelled out in the Constitution more clearly for members of Congress than it is in the impeachment process.

Jacksonville, N.C.: How do the rules of evidence in impeachment differ from criminal law?

Michael Gerhardt: There are no rules of evidence in impeachment. The reason is that it is thought that the rules of evidence in criminal trials are necessary for the sake of the jury. But in impeachment proceedings, we are dealing with a different jury – a group of people who are thought to be more sophisticated than the average jury. Hence, there are no rules of evidence. We simply rely on the ability of the members of Congress to weigh evidentiary matters as they see fit. We trust their judgment.

Detroit, Mich.: Alan Dershowitz stated on Geraldo that the Starr Report was "an illegal document" because it is, in effect, an "advocacy" document and thus antithetical to the statute of the independent counsel. How might this affect the issue of impeachment?

Michael Gerhardt: I don't think it's going to affect the issue of impeachment. The problem is now, the cat's out of the bag. So even if it were problematic, it doesn't matter; it's there. Keep in mind that the report doesn't bind any member of the House or the Senate. Every member is free to disregard or give it whatever weight they think is appropriate.

Alexandria, Va.: Starr's involvement in the Paula Jones civil lawsuit was approved because it was relevant to his investigations into Whitewater and improper use of FBI files. Shouldn't the Congress wait for Starr's Whitewater and filegate reports before proceeding with impeachment?

Michael Gerhardt: They could, but my guess it that Starr must have decided that there was nothing about these other investigations that produced information relevant for impeachment. Otherwise, he would have included it in his report.

Little Rock, Ark.: I'm a little confused regarding the apparent lack of due process that seems to be oozing from the grand jury proceedings that investigated the president. It seems that the president's guilt is the presumption, even though none of the alleged legal infractions have been proven in a court of law. Do impeachment proceedings occur without possible defense, or do we assume that the news media provides the due process?

Michael Gerhardt: I think that impeachment proceedings are not governed by traditional notions of due process. That is not to say that concerns about fairness fail to come into play. It means that the members of Congress try to be fair because they know that any appearance of unfairness is likely to hurt them either politically or in the history books. Of course, we're just talking about basic fairness, nothing more sophisticated than that.

It is likely that some members of Congress might well already have their minds made up, but there is nothing about a presumption of innocence that would have changed that. However, most members, at least superficially, are saying they're keeping their minds open, and we will see if they remain true to their word.

Lancaster, Pa.: How long would the impeachment process take, and, in your opinion, how does the length of proceeding affect the outcome?

Michael Gerhardt: That's a good question. It is likely to take a while. The House is moving relatively slowly, and I've heard that if there are going to be hearings at all in the House, that they will not occur until next year. If the House undertakes any fact-finding, that will take some time. And of course, if the committee decides to work on any impeachment articles, it will take some time to draft them and vote on them. And if it goes to the Senate, the trial too would take a while.

Ironically, the longer it takes, the more I think it helps Clinton. The reason is that the longer he is in office with this information about his so-called misconduct out there, the more opportunity he has to do his job and to demonstrate to people that the republic has not been seriously hurt by his misconduct.

Saint Paul, Minn.: What source(s) should Congress be looking to in determining what constitutes "high crimes and misdemeanors?"

Michael Gerhardt: Another good question. There really are only two places. The first is the constitutional convention and ratification conventions debates. Those are of marginal help because the debate was largely about classical kinds of misconduct – the sorts that we don't have here. The second place we look is impeachment hearings. They are a little more help, but we've only had one full impeachment proceeding involving a president, and another shortened one of arguable relevance.

That leaves us with two other possible precedents. The first involves a federal judge removed for tax evasions. And the second involved a federal judge removed for perjury So the critical questions members of Congress will have to ask is if either of the other two are relevant here. Should the same standards apply to both judges and the president? Are their duties the same or different?

South Bend, Ind.: I have heard it said that the president can be impeached without being removed from office. What exactly then does impeachment mean or require Congress to do?

Michael Gerhardt: Impeachment technically refers to the power of the House to charge certain officials formally with certain kinds of misconduct. So the House impeaches, and the Senate has the power to convict and remove. Thus, Andrew Johnson was impeached by the House but acquitted by the Senate.

Andover, Kans.: Am I right in assuming that Congress can call anyone they want to testify in impeachment proceeding, including the president and Lewinsky? Would the president be required to testify?

Michael Gerhardt: Yes, they can call anybody they want. The could subpoena the president, and if he refuses to testify he does so at his own peril. Nixon, for example, refused to comply with a subpoena from the House to turn over certain information related to Watergate, and the House made his refusal part of the basis for impeachment.

Hobe Sound, Fla.: If lying under oath is perjury, and perjury is a felony, isn't there a law against felons occupying the White House? If so, wouldn't Congress have a legal obligation to impeach the president if indeed he is found to be guilty of perjury?

Michael Gerhardt: To begin with, it is not likely that there will be a criminal trial of the president for perjury. So it is not likely that he will ever be convicted in federal court while he is in office. Apparently, Judge Starr does not believe sitting presidents may be indicted while they are in office. So the House and possibly the Senate will have to reach their own independent judgments about whether the President is guilty of perjury and if so whether this guilt constitutes an impeachable offense.

Washington, D.C.: A columnist in the Post described the president best as a man "unfit for office, yet unfit for impeachment." What if it so happens that the best man for the job is also unfit to be the living embodiment of our Constitution? Does Congress have a greater duty to uphold the Constitution than they do to act for the good of the nation when those goals are at odds?

Michael Gerhardt: This all boils down to the fact that there are different standards for different events. We elect a president under one standard, and that's simply whatever a majority of voters accepts for giving one candidate the nod and not the other. A second standard is what would be necessary to constitute impeachable offenses. And those comprise a relatively narrow set of misdeeds, i.e. "high crimes and misdemeanors." Not every mistake or error in judgment, even serious ones, would necessarily rise to the level of impeachable offenses. The problem is, what do we do with those errors or mistakes that don't rise to the level of impeachment.

Typically we have a few options. One option is to vote the bum out, but we don't have that one here. A second option is to punish him with censure or something like censure. It remains to be seen if that is a viable option here. A third option is to subject the president to enormous ridicule and criticism, resulting in his being made politically ineffective. Yet another option is the view of history and how he will be judged by subsequent generations.

For example, what is the first thing anyone thinks of Warren Harding? That he was a corrupt individual who oversaw a widely corrupt administration. Another example is Ulysses Grant – also remembered for the corruption of his administration than for any other accomplishment he made as president.

East London, South Africa: Can a President challenge impeachment, and on what grounds?

Michael Gerhardt: Most people think that a president cannot challenge an impeachment by means of judicial review. Hence a congressional decision about impeachment is final for all practical purposes. Some people believe that it might be possible for a president to challenge an impeachment in a federal court if the House or the Senate deviates from some explicit limitation. For example, assume that this case goes to the Senate and less than 2/3 of the Senate votes to remove the president. But the Senate declares that it nonetheless believes the president should be removed. The constitution requires a 2/3 vote to remove a president.

So it might be possible to challenge that Senate judgment as deviating from the 2/3 rule in the Constitution. It is not likely the president could successfully challenge a decision about what constitutes an impeachable offense.

That is why Gerald Ford said an impeachable offense is whatever Congress says it is. The decision about what constitutes an impeachable offense turns a great deal on congressional discretion.

Syria, Va.: What is your take on Jonathan Turley's view that the president can be impeached for any reason? It seems to me that reading that unlimited power into the Constitution effectively destroys the separation of powers doctrine by giving Congress unlimited power over the Executive and Judicial branches.

Michael Gerhardt: I don't think that the House may impeach for any reason that it wants to. It never has, in over 200 years, and the impeachment process has never been viewed historically or structurally as appropriate for punishing people for just any kind of misconduct. The impeachment process exists for one narrow purpose: to rectify the subversion of the Constitution by an impeachable official.

Maysville, N.C.: Once the impeachment process begins, can it be stopped before it has run it's full course?

Michael Gerhardt: Sure. I can stop in any number of ways. One possibility is the president could resign. I don't expect this, but it would stop impeachment.

Another is that some international or economic crisis could come up that would simply divert everyone's attention.

Another possibility is that members of Congress might simply lose their taste for impeachment and find some other alternative in the meantime to be more appealing.

washingtonpost.com: That was the final question for this session of Direct Access. Thanks for all our questions and to our guest, impeachment scholar Michael Gerhardt.

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