Testimony Before the U.S.

From the Halls of Congress Gary L. McDowellPolitical Scientists Testify before theHouse Committee on the Judiciaryduring the Hearing on ImpeachmentInquiry Pursuant to H. Res. 581*

Five APSA members testified be-fore the U.S. House Judiciary Com-mittee's impeachment hearings dur-ing the fall session of the 105th

Congress-Bruce Ackerman of YaleUniversity, Samuel Beer of HarvardUniversity, Matthew Holden of theUniversity of Virginia, Cass Sunsteinof the University of Chicago, andGary McDowell of the University ofLondon.

All or portions of reformattedversions of their statements areprinted here to illustrate politicalscientists "speaking truth to power."The statements of the five scholarsare their own and do not representthe positions of either their institu-tions or the American Political Sci-ence Association.

The editors of PS encourage otherAPSA members participating in fed-eral and state policy processes in allsubstantive areas to notify PS oftheir activities. This information willbe shared with journal readers infuture issues.

Robert J-P. Hauck, Editor

* House Resolution 581, officially titled"H. Res. 581: Authorizing and directing theCommittee on the Judiciary to investigatewhether sufficient grounds exist for the im-peachment of William Jefferson Clinton,President of the United States," made officialthe resolution that: "the Committee on theJudiciary, acting as a whole or by any sub-committee thereof appointed by the chairmanfor the purposes hereof and in accordancewith the rules of the committee, is authorizedand directed to investigate fully and com-pletely whether sufficient grounds exist for theHouse of Representatives to exercise its con-stitutional power to impeach William Jeffer-son Clinton, President of the United States ofAmerica. The committee shall report to theHouse of Representatives such resolutions,articles of impeachment, or other recommen-dations as it deems proper."

University of LondonNovember 9, 1998

Editor's Note: This excerpt from ProfessorMcDowell's testimony is taken from theconcluding section, titled "Oathsand Perjury."

The use of oaths in legal proceed-ings in which evidence is given is anancient part of the common law. SirEdward Coke noted that the "wordoath is derived from the Saxon wordeoth." The oath is nothing less, saidCoke, than "an affirmation or deni-all by any Christian of anything law-full and honest, before one or more,that have the authority to give thesame for advancement of truth andright, calling Almighty God to wit-ness that his testimony is true"(1809, 165).* Yet there is evidencethat the use of oaths extends back toRoman times, where the law of theTwelve Tables provides that "Who-ever gives false evidence must bethrown from the Tarpeian rock"(Stephens 1883, 1: 11). And Ciceroin De Officiis argues that "in takingan oath it is our duty to considernot what we may have to fear incase of violation but wherein its ob-ligation lies: an oath is an assurancebacked by religious sanctity; and asolemn promise given, as beforeGod as one's witness, is to be sa-credly kept" (1991, III: 104, 383). AsSamuel Pufendorf emphasized, oathswere not simply the preserve ofChristians:

An oath the very Heathens look'don as a thing of so great force,and of so sacred authority, thatthey believed the sin of perjury tobe punished with the severest ven-geance; such as extended itself tothe posterity of the offender, andsuch as might be incurr'd by thebare thought and inclination with-out the act. (1717, IV. II. 1, 117)

The significance of the oath in

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Bruce AckermanYale UniversityDecember 7, 1998

Good morning, Mr. Chairman,and the distinguished members ofthis Committee. My name is BruceAckerman. I am Sterling Professorof Law and Political Science at Yale.I request the Chair's permission torevise and extend these remarks.

Since you have already heard somuch on the subject of constitu-tional standards for impeachment, Iwould like to concentrate on threebig mistakes that have characterizedthe discussion up to now.

I

The first big mistake centers onthe power of this Committee andthe present House of Representa-tives to send a case to trial in theSenate. People seem to be assumingthat once the present Committeeand the full House vote for a bill ofimpeachment, the stage will be setfor a trial in the Senate during thecoming year, and that the nextHouse will not have to take any fur-ther actions on the matter.

Nothing could be further from thetruth. As a constitutional matter, theHouse of Representatives is not acontinuing body. When the 105th

House dies on January 3, all its un-finished business dies with it. Tobegin with the most obvious exam-ple, a bill passed by the 105th Housethat is still pending in the 105th Sen-ate on January 3rd cannot be en-acted into law unless it once againmeets the approval of the 106th

House.This is as it should be. Otherwise

lame-duck Congresses would have afield day in situations like thepresent, where the old House major-ity has had a setback in the polls.Recognizing that its political poweris on the wane, the dominant party

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House Judiciary Committee

Samuel H. Beer

Harvard UniversityDecember 7, 1998

My concern is the political andconstitutional consequences of im-peachment rather than its legal andjudicial aspects. The process is judi-cial in form, impeachment by theHouse being like indictment by agrand jury, and trial and convictionby the Senate being like trial andconviction by a court. In fact, how-ever, the consequences of successfulimpeachment do not resemble theusual consequences of a judicialtrial, for instance, punishment byfine and/or imprisonment. As ArticleI, section 3, paragraph 7 provides,punishment of that kind would beinvoked after the president had be-come a private citizen by resigna-tion, removal, or expiration of histerm of oifice.

Removal from office, the grandand forbidding consequence of suc-cessful impeachment, distinguishesthis process radically from thejudgement of a court. It resemblesrather a vote of no confidence in alegislature, such as the British par-liament. By such a vote the Houseof Commons can bring to an endthe life of a government. In 1841,Sir Robert Peel summed up thisfundamental convention of the Brit-ish Constitution when he success-fully moved that "her Majesty's Min-isters do not sufficiently possess theconfidence of the House of Com-mons to enable them to carrythrough the House measures whichthey deem of essential importanceto the public welfare."

Like a vote of no confidence, im-peachment brings to an end a presi-dent's administration. Like a vote ofno confidence, it relates not merelyto some specific failure, but is ajudgment on his record and promiseas a whole with regard to those"measures which he deems of essen-

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Matthew Holden Jr.

University of VirginiaNovember 9, 1998

Editor's Note: This excerpt from Profes-sor's Holden's testimony is taken from theconcluding section, titled "Impeachment isa Caged Lion: Should it Be Loose inthe Streets?"

Someone, at a responsible level,must face up to the fact that im-peachment is a caged lion, and askseriously, and without prejudice,whether letting that lion loose in thestreets will leave anyone safe.

The House of Representatives isplaced by the constitutional prescrip-tion in the role analogous to that ofthe prosecutor. When is it necessaryto go forward? In the narrower do-main of ordinary criminal law, thecriminal prosecutor considers manyfactors in deciding whether to bringcharges. Among others, the prosecu-tor considers "the strength of theevidence, the suspect's backgroundand characteristics, the costs andbenefits of obtaining a conviction,and the attitude of the communitytoward the offense the suspect isbelieved to have committed" (Milleret al. 1991, 695).

The discussion for the past fouryears, and especially for the past tenmonths, has not gotten to this, thenexus of the most serious issue. Thediscussion has focused upon atti-tudes toward the person who nowoccupies the office of president, and,secondarily, upon what people be-lieve is the evidence. But the mostserious issue is different. There hasbeen a continual avoidance of thecosts and benefits of impeachmentwhen considered in relation to thewhole political system.

There is some discussion of theattitude of the community, often inpuzzlement as to the difference be-tween opinion reflected in mass polldata and opinion expressed by those

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Cass R. Sunstein

University of ChicagoNovember 9, 1998

Editor's Note: This excerpt from Profes-sor's Sunstein's testimony is taken fromthe concluding section, titled "How ShouldWe Understand Impeachment Today?"

Thus far I have suggested thatboth the original understanding andhistorical practice converge on asimple principle. The basic point ofthe impeachment provision is to al-low the House of Representatives toimpeach the president of the UnitedStates for egregious misconduct thatamounts to the abusive misuse ofthe authority of his office. This prin-ciple does not exclude the possibilitythat a president would be impeach-able for an extremely heinous "pri-vate" crime, such as murder or rape.But it suggests that outside of suchextraordinary (and unprecedentedand most unlikely) cases, impeach-ment is unacceptable. The clear im-plication is that the charges madethus far by Judge Kenneth Starr andDavid Schippers do not, if proved,make out any legitimately impeach-able offenses under the Constitution.

In the present context, it would bepossible to respond to this sugges-tion in two different ways. First, itmight be urged that actual or possi-ble counts against President Clinton--frequent lies to the American pub-lic, false statements under oath,conspiracy to ensure that such falsestatements are made, perhaps per-jury, interactions with his advisersdesigned to promote further false-hoods under oath, and so forth-arevery serious indeed and that if thesevery serious charges are deemed alegitimate basis for impeachment,little or nothing will be done to alterthe traditional conception of im-peachment. Perhaps some of thesepossible counts, involving interac-tions with his advisers designed to

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Gary L. McDowellcontinued from page 24

courts of law was explained byJames Wilson in his law lectures:"The courts of justice, in almost ev-ery age, and in almost every country,have had recourse to oaths, or ap-peals to heaven, as the most univer-sal and the most powerful means toengage men to declare the truth. Bythe common law, before the testi-mony of a witness can be received,he is obliged to swear, that it shallbe the truth, the whole truth, andnothing but the truth."

The purpose, Wilson concluded, isto secure truthful evidence:

Belief is the end proposed by evi-dence of every kind. Belief in tes-timony is produced by the sup-posed veracity of him whodeclares it. The opinion of his ve-racity . . . is shaken, either when,in former instances, we haveknown him to deliver testimonywhich has been false; or when, inthe present instance, we discoversome strong inducement whichmay prevail on him to deceive.(McCloskey 1967, 2: 702-03)2

Wilson took his moral and histori-cal bearings on the necessity ofoaths to getting at the truth fromWilliam Paley, whose Principles ofMoral and Political Philosophy (1788)was an influential work of consider-able prominence among the earlyAmericans. Wilson praised Paley asan authority of "high reputation," a"sensible and ingenious writer," whowas "no undiscerning judge of thesubject" of the administration ofjustice (McCloskey 1967, 1: 310, 240,325). Joseph Story was similarly im-pressed with Paley as a writer of"practical sense" whose analyses ofpolitical institutions displayed "greatskill and ingenuity of reasoning."Throughout his celebrated Commen-taries on the Constitution of theUnited States (1851), Story relies of-ten on the "excellent writings" ofPaley.3

For Paley, the issue of oaths andperjury was one of morality as wellas of law; he expressed views notunlike that of Cicero who warnedthat "people overturn the fundamen-tal principles established by nature,when they divorce expediency frommoral rectitude" (1991, III: 101,

184). In Paley's view, the entirequestion of perjury rested on thedefinition of a lie: "A lie is a breachof promise: for whoever seriouslyaddresses his discourse to another,tacitly promises to speak the truth,because he knows that the truth isexpected." And the effects of lyingare not simply private; they are pub-lic in the deepest and most impor-tant sense:

[T]he direct ill consequences oflying . . . consist, either in somespecific injury to particular individ-uals, or the destruction of thatconfidence, which is essential tothe intercourse of human life: forwhich latter reason, a lie may bepernicious in its general tendency,and therefore criminal, though itproduce no particular visible mis-chief to anyone. (1788, 1: 184)

Given this public aspect to thedamages that come from lying, it isnecessary that oaths never be made"cheap in the minds of the people."Since "mankind must trust to oneanother" there is no more effica-cious means than through the use ofoaths: "Hence legal adjudications,which govern and affect every rightand interest on this side of thegrave, of necessity proceed and de-pend upon oaths." As a result, lyingunder oath is far more serious thanmerely lying; perjury is, Paley notes,"a sin of greater deliberation," anact that "violates a superior confi-dence" (1: 193-197).

Because a witness swears that hewill "speak the truth, the wholetruth, and nothing but the truth,touching the matter in question,"there is no place where a personunder oath can cleverly lie and notcommit perjury. The witness cannotlegitimately conceal "any truth,which relates to the matter in adju-dication" because to so conceal "isas much a violation of the oath, asto testify a positive falsehood; andthis whether the witness be interro-gated to that particular point ornot." It is not enough, Paley ob-served, for the witness afterward tosay that he was not forthcoming "be-cause it was never asked of me"; anoath obliges to tell all one knowswhether asked or not. As Paleynotes, "the law intends . . . to re-quire of the witness, that he give a

complete and unreserved account ofwhat he knows of the subject of thetrial, whether the questions pro-posed to him reach the extent of hisknowledge or not" (1: 200-01).

Nor is it sufficient an excuse that"a point of honor, of delicacy, or ofreputation, may make a witnessbackward to disclose some circum-stance with which he is acquainted."Such a sense of shame or embar-rassment cannot "justify his conceal-ment of the truth, unless it could beshown, that the law which imposesthe oath, intended to allow this in-dulgence to such motives" (1: 201).

Similarly, linguistic contortionswith the words used cannot legiti-mately conceal a lie or, if underoath, perjury. Paley's argument onthis point merits a complete hearing:

As there may be falsehoods whichare not lies, so there may be lieswithout literal or direct falsehood.An opening is always left for thisspecies of prevarication, when theliteral and the grammatical signifi-cation of a sentence is differentfrom the popular and customarymeanings. It is the willful deceitthat makes the lie; and we willfullydeceive, where our expressions arenot true in the sense in which webelieve the hearer apprehendsthem. Besides, it is absurd to con-tend for any sense of words, inopposition to usage, for all sensesof words are founded upon usage,and upon nothing else. (1: 188-89)4

Thus, the most common terms ofoaths sworn include a promise notonly to tell the truth, but thebroader promise to tell the wholetruth and nothing but the truth.Willful deceit is the key to whethera witness commits perjury or not,whatever the means chosen.5 Themoral and legal inheritance of thefounding generation included thebelief that the violation of an oathwas nothing less than "treachery"(Sidney [1698] 1990, 225).

None of the major writers withwhom the founders were intimatelyconversant saw perjury as anythingbut one of the most serious offencesagainst the commonwealth.6 In hiswidely cited Treatise on the Pleas ofthe Crown, for example, WilliamHawkins explained that there werecertain kinds of offences that were

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"infamous, and grossly scandalous,proceeding from principles of downright dishonesty, malice or faction";and it was under this rubric that heincluded "perjury and subornationof perjury." Indeed, he went furtherarguing that "perjury . . . is of allcrimes whatsoever the most infa-mous and detestable" ([1724-26]1972, 1: 318-19).7

Perjury was, in the first instance,tied to jurors who might give a falseverdict and "for several centuries notrace is to be found of the punish-ment of witnesses for perjury." And,even after it originated in the StarChamber, it was only by "slow de-grees [that] the conclusion that allperjury in a judicial proceeding is acrime was arrived at" (Stephens1883, 3: 241, 247). In 1562-63 therecame the first statute providing pen-alties for those who committed bothperjury and subornation of perjury(Holdsworth 1966, 4: 515-18). Thuswere human punishments made toaugment the fear of divine ven-geance for lying under oath.8 Thiswas, in Pufendorfs view, absolutelyessential, as he noted by quotingDemosthenes: "Those who escapeyour justice, leave to the vengeanceof the gods; but those on whom youcan lay hands, never consign over toProvidence without punishing themyourselves" (1717, IV. II. 2, 118).

It was by this joint power of thesacred and the secular that mencould put their faith in oaths as ameans of securing truthful testimonyfrom those sworn to give it. And bysuch oaths and the punishments tobe meted out for perjury, the com-monwealth could secure the properadministration of justice within thecourts of law. Perjury was no longer

just a sin; it was a crime.Based on the foregoing analysis

and review of the historical record,the conclusion seems inescapable,based on the expressed intent of theframers, the wording of the Consti-tution, the writings of the principallegal authorities known to the fram-ers, and the common law, that per-jury would certainly be included as a"high Crime and Misdemeanor" inan impeachment trial under theUnited States Constitution. Further,the record fails to support the claimthat impeachable oifences are lim-ited to only those abuses that occurin the official exercise of executivepower. As seen in the authorities,impeachable offences, in both Eng-lish and American history, havebeen understood to extend to "per-sonal misconduct" (Story 1851, 2:274), "violation of . . . trust" (Simp-son 1916, 144 n. 6), and "immoralityor imbecility" (Curtis 1854-60, 2:260) among other charges.

There is no power granted to theHouse of Representatives more for-midable than "the sole power of im-peachment." Knowing as they didthe dangers of subjecting those inhigh office to the mere passion andcaprice of the moment, the founderssought to create a power to impeachthat would be capable of "displacingan unfit magistrate," but within theconfines of a written and ratifiedConstitution of enumerated and lim-ited powers. Thus did they limit thereasons for which an impeachmentcould be undertaken to "Treason,Bribery, or other high Crimes andMisdemeanors."

The success of the founders increating the impeachment power tobe both politically effective and safe

to the demands of republican gov-ernment is seen most clearly in howfew have been the instances of itsuse. Lord Bryce described the powerof impeachment over a century agoas "the heaviest piece of artillery inthe congressional arsenal" and thus"unfit for ordinary use." The processseeking to remove a president, hesaid, "is like a hundred-ton gunwhich needs complex machinery tobring it into position, an enormouscharge of powder to fire it, and alarge mark to aim at" (Bryce [1893]1995, 1: 190). The constitutionalprovisions for impeachment wereintended, in part, to secure the chiefexecutive from being driven fromoffice for mere partisan reasons. Toget rid of a president-or to try to -Congress has to have good cause. AsBryce said, one does not use im-peachment for light and transientcauses, "as one does not use steamhammers to crack nuts" (1: 190).

In the end, the determination ofwhether presidential misconductrises to the level of "high Crimesand Misdemeanors," as used by theframers, is left to the discretion anddeliberation of the House of Repre-sentatives. No small part of that de-liberation, guided as it must be bythe history and meaning of "highCrimes and Misdemeanors," mustaddress what effect the exercise ofthis extraordinary constitutionalsanction would have on the healthof the republic, as weighed againstthe necessity of making clear that inAmerica no one is above the law. Inthe end, that is what matters mostand must bear most heavily on themembers of the House of Represen-tatives as they consider what theymust do in the weeks ahead.

Notes

1. This view has been expanded upon byJohn Wigmore in his treatise on evidence, inwhich he notes that the idea of an oath camefrom Germanic law: "The employment ofoaths takes our history back to the origins ofGermanic law and custom when, as in allearly civilizations, the appeal to the supernat-ural plays an important part in the adminis-tration of justice" (1976, V: Sec. 1815, 380).James Bradley Thayer observed that the"Normans . . . found that much of what theybrought [to England] was there already; forthe Anglo-Saxons were their cousins of the

Germanic race, and had, in a great degree,the same legal conceptions and methods onlyless worked out" (1891, 45, 58). This ex-tended to the use of oaths.

2. Wilson was not alone in his view of theimportance of oaths. For example, JusticeJacob Rush, the brother of Benjamin Rush,expressed views much like those of Wilsonin a pamphlet published in 1796, The Na-ture and Importance of an Oath-the Chargeto a Jury (Rutland, Vermont): "An oath is avery serious transaction . . . the nature [ofwhich] . . . is the solemn appeal to God-it

is engaging to speak the truth, and callingupon Him to witness our sincerity, that con-stitute the oath and obligation." Thus is itimportant that civil society maintain a dueattention to "the religious sentiment uponwhich an oath is founded"; to allow thatsentiment to relax will be "injurious to soci-ety" (Hyneman and Lutz 1983, 2: 1015-1017, 1018).

3. See Story (1851), especially Sec. 587, II:69; Sec. 584, II: 65; Sec. 1603, III: 467. Seealso, for examples, Sees. 522, 547, 558, 572,575, 579, 581, 584, 587, and 1338.

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4. Pufendorf was of a similar mind: Wit-nesses, he said, should not have "an opportu-nity by insidious or equivocal expressions toevade the force of their obligations." Shouldthey so break their oath they will discover thetruth that God is the "avenger of perjury"(1717, IV. II. Ill, 121, 119).

5. As Thomas Wood put it, "it cannot bepresumed that one would commit perjurywithout design" (1730, II. 10, xiv, 288-89).

6. For a helpful compilation of many of thecommon law sources on "oaths" and "perju-ry" see under those heads in Giles Jacob(1772).

7. Pufendorf put it even more strikingly:"Perjury appears to be a most monstrous sin,in as much as by it the forsworn wretch shewsthat he at the same time condemns the divineand yet is afraid of human punishment; thathe is a daring villain towards God, and a

sneaking coward towards men" (1717, IV. II.2, 118).

8. "The two expedients of the oath and theperjury penalty are similar in their operation;that is, they influence the witness subjectivelyagainst conscious falsification, the one by re-minding him of ultimate punishment by a su-pernatural power, the other by reminding himof speedy punishment by a temporal power"(Wigmore 1976, V: Sec. 1831, 432).

References

Bryce, James. [1893] 1995. The AmericanCommonwealth. 2 vols. Indianapolis: Lib-erty Fund.

Cicero, Marcus Tullius. 1991. De Officiis. Trans,and ed. M.T. Griffin and E.M. Atkins. Cam-bridge: Cambridge University Press.

Coke, Edward. 1809. The Third Part of the Insti-tutes of the Laws of England: ConcerningHigh Treason, and Other Pleas of the Crown.London: W. Clarke, and Sons.

Curtis, George Ticknor. 1854-60. History ofthe Origin, Formation, and Adoption of theConstitution of the United States: With No-tices of Its Principal Framers. New York:Harper.

Hawkins, William. [1724-26] 1972. A Treatiseof the Pleas of the Crown; or, A System ofthe Principal Matters Relating to that Sub-ject, Digested under Their Proper Heads.New York: Arno Press.

Holdsworth, William Searle. 1888. A Historyof English Law. London: Methuen.

Hyneman, Charles S., and Donald S. Lutz,eds. 1983. American Political Writing dur-ing the Founding Era, 1760-1805. 2 vols.Indianapolis : Liberty Press.

Jacob, Giles. 1772. A New Law-Dictionary:Containing the Interpretation and Definitionof Words and Terms Used in the Law; asalso the Law and Practice, under the ProperHeads and Titles. 9th. ed. London: Strahanand Woodfall.

Paley, William. 1788. The Principles of Moraland Political Philosophy. London: R. Faul-der.

Pufendorf, Samuel. 1717. Of the Law of Na-ture and Nations. Trans. Basil Kennet.London: R. Sare.

Sidney, Algernon. [1698] 1990. DiscoursesConcerning Government. Ed. ThomasWest. Indianapolis: Liberty Classics.

Simpson, Alexander. 1916. A Treatise on Fed-eral Impeachments. Philadelphia.

Stephens, James Fitzjames. 1883. A History of

the Criminal Law of England. 3 vols. Lon-don: Macmillan.

Story, Joseph. 1851. Commentaries on theConstitution of the United States: With aPreliminary Review of the ConstitutionalHistory of the Colonies and States, beforethe Adoption of the Constitution. 2nd ed.Boston: C.C. Little and J. Brown.

Thayer, James Bradley. 1891. "The OlderModes of Trial." Harvard Law Review5:45-58.

Wigmore, John Henry. 1976. Evidence in Tri-als at Common Law. 10 vols. Ed. J.H.Chadbourn. Boston: Little, Brown.

Wood, Thomas. 1730. A New Institute of theImperial or Civil Law. With Notes, Shewingin Some Principal Cases, amongst OtherObservations, How the Canon Law, theLaws of England, and the Laws and Cus-toms of Other Nations Differ from It. InFour Books. London: R. Sare.

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Bruce Acker mancontinued from page 24

will predictably use its lame-duckmonths to pass lots of controversiallegislation on to the Senate in defi-ance of the judgment made by thevoters.

This abuse was very common dur-ing the first 150 years of the Repub-lic. Until the Twentieth Amendmentwas passed in 1933, a newly electedCongress ordinarily waited 13months before it began its firstmeeting in Washington. In themeantime, lameducks did the na-tion's business for a full session, of-ten in ways that ran against thegrain of the last election. This mighthave been an acceptable price topay in the eighteenth century, whenroads were terrible and it took timefor farmer-representatives to ar-range their business affairs. But asthe centuries passed, the operationof lame-duck Congresses proved tobe an intolerable violation of demo-cratic principles, and they were basi-cally abolished by the TwentiethAmendment in 1933.

This amendment anticipates thatnew Congresses will begin meetingas soon as possible after the elec-tions—the text specifies January 3.In enacting it into our fundamentallaw, Americans believed they werereducing the lame-duck problem tovestigial proportions (Nagle 1997).Perhaps some grave national emer-gency might require decisive action,but the old Congress would normallyfade away as the nation enjoyed arespite from politics betweenThanksgiving and New Year's Day.

Generally speaking, lame-duckCongresses have proved faithful tothis expectation. For example, dur-ing the 65 years since the TwentiethAmendment became part of ourhigher law, no lame-duck House hasever impeached an errant federaljudge, much less a sitting president.Such matters have been left to thejudgment of Congresses that werenot full of members who had beenrepudiated at the polls or were retir-ing from office.

These proceedings, then, are ab-solutely unprecedented in the post-lame-duck era. Despite this fact, Ido not question the raw constitu-

tional power of the current lame-duck House to vote out a bill of im-peachment. But I do respectfullysubmit that the Constitution treats alame-duck bill of impeachment inprecisely the same way it treats anyother House bill that remains pend-ing in the Senate on January 3. Likeall other bills, a lame-duck bill ofimpeachment loses its constitutionalforce with the death of the Housethat passed it.

This point was rightly ignored be-fore the election, since everybodyexpected the new Congress to bemore Republican than its predeces-sor. On this assumption, it was per-fectly plausible for this distinguishedCommittee to proceed in earnest-ifthe 105th House voted to impeach,there was every reason to supposethat the 106th House would quicklyreaffirm its judgment, and send thematter on its way to the Senate. Butnow that the voters have spoken, theconstitutional status of lame-duckimpeachments deserves far moreattention than it has been given.

Worse yet, we cannot rely muchon the past for guidance. The closestprecedent comes from the 1988 im-peachment of federal district judgeAlcee Hastings. The 100th Househad impeached Hastings, but bothsides wanted to delay the Senatetrial to the 101st session, and theSenate Rules Committee grantedtheir request (U.S. Senate 1988).The Senate's perfunctory six-pagereport, however, does not resolveany of the key issues raised by thepresent case.

Judge Hastings wanted to delayhis Senate trial as long as possible,and did not even try to argue thathis bill of impeachment expired onJanuary 3 for fear that his Senatetrial would be expedited. What ismore, Hastings was a judge not apresident; and he was impeachedduring a normal session of Congress,not by a Congress of lameducks. Asa consequence, the Senate commit-tee understandably failed to considerany of the crucial constitutional is-sues raised by the present case. Itdid not even pause to consider thefact that the people decisivelysought to limit the capacity of lame-duck Congresses by solemnly enact-ing the Twentieth Amendment. If

we take this amendment seriously, itmeans that a lame-duck Houseshould not be allowed to relieve itsfreshly elected successor of its sol-emn obligation to determinewhether the nation's political lifeshould be disrupted by a lengthytrial of the president in the Senate.In short, whatever decision isreached by this Committee and thisHouse this month, the Constitutionrequires the newly elected House toreconsider impeachment afresh inJanuary.

Moreover, if the next House ofRepresentatives tries to evade itsfundamental constitutional responsi-bility, the Senate will not be free todispense with the problem of lame-duck impeachment by a simple ref-erence to its 1988 decision in JudgeHastings' case. Not only does thisreport fail to confront the basic is-sues, but the Senate Rules Commit-tee, which authored the report, willnot even be the final judge of thematter this time around. Instead, theconstitutionality of a lame-duck im-peachment will be the first questionconfronting Chief Justice Rehnquist,the designated presiding officer atthe Senate trial. Following the pre-cedent established by Chief JusticeChase before and during the trial ofPresident Andrew Johnson, the chiefjustice will rightly assert his author-ity to rule on all procedural issues(Ackerman 1998, 467-68). And thefirst of these should undoubtedly bea motion by the president's lawyersto quash the lame-duck impeach-ment as constitutionally invalid un-less reaffirmed by the 106th House.

Now, Chief Justice Rehnquist is infact a scholar of the impeachmentprocess, having written an entirebook on the subject. I am sure thathe will be fully aware of the histori-cal importance of his conduct of theproceeding, and will quickly graspthe obvious dangers of lame-duckimpeachment. Moreover, there aremany strands in the chief justice'sjurisprudence which will lead him togive great weight to the idea that itis only a truly democratic House,and not a collection of lameducks,that has the constitutional authorityto proceed against a man who hasbeen fairly elected to the presidencyby the people of the United States.

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Without any hint of partisanship, hewould be well within his rights toquash the lame-duck impeachmentand remand the matter back to theHouse.

Since the status of lame-duck im-peachments has never before beenbriefed and argued in the modernera inaugurated by the TwentiethAmendment, it is impossible tomake a firm guess as to the way thechief justice will rule on the matter.Only one thing is clear. It would befar better for the country and theconstitution if the chief justice isnever put to this test. As AlexanderBickel, my great predecessor in theSterling Chair at Yale, frequentlyreminded us, the health of our con-stitutional system is not measured bythe number of "hard cases" thathave been resolved by clear rulings.It is measured instead by the num-ber of statesmen in our history who,seeing a hard case on the horizon,act in sensible ways so as to avoidever precipitating a constitutionalcrisis.1

If this Committee and the presentHouse choose to go forward andvote in favor of a bill of impeach-ment, I respectfully urge the newSpeaker of the 106th Congress to dothe right thing, and remit the matteronce again for consideration by thenew House. Suppose, however, hedoes not do so; suppose further thatthe chief justice, when pressed, up-holds the continuing validity of thelame-duck impeachment despite theexpiration of the 105th Congress.Even then, the new House of Rep-resentatives will not be able to es-cape the need for another up ordown vote to determine whether amajority of members continue tofavor impeachment.

To see why, consider that theHouse must select a group of itsmembers, called "impeachmentmanagers," to present its caseagainst the president at the Senatetrial. Without the energetic prosecu-tion of the case by the managers,the Senate trial cannot go forward.No managers, no trial; but only thenew House can appoint the manag-ers. This was done in Judge Hast-ings' case, and it certainly should berequired in the case of a sitting

president facing a lame-duck im-peachment.

Thus, even if the new House lead-ership chooses to rely on a lame-duck impeachment, and refuses toallow another vote on a fresh billbefore sending the matter to theSenate, there is no way it can avoidthe need to test the majority senti-ment of the new House. By votingagainst the slate of managers, a ma-jority of the new House will be in aposition to stop the impeachmentprocess dead in its tracks.

It is a big mistake, then, for thedistinguished members of this Com-mittee and this House to supposethat they are the final judges of thebill of impeachment. To be sure, therecommendations of this Committeeand the vote of the entire Housedeserve serious consideration by themembers taking office next month.But so do the judgments of the vot-ers, as expressed at the elections inNovember. I respectfully urge you toconsider this point as you determineyour present course.

To put my point in operationalterms: If you don't believe that a billof impeachment or the election ofimpeachment managers will gain themajority support of the next House,the wise thing to do is to stop theprocess now. While it may be em-barrassing to reverse gears after somuch momentum has been gener-ated in favor of a bill of impeach-ment, the leadership of the nextHouse will confront a much moreembarrassing situation if it becomesevident that its slender proimpeach-ment majority has vanished over theChristmas recess.

II

So much for the first big mistake.A second mistake involves a persis-tent confusion about impeachmentstandards. People keep on talking asif the standards that apply to judgesalso apply to presidents. But aglance at the constitutional text isenough to establish that this is amistake. Under Article III of theConstitution, any federal judge maybe deprived of his lifetime job if hefails the test of "good Behavior."Thus, the House and Senate mayremove a judge even if his "bad"

behavior would not otherwiseamount to a "high Crime and Mis-demeanor."

In contrast, the Constitution doesnot allow presidents to be removedfor want of "good behavior"-for theobvious reason that he does notserve for life, but is under regularelectoral scrutiny by the people.Moreover, there should be no doubtthat the Framers were serious inrestricting themselves to high crimesand misdemeanors. In contrast tothe impeachment clause, other tex-tual references to crime do not con-tain similar emphasis on high crime.Thus, the Extradition Clause appliesto anyone who commits "Treason,Felony or other Crime," and ArticleI, Section 6 gives every congressmanan immunity from arrest except incases of "Treason, Felony, andBreach of the Peace." This stands insharp contrast to the high crimesrequired of presidents, and the merebreaches of good behavior requiredin the case of judges. It is a bad mis-take, then, to assume that the rela-tively low impeachment standardapplied to judges also applies to thepresident. The mere fact that theyare undoubtedly removable for per-jury does not imply that the presi-dent is also impeachable for thesame offense.

Which leads me to the third andlast mistake. Perhaps because of therole of the special prosecutor in thiscase, there has been a constanttemptation to imagine that what weare doing here is consideringwhether you should issue somethingsimilar to a criminal indictment.This is a mistake today, even thoughthere was a time long ago when thisview was plausible. When impeach-ment began in the English parlia-ment five hundred years ago, thismedieval assembly still thought ofitself as a High Court, and oftensubjected the victims of impeach-ment to dire criminal punishments.

But the Framers of our Constitu-tion self-consciously rejected thesemedieval precedents. They carefullylimited the sanctions for impeach-ment to removal from political of-fice, and the like. Once a presidentdeparts, he is fully subject to therigors of criminal prosecution.Rather than standing above the law,

30 PS March 1999

William Jefferson Clinton probablyruns a greater risk of an indictmentfor perjury in the year 2001 than anyother American citizen alive today.

This committee does not sit as agrand jury of the District of Colum-bia, but as a grand inquest repre-senting the nation. It should not fo-cus on the details of a particularcrime, but ask itself a very differentquestion: Does the conduct allegedin this case constitute such a threatto the very foundations of the Re-public that it is legitimate to deprivethe people of their freely electedchoice as president?

For two centuries, the Congresshas shown great restraint in dealingwith this question. From the era ofGeorge Washington to that of Ro-nald Reagan, presidents have oftenstretched their constitutional author-ity to the very limits, making unpop-ular decisions which have oftenproved to be in the larger interest ofthe nation. And yet only one Presi-dent-Andrew Johnson-has beenimpeached, and only one-RichardNixon-has resigned under threat ofimpeachment. The presidential con-duct involved in both casesamounted to an assault on the veryfoundations of our democracy. An-drew Johnson sought to block theenactment of the FourteenthAmendment, and its guarantees ofequal protection and due process toall American citizens (Ackerman1988, chap. 8). Richard Nixonsought to undermine the very foun-dations of the two-party system.Once we lower the impeachmentstandard to include conduct thatdoes not amount to such clear anddanger to our constitutional order,we will do grievous damage to theindependence of the presidency.

James Madison saw this. At the[Constitutional] Convention, he op-posed the addition of any languagewhich would water down the solemnrequirement of a "high Crime andMisdemeanor." A lower standard,he said, would transform the Presi-dency from an office with a fixedfour-year term to one "whose termwill be equivalent to a tenure duringthe pleasure of the Senate" (Far-rand 1996, 550). Indeed, when theFounders voted on the impeachmentstandard, they did not, in fact, vote

on the provision that appears in thetext today. Instead, they actually ap-proved a standard that required theproof of a "high crime and misde-meanor against the state" [emphasisadded]. These last three words werelater eliminated by the Committeeon Style, which had absolutely noauthority to change the substance ofany provision. Thus, the Committeemust have thought that the text'sinsistence on "high crime and misde-meanors" already included the re-quirement of an assault on the foun-dations of the American state.

And as we have seen, this is thestandard that has, in fact, consis-tently governed the House's actionsover the past two centuries. If theHouse had been operating underany lower standard, our historybooks would have been littered withmany, many bills of impeachment,and not only two. When judgedagainst this consistent history of re-strained congressional interpretationof the impeachment clause, therecan be little doubt that the presentcase falls far short of the standardset by the Framers when they in-sisted on "high crimes and misde-meanor against the state."

Indeed, if the Committee doesfind President Clinton's conduct im-peachable, it will be setting a prece-dent that will haunt this country forgenerations to come. Under the newand low standard, impeachment willbecome an ordinary part of our po-litical system. Whenever Congressand the presidency are controlled bydifferent political parties, the Con-gress will regularly use impeachmentas a weapon to serve its partisanpurposes.

After all, presidents are oftencalled upon to make fateful deci-sions of the first importance, and, inthe short term at least, these deci-sions can be very unpopular. Oncethe House's centuries-long traditionof constitutional restraint has beendestroyed, its future political leader-ship will be sorely tempted to re-spond to unpopular decisions by reg-ularly seeking to force the presidentfrom office. The result would be amassive shift toward a British-stylesystem of parliamentary government.

This is in fact what happened inthe aftermath of the impeachment

of President Andrew Johnson in1868. Though this impeachment ef-fort barely failed to gain two-thirdssupport in the Senate, it drainedeffective power from the presiden-cy-to the point where WoodrowWilson, writing in 1885, could de-scribe our system as "congressionalgovernment." And it could readilyhappen again. Imagine, for example,that the political wheel turns andthat a Democratic Congress con-fronts a Republican president in theyear 2001. Can there be any doubtthat enterprising members of theHouse will be tempted to use theClinton precedent to unseat the nextRepublican president at the first po-litically propitious opportunity?

My study of history and humannature convinces me that once suchan abusive cycle of impeachmentshas begun, it will be very difficult tokeep the bitter disagreements gener-ated by our often-divided govern-ment under control.

Let me emphasize that, thoughthe lawyers for President Clintonasked me to testify today, I wouldbe equally emphatic in my opposi-tion to any future effort by a Demo-cratic Congress to impeach a Re-publican president for anything shortof an outright assault on the founda-tions of the Republic. But it is a far,far better thing to cut short a cycleof incivility before it starts. I re-spectfully urge the distinguishedmembers of this Committee to deferfurther action on impeachment tothe next session of Congress, whenour newly elected representativeswill be in a much better position todecide on the kind of action-rangingfrom impeachment to censure tonothing-that is most appropriate inthis case.

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Note

1. This is a leitmotiv linking Bickel's early (1962) to his posthumous The Moralityworks like The Least Dangerous Branch of Consent (1975).

References

Ackerman, Bruce. 1998. We the People. Cam- Farrand, Max. 1986. The Records of the Fed- U.S. Senate. Senate Rules Committee. 1988.bridge, MA: Harvard University Press. era/ Convention of 1787. New Haven: Yale S. Rept. 100-542, 100th Cong., 2nd Sess.,

Bickel, Alexander. 1962. The Least Dangerous University Press. Sept 22.Branch: The Supreme Court at the Bar of Nagle, John Copeland. 1997. A TwentiethPolitics. Indianapolis: Bobbs-Merrill. Amendment Parable." New York University

—. 1975. The Morality of Consent. New Ha- Law Review 72(May): 470-94.ven: Yale University Press.

3 2 PS March 1999

Samuel H. Beercontinued from page 25

tial importance to the public wel-fare." Because of these broad andweighty consequences, impeachmentis primarily a political, not a judicial,act.

As a political act, impeachment,like a vote of no confidence, passesjudgement on and enforces responsi-bility on the executive power. In theBritish system, that responsibilityruns directly to the legislature. Inthe American system, on the con-trary, that responsibility runs to thelegislature only secondarily and inspecial circumstances. For us, theresponsibility of the president is es-sentially and directly to the voters.The legislature, as a separate office,separately elected, likewise is heldaccountable by the voters. This sepa-ration of powers is fundamental inour constitutional design and is amain point of distinction from theBritish system. The direct responsi-bility of both branches to the votersexpresses the sovereignty of the peo-ple as the ultimate authority of ourconstitution and of the governmentestablished under it.

As the framers struggled to giveexpression to this principle, they raninto a problem. How were our liber-ties to be protected against misuseof power by the executive betweenquadrennial elections? At the Phila-delphia convention during the sum-mer of 1787, they explored variouspossibilities, such as appeals to the

Supreme Court and similar bodies.The states, likewise, we may note,experimented in theory and practicewith a variety of methods of bridg-ing this gap. At the last moment, theframers incorporated a structurealmost exactly in the form then be-ing used in England in the impeach-ment of Warren Hastings. This de-vice, although it had ancient roots,had come to special prominence inthe seventeenth and eighteenth cen-turies when Great Britain also for atime displayed a separation of pow-ers, as a still powerful and indepen-dent monarch faced off against therising assertions of the parliament.In those circumstances, impeach-ment was adopted by the parliamen-tarians as a means of enforcing re-sponsibility on the monarch throughaction against his ministers. When,finally, the monarch was eased outof politics the old fusion of execu-tive and legislative power was takenover by a committee of the parlia-ment-the cabinet. Now, the interimmethod of getting a hold on the ex-ecutive was dropped in favor of avote of confidence which performedmore effectively the function of en-forcing responsibility on parliament.At the same time that impeachmentwas dying out in Britain, it wastaken up by Americans, who foundin it a way of supplementing theprincipal mechanism of democraticresponsibility by quadrennial elec-tions. The broad scope of impeach-ment was embodied in a very differ-ent system.

Where the ultimate sovereign isthe people, the interference of onepower, the legislature in its exerciseof such a dire responsibility as re-moval of a popularly elected presi-dent imposes severe duties on thelegislature. The Congress itself, notthe primary source of authority, butonly a creature of the people, mustact in lieu of the people betweenquadrennial elections. At their best,the legislators will do what the peo-ple, at their best, would do, weigh-ing the pluses and minuses of therecord and the promise as a whole,asking, "Does the national interestrequire the removal from office ofthis president?" In the case of Presi-dent Clinton, the American peoplehave twice answered that questionby electing him to the Americanpresidency. If we seek further lighton the American mind, surveys ofopinion continue to confirm thatanswer which also in no way is dis-turbed by the outcome of the recentmidterm elections.

The failure to consider the wholerecord of Clinton's presidency inforeign and domestic affairs couldhave severe long-run costs. The re-moval of a president, thanks to suchneglect in judgement, could damageour democratic system. Consider thetemptations which this precedentwould excite in a Congress of a dif-ferent party against a future presi-dent of a different party. As a greathistorian, Henry Adams, said, on thefailed attempt of the Jeffersonians toremove Justice Chase, impeachmentis not a suitable activity for partypolitics.

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Matthew H. Holden Jr.continued from page 25

commentators whose profession it isto express opinion. I can recall atelevision commentary, in August1998, when panelists were askedabout the reason that public audi-ences generally did not have thesame intense feelings about theClinton-Lewinsky information as thetelevision journalists. One panelistsaid: "We'll just have to educatethem." Such commentary fails toconsider that the general public mayalready have made its judgments,however rough, that the "cost" offurther action against the presidentmay exceed the "benefit" to the po-litical system. The general public hasgood reason to believe that, on thebasis of past performance, its evalu-ation of such a cost-benefit ratiomay be more clear-minded than thatof many reporters and editors fromwhom they have heard.

To initiate an impeachment ([an]accusation of asserted "high crime"or "high misdemeanor") against thepresident would impose far tooheavy a burden upon the politicalsystem since no reasonable personargues that the acts under discussionin any way disable, or potentiallydisable, the Congress. Neither Con-gress nor [the] courts [are] disabled,or under any potentiality of beingdisabled, or the president would notnow be on the defensive. Impeach-ment and conviction of a presidentwould mean replacing an entire ad-ministration.

Within the parameters of theConstitution, some significant insti-tutional features have developed,and it is to their interrelationshipsthat the idea of the "system" refers.Our ability to operate under thisConstitution, with a strong presi-dency, has given the United States aremarkably stable government. If,for example, the United States had aparliamentary regime, President Re-agan probably would have had toyield in 1982 under the pressure ofeconomic recession. If that were so,he could never have evolved to a defacto partnership, as some see it,with Gorbachev toward windingdown the arms race.

The president has a unique com-

bination of formal and informalpowers that revolve around his cen-trality to the executive branch, hisrole as the prime leader in nationalsecurity policy, his leadership of oneof the political parties, and his twen-tieth-century role in legislative lead-ership, [are] strongly affected by allhis other powers, but grounded inhis possession of the veto, whicheffectively makes him one-third ofthe legislative process.

The president does not prevail allthe time in these domains, or evenin any one of them. But the presi-dent's role in several of them is al-most always critical, and is so evennow.1

The normal requirement of Amer-ican government engages all theseresources, as presidents work with,against, and around a variety of al-lies and opponents. If any presidentwere to be removed, no other per-son could exercise equivalent leader-ship until the successor had devel-oped his own relationships.

The level of cost to the systemgoes far beyond this. It is in the in-tense animosity that almost surelywill have developed.

These seventeenth-century casesthat I mentioned earlier are notmere decoration, but have directapplication. Lawyers, of course, usethem to trace the very meaning ofthe law itself (U.S. House of Repre-sentatives 1974). These historicalcases help me to state a simple hy-pothesis: Whatever new weapon isintroduced into the political battletends soon to become domesticated,even banalized, so that its use ismore and more common judgment.It will be adapted and adopted bymany other groups. James J. Kil-patrick was not talking about im-peachments, but about [having] . . .the Supreme Court hold the PaulaJones law suit out until the conclu-sion of the president's term. But hisstatement [that] the decision "islikely to encourage trumped-up ha-rassments of future presidents ondown the line" (1998, 46) is appo-site.

Impeachment investigations,trumped-up and otherwise, will vir-tually be mandated by going forwardon this one. Richard H. Tawney,who wrote an account of the govern-

mental career of Lionel Cranfield,also wrote that "The resurrection of(this) antiquated weapon . . . pro-duced some forty impeachments be-tween 1621 and 1688" (1958, 248).That is sixty-seven years (67) timestwelve months (12) for a sum ofeight hundred and four months(804). Divided by forty (40), thenumber of impeachments, the resultis, on a straight-line average, oneimpeachment every twenty months.In fact, of course, these impeach-ments came in clusters, rather thanon a straight-line average basis. Butthe echoes from seventeenth-centuryEngland, with its fifteen to twentyimpeachments during a three yearperiod, with numerous impeach-ments on slender evidence (Holds-worth 1924, 260), are not to [be]taken lightly. In the slow-movingseventeenth century, factionsbrought each other to the test—whether routinely over long periodsor more intensely in periodic bursts.We should not expect an impeach-ment in 1999 or 2000 to let theUnited States slip back into politicaltranquillity.

The better hypothesis is that weshould expect more turmoil. Thetwentieth century has been, sinceWorld War II perhaps, somewhatsimilar to the seventeenth century inone respect: intense ideological an-tagonisms. Even in the past twentyyears, when it might have beenthought to decline, there are intenseideological battle groupings, easilyactivated. The resultant turmoil willbe made far worse by an impeach-ment on the grounds that we nowknow. Massive distrust will feed it.Ideological antagonism will feed it.Well-financed political entrepre-neurs will feed it. Instantaneouscommunication of information, dis-information, and misinformation willfeed it. Impeachment as techniquewill increasingly be domesticated aslegal defense funds, political actioncommittees, and many other tech-niques have been domesticated. Pri-vate groups will urge their congres-sional friends to initiate calls forindependent counsels or other pro-cedures to inquire into whetherthere might be a basis for determin-ing that someone has violated, orconspired to violate, some law.

34 PS March 1999

Those who urge this resurrectionshould, if they believe that the polit-ical system concern is worthwhile,have a public duty to weigh carefullywhether the result they achieve isthe result they want to achieve.

It is thus likely that we will seeattempts to initiate impeachmentactions against other presidents. Ineach instance, one may assume thatsuch effort will be made by peoplewho genuinely believe their charges,and who believe they have crediblecases. Since all successful efforts de-pend upon coalitions, explicit or defacto, such efforts will become suc-cessful only as varieties of othergroups and persons join the effortson a variety of grounds. There mustbe a number of upwardly mobilecongressmen, senators, and gover-nors-Republican as well as Demo-cratic-who should expect to findthemselves absorbed in such contro-versies over the next two, three, orfour presidential cycles. Congres-sional leaders know that impeach-ment does not have to stop with apresident. The same provision (Arti-cle II, Section 4) also applies to "theVice President, and all civil Officersof the United States." Cabinet offic-ers and sub-cabinet officers are alsocivil officers. There is no reason foradversaries not to seek to invoke theprocess whenever they are deeplyangry, or simply calculatedly ration-al, about some action. Is it beyondthe imagination that, as many peo-ple genuinely believe that abortion isan ultimate evil, impeachment at-tempts would not be initiatedagainst some secretary of Healthand Human Services on the basisthat he or she is conducting policiesfavorable to this perceived evil? Isthere any reason to believe thatsome attorney general, even thepresent one, might not be the objectof attempted impeachment actions ifhe (or, in the present case, she)were resolutely to decline to initiatesome independent counsel investiga-tion desired by Senate leaders? Isthere any reason to suppose thatsuch an attorney general would beeven more at peril for limiting, orexercising the legal discretion to ter-minate, an independent counsel in-vestigation if the independent coun-sel were to wish to continue? Is the

independent counsel, as a civil offi-cer, also within the scope of ArticleII, Section 4, if there are those whoare motivated to make the effort?

Even regulatory commissioners,beyond presidential direction, arealso civil officers, are they not?What reason is there for affectedinterests not to use this newly avail-able weapon? While the impeach-ment of federal judges does not pro-vide much to go on, as to standardsfor evaluating presidential impeach-ments, there is one response inwhich the reverse situation becomespart of the system threat. The Arti-cle III courts [are also] subject tothe same threats of punitive im-peachment actions-regardless ofwhether they succeed-if someonebecomes dedicated to making theirlives miserable.

This is, again, not to be takenlightly. Even under the stricter stan-dards that apply to Article IIIjudges. There are members of Con-gress who have, within the pastthree years, been known to arguethat judges making "wrong" deci-sions should be impeached.2 Willthis approach be withheld if federaltrial judges depart from what [have]been thought [of as] conventionalprocedures? For example, a trialjudge had appointed a special mas-ter to conduct certain proceedingsinvolving the Justice Department'scurrent litigation against Microsoft.In due course, he was obliged todispense with the special master byvirtue of an appeals court decision.The judge has reportedly "told law-yers for both sides that he may ask[this dismissed special master] towrite a 'friend of the court' briefsummarizing his views on the case."Is it beyond reasonable belief that,under intense conditions, someonewould choose to impeach such ajudge in such a case?

Clearly, my approach is framed, asstated in the first place, in politicalsystem terms. This does not implythat impeachment should never beemployed. It does, however, suggesta balancing test: specifically, that thegravity of the presidential offensesshould be weighed against the po-tential of far greater costs to thewhole country. The assigning ofsome behavior to the category of

those "other high Crimes and Mis-demeanors"-parallel to treason andbribery-should be done only withutmost seriousness, and assessedwith maintaining the essentials ofthe political system (or "the struc-ture of government" or "institutionalstability") as the prime purpose.

The maintenance of this kind ofseriousness will be increasingly prob-lematic, in somewhat the same wayof maintaining a high level of dignityhas already proved problematic.House leadership has, presumablywith all seriousness, urged dignity.But since the beginning of 1998, ev-ery level of the inquiry has becomemore raucous than anyone in theleadership predicted before. It willcontinue to go beyond control unlessthere is some clear decision thatproduces the contrary. AlexanderHamilton was right to say in Federal-ist 65 (423): "The prosecution of[actions deemed impeachable] . . .will seldom fail to agitate the pas-sions of the whole community, andto divide it into parties more or lessfriendly or inimical to the accused."That tells us that such mattersshould be approached with prudenceand wisdom.

The impeachment process lendsitself to the persistent conflict offactions. Each of which will seek touse the process to advance its ownmaterial goods and its own reveredsymbols, to pursue vengeance andfeud as if they were Capulet andMontague. Case in point: On Octo-ber 8, 1997, during the House de-bate on the resolution to launch animpeachment inquiry into the con-duct of President Clinton, one manfrom Alabama called the CNN con-servative phone line to say that whathe enjoyed was frustration and de-feat in the eyes of the liberals whohad been having it all their way,having been in power for 40 years.Such a statement should be seen asthe cloud no bigger than a man'shand. Again, to cite Hamilton: "Inmany cases it will connect itself withthe pre-existing factions, and willenlist all their animosities, partiali-ties, influence, and interest on oneside or on the other; and in suchcases there will always be the great-est danger that the decision will beregulated more by the comparative

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strength of parties, than by the realdemonstrations of innocence orguilt."

The importance of prosecution,with impeachment as its leadingcase, as a weapon of recurrentgroup conflict becomes more impor-

tant as each side disputes the moral-ity and the methods of the other.Political leaders have already losttoo much of the lessons of how totrade with each other and learnedinstead to turn each conflict into adramatic morality play, or to an oc-

casion of political vengeance. Themagnification of conflict is some-thing we have seen before. Congressshould [do] nothing further to letthis lion loose in the streets. Pru-dence and wisdom argue for termi-nating this process. Close the cage.

Notes

* Communication, substantive or technical,on this statement should be directed to theauthor at: Department of Government andForeign Affairs, University of Virginia, Room232 Cabell Hall, Charlottesville, VA 22903;Fax: 804-924-3359; Email: mh3q@virginia.edu.

1. This is reflected in Republican protestsabout the farm bill, which they have had toaccept much more on President Clinton'sterms than they wish, even as he faces theimpeachment proceeding.

2. The references in support of this are notimmediately at hand, but they will be foundin the ABA Journal and in the National LawJournal.

References

Holdsworth, William. 1924. A History of Eng-lish Law. Boston: Little, Brown.

Federalist 65. [1787J1937. New York: TheModern Library.

Kilpatrick, James J. 1998. "U. S. v. Clinton."National Review, September 28.

Miller, Frank W., Robert O. Dawson, George

Dix, and Raymond Parnas. 1991. Prosecu-tion and Adjudication. 4th ed. Westbury,CT: The Foundation Press.

Tawney, Richard H. 1958. Business and Poli-tics under James I: Lionel Cranfield as Mer-chant and Minister. Cambridge: CambridgeUniversity Press.

U. S. House of Representatives. Committeeon the Judiciary. 1974. Impeachment: Se-lected Materials on Procedure. 93rd Con-gress, 2nd Sess. Washington, DC: Govern-ment Printing Office.

36 PS March 1999

Cass Sunsteincontinued from page 25

promote lies or continued proce-dural objections to the underlyinginquiry, even amount to abuse ofpower. Second, it might be said thatwhatever history and past practiceshow, we should understand theConstitution's text to allow the Pres-ident to be impeached, via the dem-ocratic channels, whenever a seriouscharge, of one sort or another, isboth made and proved. I take upthese two responses in sequence.

If the first claim is that certainkinds of falsehoods under oath, per-jury, conspiracy to lie, and so forth,could be a legitimate basis for im-peachment, there can be no objec-tion. A false statement under oathabout a practice of using the IRS topunish political opponents wouldalmost certainly be an impeachableoffense; so too about a false state-ment about the acceptance of abribe to veto legislation. Thus, falsestatements under oath might well bea legitimate basis for impeachment.Indeed, lying to the American peo-ple may itself be an impeachableoffense if, for example, the presidentsays that a treaty should be signedbecause it is in the best interest ofthe United States when in fact hesupports the treaty because its signa-tories have agreed to give him a lotof money. But it does not diminishthe universal importance of tellingthe truth under oath to say thatwhether perjury or a false statementis an impeachable offense dependson what it is a false statement about.The same is true for "obstruction ofjustice" or interactions with advisersdesigned to promote the underlyingfalsehood.

Anyone can be prosecuted forviolating the criminal law, and if thepresident has violated the criminallaw, he is properly subject to crimi-nal prosecution after his term ends.But it does not make sense to say,for example, that an American presi-dent could be impeached for falsestatements under oath in connectionwith a traffic accident in which hewas involved, or that a false state-ment under oath, designed to pro-tect a friend in a negligence action,is a legitimate basis for impeach-

ment. Probably the best generalstatement is that a false statementunder oath is an appropriate basisfor impeachment if and only if thefalse statement involved conductthat by itself raises serious questionsabout abuse of office. A false state-ment about an illicit consensual sex-ual relationship, and a "conspiracy"to cover up that relationship, is notexcusable or acceptable; but it is nota "high Crime or Misdemeanor"under the Constitution. The same istrue for the other allegations madethus far. It trivializes the criminallaw to say that some violations ofthe criminal law do not matter, ormatter much. But it trivializes theConstitution to say that any falsestatement under oath, regardless ofits subject matter, provides a properbasis for impeachment.

Of course people of good faithcould say that the president has aspecial obligation to the truth, espe-cially in a court of law, and that it istherefore reasonable to consider im-peachment whenever the presidenthas violated that obligation. It is cer-tainly true that as the nation's chieflaw enforcement officer, the presi-dent as a special obligation to thetruth. Perhaps such people also be-lieve that false statements underoath, and associated misconduct, aregenuinely unique and that impeach-ment for such statements and suchmisconduct would therefore fail todo damage to our historical practiceof resorting to impeachment only inthe most extreme cases. But this po-sition has serious problems of itsown. Even if it would be possible, inprinciple, for reasonable people toconfine the current alleged basis forimpeachment, it is extremely doubt-ful that the line could be held inpractice. Thus, a judgment that thecurrent grounds are constitutionallyappropriate would set an exceed-ingly dangerous precedent for thefuture, a precedent that couldthreaten to turn impeachment into apolitical weapon, in a way thatwould produce considerable instabil-ity in the constitutional order.

Consider, for example, the factthat reasonable people can and dofind tax evasion more serious thanfalse statements about a consensualsexual activity, and that reasonable

people can and do find an allegedunlawful arms deal more serious,from the constitutional standpoint,than either. Here is the underlyingproblem. Whenever serious chargesare made, participants in politicsmay well be pushed in particulardirections by predictable partisanpressures. The serious risk is there-fore that, contrary to the constitu-tional plan, impeachment will be-come a partisan tool, to be used byreference to legitimate arguments bypeople who have a great deal togain.

A special risk of a ready resort tothe impeachment instrument is thatit would interact, in destructiveways, with existing trends in Ameri-can democracy. Those trends-to-ward an emphasis on scandals andtoward sensationalistic charges-havecharacterized the conduct of mem-bers of both parties in the last de-cades. For those who love this coun-try and its institutions, the use ofimpeachment, in such cases, is quiteominous-not least because of thedemonstrable good faith of many ofthose who are recommending it.

From the standpoint of the consti-tutional structure, it is far better totry a kind of line in the sand, onethat has been characteristic of ourconstitutional practice for all of ourhistory: A practice of invoking im-peachment only for the largest casesof abuse of distinctly presidentialauthority.

Text, history, and longstandingpractice suggest that the notion of"high Crimes and Misdemeanors"should generally be understood torefer to large-scale abuses that in-volve the authority that comes fromoccupying a particular public office.Thus a president who accepted abribe from a foreign nation-or whofailed to attend to the public busi-ness during a war-would be legiti-mately subject to impeachment. Per-jury, or false statements under oath,could certainly qualify as impeach-able offenses if they involved (forexample) lies about using the Inter-nal Revenue Service to punish one'spolitical opponents or about givingarms, unlawfully, to another nation.But the most ordinary predicate forimpeachment is an act, by the presi-dent, that amounts to a large-scale

PSOnline www.apsanet.org 37

abuse of distinctly presidential au- The current allegations against Pres- would be far wiser to adhere to ourthority. ident Clinton do not justify a depar- traditions and to leave the hardest

If there is ever to be impeach- ture from our traditional practices. constitutional problems for another,ment outside of that category of Such a departure would be not trivi- and better, occasion,cases, it should be exceedingly rare. ally but profoundly destabilizing; it

3 8 PS March 1999