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Testimony of William Van Alstyne
Professor of Law, Duke University School of Law

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

Summary Statement By William Van Alstyne

I. Article 1, 2, of the Constitution provides that "The House of Representatives ... shall have the sole Power of Impeachment." In turn, Article 1, 3, of the Constitution next provides that "The Senate shall have the sole Power to try all Impeachments." And Article II, 4, in turn, provides: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Thus the division of responsibility is fixed in the Constitution between the House and the Senate, in respect to impeachment (by the House) and trial (by the Senate), of every civil officer of the United States (including the President), with respect to whom impeachment proceedings may be brought. Thus, also, is the President, just as any other civil officer, made answerable in the manner described in Article II, 4.

II. That the President and Vice President are encompassed by these provisions of the Constitution, and that they are encompassed in the same manner (and not in some different manner) as each other "civil officer" similarly subject to these same clauses,(1) moreover, is also equally clear simply from the respective clauses on their face. Thus, for example, whether it were acceptance of a bribe by or on behalf of the President (e.g., to grant a reprieve or pardon), rather than acceptance of a bribe by or on behalf of a federal judge (e.g., to suspend sentence of one convicted in a jury trial in his court), the difference would offer no distinction whatever respecting whether the one civil officer (the federal judge) but somehow not the other (the President) has brought himself within the impeachment clause, such as it is. The offense, that of "bribery,"(2) is obviously not treated differently (i.e., less consequentially) under the clause because of the "higher" or "lesser" status of the person holding federal civil office. That he or she may be elected (as may assuredly be true of the President or Vice President) rather than appointed to office (as may be true of a federal judge or a member of the President's cabinet), moreover, is likewise neither here nor there.

III. Indeed, insofar as there are considerations that were felt sufficient to provide cause to identify the office of the President as different from any other civil office in respect to the impeachment provisions of the Constitution, such as they are, these provisions are easily discovered (e.g., in the provision describing who presides during an impeachment trial(3)). And quite expressly, none of these (there is really only one--the one just noted) presume in any manner whatever to modify or qualify the character or range of offenses encompassed by Article I, 4, so to exempt a President for offenses, or make him less subject to impeachment and trial for those offenses, than others, merely on account of who he is or on account of the nature of the office he holds.

Nor in this regard is it of any constitutional consequence that he--the President--is elected, moreover, while other civil officers subject to the clause (cabinet members, federal court judges), happen not to be elected but instead hold provisional tenure by some other means. Indeed, that the fact that he is elected, but despite being elected brings himself to commit serious crimes,(4) shall in no respect affect some special release, much less some exemption, or lesser degree of accountability of one who is President, under the impeachment clauses, is reflected by the special precaution explicit on the face of the impeachment clause itself. For it is, first of all, as the clause itself declares, precisely the "President, " and then, also, the "Vice President," and only then, as well, any other "civil officer" of the United States, who "shall be removed from Office" on determination of Congress, "on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."(5) And it is noteworthy, too, consistent with this merely equal accountability in the President, that there likewise is no requirement or provision requiring a more substantial vote in the Senate, or any other procedural requirement respecting conviction in the case of a President, than that required in respect to any other civil officers subject to impeachment

and to trial.(6) Pleas suggesting somehow that the President is "different" (i.e., meaning "not as answerable" in the same way, or to the same offenses,(7) or to the same degree as others subject to impeachment under the Constitution), ought not be readily entertained in this Congress. The President is not different, whether as to what constitutes an impeachable offense or as to whether it is to be passed over; nor does the distinction that he is elected (rather than appointed), grant him a latitude to engage in acts of perjury or other federal crimes, such as they may be, in proceedings pending in our courts of law.

IV. All of the preceding having been straightforwardly said, however, it does not mean that, therefore, the Judiciary Committee (and the House of Representatives) should or must vote certain articles of impeachment of the President. That grounds exist, as they may well exist(8) as these Hearings may (but need not) also determine, and that the evidence already received by the Committee may even now strongly support those proposed grounds, moreover, by no means per se compels the discretion of the House. Whether the House or this Committee may conclude, on political grounds or otherwise, that it does not care to pursue the evidence respecting the offenses provisionally reflected in the Report of the Special Counsel or otherwise, in brief, is entirely within its constitutional prerogative.(9) Nothing I have briefly reviewed here is meant to imply anything else.

What would be mistaken, however, would be any suggestion or report by this Committee that, even when linked directly with behavior in office, while President, such acts of criminal perjury, subornation of perjury, obstruction of justice, colluding to conceal evidence, or seeking to enlist others including cabinet members as well as White House employees to mislead both them and others--that such crimes as "merely" these (as evidence sufficient to persuade the Committee meeting a standard of evidence both clear and convincing in its sufficiency might show) as he may have committed, and committed for no better reason than to shelter himself from a mere civil suit a unanimous Supreme Court had determined was properly in federal court,(10) would nonetheless be, even each and all, added collectively,(11) crimes somehow beneath the reach of the impeachment provisions of the Constitution of the United States. They are surely not, nor will the country be well served by any Report that would itself now presume to lay down, for the first time, a suggestion to the contrary. I fervently hope it will not pursue any such course as that. The further impeachment pursuit of Mr. Clinton may well not now be particularly worthwhile. Yet it will be of continuing constitutional importance that the Committee's resolution of that decision, if that should be its own judgment as well, be taken merely for what it is, and not at all as any "Advisory Opinion" by this agency of Congress that the impeachment clauses themselves foreclose this Committee from a full and complete review of what the President is alleged to have done. They do not foreclose that full and complete review. To the contrary, they fully sustain the authority of the House of Representatives to proceed with this inquiry to whatever extent it may decide it has an obligation to itself and to the Constitution, to pursue.



William Van Alstyne

1. The sole uncertainty, in respect to "civil officers," involves Members of Congress. (In respect to Members of Congress, though they are certainly civil officers (as distinct from those in military service), the express provision in Article I, 5 (that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member") may establish an exclusivity of removal-from-office power respectively in each house. )

2. [A term that plainly means to include "acceptance of a bribe," and not merely "payment of a

bribe."]

3. See the provision in Article I, 3 (though the Vice President "shall be President of the Senate," and thus will ordinarily preside (unless he is absent in which case an elected pro tempore President shall preside), if and only "when the President is tried, the Chief Justice shall preside").

4. --By "serious crimes," one might suggest a crime so regarded at common law and currently carrying a term of imprisonment up to five years (as perjury in any federal court proceeding does, including perjury by deposition); or another carrying a term of imprisonment even of ten years (as engaging in misleading conduct toward another with intent to influence their testimony in any official federal proceeding does); these would assuredly appear to qualify. See also ftnote 5, infra. When linked to one's behavior in office, moreover, the notion that neither perjury nor tampering with a witness nor subornation of perjury is any sort of "high crime [or] misdemeanor," when engaged in by the President of the United States, is, well, facetious at best.

5. See, e.g., as pertinent examples of "other high crimes and misdemeanors, " each of the following (and see discussion supra ftnote 4):

18 U.S.C. 1621. Perjury

Whoever-

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true ... is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years or both.

18 U.S.C. 1622. Subornation of Perjury

Whoever procures another to commit any perjury is guilty of subordination of perjury, and shall be fined not more than $2,000 or imprisoned not more than five years, or both.

18 U.S.C. 1623. False declarations before grand jury or court.

(a) Whoever under oath (or in any declaration ... or statement under penalty of perjury) in any proceedings before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. 1512. Tampering with a witness

(a) Whoever knowingly ... engages in misleading conduct toward another person, with intent to-

(1) influence the testimony of any person in an official proceeding ... shall be fined not more than $250,000 or imprisoned not more than ten years, or both.

18 U.S.C. 1515. Definitions for certain provisions

As used in sections 1512...

(1) the term "official proceeding" means -

(A) a proceeding before a judge or court of the United States ... or a Federal grand jury;

18 U.S.C. 1510. Obstruction of criminal investigations

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined not more than $5,000, or imprisoned not more than five years, or both.

6. Note, for example, that the relevant constitutional provision on the requisite vote in the Senate necessary to convict (Art. II, 3) merely provides that "no Person [i.e., whether or not that person is the President] shall be convicted without the Concurrence of two thirds of the Members present," neither more nor less (i.e. regardless of who that person is). The vote does not vary with the status (or "importance") of the person under trial. Note, incidentally, that consistent with this provision, the necessary vote could amount to as few as a mere 34 votes for conviction, and yet be sufficient so far as the Constitution is concerned. (A simple majority of the Senate constitutes a quorum pursuant to Art. I, 5; and thirty-four votes would be two thirds of that number, i.e., two-thirds of fifty-one, and thus sufficient to convict.) Again, here, too, the requirement (of votes sufficient to convict) is no different for a President, than in respect to a "mere" federal district court judge or any other civil officer, subject to impeachment and conviction under the Constitution of the United States; rather, exactly as in respect to the definition of what constitutes an impeachable offense, the President receives no dispensation in his accountability pursuant to the impeachment clauses the Constitution provides.

7. See text and footnotes at nn. 4 & 5 supra.

8. See The Interim Report of The Special Counsel (The "Starr Report"), plus discussion in text and footnotes 4 & 5 supra, plus proposed outline of lines of inquiry framed by Majority Counsel to this Committee.

9. It may do so for no better reason, indeed, that it now perceives no further benefit to the nation, and will, rather, leave the public to render such judgment of "their" President as they see fit to register, whatever that may be.

10. See Clinton v. Jones, 117 S.Ct. 1636 (1997).

11. It has been rightly observed that "the whole is sometimes greater than the mere sum of its parts," but in any event it is surely true that the whole is at least to be judged by the total sum of "the parts" (including among the relevant parts the extent to which the President knowingly disparages others who merely seek civil redress in our courts and who lies to the people as well).