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Law Professors Send Letter Opposing Impeachment:
A Conversation with Letter Sponsor Professor Susan Bloch

Over 430 law professors from law schools across the United States have sent a letter to Congress arguing that the charges against President Clinton do not warrant impeaching him. One of the sponsors of the letter is Professor Susan Bloch, a constitutional scholar from Georgetown University Law Center in Washington. Shortly before the official release of the letter on November 6, 1998, she spoke by telephone with JURIST's Kristin Abramson (1L, University of Pittsburgh School of Law).

This interview is also available in RealAudio.

KA: The letter argues that the charges made against President Clinton do not warrant impeachment. What was the impetus for writing the letter and what effect do you hope or expect the letter to have?

Professor Bloch: Well I think the impetus, just speaking personally, but I suspect it was the same for most of the people that drafted the letter, was just alarm. That we saw the Congress moving too quickly to impeachment which we all feel is a really drastic remedy and should only be used for very extraordinary wrongs against the state. And I think for a lot of us we just feel that if you can impeach and convict too readily you weaken the presidency and you move us much closer to a parliamentary system where the president would be in office so long as he had the confidence of the Congress, and I think all of us agree that痴 definitely not the system that the Constitution was designed to set out.

KA: Law professors as a group, have they reacted favorably to the letter or have you had any criticisms?

Professor Bloch: I have received virtually no criticisms and I知 getting an overwhelming number of people signing on. But I have to say the people who see the letter and throw it in the trash, I don稚 know about them. But the people who don稚 like it and don稚 want to sign on are doing it silently.

KA: The letter refers to the violation of the high Constitutional standard required for impeachment and I was wondering if you could [say] just a little bit about the history or the purpose of the impeachment clause in general.

Professor Bloch: The framers of the Constitution initially, some thought the president should not even be impeachable葉hat he was elected every four years and there was no reason to remove him before the end of his term. If people didn稚 like him they could just not reelect him. But then some people at the Constitutional Convention said: well, but what if the president bribes the electors to get into office, do we really have to wait four years to get rid of him. Or what if the country痴 involved in war and the president gives secrets to the enemy? Do we really have to wait four years to get rid of him? And so people said well no, alright let痴 put something that you can be impeached for treason or bribery. And then someone said: well, what if the president doesn稚 do that but he just totally violates and undermines the constitutional system. And so one of the people at the Convention said: well, alright, maybe we should have an additional possibility that will impeach him for 杜aladministration. And James Madison said: no, that痴 a really dangerous term to use. It痴 much too malleable, much to imprecise. And so then they came up with this treason, bribery or other high crimes and misdemeanors. And so what we believe and I think an awful lot of people believe is that you have to interpret the phrase with that history in mind. And that treason and bribery are acts that really undermine the country and that other high crimes and misdemeanors have to refer to things that also undermine the country. I think actually most people believe that. Even the people who think what Clinton has done is impeachable don稚 necessarily disagree with our standard. But speaking for the people who wrote the letter and who signed it, what we池e saying is: in order to be an impeachable offense it has to be a very high threshold. It should not be a partisan battle. It should not be a disagreement with the president over policies. It should be activity by the president that seriously damages the constitutional system. And so then when we get that far we look at the different allegations against Clinton預llegations that Clinton is alleged to have done and we who have signed the letter find that it just doesn稚 meet what we find is, and should be a very high standard.

KA: Another law professor posed the question: can you have a perjurer in someone who obstructs justice as president and what exactly謡here would something like perjury or obstruction of justice fall in terms of definition of a high crime and misdemeanor?

Professor Bloch: Well that痴 a close question and I point out actually that Clinton technically is not being accused of perjury. They seemed to have moved away from that. They池e talking about lying under oath. Perjury is a very hard thing to prove and it痴 a technical thing, you have to have intentionally lied and it has to have been material in this case to the Paula Jones suit. So it痴 actually whether lying about the Lewinsky consensual relation constitutes perjury is not a clear question. But in terms of whether, even if you could find perjury here, is that enough to be impeachable. And that痴 a close question. And we who are on this letter believe that it should not be an impeachable offense for the president. And the other side would say: well, you know, we致e impeached judges for perjury and similar crimes. And I would just point out that the Constitution treats judges differently from presidents in an important sense. It uses the same language as to what is an impeachable offense for judges and for presidents, the same treason, bribery, high crimes and misdemeanors, but in addition judges are appointed we say informally for life, but really what the Constitution says is they池e appointed during good behavior. And so, I think that given the judges 1)have this textual requirement of good behavior and 2)that they池e never elected or subject to being reelected. They will be there essentially for life unless they池e removed by something like impeachment. So I would say that it makes sense to me to read the Constitution in the context of judges to allow for removal, impeachment and removal for perjury and that one should be careful before one concludes that because we do that with judges that means that we should do it with presidents. I don稚 think it means we shouldn稚, it痴 just too big a leap to assert it. And the reason that I think that the kind of lying that Clinton is alleged to have done here should not be an impeachable offense is that I think people understand that when you cover up sexual affairs, especially a consensual sexual affair, that痴 just sort of human nature and does not undermine the constitutional scheme. I think it痴 different from a judge perjuring himself about an underlying tax evasion or something. Usually the perjuries that judges have been impeached for have been underlying criminal events. And what痴 odd about the president here is that while what he did with Monica Lewinsky was wrong, it was not criminal.

I think the main point I want to make here is that I think that what you impeach judges for should not automatically apply to the president. Partly because it doesn稚 have this good behavior requirement constitutionally and partly because he is subjected to being elected and then reevaluated by the electorate in a way that judges never are. So I think it痴 different. The other really important point I think that has to be mentioned here is that even if one concluded that what Clinton is alleged to have done could be impeachable, and I think a fair minded person could come out that way, I don稚 mean to say that it痴 cut and dry that it痴 not impeachable. I think some of his activities get close to the line, alleged activities, but it痴 really important to remember that the House痴 decision whether or not to impeach is like a prosecutor痴 decision whether or not to indict預 matter of discretion. There痴 nothing automatic. So that even if one believes that what Clinton has allegedly done here could be impeachable then you have to ask if you are a responsible member of Congress, yes, but in these circumstances given everything I know, does this warrant putting the country through an impeachment and a trial and a removal of office, of a democratically elected President of the United States? And there, I think that discretion suggests in the context of these activities, this president, his ability to continue to lead the country, to carry on notwithstanding this embarrassing event (and wrong event), I don稚 think it warrants impeachment and I don稚 think it warrants putting the country through the trauma of an impeachment trial.

KA: The letter does refer to the enormous price the nation will pay in governance and stature and I was wondering if you could maybe enumerate some of the dangers that could follow an overbroad interpretation of the impeachment clause?

Professor Bloch: Well I think there are a number of things to be concerned about if we go ahead with an impeachment and a trial for what Clinton痴 alleged to have done. First of all, I think that we are lowering the bar as to what is an impeachable offense and what should be an impeachable offense. And I think the more we do that the more we weaken the office of the presidency, the more we move our government closer to a parliamentary system. The Framers of the Constitution clearly wanted there to be an independent president who was not subject to a vote of no confidence from the Congress. That was a parliamentary system that they rejected. And I think the more we lower the bar as to what is impeachable the closer we move to that kind of parliamentary system and that痴 not what we have or want, and if we want to change it we have to do it by constitutional amendment and not by sort of making impeachment too cheap and too easy. The other danger I worry about is that if we impeach the president here I fear that we will trigger sexual witchhunts in the future of other presidents, other public officials and I think it will get really even uglier than it is now. I think we致e always sort of had this implicit understanding that some things are sort of off topic. And as we move away from that I think we create a dangerous precedent. I think that謡hat we should have learned from Watergate is 1)that everything that we do in this kind of context creates precedent and everyone now is looking back to the Watergate precedent and we ought to be doing every single move we池e making now with the utmost care because we are setting precedent and I think that it痴 enormously serious and frankly should be nonpartisan. Obviously there are going to be Republicans in this office someday too and I think all of us should be really wary about how weak we want to make the president and one other point that I would want people to think about is that even if, as I think most people think, the president will survive ultimately, I think most people would agree that even if he gets impeached by the House he痴 probably not going to get convicted by two-thirds of the Senate and so probably at the end of the day here he値l remain in office. But I would caution people to remember that when Andrew Johnson, post-Civil War, was impeached, tried in the Senate, but not convicted by one vote and remained in office and then so in some sense won. I think most historians would say that the office of the presidency was very badly weakened for the rest of the century. And it wasn稚 until sometime this century that the office began to regain some of the stature it had.

So, it scares me as a constitutional law professor to see the office of the presidency threatened in this way. And I really do believe I知 coming at this in a nonpartisan fashion and I believe that I知 honestly worried about the office and not the man. And one other little point is that I think people have to keep separate what impeachment is for versus what a criminal prosecution is for. Even if Clinton did commit perjury and even if he can and maybe still will be indicted and tried for perjury that痴 punishing him as a man for his wrongs. That痴 not what impeachment is for. Impeachment is a remedy for the country when they have a ruler that they no longer want to have in office. The Framers clearly gave this remedy of impeachment to the Congress, not to the courts. And it was to be a remedy when the person could no longer adequately serve as president. Punishing the man or the woman is to come later and it痴 different and Clinton might yet get indicted after he leaves office, but that痴 not what impeachment is for and I just really hope people keep those two things separately.

KA: One last question here. Would you say that the times, the 1970s versus the 1990s, have had an effect on this. In other words, has the perception of the presidency changed over time?

Professor Bloch: I see a number of changes. One, I think that politics has just gotten uglier and what痴 fair game has just gotten much broader. And the fighting is just much more intense and I think uglier. The other thing is the Independent Counsel statute didn稚 exist and I think if anything what we致e learned from the last couple of years is that it痴 probably not a good institution, at least needs some modification because I think it痴 sort of dangerous. And I think the fact that Ken Starr, this is not an indictment of Starr this is just to say because the Independent Counsel by the statute is authorized to, in fact required, to send over information that he thinks might be an impeachable offense and then send his vans with 36 boxes with so-called evidence. It makes it really difficult for the House to responsibly look at it and say, oh, well thanks a lot but there痴 nothing impeachable here. I mean, they can say it but they致e got, it痴 almost a foregone conclusion that they have to at least start the impeachment inquiry. Which is where we are now. And so I think that part of the independent council statute is quite dangerous and we致e learned that the hard way now. So I think that there have been a number of changes. I mean during Nixon we had an Independent Counsel but no statute and no mandate to send the stuff. It was just done in a very different way so I think a number of things have changed and I think a sense of what痴 private conduct and what痴 public conduct has changed. And all of it I guess is basically, most of those I think are unfortunate changes.

KA: I believe President Ford said that an impeachable offense is whatever the House of Representatives thinks it is at a given time.

Professor Bloch: I think that痴 absolutely wrong. It痴 significant to me that Ford said it when he was in the House and not President of the United States. But I think it痴 wrong because I think given the way the drafters of the Constitution struggled over what should be an impeachable offense and they tried to give it content and they clearly didn稚 say this is a vote of no confidence. They said only for treason, bribery or other high crimes and misdemeanors and I think it痴 very hard to read that language and the history of the drafting of it and say it痴 whatever they think at the moment. Which is not to say that I think that a court would review an impeachment decision. I don稚 think it would. But I do think that a conscientious member of the House before voting to impeach has got to decide this stuff葉hat this person is alleged to have done does constitute treason, bribery or other high crimes and misdemeanors. It痴 not just that I don稚 approve of his conduct or don稚 like his policies. And while I think Clinton痴 conduct in the oval office in the last seven months is clearly inappropriate, wrong, should be condemned, I don稚 think it undermines the constitutional scheme so therefore I would let him serve out his term. I think he痴 paying a price but I don稚 think that we should dethrone the person that the people have popularly elected in a democratic way.


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