Testimony of Susan Low Bloch
Professor of Constitutional Law, Georgetown University Law Center
House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998
Obviously, we should start with the text of the Constitution. According to Article II, section 2, the President can be impeached, for "Treason, Bribery, or other high Crimes and Misdemeanors." Thus, we must ask two questions:
First, what does the phrase mean?
Second, does President Clinton's alleged conduct fall within that category?
I won't go through the entire history, but let me briefly summarize the events leading to adoption of the existing phrase. The question of whether the president should be removable during his term was carefully debated by the framers of the Constitution. Some of those at the Constitutional Convention thought the president should not be impeachable at all: He should be able to serve out his four-year term and be accountable only to the electorate. There was no reason to make him removable during his term. Others thought he should be removable by the Legislature at will, much as in a parliamentary system. Finally, there was a compromise position that ultimately carried the day: the President could be removed from office but only for a narrow category of offenses.
Those who believed there should be some grounds for impeachment and removal were worried about some extreme possibilities. What if the President had bribed electors to get into office? Shouldn't he be removable for that? Or what if we were at war, and he gave secret information to our enemy, would we have to wait until the end of his term to remove him? To deal with these egregious possibilities, the framers decided to provide for impeachment and removal for "treason or bribery."
But then some asked what if the president totally undermines the constitutional order by some other means; would we have to endure that for 4 years? So James Mason suggested adding as an additional impeachable offense the term "maladministration." But James Madison was concerned that the term was too vague. In response, Mason thereafter substituted the term "maladministration" with the phrase "or other high Crimes and Misdemeanors," a term taken from English law that appears to have referred to political offenses against the state.
Based on the text as well as its history, I think we can make several
First, the question of what is a high crime and misdemeanor is not whatever a majority of the House thinks it is. Notwithstanding Gerald Ford's statement -- when he was still in the House and before he became president -- that the phrase means whatever a majority of the House thinks it means, he was wrong. Constitutionally, the House can only impeach for treason, bribery, or other high crimes and misdemeanors and the framers meant that phrase to have a limiting effect on the scope of impeachable conduct. The House must try to see whether the alleged action in fact falls within the category of treason, bribery, or other high crimes and misdemeanor.
That does not mean I believe the courts will or should review the House's decision. I do not think the courts would or should. But I do think that House members, if they are acting constitutionally and conscientiously, should impeach not merely if they are offended by the President's conduct, but only if they conclude the actions, in fact, constitute treason, bribery, or other high crimes and misdemeanors.
In that connection, let me clarify a common misconception. The term "misdemeanors" as used in the Constitution does not mean what we think of as a misdemeanor today. It does not mean a minor crime such as jaywalking or speeding. It is an old English term that means serious offenses against the state.
Second, the fact that the Constitution specifically identifies treason and bribery as the quintessential impeachable offenses suggests that impeachable wrongs are those that undermine the state or our constitutional system. In particular, it is acts in which the president uses his office to undermine the state that are the principal subject of impeachment.
Third, it is important to distinguish impeachment from criminal prosecution. The Constitution clearly distinguishes the two remedies. Article I, Section 3 provides: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Criminal prosecution is the means by which we punish someone who has committed a crime. President Clinton may, when he is out of office, face such punishment. Impeachment is not a punishment. It is a means by which the American people can remove from office someone who by his actions can no longer serve; in the case of the president, impeachment is designed to remove someone who can no longer be commander in chief and chief executive. Impeachment of the president is a grave event. It undoes a national election, removes the embodiment of one of the three branches of government and therefore should be reserved for only the most serious misdeeds.
Fourth, simple crimes that ordinary people can commit should not be grounds for impeachment. The best evidence of that is that during Watergate, the Judiciary Committee refused to adopted an article of impeachment for Nixon's alleged tax fraud because tax fraud could be committed by anyone and was not considered an abuse of the president's office.
But, notwithstanding my understanding that the remedy of impeachment was designed principally to deal with serious abuses of office, I believe that very serious personal misconduct such as murder can also be grounds for impeachment. If the crime is so heinous that a person cannot be allowed to walk the streets, we do not have to wait until the next election to make him leave the White House.
Fifth, I want to emphasize that the House has discretion in deciding whether or not to impeach. Like a prosecutor's decision whether or not to indict, the House has discretion to decide, even if it believes the alleged conduct might be an impeachable offense, whether or not it should impeach. If you doubt that, ask yourself whether you think the House would be required to impeach a president in the middle of a war.
With this understanding of the constitutional phrase, let me address the various allegations raised against President Clinton. Different people have identified the allegations against President Clinton in different ways. The Independent Counsel identified eleven possible counts. Counsel Schippers alleged fifteen different counts. Chairman Hyde has suggested there might be two or three.
I see essentially three different possible allegations:
-Perjury or lying under oath
-Obstructing justice by getting others, including staff members, to lie to the public and maybe to the grand jury
-Invoking privileges and having staff members invoke privileges before the grand jury
1. Regarding perjury or lying under oath.
To begin with, I would note that neither Starr nor Schippers alleges perjury. I suspect that is because perjury is difficult to prove and there are reasonable arguments that President Clinton did not, in fact, commit perjury.
But we still need to discuss whether perjury or lying under oath about a consensual sexual affair constitutes ground for impeachment. I do not believe it does . Some have argued that judges have been impeached and removed from office for perjury, but I would caution you not to equate what is an impeachable offense for a president with what is impeachable conduct for a judge.
While both judges and presidents are subject to the same provision of Article II regarding impeachment for treason, bribery or other high crimes and misdemeanors, judges are, in addition, governed by section 1 of Article III which provides that federal judges serve "during good Behaviour." We often say federal judges are appointed for life, but more accurately, they are appointed only during good behavior. Moreover, judges never face the electorate, either to obtain their office initially or to retain their position. They are therefore very differently situated than presidents. The text of the Constitution does not provide that presidents serve only "during good behavior." The Constitution assumes that, in general, the electorate, not the Congress, will decide whether the president's behavior is acceptable. Thus, the fact that judges have been impeached for perjury does not tell us that presidents should also be removable for such behavior. While it makes sense to impeach and remove a "life-tenured" judge who commits perjury -- who without impeachment will serve for life, it does not necessarily follow that we should remove a democratically elected president who is subject to electoral accountability and a fixed term for allegedly lying, even under oath, about a consensual sexual affair.
Some have argued that for the President to lie to the American people for 7 months should be an impeachable offense . Some lies, such as lying about whether or not we are bombing another country, could constitute a serious abuse of office. But if covering up a consensual sexual relation and pretending to the public that no such activity took place is an impeachable offense, I think we will be impeaching presidents and other officials much too often and too easily. Such conduct, while unfortunate, does not undermine our constitutional system and therefore should not be grounds for removing from office a democratically elected president.
2. Is obstructing justice impeachable, especially when it involves the arguable use of government officials to lie to the American people and maybe to the grand jury?
This is one of the more difficult questions. There clearly are situations where a president's using government officials to impede an investigation is an abuse of office that can undermine our constitutional scheme. I think the allegations that President Nixon tried to get the CIA to stop the FBI from investigating Watergate was an abuse of office that appropriately constituted one of the articles of impeachment by the Judiciary Committee in 1974.
But I believe what Clinton is alleged to have done does not constitute an abuse of office. Failing to confess to your staff that you had an inappropriate liaison with an intern is not an abuse of presidential power and does not undermine the constitutional scheme; it is an understandable reluctance to confess embarrassing personal misconduct.
Moreover, even if this allegation gets close to what is impeachable, I think the House in its discretion should decide that impeaching the President for this conduct is overkill and a bad precedent. I believe that impeaching the President for this conduct will provoke future, and I submit dangerous, sexual witch-hunts not only against future presidents but public officials generally.
3. Regarding the President's invocation of privileges, I think impeaching a president for invoking lawful privileges is a dangerous and ominous precedent. When President Clinton invoked executive privilege and attorney client privilege, neither claim was frivolous. In both cases, some of the judges agreed with at least some of his reasoning. When President Clinton ultimately lost his argument, he complied with the judicial decision. Merely asking the judiciary to rule should not be an impeachable offense. When President Nixon invoked executive privilege in 1974, he did a great service for the office of the presidency. While Nixon ultimately was ordered to turn over his tapes, in the course of his argument he got the Supreme Court to assert that there was a constitutionally protected executive privilege. Asserting such a privilege was not an abuse. In fact, Nixon's argument strengthened the office of the presidency and that is something I think we want our presidents to do.
Finally, I would like to say a word about the importance of every step the House takes. In the same way that we today look back to the Watergate proceedings for precedent, future generations will look back on what you do for guidance and precedence. And I see several possible dangerous consequences in deciding to impeach President Clinton for what has been alleged so far.
First, as I suggested earlier, I fear the development of sexual witch-hunts in the future, subjecting every political figure to close examination of their sexual relations. I think such a development would be very unfortunate and I don't understand why politicians are not more worried about that.
Second, if we use impeachment too readily, we will lower the threshold and move us much closer to a parliamentary system where the president serves at the pleasure of the Congress. This danger is aggravated if the process is too partisan or perceived as too partisan. A weak president subject to recall by the Congress is not how our system of separation of powers is supposed to work and we should do everything in our power to avoid such a result.
Finally, it is important to remember that even if President Clinton is impeached by the House but survives a trial in the Senate, the mere fact of having subjected the president to such a trial can weaken the office. When President Andrew Johnson was impeached for what most scholars now believe were inappropriate charges, the fact that he was ultimately not convicted by the Senate did not prevent the weakening of the office. On the contrary, most scholars believe that the process itself significantly weakened the office of the Presidency for the next 40-50 years. That possibility should scare us and make the House think twice: a weak president in this modern era is a dangerous and frightening prospect.
I will be glad to answer any questions.
SUMMARY OF TESTIMONY OF SUSAN LOW BLOCH
PROFESSOR OF LAW - GEORGETOWN UNIVERSITY
NOVEMBER 9, 1998
The Constitution provides for impeachment and removal from office for "Treason, Bribery, or other high Crimes and Misdemeanors." Both the text and the history leading up to the adoption of this phrase make several points clear.
First, the fact that the Constitution specifically enumerates the offenses of treason and bribery should inform the interpretation of what other high crimes and misdemeanors means. It does not mean that the House can impeach for whatever it believes to be inappropriate conduct by the president. Treason and bribery are offenses that seriously threaten the integrity of the constitutional scheme and the safety of the country. Thus, high crimes and misdemeanors should be interpreted to refer only to misconduct that similarly threatens the constitutional scheme. The history surrounding the drafting of these terms supports that conclusion.
Second, impeachment was not designed to be used as punishment or as an alternative to criminal prosecution. The principal concern of the framers of the Constitution in designing the remedy of impeachment was that there be a mechanism for removing from office someone who had misused his office and undermined the constitutional scheme. Presidents can be criminally prosecuted and punished for alleged criminal offenses, after they leave office.
Third, the term "misdemeanors" clearly does not mean what it means today, a minor offense. Impeachment was not designed to be used for minor offenses even if they are in fact criminal offenses. The only exception to this is that if the President commits a crime, such as murder, so heinous that we would not let him remain on the streets, I believe such misconduct could constitute a "high crime" and allow us to remove such a person from the White House.
Fourth, I caution you not to equate what is an impeachable offense for a judge with what is impeachable conduct by a president. Judges, unlike presidents, can serve for life, They never face the electorate, either to acquire office or to retain it. However, the Constitution explicitly conditions their tenure on "good behaviour." They are, therefore, situated very differently from president.
Finally, it is important to recognize that the House's decision whether to impeach, like a prosecutor's decision whether to indict, is discretionary.
Applying these principles to the alleged misconduct by President Clinton, I conclude that his actions do not warrant impeachment. In reaching this conclusion, I am strongly influenced by my belief that to impeach the president for this conduct will set a dangerous precedent. It will forever lower the bar for what warrants impeachment, will make future presidents too beholden to the Congress, will move us precariously, and unconstitutionally, toward a parliamentary system, and will dangerously weaken the office of the presidency for the foreseeable future.
As the Watergate judiciary committee said, an impeachable offense has to be "a serious offense against the system of government"(1) or as the Republican minority phrased it, "serious misconduct dangerous to the system of government established by the constitution."
1. Constitutional Grounds for Presidential Impeachment, Report by the Staff of the Impeachment Inquiry, February 21, 1974