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Testimony of Matthew Holden Jr.
Henry L. and Grace M. Doherty Professor of Government and Foreign Affairs
University of Virginia

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

Matthew Holden, Jr.(1)

Mr. Chairman, Members of the Committee:

I am deeply appreciative of the invitation to put before you today my views in this critical hearing on "The Background and History of Impeachment." My statement today is elaborated and expanded from a version that served as the basis for my statement in the Congressional 'Town Hall' Briefing, on October 1, 1998. At that time, I had a skeptical view, but had reached no definitive conclusion as to the process. After much reflection in the next three weeks, I reach the conclusion stated in this paper. I should also make very clear that the views here are mine alone, and do not represent the views of any institution or organization with which I have any connection or responsibility. The impeachment of judges involves questions of a qualitatively different character. I do come somewhat in the spirit of John Milton, upon whose magisterial language I draw:

They who to states and governors of the Commonwealth direct their speech, high court of parliament, or wanting such access in a private condition, write that which they foresee may advance the public good, I suppose at the beginning of no mean endeavor, not a little altered or moved inwardly in their minds; some with doubt of what will be the success, others with fear of what will be the censure, some with hope, others with confidence of what they have to speak.(2)

Let me start with what is common ground that we all know. Impeachment is the making of an accusation against a public official.(3) An impeachment is similar to any other accusation in one respect. It embarrasses the accused official. But it does not take away any authority. It may have little, if any, consequence until the accused has been found guilty in a trial. We are here discussing Presidential impeachment. With respect, from a deep concern for the political system, the process should now be terminated.

The issues have thus far been framed principally in legal terms. I do not claim legal competence, and leave those critical issues to others. I approach the impeachment issue as a political scientist. As one has thought about governmental matters for some years, though admittedly without the benefit of a legal education, I express the view that Congress is fundamentally doing the wrong thing. Its focus is upon "what should be done about Bill Clinton?" based upon the predicate that at a all cost, something must be done. Congress may have the ingenuity to craft some means, within its unchallenged powers under Article I, than impeachment, of responding to the situation. But any further proceeding under the impeachment mode degrades the Constitution by seeking to squeeze from it authority that cannot be located there. Moreover, it sets the path for many years of intense political struggle in which all sorts of groups and interests seek to exploit this newly revived weapon.

The reported business transactions known as "Whitewater," as well as the reported inquiry into certain records of some Republican leaders, known as "Filegate," might in principle involve substantial issues about which citizens should rightly be concerned.(4) Various speculations have appeared for a long time as to the nature and direction of the Independent Counsel's inquiry. At one time, the speculation was that the First Lady had become the target of the investigation.(5)

When the public media reported that the office of Independent Counsel had begun to make inquiries into the President's social relationships with various women, I privately characterized it as 'peephole politics.' It seemed to me to indicate that there was little definitive to report as the important matters with which the investigation had begun. Within the past eleven months or so the original matters have been no part of any report of the Independent Counsel that is publicly known. As it happens, the secondary matters--various personal relationships between the President, Ms. Monica Lewinsky (and, assertedly, possibly others) have come to the forefront.

It is important, first of all, to state that the reported "outrage" and "disgust" with the things the President is reported to have done may be less than meets the eye. There is one cluster of critics whose attitudes are about the sexual relationships. The basic core, however is composed of those who so intensely dislike Bill Clinton, that there is nothing he could do that would satisfy them, except remove himself from American politics. In one case, there was the business executive whose house guest I was, described Clinton, on the basis of his pre-1992 history, in terms that even now I would not put into a document.

The question is whether a critic of that degree would ever fail to find any basis for impeachment. Then there are the critics whose formulations do come after Ms. Lewinsky appeared in the public consciousness. For some critics, adultery is the besetting ill, in that sex outside marriage is inherently bad.

Another set of critics seem similar to a business executive who thought it deceptive to discuss what was impeachable and what was not. The objection was President Clinton's having sex with female young enough to be his daughter. He "turned her head" and "took advantage." Presumably, he did not have such strong objections or reactions to fact of an extra-marital relationship in itself.

Still another set of critics is troubled by what they see as an essential mechanical relationship, and by sex that approaches the R-rated, if not X-rated, "kinky" type.

For some others, it may less what happened than in its revelation, which "embarrassed us (Americans in general) in front of the world." Still others are troubled by the presumptive callousness that yielded such embarrassment to his wife and daughter, for whom the critics feel a certain sympathy. All this is about the sexual relationship itself. Some critics shift to the ethical or legal level in talking about the President's responses in attempting to cover up the relationship. Thus, the action that they find objecting is "trying to get others to lie about it." This enters into the terrain that some find the most decisive, namely "lying to the grand jury."

For many people, thus, the experience since 1993 proves what they already knew. The person involved is no good, and should not be in office. Finally, at the political level, amongst those who identify with him politically, the injury consists in "causing us who supported him, admired him, or found our futures tied to him to be injured." Some of the same people overlap with others who assert the President's actions undermined good policy, by contributing to a situation in which sexual harassment would now be given less weight. Finally, there are those who worry about his own emotional state or interior world--"compulsive" is hard to overcome, no matter how good the persons's intentions or strong the sense of regret or sorrow for what has been done. All these attitudes, and perhaps others, appear somewhere in the decision-making process.

The question that many want to focus upon is "what should be done about Bill Clinton?" There are now those who urge impeachment of the President under present conditions. There are, of course, at least a few persons who have been urging impeachment since 1994,(6) or at various points since then. The President's most intense critics say that the answer is "impeach him, try him, convict him, remove him from, and then indict him, try him, convict him, and sentence him" on criminal charges.

But the key that most people appear to accept that the criterion is in that in the Constitution. Presidents may be impeached, according to the formal language for "treason, bribery, or other high crimes and misdemeanors." No responsible person claims that treason or bribery are at stake in 1998, so the present issue will be governed by the ability to decide what the President did falls within or without the residual category of "high crimes or misdemeanors."

Even in asking if "these acts"--reported acts by the President-- "are impeachable," which is the highest-ranking question so far, Congress has given inadequate attention to the fundamental question of the health of the political system. Some of those now urging impeachment, say that impeachable offenses are whatever the House wants to say they are. That may be true in the sense that, if a solid and undeterred majority shall want to do so, no one can prevent their doing so. The question is whether the House should now exercise so awesome a power and resurrect this impeachment as a weapon. My answer now is that it should not. Any decision to impeach and remove a President should take into account the heath of the political system, and should be reached only on the gravest conditions.

Virtually everyone who has put views on the public record agrees that the actions by the President are not to be condoned, whether those actions be his relationship with Ms. Lewinsky or his lies in the legal process that followed. But Members of Congress, whose obligation is to uphold the Constitution, should approach the Presidential impeachment question with full seriousness about that Constitution itself. Chief Justice William H. Rehnquist has referred to the impeachment power as a "wild card" in the Constitution. If it had been used more, it would have reduced both the independence of the President from legislative control and the independence of the judiciary.(7)

The Constitution was not made by obvious agreement amongst people who had a consensus, nor by people who somehow got the right principles out of the middle of the air. Rather, it arose out of a set of political leaders who very much wanted to create a new arrangement, against another set of leaders who did not this new arrangement, even when they did not exactly what else they wanted. The viability of the constitutional system should not itself be taken for granted. In dealing with these 1998 manifestations, members of Congress today must recognize the complexity of the system within which they are placed, and of the delicacy of not disarranging the essential features.

Congress has both authority and responsibility to make prudent judgments as to what is consistent with the requirements of the political system. Indeed, the House, in particular, has both authority, and responsibility in the interest of protecting the constitutional system, precisely to exercise prosecutorial discretion. It is common, in the exercise of prosecutorial discretion, to make a judgment whether something should go forward, even if there is a legal basis on which an argument for going forward can be made.

I. The Health of the Political System is the Key Issue

The impeachment effort is leading us into actions that greatly imperial the political system. Now as some, including some members of Congress, will denounce "politics," I have to say a few words about the political system. "System" is not a bad word.(8) Everyone who has ever had a physical injury knows all the adjustments you have to make because one thing, that you never thought about before (such as your back) is not working properly. The body is a system. Some years ago I served on a corporate board with a banker, a remarkable man now deceased, who would say "you press down on something here, something else pops out over there." He was talking about the system in which decisions were made.

Now let us combine the word "politics" with the word "system."

"Politics" is not a bad word, nor necessarily a word about something bad. Walton Hamilton, a brilliant man, a lawyer who never went to law school, I am told, though he taught at one, defined politics in "the Aristotelian sense." He spoke of "the usages and traditions, the arrangements and practices, which human beings are governed, and by which human beings attempt to shape destiny." (Hamilton's actual text refers to "men," and I have substituted "human beings." Whenever I teach about half to three quarters of the undergraduates are women, and I have learned that contemporary usage often requires one to stop and make the formal statement that the term "men" really refers to "human beings." So I do it here as well.) (9) Some mean, when they speak of "political," something akin to infantry squad tactics, in which one side will get the other side, with no restraint shown. I know about "the televised soapbox and the wrangle for votes." Politics is how people organize to conduct their common affairs, whether in public government or, for that matter, in corporations, trade unions, churches, and all other human institutions.(10)

Whenever a purpose is chosen, there is a logic of action that follows. You cannot sustain the purpose and take actions that undermine what the initial action was intended to protect, or that facilitate actions that the initial action was designed to prevent. More than anything else, the impeachment technique is designed to protect the separation of powers system and to prevents its being negated. The political logic would have to be that if a strong executive were to be created, independent of the legislative body, and if the legislative body could not dismiss the executive, then it would have to have some other means of influence or control in the extreme cases where the fundamental authority of the legislative body would otherwise be negated. The offenses attributed to the President, or the actions attributed to the President, have virtually no relation to the reason is for having impeachment in the Constitution.

II. Whence Came Impeachment?

The American impeachment is a modified version of English impeachment. To understand the modified version we need some idea of the original, especially as "six hundred years of history" is a term being heard more often. There are some rough benchmarks in time past: about six hundred years ago when the English began to use impeachment; a little under five hundred years ago when they let it alone; about three hundred and seventy years ago when they started using it again with a vengeance; two hundred years ago when the American constitution framers made provision for it; and a little under two hundred years ago when the English let fall away again.

The English experience is relevant for three reasons.

1. It is the basis for what the framers knew in 1787, and we can best explain the decisions embodied in the language of the Constitution by starting with what the framers knew and when they knew it.

2. Lawyers rely upon the history as establishing a concept of the law.

3. Human beings change, in basic motivations and reactions, very little, although action changes because of circumstances and conditions. The kind of conflict involved in impeachments in the past are likely to show themselves in impeachments of the present.

Twentieth century Americans need, in order to grasp what the framers decided, need to take account of what the framers knew. The American Framers in 1787 did not have any good models at hand as to how to make a new governmental system. (11) They more or less designed a system combining the elective Presidency, the bicameral Congress, and the separation of powers ("the regular distribution of power into distinct departments," as Hamilton calls it) and checks and balances and checks.(12) They did not have experience with the type of system they were creating, though some notably James Madison, had done a good of preparatory work. (Madison had, indeed, gone in for what would now be a massive research project of the type that a private foundation or some governmental study commission would undertake.(13)) A few were widely read, and some had a good deal of experience, though this can be overstated since they were so young a group.(14) In any event, every member had lived under English government, bought and sold goods under English practices, lived under English law, and had some knowledge of English history. They did generally turn to English experience for inspiration--the young (30 year old) -- Alexander Hamilton being the notable exception, and sometimes turned away from it on purpose. But absent turning, it was what they adopted more or less without thinking because it was too hard to act de novo on everything, and what sometimes they chose on purpose.

They had the English practice of impeachment before them and on purpose chose to continue it with some modifications. When, in the 1998 debates in the United States, people refer to the relevance of "six hundred years of history," they refer to the fact that Parliament had, in the past, been a court before it became a law-making body. As the court function declined, some fragments remained in the ability of the House of Lords to try members of the nobility. Then, simply summarized, in the 1300s (the fourteenth century), the House of Commons began to exercise a prosecutorial function of making accusations, and the House of Lords to exercise the judicial function of trying the cases. The first reported cases came in the late 1300s when Edward III was king.(15) The practice continued off and on until middle of the 1400s (15th century).(16) Though it can be seen as procedure, impeachment was primarily a factional weapon, and hardly, if ever, was a neutral means merely to handling disputes between persons. The English, having put it way, did not pick it up for one hundred and sixty-two years, when the ancient weapon was adapted to a new use in 1621. When impeachment came into use again, it was a very large weapon of political combat in a time of even more dangerous competition than it been in the earlier period.(17) Sir William Holdsworth comments: "Never were impeachments so numerous as in the latter half of the seventeenth century: never were the criminal acts with which ministers were charged supported by such slender evidence.(18)

Though the number of impeachments declined in the 18th century, the time that the Constitution framers knew personally. Yet the technique of impeachment still was being followed. The American framers adapted this technique about four hundred years (1787) after the English developed the basic device (1376). When they picked impeachment, they had a background to know what they were doing. The relevant facts of English practice probably were well known to the Framers, since the technology of their time allowed them to get information from England for anything up to about a month before, which was about the same as to get a letter from Georgia to Boston. As an example, George Mason made specific reference to "Hastings," while discussing impeachment in the Federal Convention of 1787. This was on September 8, 1787.(19) So Mason and others could have had a pretty good idea of everything up to June or July of 1787. In explaining why treason might exclude some actions that he wanted within the scope of impeachment, Mason said: "Hastings is not guilty of treason."(20)

What the framers did not seem to recognize, incidentally, was that impeachment was already falling away. They could not know that the trial of Warren Hastings, itself starting while ratification was starting, would be one of the last two English cases,(21) or that a trial of Henry Dundas (who had become Lord Melville) would occur within twenty years and would be the last English impeachment trial.

IV. What is Impeachment of the President Designed to Prevent or to Protect?

A. Protecting the Structure of Governments Means Primarily Guaranteeing the Authority of Congress

Insofar as controls upon the President is concerned, the chief purpose is to protect the fundamental power of Congress as a co-equal branch. The best interpretation is that the Presidential impeachment provision is designed to protect the constitutional system. The prime function is to counteract and correct any attempt the President to abuse his powers so as to negate the authority of Congress. Congress has authority to pass laws, to conduct investigations, to have access to administrative agencies in its oversight functions, and so on.(22) If these functions can be performed, within the normal political controversies, and with due regard to the veto power, then both the President and Congress are operating in normal terrain. When the ability of Congress to function within its authority, and with the assumption that the Bill of Rights protections, including those that sustain the election process without which Congress could not function, is normal, all the rest is mere transitory political controversy.

Failure or refusal of a President to see to the execution of duly constituted statutes, in ways that Congress utilizing its legislative and appropriations powers, in all their manifold variations, could not address, if the votes to address them were within the two houses, should be seen in these terms.

That, in my view, is the framework within which the specification of something as being, in the 1998 circumstances, within which "other high crimes and misdemeanors" may rationally be interpreted. If the House wants to see if something is a "high crime" or a "high misdemeanor," then its best mode is start with the premise that virtually everything in the constitutional system depends on the interaction of President and Congress. These are the two branches of Government that exist on their own foundations, reinforced with the right to make appeals to the electorate.

As important as the United States Supreme Court is, not to mention the rest of the Article III courts, neither the Supreme Court nor the Article III courts has the same degree completeness in their constitutionally guaranteed autonomy. Pragmatically, the Supreme Court needs Congress to take appropriate actions to allow it exist and function, whereas Congress does not need the Supreme Court in the same manner. Other issues are presented in the history of the Judiciary Acts of 1801 and 1802. The Act of 1802 repealed the Act of 1801. In the Act of 1802, so doing, for explicitly partisan reasons, the Congressional supporters of President Jefferson terminated the functions of Article III judges who had been appointed and confirmed under the Act of 1801, by abolishing the very circuit courts to which they had been appointed.(23) The Supreme Court found a rationale on which to accede to this result.(24) Very few scholars in political science, history, or law pay much attention to the 1802 repeal act.

The framers of the American Constitution specifically excluded direct legislative control of the executive.(25) They did so only after some struggle, but their ultimate decision is not in doubt. They purposely divided the powers of government, so that all power would not fall into the same hands. That is why we have Article I vesting powers in Congress and Article II vesting "the executive power" in the President. The fact that the President receives the grant of "the executive power" under Article II, that the President is independently elected, and that he has a fixed term, and that he has the veto power all work to the same end. There is no doubt about the constitutional fact that the Congress does not control the President, and , if we needed to invoke the "intention" of the framers, that it Congress as never intended to have the open-ended removal power that would come by inserting into "other high crimes and misdemeanors" anything that it might wish.(26) The intention of the framers cannot be in doubt. Many Americans have since wished that the framers had done something different, so that we would have something more like the British system. (Often this wish is based upon the belief that Question Time produces better control over administration and policy implementation, but I do not believe the evidence supports this belief.)(27) Proposals to create such a system have been advanced from time to time, but none have been taken seriously at a political level. But the overriding fact is that the framers did not do something different.(28)

However, in providing a President standing independently on an electoral base and a fixed term, they had to have something that could be used to sustain the Congress as well. Otherwise, people feared the President would overrun Congress. In ultimate defense, they put in the impeachment procedure, giving Congress some the power to remove a President from office.

When the framers came to deal with impeachment, which they obviously found it hard to craft, though they did not discuss it as deeply as they discussed some others, there were really three questions: whether to have impeachment or plenary legislative removal power; what actions would constitute impeachable offenses; and by whom the trial function should be exercised.

B. Choice I: Impeachment Instead of Plenary (Unlimited) Legislative Removal Power?

The impeachment idea was enough in ordinary political language that it could be found in the first draft put before the Convention of 1787, namely that by Mr. Charles Pinckney, a very young man from South Carolina. (He should not be confused with his cousin, General Charles Cotesworth Pinckney, who had little to say on this subject at Philadelphia,(29) but a good deal to say on others--namely the protection of South Carolina's interest in African slavery.) The younger Pinckney's draft, included the following provision regarding the President of the United States: "He shall be removed from his office on impeachment by the House of Delegates, and conviction, in the Supreme Court, of treason, bribery, or corruption."(30)

The draft is relevant only to show an idea that was in common circulation, but for no other purpose, for Pinckney's draft was pushed aside because the debates soon focused on the Virginia Plan or the New Jersey Plan.

The alternative idea was that the legislature should choose and remove the President. Within the first week or so after the Convention got started, this idea was present. On 1 June 1787, Bedford (Delaware ) raised objections to a seven year Presidential term of office by noting that if the President was incompetent or lost his faculties: "An impeachment," he said, "would be no cure for this evil, as an impeachment would reach malfeasance only, not incapacity."(31) The next day (2 June 1787) his colleague John Dickinson pushed the idea so much farther that no other state except his own adopted Delaware would support it. It was have the President "removable by the national legislature upon request by a majority of the legislatures of the individual states." Only Delaware voted for this motion,(32) to make the President something analogous to what the Secretary General of the United Nations now is. Dickinson, in defense of his amendment, stated:

[I]t was necessary to place the power of removing somewhere. He did not like the plan of impeaching the great officers of the state. He did not know how provision could be made for the removal of them in a better mode than that which he had proposed.(33)

Roger Sherman (Connecticut) also argued for national legislative power to remove the executive at pleasure. George Mason, who ultimately produced the "high crimes and misdemeanors" language, said "some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as by the corruptibility of the man chosen." Where Mason intended this to go is not so clear. In fact, it did not go anywhere. James Madison and James Wilson (Pennsylvania) observed, that it "would enable a minority of the people to prevent the removal of an officer who had rendered himself justly criminal in the eyes of a majority...."(34) (We should keep in mind that Virginia then had twenty per cent of the population of the United States. We should also note that neither Wilson nor Madison ever seems to have used language such as "criminal" again, and it is by no means clear what they did mean. In any event, it is not what the Convention adopted, and casts an odd light on what the Convention might have meant ultimately.)

The matter was brought fairly sharply into focus by Paterson (New Jersey) whose proposals included that the executive could be "removable on impeachment and conviction for malpractices or neglect of duty, by Congress, on application by a majority of the executives of several states." But this should be considered in the light of the ongoing struggle over what kind of a government (how centralized and how broad a scope of authority) they would create.

All these resolutions were then proposed to be considered in a committee of the whole house.(35) At this stage, James Wilson contrasted the principal points of the two plans so far, pointed out that: "the executive to be removable on impeachment and conviction, in one plan; in the other, to be removable at the instance of a majority of the executives of the states."(36) When Hamilton submitted his conceptual "Plan of Government," (June 18, 1787), it included a far-reaching impeachment proviso, designated provision #9: "The governors, senators, and all officers of the United States to be liable to impeachment for mal and corrupt conduct; and, upon conviction, to be removed from office, and disqualified for holding any place of trust or profit."(37) The Virginia proposals (which Edmund Randolph submitted [19 June 1787] ) said the executive would "be removable on impeachment and conviction of malpractice, or neglect of duty."(38) By this time (middle of June), however, the impeachment concept probably had settled in the minds of the delegates. Later, one or two delegates, notably the younger Pinckney and Gouverneur Morris, would say that they did not like the impeachment idea, but they never seemed to get much support The matter does not seem to appear in the records for the next month, but "malpractice or neglect of duty" is back on 20 July 1787.

Madison detailed some of the debate over the above amendment. As such:

Charles Pinckney and Governeur Morris moved to strike out impeachment, Pinckney observing that he (the President) shouldn't be impeached while in office. Though discussion was not clear, it is possible that this would have allowed impeachment after office holding had ended.

Davie (North Carolina) argued that if the president were not impeachable while in office, he would spare no effort or means to get himself re-elected. Thus, Davie therefore considered impeachment "as an essential security for the good behavior of the executive."

Benjamin Franklin who did not speak much, being old and in poor health, did speak on this one. Essentially, he argued that the provision would work to the advantage, not to the disadvantage, of the executive. History affords only one example of a first Magistrate being brought formally to public Justice. Everybody cried out against this as unconstitutional. What was the practice before in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in [which] he was deprived not only of his life but of the opportunity of vindicating his character.

Thus, Franklin was effectively making a safety valve argument to the Convention. "It would be best therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused." (39) Governeur Morris, like Franklin a Pennsylvanian, yielded a little. He said that "corruption, and some few other offences, . . . ought to be impeachable; but (he) thought the cases ought to be enumerated and defined." James Madison said he thought it indispensable that some provision should be made for defending the community against the "incapacity, negligence, or perfidy of the chief magistrate....In the case of the executive magistracy...loss of capacity, or corruption, was more within the compass of probable events, and either of them might be fatal to the republic." We might suspect that Madison was keeping a line open to his fellow Virginian, Randolph. (Randolph was apparently getting uncertain, by then, and ultimately declined to endorse the Philadelphia report, and only came to support it in the Virginia convention, about a year later. Perhaps Madison, committed to the new government, even if it contained things he did not like, was trying to reassure Randolph).

This argument continued with some (Charles Pinckney) continuing to say that they saw no necessity for impeachment, while others continue to urge its necessity. Elbridge Gerry of Massachusetts:

A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted where, that the chief magistrate could do no wrong.'(40)

Six days later (July 26, 1787) the whole resolution on the executive passed, including the phrase: "to be removable on impeachment and conviction of malpractice or neglect of duty."(41) This was the state of the decision as it was referred to the Committee of Detail, consisting of Messrs. Rutledge (South Carolina), Randolph (Virginia), Gorham (New Hampshire), Ellsworth (Connecticut), and Wilson (Pennsylvania).(42) This was a very important committee. When its report came back the impeachment provision was included (this was on August 6).(43) Impeachment did not get any further floor action for another month. However, it must have been obvious that some type of impeachment provision was by now ordained.

B. Choice II: Impeachment for What, Or How The Convention Got to "Other High Crimes and Misdemeanors"

Though some still criticized the very idea of impeachment, most accepted this word. They still had to refine the word. What would be the grounds of impeachment? Congress in 1998 should take careful thought about how the Constitutional Convention got to "other high crimes and misdemeanors." Treason and bribery had always been in the ordinary language of the delegates. Obviously, they took for granted that such things might occur.

James Madison said that the limitation of the period of the executive terms of service was not a sufficient security. He might lose his capacity after his appointment.(44) He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.

In the same debate, Benjamin Franklin, mentioned the case of the Prince of Orange, in a war when the French and Dutch fleets were to rendezvous. When the Dutch fleet did not appear, people suspected the stadtholder (the Dutch head of state) was at the bottom of the matter. Franklin indicated that the stadtholder could not be impeached, and there was no regular examination. The stadtholder remained in his office; strengthened his own party, while the antagonistic party also grew. The result, said Franklin, was "the most violent animosities and contentions."

"Malpractice" had been mentioned. "Corruption" had been mentioned. Some things had specifically been mentioned as "threats to the community". But the Committee of Detail had come back with the narrower language of "treason, bribery, and corruption." Now on another committee was chosen, August 31, ostensibly to deal with all matters that had been postponed or had not been acted upon.(45) (This committee had one member from each state.) This committee came back on September 4 with the language "treason or bribery," but it had no other grounds for its report. It even omitted "corruption."

It is apparent that the Convention had been able to accept impeachment, though there must have been those with residual doubts, and that everyone accepted that treason and bribery should be impeachable offenses. That had been true in late May and early June. Various other categories had been discussed been then and late August-early September. Yet when the committee of eleven report was taken up, treason and bribery were the only grounds mentioned. Had 'corruption" been tried and found wanting by someone? Was it just a technical omission that could be taken care as a "conforming change?"(46)

George Mason asked: "Why is the provision restrained to treason and bribery only?" He said that there many "great and dangerous offenses" that would not be reached by "treason." Here in the reference to "great and dangerous things" is where he mentioned the case of Hastings. This case, which meant something to Mason, ought to have a little explanation for contemporary Americans. The reason is that it sets one standard something impeachable, outside treason and bribery. But it is far more intense and is qualitatively different from any action that the President is alleged to have done, or admits having done, in the matters now under discussion.

The Hastings trial reference merely shows that Mason, and presumably others, were so well informed about England that did not even think it necessary to identify "Hastings." Nor did they have to say anything about what made "Hastings" was controversial, or what it had to do with the decision they were making in Philadelphia. Hastings' case shows the kind of thing that the framers did take into account when they were discussing what should be impeachable. Warren Hastings was the former Governor General of Bengal, in India. He was under severe criticism in Britain, one of the principal critics being William Burke. Through William Burke, his brother, the vastly more famous Edmund Burke was also involved.(47) Edmund Burke had, in addition to and arguably above, the financial interests of his relatives, political and policy reasons being interested in India. He had at least ten years of involvement with Indian issues, and had gone from critic to adversary at least as early as 1783.(48) Hastings had been under attack in the House of Commons, with Burke in the lead, a little over a year before the Constitutional Convention met,(49) and the House of Commons proceeding was going on when the impeachment issue was in the Constitutional Convention.

Basically, the charges against Hastings were that he did Britain injury by running roughshod over Indian rulers that stood in his way, by collaborating in allowing Indian rulers of whom he approved to abuse and even contribute to the death of at least one British representative who would not cooperate, by enriching himself and his friends, and by facilitating tax collection practices that (in contemporary language) we would describe as gross abuses of human rights. In one particularly gruesome passage, Burke told the House of Lords:

It is a most disgraceful scene to human nature that I am going to display to you. My Lords, when the people were stripped of everything, of all that they publicly possessed, it was suspected, and in some cases suspected justly that the poor, unfortunate husbandmen had hid in the deserts, disseminated through that country, some shred of grain, for subsistence in unproductive months and seed for future grain. Their bodies were then applied to. The first mode of torture was this:--They began winding cords about their fingers until they had become incorporated together, and then they hammered wedges of wood and iron between those fingers, until they crushed and maimed those poor, honest laborious hands. which had never been lifted to their own mouths but with the scanty supply of the product of their own labour.(50)

If such a case were to be covered, something more would have been needed. When Mason referred to Hastings, though he did not discuss the proceeding in as much detail as I have here, because he did not need to, neither he nor his colleagues were talking about something that could have been called "peccadilloes." He merely said that treason did not cover the Hastings case and, by implication (since he did not mention it), neither did bribery.

He moved to add after "bribery" or "maladministration." He was, we should recall, speaking on the presentation of a committee report. No one from the committee spoke. But James Madison objected. "So vague a term will be equivalent to a tenure during pleasure of the Senate." Governeur Morris, who had earlier spoken against impeachment, said (somewhat confusingly), "It will not be put in force, and can do no harm." But, then he said, as if he knew what maladministration entailed, "An election every four years will prevent maladministration." No one came forward to support "maladministration." With no apparent support for "maladministration," Mason, who could be quite persistent, withdrew "maladministration." Charles L. Black, Jr. is emphatic in his interpretation that "'maladministration' was distinctly rejected as a ground for impeachment." (51) He substituted "other high crimes and misdemeanors against the state."

Thus, on September 8, it was moved and seconded to insert the words "or other high crimes and misdemeanors against the state," and after the word "bribery," which passed 7 votes to 4. Other modifications then occurred, incorporating word changes and application of the impeachment clause to "the Vice President and other civil officers of the United States."(52)

The impeachment power had been settled as to its existence, and as to its scope. When I read this in the debates, I could imagine the framers saying "we already agree on treason and bribery." But Mason wanted more than that. His suggestion of "maladministration" had been opposed by Madison and supported by no one. In such a decision-making situation, the thing to do is to invent wholly new language that seems neutral (normally not good drafting tactics) or to fall back on some other language that most people think they know how to decipher. For these men, "high crimes and misdemeanors" had some meaning at the time, but there is an additional word that seems crucial. That word is "other." If they were going to extend impeachment beyond treason or bribery, and avoid the Madison stumbling block of vagueness, it would have to be some other things ("high crimes and misdemeanors") as bad as treason and bribery. Thus, it seems that this late-added provision refers to such "other high crimes and misdemeanors," as would be comparable in their significance to "treason" and "bribery."

This point of view, I discover, is explicitly made in Justice Benjamin R. Curtis's argument in behalf of President Andrew Johnson. (Curtis was one the justices of the Supreme Court who dissented from Chief Justice Taney's majority opinion in the Dred Scott case. At that time, he argued that the Chief Justice was wrong on law and on history.) Having referred to and evaluated treason and bribery-- "offenses which strike at the existence of that Government (about to be created under the Constitution)"--Curtis goes on to describe "'Other high crimes and misdemeanors,'" as: "High crimes and misdemeanors, -- so high that they belong in this company with bribery and treason."(53) The language was accepted so quickly as to suggest that the Constitution framers--18th century men--had a good idea what these words meant in English law and practice.(54) The fact that four states (of the eleven states represented) voted against even this inclusion tells me that they wanted to limit it impeachment to treason and bribery. From both perspectives, I would guess that they meant to impose a narrow limit upon the impeachment process.

We should note that the principal speakers in Virginia and North Carolina showed a genuine 18th century concern with the facts of bribery, and the potentiality that Presidents might be bribed by foreign powers. These were, as I have emphasized, people who took a very practical view of things. When the issue came to the Virginia Convention, Governor Randolph had overcome the scruples at the Philadelphia signing and became an advocate. On 14 June 1788, in Virginia undertook to corrected the interpretation of fact of another delegate. He explained that:

In England, those subjects which produce impeachments are not opinions. No man ever thought of impeaching a man for an opinion. . . What are the occasions of impeachments most commonly? Treaties.

Governor Randolph may have thought so at the time, but the reality is that things take on lives of their own, and some of the earliest judicial impeachments did have to do exactly with opinions.)(55)

On 15 June 1788, Governor Randolph, told the Virginia Convention:

There is another provision against the danger...of the President receiving emoluments from foreign powers. If discovered, he may be impeached. If he be not impeached, he may be displaced at the end of the four years.

In this way Randolph thought the President restrained from corruption.(56)

The thought that Presidents might be impeached for misusing their power in making foreign policy decisions was restated by the anti-Federalists and had to be rebutted by James Madison. Madison explained the impeachment process as a defense against such action.

The treaty power brought [George] Mason, [William] Grayson, and Henry into full-scale action once more. The President might get a treat ratified in special session by failing to summon senators from states which would be injured by it. Replied Madison: 'Were the President to commit anything so atrocious . . . he would be impeached and convicted as a majority of the states would be affected by his misdemeanor.'(57)

The House should not fail to take note that, in this hypothetical situation, which Madison characterizes as "atrocious," he also categorizes it as "misdemeanor." The idea of impeachment as protection against bribery, especially from a foreign power, came into debate on 28 July 1788 in the North Carolina convention. In a discussion of treaties and potential Presidential abuse. James Iredell, whom we note as an early Supreme Court justice, said "the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other. " He went on to say that "If the President had received a bribe, without the privity or knowledge of the Senate, from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty,---if it appeared afterwards that this was the case, would not that Senate be as competent to try him as any other persons whatsoever?"

He goes on to argue that Presidential misrepresentation of information to the Senate in regards to treaty formation would be impeachable, but that innocent policy differences would not be.(58)

The idea of impeachment as applicable to particularly grave cases is also presented when a North Carolina a delegate, MacClaine, finds it necessary to explain that the impeachment power does not apply to petty officers. Evidently, there had been some concern in the North Carolina Convention that the impeachment provision reached to "petty officers,"(59) by which some delegates meant the officers of state and local governments, including state legislators.(60) In trying to settle such apprehensions, the speaker says: "This clause empowers the House of Representatives...to bring great offenders to justice. It will be a kind of state trial for high crimes and misdemeanors."(61)

Impeachment is not , within the political logic of the separation of powers system, designed , to cope with just any situation where a President might face "outrage," nor just any situation where a President might patently have been engaged in "wrongdoing."(62) It does not make sense to bring that behavior, however objectionable it may be, within the "other high crimes and misdemeanors" category, for it has no similarity to any of the illustrations that the framers used or are presumed to have know about because of their indirect reference. They are not similar to misrepresenting foreign policy information to the Senate (Randolph's example), nor to manipulating the Senate schedule in such a way as to have only favorable senators present for a treaty vote (Henry's example to which Madison replied) nor to the gross violations of human rights that were alleged in the Hastings trial. These are the kinds of matters that, on the written record, about which the 1787 framers knew. We should also take into account that the constitutional design was constructed in 18th century language by men with 18th century experience and ideas.

The idea that morality was defined, for a convention with many Southern planters, by sexual relationships seems fragile. The idea that sexual morality would play a large role, in the ideas of Benjamin Franklin, who supported the impeachment concept seems strained. There has been some press reportage of legal filings by President Clinton's attorneys that make reference to Alexander Hamilton, and these have brought some responses various of the President's persistent critics. (63) Some of those critics have expressed their bad opinion both of the President and of the filing because, apparently, it is said to reach back to injure the reputations of historic figures in order to escape present responsibility.(64) The question that I touch is not whether President Clinton should be excused or not, because of Franklin, Hamilton or any of the historic figures. The question is rather, whether the standards of sexuality morality that the President apparently practiced, can be brought within the meaning of "other high crimes and misdemeanors" similar to treason and bribery.

On the other hand, it very hard to imagine that the delegates had anything in mind about any sexual references when they adopted "other high crimes and misdemeanors" on September 8, 1787. It is, of course, possible to say that "sexual morality" should now be incorporated, by contemporary interpretation, into that phrase. However, that requires one to take a very broad concept of "the living constitution" that seriously overrides the independence that the President is given of Congress. If it is possible to extend that far, then we will have overridden the original determination not even to accept "maladministration." To do that is also to extend so far as to convert the impeachment process into a referendum on the Presidency.(65)

C. Choice III: Who Is to Decide?, Or the Senate as the Court of Impeachment

The remaining fragment, of the impeachment issue was the trial forum? What kind of decision-maker should decide an impeachment case. This proved complex Until late in the Constitutional Convention, the dominant tone had been that the trial after an impeachment would be before a court. From the little-noticed plan of Pinckney to all other proposals until early August, the Supreme Court or some other special court, had been set as the venue for trial.(66) Hamilton had proposed all impeachments to be tried by a court, to consist of the chief or senior judge of the superior court of law, in each state...."(67)

In the committee of eleven report, impeachments were to be tried in the Senate. James Madison came right back to the same objection had to "maladministration" as a ground for impeachment. He objected to a trial of the President by the Senate for any act which might be called a misdemeanor. The President under these circumstances was made improperly dependent(68).. Madison on this point is the explicit defender of Presidential independence from Congress.

Pinckney, whose unused plan had called for trial in the Supreme Court, disapproved of making the Senate the court of impeachment, as rendering the President too dependent on the legislature. However, his South Carolina colleagues did not agree. On the motion by Mr. Madison to strike out the words "by the Senate" after the word "conviction,": failed 2 states to 9.(69)

The revised Draft of the Constitution reads: "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." (70) On the 17th of September, the delegates adjourned, and proposed Constitution was sent on its route to Congress for transmission to the states.(71)

E. Insight from the States

The state ratifying conventions do not appear to have found impeachment a very problematical issue, or it may be that it was remote enough from other concerns that they did not get to it. In most states it appears not to have been discussed.

In the Carolinas impeachment was discussed in general terms as to protecting the system. James Iredell thus addressed the North Carolina convention:

This clause, vesting the power of impeachment in the House of Representatives, is one of the greatest securities for a due execution of all public offices. Every government requires it. Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct, but it will prevent misconduct. a man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him. (72)

The language that had to be chosen in the North Carolina convention is a language to indicate particularly grave acts of systemic consequence.

In South Carolina Gen. Charles Pinckney observed (January 17, 1788) that:

. . . [U]nder the new Constitution, the abuse of power was more effectually checked than under the old one. a proper body....are to impeach those who behave amiss, or betray their public trust; another body...are to try them. No man, however great, is exempt from impeachment and trial. If the representatives of the people think he ought to be impeached and tried, the President cannot pardon him; and this great man himself...as well as the Vice president, and all civil officers of the United States, are to be removed from office on conviction of treason, bribery, or other high crimes and misdemeanors.(73)

The state conventions paid hardly any attention to the question of who should be the trier. It arose once, in Pennsylvania, apparently because there was some concern over whether the Senate had been made too powerful. James Wilson tried to counter this fear, when he told the Pennsylvania Convention (December 4, 1787) that the Senate's impeachment power was checked in that the House must initiate such proceedings.(74) It arose, apparently from the opposite viewpoint, in New York. Chancellor Robert Livingston, on the day before New York concluded its ratification proceeding (25 June 1788) referred to the impeachment power saying that in the House of Representatives, probably would not abuse the power, but that was a check in that the Senate tried the cases.(75)

V. Can The Senate Regain the Concept of a Court of Impeachment,

Rather than an Arena of Partisan Gladiators?

There is a second line of argument which I am frank to say, does not have the same degree of clarity, chiefly for the practical reason that no one has thought it worthwhile to invest thought and attention. Impeachment of a President has some risk because the country may have repudiated the clear concept of the Constitution, that the United States Senate is to function as a "court of impeachment," not merely as an arena of partisan gladiators. The Judiciary Committee, its staff and everyone else who is concerned with this impeachment issue should take this matter seriously. Though the prime issue, at this stage, deals with matters unique to the jurisdiction of the House, there is a matter critical to the Senate. The Senate appears to be renouncing the role discussed by Hamilton in Federalist Number 65. The question that Hamilton had to discuss was whether the Senate was a suitable place for impeachment trials. Hamilton adopted the predicate that the Senate, removed from electoral public opinion in the near term, would be unable to abuse its powers because initiation rested with the House. It be a more restrained body able to act as a "court of impeachment." No. 65 on this point is clear as to the standard, though equivocal as to the predicted behavior.

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent. What other body would be likely to feel confident enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?(76)

Because there are no binding precedents that lawyers know how to cite, it has become virtually a cliche that impeachments are wholly "political." By "political" in this context, people appear to mean that each senator is free to, and should be predicted to, to make judgments on the basis of his or her personal advantage, or his or her partisan/ideological attachment. .Political journalists have repeated this idea for years, and I hear it repeated today by those who are anti-Clinton and those who are pro-Clinton. Moreover, the reality appears to be that the legal community now holds the same view. Thus far, I have heard little or no articulation from the leaders of the bar as to the desired standards of conduct for senators. Nor have I seen any examination from my own political science community as to whether unrestrained self-will is the only predictable path of behavior.

In other words, there is no current cultural conception that senators have any obligation of self-restraint. When people speak of the impeachment process as "political," they may be correct, as a basis for predicting Senate action. If that concept were to remain alive, the unrestricted "political" language seems an improbable interpretation of what the Constitution means. The basic idea of the American Constitution is power restrained and checked. The Constitution framers could not have, consistently with their principles and their objectives, intelligently meant to accept a situation where power would be unrestrained by an external influence or internal norm. Senators could not be expected to legitimately to do anything they might choose. To say otherwise means that one must say that what they wrote is itself misleading.

The idea of restraint is similarly expressed by Benjamin R. Curtis, the counsel for President Andrew Johnson before the United States Senate, in that impeachment trial one hundred and thirty years ago.

Mr. Chief Justice, I am here to speak to the Senate of the United States sitting in its judicial capacity as a court of impeachment, presided over by the Chief Justice of the United States, for the trial of the President of the United States. This statement sufficiently characterizes what I have to say. Here party spirit, political schemes, foregone conclusions, outrageous biases can have no fit operation. The Constitution requires that there shall be a 'trial;' and, as in that trial, the oath which each one of you has taken is to administer 'impartial justice according to the Constitution and the laws,' the only appeal I can make in behalf of the President is an appeal to the conscience and the reason of each of judge who sits before me.(77)

Despite the common characterization of the Andrew Johnson trial as "political," the reality is that in some measure the results fit Curtis's appeal. Let us assume that Curtis is right in principle. If that is correct, then a fundamental feature of the constitutional design appears to have been diminished. Instantaneous electronic communication and the 17th Amendment draw senators into the melodramatic process. Neither the 18th century framers, nor President Johnson's advocates, could conceive the 17th Amendment and instantaneous electronic communication.

What follows is that, absent external constraints, there is an obligation to choose a course of action to separate the Senate process, presided over by the Chief Justice, from the House process.(78) It would be possible to argue, as a moral norm, all Senators who have thus far chosen to engage themselves with the Independent Counsel investigation, should recuse themselves, and should say no more to their colleagues or to anyone else. Arguably, this would require recusal on the part of the group of senators who reportedly played so large a role in the displacement of Mr. Robert Fiske and the choice of Judge Kenneth Starr, those senators who have been expressly active in making judgments about President Clinton, about the House Judiciary Committee and others of similar stance. Is it plausible to argue that Senators, as jurors like other jurors, declare themselves and stand aside, if they know that have already made judgments, even no one else knows of their judgments.

VI. Impeachment is a Caged Lion: Should it Be Loose in the Streets?

Someone, at a responsible level, must face up to the fact that impeachment is a caged lion, and ask seriously, and without prejudice, whether letting that lion loose in the streets will leave anyone safe. The final observation is that someone, at some responsible level, must face up to the fact that impeachment is a caged lion. When is it worth while to let the lion in the streets?

The House of Representatives is placed by the constitutional prescription in the role analogous to that of the prosecutor. When is it necessary to go forward? In the narrower domain of ordinary criminal law, the criminal prosecutor considers many factors in deciding whether to bring charges . Among others, the prosecutor considers "the strength of the evidence, the suspect's background and characteristics, the costs and benefits of obtaining a conviction and the attitude of the community toward the offense the suspect is believed to have committed."(79)

The discussion for the past four years, and especially for the past ten months, has not gotten to this, the nexus of the most serious issue. The discussion has focused upon attitudes toward the person who now occupies the office of President, and secondarily upon what people believe is the evidence. But the most serious issue is different. There has been a continual avoidance of the costs and benefits of impeachment when considered in relation to the whole political system.

There is some discussion of the attitude of the community, often in puzzlement as to the difference between opinion reflected in mass poll data and opinion expressed by those commentators whose profession it is to express opinion. I can recall a television commentary, in August 1998, when a panelists were asked about the reason that public audiences generally did not have the same intense feelings about the Clinton-Lewinsky information as the television journalists did. One panelist said: "We'll just have to educate them." Such commentary fails to consider that the general public may already have made its judgments, however rough, that the "cost" of further action against the President may exceed the "benefit" to the political system. The general public has good reason to believe that, on the basis of past performance, its evaluation of such a cost-benefit ratio may be more clear-minded than that of many reporters and editors from whom they have heard.

To initiate an impeachment (accusation of asserted "high crime" or "high misdemeanor') against the President would impose far too heavy a burden upon the political system since no reasonable person argues that the acts under discussion in any way disable, or potentially disable, the Congress. Neither Congress nor courts is disabled, or under any potentiality of being disabled, or the President would not now be on the defensive. Impeachment and conviction of a President would mean replacing an entire administration.

Within the parameters of the Constitution some significant institutional features have developed, and it is to their interrelationships that the idea of the "system"refers. Our ability to operate under this Constitution, with a strong Presidency, has given the United States a remarkably stable stable government. If, for example, the United States had a parliamentary regime, President Reagan probably would have had to yield in 1982 under the pressure of economic recession. If that were so, he could never have evolved to a de facto partnership, as some see it, with Gorbachev toward winding down the arms race.

The President has a unique combination of formal and informal powers that revolve around his centrality to the Executive Branch, his role as the prime leader in national security policy, his leadership of one of the political parties, and his twentieth century role in legislative leadership, strongly affected by all his other powers, but grounded in his possession of the veto, which effectively makes him one third of the legislative process.

The President does not prevail all the time in these domains, or even in any one of them. But the President's role in several of them is almost always critical, and is so even now.(80)

The normal requirement of American government engages all these resources, as Presidents work with, against, and around a variety of allies and opponents. If any President were to be removed, no other person could exercise equivalent leadership until the successor had developed his own relationships.

The level of cost to the system goes far beyond this. It is in the intense animosity that almost surely will have developed.

These 17th century cases that I mentioned earlier are not mere decoration, but have direct application. Lawyers, of course, use them to trace the very meaning of the law itself.(81) These historical cases help me to state a simple hypothesis: Whatever new weapon is introduced into the political battle tends soon to become domesticated, even banalized, so that its use is more and more common. judgment. It will be adapted and adopted by many other groups. James J. Kilpatrick was not talking about impeachments, but about law suits against future Presidents since the Supreme Court hold the Paula Jones law suit out until the conclusion of the President's term. But his statement the decision "is likely to encourage trumped-up harassments of future Presidents on down the line"(82) is apposite.

Impeachment investigations, trumped-up and otherwise, will virtually be mandated by going forward on this one. Richard H. Tawney, who wrote an account of the governmental career of Lionel Cranfield, also wrote that "The resurrection of (this) antiquated weapon [ . . . ] produced some forty impeachments between 1621 and 1688."(83) That is sixty seven years (67) times twelve months for a sum of eight hundred and four months (804). Divided by forty (40), the number of impeachments, the result is on a straight line average one impeachment every twenty months. In fact, of course, these impeachments came in clusters, rather than on a straight-line average basis. But the echoes from 17th century England, with its fifteen to twenty impeachments during a three year period, with numerous impeachments on slender evidence,(84) are not to taken lightly. In the slow moving 17th century, factions brought each other to the test--whether routinely over long periods or more intensely in periodic bursts. We should not expect an impeachment in 1999 or 2000 to let the United States slip back into political tranquillity.

The better hypothesis is that we should expect more turmoil. The twentieth century has been, since World War II perhaps, somewhat similar to the 17th century in one respect: intense ideological antagonisms. Even in the past twenty years, when it might have been thought to decline, there are intense ideological battle groupings, easily activated. The resultant turmoil will be made far worse by an impeachment on the grounds that we now know. Massive distrust will feed it. Ideological antagonism will feed it. Well-financed political entrepreneurs will feed it. Instantaneous communication of information, disinformation, and misinformation will feed it. Impeachment as technique will increasingly be domesticated as legal defense funds, political action committees (PACs), and many other techniques have been domesticated. Private groups will urge their Congressional friends to initiate calls for independent counsels or other procedures to inquire into whether there might be a basis for determining that someone has violated, or conspired to violate, some law. Those who urge this resurrection should, if they believe that the political system concern is worthwhile, have a public duty to weigh carefully whether the result they achieve is the result they want to achieve.

It is thus likely that we will see attempts to initiate impeachment actions against other presidents. In each instance, one may assume that such effort will be made by people who genuinely believe their charges, and who believe they have credible cases. Since all successful efforts depend upon coalitions, explicit or de facto, such efforts will become successful only as varieties of other groups and persons join the efforts on a variety of grounds. There must a number of upward mobile Congressmen, Senators, and Governors-- Republican as well as Democratic--who should expect to find themselves absorbed in such controversies over the next two, three, or four presidential cycles Congressional leaders know that impeachment does not have to stop with a President. The same provision (Article II, Section 4) also applies to "the Vice President, and all civil Officers of the United States." Cabinet officers and sub-Cabinet officers are also civil officers. There is no reason for adversaries not to seek to invoke the process whenever they are deeply angry, or simply calculatedly rational, about some action. Is it beyond the imagination that, as many people genuinely believe that abortion is an ultimate evil, impeachment attempts would not be initiated against some Secretary of Health and Human Services on the basis that he or she is conducting policies favorable to this perceived evil? Is there any reason to believe that some Attorney General, even the present one, might not be the object of attempted impeachment actions if he (or in the present case she) were resolutely to decline to initiate some independent counsel investigation desired by Senate leaders? Is there any reason to suppose that such an Attorney General would be even more at peril for limiting, or exercising the legal discretion to terminate, an independent counsel investigation if the Independent Counsel were to wish to continue? Is the Independent Counsel a civil officer also within the scope of Article II, Section 4, if there are those who are motivated to make the effort?

Even regulatory commissioners, beyond Presidential direction, are also civil officers, are they not? What reason is there for affected interests not to use this newly available weapon? While the impeachment of Federal judges does not provide much to go on, as to standards for evaluating Presidential impeachments, there is one response in which the reverse situation becomes part of the system threat. The Article III courts subject to the same threats of punitive impeachment actions--regardless whether they succeed--if someone becomes dedicated to making their lives miserable.

This is, again, not to be taken lightly. Even under the stricter standards that apply to Article III judges There are Members of Congress who have, within the past three years, been known to argue that judges making "wrong" decisions should be impeached.(85) Will this approach be withheld if Federal trial judges depart from what been thought conventional procedures? For example, a trial judge had appointed a special master to conduct certain proceedings involving the Justice Department's current litigation against Microsoft. In due course, he was obliged to dispense with the special master by virtue of an appeals court decision. The judge has reportedly "told lawyers for both sides that he may ask [this dismissed special master] to write a 'friend of the court' brief summarizing his views on the case. . . ."(86) Is it beyond reasonable belief that, under intense conditions, someone would choose to impeach such a judge in such a case?

Clearly, my approach is framed, as stated in the first place, in political system terms. this does not imply that impeachment should never be employed. It does, however, suggest a balancing test: specifically, that the gravity of the presidential offenses should be weighed against the potential of far greater costs to the whole country. The assigning some behavior to the category of those "other high crimes and misdemeanors"--parallel to treason and bribery-- should be done only with utmost seriousness, and assessed with maintaining the essentials of the political system (or "the structure of government" or "institutional stability") as the prime purpose.

The maintenance of this kind of seriousness will be increasingly problematic, in somewhat the same way of maintaining a high level of dignity has already proved problematic. House leadership has, presumably with all seriousness, urged dignity. But since the beginning of 1998, every level of the inquiry has become more raucous than anyone in the leadership predicted before. It will continue to go beyond control unless there is some clear decision that produces the contrary. Alexander Hamilton was right to say in Federalist No. 65: "The prosecution of [actions deemed impeachable] . . . will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused."(87) That tells us that such matters should be approached with prudence and wisdom.

The impeachment process lends itself to the persistent conflict of factions. Each of which will seek to use the process to advance its own material goods and its own revered symbols, to pursue vengeance and feud as they were Capulet and Montague. Case in point: On October 8, 1997, during the House debate on the resolution to launch an impeachment inquiry into the conduct of President Clinton, one man from Alabama called the CNN conservative phone line to say that what he enjoyed was frustration and defeat in the eyes of the liberals who had been having it all their way, having been in power for 40 years. Such a statement should be seen as the cloud no bigger than a man's hand. Again, to cite Hamilton: "In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

The importance of prosecution, with impeachment as its leading case, as a weapon of recurrent group conflict becomes more important as each side disputes the morality and the methods of the other. Political leaders have already lost too much of the lessons of how to trade with each other and learn instead to turn each conflict into a dramatic morality play, or to an occasion of political vengeance. The magnification of conflict is something we have seen before. Congress should nothing further to let this lion loose in the streets. Prudence and wisdom argue for terminating this process. Close the cage.

Introduction ( P. 1)

I. The Health of the Political System is the Key Issue (P. 4)

II. What Is Impeachment and Whence Did It Come? (P. 7)

III. The Constitution Was Not Easy to Create, Nor All Its Provisions Obvious from the First

(P. 16)

IV. Impeachment Would be an Excessive Action (P. 28)

V. There Is Doubt Whether the Senate Regain the Concept of a Court of Impeachment, Rather than an Arena of Partisan Gladiators? (P. 48)

VI. Impeachment is a Caged Lion That Should Not Be Loose in the Streets? (P. 52)

1. . Communication, substantive or technical, on this statement should be directed to the author at: Department of Government and Foreign Affairs, University of Virginia, Room 232 Cabell Hall, Charlottesville, VA 22903 USA. Fax: 804-924-3359 E-mail: mh3q@virginia.edu.

2. From "Areopagitica," in Stephen Orgel and Jonathan Goldberg (Eds.), John Milton, New York: Oxford University Press, 1991, 237.

3. Steven E. Gifis, Law Dictionary, Hauppage, NY: Barrons Educational Series, 1996, 236; and, Black's Law Dictionary, Sixth Edition, St. Paul: West Publishing Co., 1990, ,753.

4. (The matter designated "Travelgate" never seemed to be of any consequence, although I might stand to be corrected.)

5. . On -----, Rush Limbaugh, who has a certain standing amongst those who strongly disapprove of President Clinton, appeared to criticize the President for statements that Limbaugh said indicated the President had no confidence that his wife could withstand the charges that Limbaugh expected would be forthcoming.

6. I have not taken the opportunity to go back and find the citation, but I take note of the magazine writer who, in 1994, expressed his forecast (and his hope from the view he held) that "he'll be gone by the end of the year." The "he" referred to was the President.

7. William H. Rehnquist, "The Impeachment Clause: A Wild Card in the Constitution," 85 Northwestern University Law Review 4 (1991), 903-918.

8. Robert Jervis, System Effects: Complexity in Political and Social Life, Princeton: Princeton University Press, 1997, 5-6 and, especially, 6, n. 10.

9. Walton Hamilton, The Politics of Industry, New York: A. A. Knopf, 1957, 6.

10. Since, in these debates about the impeachment issue and the future of President Clinton, there will be a great many references to the framers of the Constitution. Congress, writers and commentators, and citizens in general would be well advised to take in account the views about human nature that the framers gave voice to repeatedly.

11. Calvin Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787, New York: Agathon Press, Inc., 1988.

12. The separation of powers was specifically described by Alexander Hamilton as an American improvement in "the science of politics." In Federalist No. 9, Hamilton to "the petty republics of Greece and Italy" and the pessimistic conclusions to be inferred. "The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients." The principles that he mentions have the separation of powers at the head of the list that also includes checks and balance " the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election; these are wholly new discoveries, or have made their principal progress towards perfection in modern times." Federalist No. 9 (Modern Library edition), 48..

13. William Lee Miller, The Business of May Next, Charlottesville: University Press of Virginia, 1994.

14. Stanley Elkins and Eric McKitrick, "The Founding Fathers: Young Men of the Revolution," Political Science Quarterly LXXVI, No. 2 (196?), at 203-206.

15. . "MCP," (Michael C. Prestwick), John A. Cannon (Ed.), The Oxford Companion to British History, New York: Oxford University Press, 1997, 333 conveniently details the first impeachments in 1376.

16. Frederick W. Maitland, The Constitutional History of England, Cambridge: University Press, 1920, 215 offers a thumb-nail sketch.

17. . Roger Lockyer, Buckingham: The Life and Political Career of George Villiers, First Duke of Buckingham, 1592-1628, New York: Longman, 1981, 90-93.

18. . Sir William Holdsworth, A History of English Law, Boston: Little. Brown and Company, 1924, 260.

19. Elliot's Debates, Vol. V. 528.

20. Elliot's Debates, Vol. V (September 8, 1787), 528.

21. Sir Thomas Erskine May, The Constitutional History of England Since the Accession of George III, 1760-1860, With a New Supplementary Chapter, 1861-1871, New York: A. C. Armstrong and Son, 1886, I, 435.

22. In my opinion, what distinguishes the Congress of the United States from the legislatures of the world is it has far greater control over the initiation of legislation, and that it has continuous engagement in the administrative process.

23. Bernard Schwartz, A History of the Supreme Court, New York: Oxford University Press, 1993, 30-31; Richard E. Ellis, The Jeffersonian Crisis, New York: Oxford University Press, 1971; and Charles Warren, The Supreme Court in United States History, Boston: Little, Brown and Company, 1926, I, 204-215..

24. Stuart v. Laird, 1 Cranch 298 (1803). In this discussion I have been greatly helped by the Charles Warren book, cited in the preceding note, as well as the Bernard Schwartz and Richard Ellis items. I must also pay tribute to a superb undergraduate paper by Robert J. Tatum, "An Undeclared War: The Jeffersonians and the Judiciary," Submitted in Government and Foreign Affairs 424 Seminar on "Power and the Constitutional System, University of Virginia, February 1988.

25. Jillson, op. cit., 104-120. It is also taken for granted, explicitly, in the article by Chief Justice Rehnquist.

26. I should point out that, in saying this, I have sometimes thought the Federal judiciary in recent years looked to much for opportunities to vindicate Presidential power. Matthew Holden, Jr., Continuity & Disruption: Essays in Public Administration, Pittsburgh: University of Pittsburgh Press, 1996, Chapter 3 on "The Dogma and Theory of Executive Leadership: Brownlow, the Judges, and Operating Administration."

27. There is no full public review on the point, though I have covered it in some detail in The Mechanisms of Power, a manuscript now in preparation.

28. One political scientist, whose name I will forbear to mention here, said that he suspected a good share of the newspapers calling for "resignation" do not grasp the fundamental structural issue and wish we had something like a parliamentary system with votes of confidence.

29. General Pinckney did discuss impeachment in the South Carolina ratifying convention in on January 17, 1788. Below, , p. .

30. . Elliot's Debates, Vol. 1 p. 148.

31. . Elliot's Debates, Vol. 5 p. 143

32. Elliot's Debates, Vol 1 p.157

33. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, (With an Introduction by Adrienne Koch), New York: W. W. Norton & Company, 1987, .

34. . Elliot's Debates, Vol. 5 p 147-148.

35. . Elliot's Debates, Vol. 1 p.176

36. . Elliot's Debates, Vol. 5 p. 195.

37. . Elliot's Debates, Vol. 1 p.180

38. . Elliot's Debates, Vol. 1 p.181.

39. . Madison's Notes, 332.

40. . Elliot's Debates, Vol. 5 p.340-341

41. . Elliot's Debates, Vol. 1 p.219

42. .

43. . Elliot's Debates, Vol. 1 p.228

44. This question of incapacity came up several times, but it was not dealt with, in fact. Presumably, it is now within the 25th Amendment.

45. . Elliot's Debates, Vol. 1, p.280.

46. . Elliot's Debates, Vol. 1 p. 283

47. Lucy S. Sutherland, The East India Company in British Politics, Oxford" The Clarendon Press, 1952, v-vi, 327-328, and 382-414. Burke's role is discussed in P.J. Marshall, The Impeachment of Warren Hastings, London: Oxford University Press, 1965; and, Conor Cruise O' Brien, The Great Melody: A Thematic Biography of Edmund Burke, Chicago: University of Chicago Press, 1992.

48. Marshall, op. cit., 21.

49. The proceeding is referred to in U. S. House of Representatives. Committee on the Judiciary. Constitutional Grounds for Presidential Impeachment, Report by the Staff of the Impeachment Inquiry, Washington: Government Printing Office, 1974, 7, n. 19. The details of the proceeding are discussed in Marshall, op. cit., 39-63.

50. The charges are recited, Ibid., xiv-xv. "The Impeachment Proceedings: A Sample," in Geoffrey Carnall and Colin Nicholson (Eds.), The Impeachment of Warren Hastings: A Bicentenary Commemoration, Edinburgh: Edinburgh University Press, 1989, at 15-16, with other allegations at 16-18.

51. . Impeachment: a Handbook, New Haven: Yale University Press, 1974, 8-29. Black makes the same point in Bob Eckhardt and Charles L. Black, Jr., The Tides of Power: Conversations on the American Constitution, New Haven: Yale University Press, 1976, 74-78.

52. Elliot's Debates, Vol. 1 p. 294

53. Benjamin R. Curtis, "Argument in Defense of President Johnson," Delivered before the United States Senate. Sitting as a Court of Impeachment, April 9, 10, 1868, in Benjamin R. Curtis (Ed.), Memoir of Benjamin Robbins Curtis, LL. D., Boston: Little, Brown and Company, 1879, II, 410.

54. . U.S. House of Representatives, Committee on the Judiciary, Constitutional Grounds for Presidential Impeachment: Report by the Staff of the Impeachment Inquiry, (Washington, D.C.: Committee Print, Government Printing Office, 1974).

55. . Elliot's Debates, Volume 3, p.402-3.

56. . Elliot's Debates, Volume 4, p.32-5.

57. Irving Brant, James Madison: Father of the Constitution, Indianapolis: Bobbs-Merrill, 1950, 218.

58. . Elliot's Debates, Vol. 4(?), p. 281.

59. . Elliot's Debates, Vol. 4, 45.

60. . Elliot's Debates, Vol. 4, 32-37.

61. . Emphasis added. MH


63. I do not need to enter this, but the most recent study of Alexander Hamilton, by a scholar with a distinguished record, makes the case that abstinence was not something Hamilton practiced intensively. Arnold A. Rogow, Fatal Friendship: Alexander Hamilton and Aaron Burr, New York: Basic Books, 1998, 150-156..

64. Paul Greenberg,

65. It is also not to provide the functional equivalent of a hostile takeover attack, similar to that in the corporate sector.

66. Elliot's Debates, Vol. 5, 143.

67. . Elliot's Debates, Vol. 1 p.180

68. . Emphasis added. MH.

69. . Vol. 5 p.528-529

70. . Vol. 1 p.303

71. . Elliot's Debates, Vol. 1

72. . Elliot's Debates, Vol. 4?, p.44-5.

73. Elliot's Debates, Vol. 4, p.350

74. . This was in the context of a broader speech on the Senate. Elliot's Debates, Vol. 4, 466.

75. . Elliot's Debates, Volume 2, p.323

76. Federalist No. 65, 425. Emphasis in original.

77. . "Argument in Defense of President Johnson," Delivered before the Senate of the United States. Sitting as a Court of Impeachment, April 9, 10, 1868, in Benjamin R. Curtis (ed.), Memoir of Benjamin Robbins Curtis, LL.D., Boston: Little, Brown and Company, 1879, II, 343.


79. Frank W. Miller, Robert O. Dawson, George Dix, and Raymond Parnas, Prosecution and Adjudication, 4th Ed. (Westbury: The Foundation Press Inc., 1991), 695.

80. This is reflected in Republican protests about the farm bill which they have had to accept much more on President Clinton's terms than they wish, even as he faces the impeachment proceeding. Washington Times, October , 1998; and, Wall Street Journal, October, 1998.

81. . U. S. House of Representatives. Committee on the Judiciary. (93rd Congress, 2nd Session), Impeachment: Selected Materials on Procedure, Washington: Government Printing Office, 1974..

82. James J. Kilpatrick, in Symposium, "U. S. v. Clinton," National Review, September 28, 1998, 46.

83. . Richard H. Tawney, Business and Politics Under James I: Lionel Cranfield as Merchant and Minister, Cambridge: Cambridge University Press, 1958, at 248.

84. Holdsworth, op. cit., 260.

85. The references in support of this are not immediately at hand, but they will be found in the ABA Journal and in the National Law Journal.

86. Washington Post, Friday, September 25, 1998, F1.

87. Federalist, #65, p.423.