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Testimony of John O. McGinnis
Professor of Law, Yeshiva University Cardozo School of Law

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

Thank you for the opportunity to appear before the Committee on the important subject of the history and background of impeachment. I will first discuss two issues of lasting importance to constitutional governance--the meaning of "high Crimes and Misdemeanors" and the issue of what sanctions Congress may impose on civil officers of the United States, including the President. During the course of this testimony, I will try to address some of the arguments other scholars and citizens have been making about both these issues in relation to current events.

The Constitution states that "the President, the 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."(1) To understand the meaning of "high Crimes and Misdemeanors," we must understand the purpose of the this clause. Like other constitutional mechanisms, impeachment responds to a particular problem of governance--in this case how to end the tenure of an officer whose conduct has seriously undermined his fitness for continued service and thus poses an unacceptable risk of injury to the republic.

This purpose is evident from the structure of this provision and other provisions relating to impeachment. First, the only legal consequences that flow from impeachment proceedings--removal from office and potential disqualification from future office--make little sense unless impeachment is aimed at removing unfit officials.(2) Impeachment permits no penal sanctions and contemplates no consequences short of removal. The consequences of impeachment and conviction go just far enough, and no further than, removing the threat posed to the republic by an unfit official.

The procedure for impeachment--indictment by the House and trial by the Senate--suggests that the Framers were interested in addressing any misconduct seriously undermining fitness rather than addressing some fixed list of offenses or even some set of offenses determined by some abstract rule. If impeachable offenses could be set out in such a determinate matter, it would have made more sense to give the responsibility for evaluating them to the judiciary, the arbiter of cases under determinate rules. On the other hand, if the task of impeachment requires the evaluation of a range of offenses in relation to fitness for office, the logical place for such responsibility is in Congress, the repository of prudential judgement. Judging whether misconduct undermines fitness and makes continued service an unacceptable risk to the republic requires inferences not readily reducible to fixed rules, particularly because fitness for service involves both immediate, practical considerations ("Does this misconduct interfere with the official's day to day execution of his duties?") and symbolic considerations ("Does this official's misconduct dangerously lower the standards for future officeholders.") In addition, particular misconduct may not itself interfere with current tasks, but may reveal defects in an officer's integrity that present an unacceptable risk of future misconduct in areas where misconduct could harm the republic.

On its face the phrase "Treason, Bribery, and other high Crimes and Misdemeanors" wholly comports with the same overriding purpose of impeachment-- preventing injury to the republic from seriously unfit officials. Because the categories of misconduct that may undermine fitness to serve cannot be determined in advance, the phrase unsurprisingly does not provide a closed list of impeachable offenses. Nor does it provide on its face some abstract rule for what is "impeachable," other than that which flows from the purpose and structure of the clause and related impeachment provisions.

It is true that locating the impeachment process in Congress under a standard requiring prudential judgement raises another problem of governance--the danger that impeachment may make civil officers dependent on the caprice of legislators. But the structure of the impeachment provisions addresses this problem without resorting to a fixed set of impeachable offenses or an arbitrary test for determining their content. In employing the phrase "high Crimes and Misdemeanors" the Framers used a phrase that on its face refers to objective misconduct and not to political differences or disagreements. Indeed, requiring a predicate of an objectively bad act as a precondition to impeachment assures that more than a simple legislative vote of "no confidence" is needed for removal.

Moreover, in keeping with their recognition that mere "parchment barriers" could not be relied on to protect against political excesses, the Framers did not, in any event, simply depend on a linguistic phrase to prevent abuse. Instead, they protected against the inappropriate removal of officials by establishing a high procedural hurdle. They required a substantial supermajority of one branch of the legislature--two-thirds of the Senate--to approve the removal of any officer. They underscored the need to avoid partisan considerations in such a procedure by putting Senators under a special oath for the trial, an oath which is unique for legislative proceedings. And in the case of Presidential impeachment, they even required the Nation's highest judicial officer--the Chief Justice of the Supreme Court--to preside over the trial and thereby check any partisan procedural devices. In this manner they both assured that officials seriously unfit for office could be removed but did not make them unduly subservient to the legislature.

Thus, the evident purpose and structure of impeachment clauses show that "high Crimes and Misdemeanors" should be understood in modern lay language as something like "objective misconduct that seriously undermines the official's fitness for office where fitness is measured by the risks, both practical and symbolic, that the officer poses to the republic." The requirement of objective misconduct assures that a civil officer cannot be removed for reasons of policy, but only for an affirmative act of serious misconduct. The requirement that the act seriously undermine the official's fitness for office assures that the focus will be on inferences drawn about his fitness, because it is unfitness that may create an unacceptable risk of injury to the republic.

On the other hand, this definition leaves substantial room for judgment in Congress on the nature of the objective misconduct seriously affecting service in office. This is as it should be, because there could be no checklist of impeachable offenses in a constitution that would stand the test of time, and thus protect against the continuing danger to the republic that comes from seriously unfit officials. As Chief Justice Marshall stressed almost two hundred years ago, in interpreting the general authorities of Congress, "we must never forget that it is a constitution we are expounding."(3)

This interpretation of "high Crimes and Misdemeanors" is further supported by the historic meaning of the phrase, the debates at the Constitutional Convention, and the constitutional practice of over two hundred years. First, English history shows that the phrase "high Crimes and Misdemeanors" was a term of art that was not limited to a fixed set of crimes under positive law or the common law of general criminal offenses.(4) Instead, under its rubric the English parliament fashioned a common law of misconduct for officials. It exercised a wide discretion to indict officials for bad acts that made them no longer fit to serve and thus a potential danger to the kingdom.

The history of the adoption of the phrase at the Constitutional Convention also shows that it allows Congress broad discretion to take action in light of serious affirmative misconduct that undermines fitness. It is true that the Convention struck from the original draft of the principal impeachment provision language that permitted impeachment for "maladministration."(5) But that decision simply shows that the Framers recognized that negligence in supervision of the office is so much in eye of the beholder that it would inevitably allow disagreements over public policy to enter into impeachment proceedings. The decision not to permit impeachment on the basis of maladministration is wholly consistent with authorizing it on the basis of objective misconduct that bears on the official's fitness.

At the Convention, the substitute phrase "high Crimes and Misdemeanors" was thought to be broad in scope. Madison believed that it allowed the President to be tried for "any act which might be called a misdemeanor."(6) Subsequent commentators were also impressed by its wide scope. Alexander De Tocqueville, the acute analyst of the American political system noted that all observers of the Constitution were struck by "the vagueness" of the standard for impeachment.(7)

Congressional practice confirms that "high Crimes and Misdemeanors" is broad enough in scope to reach all misconduct that undermines fitness to serve.(8) Of course, most offenses giving rise to impeachment have also been serious crimes because such violations so undermine a person's integrity as to call into question the official's ability to serve. However, even when the conduct at issue may have been a crime, the House of Representatives has often framed the articles in a manner that avoids legal technicalities, and focuses directly on the conduct that detracts from the office of the person accused. Perjury and tax evasion have in the past been grounds for impeachment because they reflect on the fitness of those officials who have sworn to uphold the law, not simply because they are crimes.(9)

Once we have grasped the purpose and history of impeachment, we can readily see that some current legal arguments about the scope of the phrase "high Crimes and Misdemeanors" are simply wrong. For instance, it has been suggested that because Treason and Bribery are crimes requiring the abuse of official power, all "high Crimes and Misdemeanors" must concern the abuse of official power. But even the premise of this argument is inaccurate. An executive branch official could bribe a judge in order to receive favorable treatment in a civil case of his own. He then could be removed under the express language of the clause despite the fact that his misconduct arose from acts in his private capacity. Similarly, the Constitution defines treason in a way that does not depend on abuse of official power.(10) Justice Joseph Story-the foremost early commentator on the Constitution--made this same point over a hundred and fifty years ago when he asked rhetorically, "Suppose a judge or other officer receive a bribe not connected with his judicial office, could he be entitled to any confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe?"(11)

Moreover, the distinction between private and public capacity does not comport with the purpose of the clause since private offenses of a public man can make him unfit for office. If the official commits a murder in a lover's quarrel or embezzles funds from a relative, such crimes would be deeply personal and yet would still undermine his fitness to serve. Objective private misconduct is relevant to the extent that it allows an inference that future exercise of power by this individual either poses an unacceptable risk of future injury to the republic, or that his continued service would so lower the standards of office that it would represent a risk for the future. Integrity under law is simply not divisible into private and public spheres.

In the face of the impossibility of limiting "high Crimes and Misdemeanors" to crimes committed in a public capacity, some law professors have suggested that if the crime is committed in a private capacity the crime must be "heinous" to be impeachable. But the use of the adjective heinous is simply superfluous if it means that impeachment denotes objective misconduct seriously undermining fitness for office. But if it is to suggest some higher threshold for misconduct in a private capacity, it has no support in either the text or purpose of impeachment. In any event, labeling murder "heinous" and describing perjury or obstruction of justice as not "heinous" is certainly not a legal determination but simply a matter of judgment. It would be very damaging for this House to accept a legal definition of "high Crimes and Misdemeanors" that creates a republic which tolerates "private" tax evasion, "private" perjury and "private" obstruction of justice from officials who would then continue to have the power to throw their citizens into prison for the very same offenses.

I have suggested that if the President is determined to have committed objective misconduct, the House has both the duty and the discretion to decide whether the misconduct has undermined his fitness for office in a manner that requires his removal. No law professor has any special expertise to guide this Committee in the solemn exercise of this duty. But I do want to respond to several misconceptions and outright legal errors that have recently crept into discourse about impeachment. If allowed to stand, they would wrongly and dangerously narrow this House's entirely lawful discretion.

The first misconception is that an official's course of conduct must be divided into offenses, and then each offense judged separately as to whether it is impeachable. While the House has returned multi-count impeachments in the past, it has been well understood that a course of conduct as a whole should be the subject of judgment. The consequence of impeachment and conviction is the same on any count--removal from office. Moreover, other things being equal, a pattern of misconduct may be more probative of unfitness than an isolated criminal act. Thus, both the nature of the consequences and of the proof in impeachment proceedings suggest that offenses should be considered collectively in determining whether an official should be removed from office. Certainly, for instance, a series of calculated perjuries and obstructions of justice over a substantial period is potentially more serious than a single misstatement in a moment of weakness. The inferences to be drawn from the course of conduct might be more serious still if the official used the resources of the government to further such corrupt conduct, or lied to the American people about his actions in addition to lying about them under oath.

Second, some have questioned whether some acts of perjury are impeachable. But bribery is impeachable by the express terms of the Constitution and, like bribery of a judge, perjury or obstruction of justice always interferes with the coordinate branches of government. Thus even if one believed, contrary to the argument I have set forth, that "high Crimes and Misdemeanors" required that the predicate misconduct be directed at the state, perjury or obstruction of justice would come within its ambit.

Moreover, the Constitution itself shows that Framers would have always regarded lying under oath as a serious matter for a public official and a potential violation of "the public trust," which, in the words of Alexander, Hamilton warrants consideration of impeachment.(12) The Constitution recognizes that truth-telling under oath is central to the maintenance of a republic. Oaths are mentioned in the Constitution on at least five separate occasions, not least of which is the President's own oath to defend the Constitution.(13)

The prominence of oaths for all officials in the Constitution as well as the Fifth Amendment show that the Framers recognized that taking a civil oath was an important ingredient of the cement that holds a civil society together. Previous societies had depended on established religions or hierarchies for social cohesion but the United States was then a bold experiment that depended on the rule of law to protect the rights of each citizen. The rule of law in turn is grounded on the duty of every citizen to testify truthfully under oath: Truth is the handmaiden of justice. Fidelity to one's oath is also crucial to retain the public trust and confidence in a republican leader because it demonstrates that despite his high position, he is as much subject to the social compact as the lowliest of citizens. Thus lying under oath by a public official can in any context be a public harm in itself because it strikes both practically and symbolically at the heart of the republican order.

Some have suggested that the continuing popularity of a President perhaps should insulate him from impeachment. Once again, the Constitution itself shows that this cannot be the case. The Senate is given the discretion to disqualify an official who has been impeached and convicted from any future office of "honor, Trust or Profit."(14) This clause shows that the Framers recognized that officials who should be impeached and convicted may not only remain popular in the face of serious charges, but that they may retain a strong following even after conviction. This provision is a consistent with the Framers' understanding that popularity alone is not the only qualification for office. Demagogues might be popular because they told the people what they wanted to hear. What is needed in a President to preserve the republic, however, is the ability to rally its people in times of crisis to do something that might be unpopular in the short term, like going to war. For such a task, deeper qualities are required and of these qualities trust is one of the most important. The enduring public trust necessary for effective leadership is simply distinct from the popularity that can vanish at the first stern test in the nation's hour of greatest need.

Finally, it has been suggested that impeaching a President should require a higher legal standard than impeaching a judge because a President has been elected by the people. Of course, the language of the Constitution itself imposes no higher standard. The President no less than a judge is charged with carrying out the laws of the United States. Indeed, he is expressly directed by the Constitution to "take Care that the Laws be faithfully executed."(15) This injunction covers all laws, civil and criminal, and makes no exception for laws that apply to himself, in his private or public capacity. Moreover, he takes a special Oath to support the Constitution that underscores that obligation: "I do solemnly swear . . . that I will faithfully execute the office of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."(16) In light of both the President's function and his emphatic oath, the President is surely no less sworn than any judge to uphold the law, and is no less accountable under the Constitution for violating his oath.(17)

Moreover, important considerations of constitutional structure might well suggest the opposite conclusion, that we should be more loathe to retain a President in office who has breached the public trust than any other official. James Madison himself stated that impeachment was necessary for the President and not for legislators since they acted collectively, and the corruption of a single legislator was less dangerous to the republic.(18) By the same reasoning, the unfitness of one of our hundreds of district judges is far less dangerous to the republic than the unfitness of its chief magistrate.

Finally, changes in the Constitution since 1789 make the argument for a higher standard for impeaching the President on the basis of the elected nature of his office even weaker. Since the enactment of Twelfth Amendment the President and Vice-President have run as a team and therefore voters will generally have approved a specific successor if a President were constitutionally unable to continue. Second, since the enactment of the Twenty-Fifth Amendment Presidents are limited to two terms. Thus, the possibility of running for another term no longer disciplines presidential behavior as it once might have. The impeachment provisions should not be construed to condone lawlessness in term-limited officers.

I would now like to turn briefly to the question of Congress's authority to sanction the President in a manner other than removal from office. I believe it lacks any such authority. The Constitution clearly contemplates a single procedure for Congress to address the derelictions of a civil officer--impeachment by the House, and subsequent trial by the Senate. Article II of the Constitution also specifies the necessary consequence of conviction in an impeachment case: "The President, the Vice-President and all civil officers shall be removed from Office on Impeachment for, and, Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." (19)

Article I states that "Judgment in cases of Impeachment will not extend further than removal from office, and disqualification to hold and enjoy any Office of honor, Profit or Trust under the United States."(20) This provision, however, does not authorize Congress to impose legislative punishments short of removal. Read together, the impeachment clauses require removal upon conviction, but allow the Senate at its discretion to impose a single additional penalty--disqualification from future office. The Senate itself has consistently adopted this interpretation.(21) The Senate's vote to convict on an impeachment count brings automatic removal without any further action on its part. It occasionally then votes also to disqualify the official from future office.

The Framers' decision to confine legislative sanctioning of executive officials to removal upon impeachment was carefully considered. By forcing the House and Senate to act as a tribunal and trial jury, rather than merely as a legislative body, they infused the process with notions of due process to prevent impeachment from becoming a common tool of party politics. The requirement of removal upon conviction accentuates the magnitude of the procedure, encouraging serious deliberation among members of Congress. Most importantly, by refusing to include any consequences less serious than removal as outcomes of the impeachment process, the Framers made impeachment into such an awesome weapon that Congress could not use it to harass executive officials or otherwise interfere with operations of coordinate branches.

Thus, it would be clearly unconstitutional for Congress to require the President to pay a fine. Indeed, besides perverting the Framers' design for impeachment, a resolution actually imposing a fine would violate other constitutional provisions. First, the Constitution explicitly forbids bills of attainder.(22) Such bills were the legislative acts by which the British parliament punished individuals, including executive officials, with death or forfeiture of property. Second, the Constitution prevents the Congress from reducing the President's "compensation" during his term.(23) Both prohibitions underscore that Congress's power to punish the President is limited to impeachment.

Nor should Congress attempt to avoid this restriction on sanctions by entering into a deal by which the President can voluntarily pay a suggested amount into the Treasury's miscellaneous receipts account. The voluntariness of the President's payment would be a legal fiction. The President would be paying a fine under the shadow of impeachment. Congress would be using its impeachment powers as a club to impose a bill of attainder.

This would represent a truly disastrous precedent. Congress could then establish a schedule of legislative fines for the perceived offenses of other branches. Life-tenured Judges might even be required to pay fines for unpopular opinions on pain of impeachment. Congress will have created a power to enable it to harass the other branches and yet escape its constitutional duty to hold officials to ultimate account.

Another way of understanding why this procedure is so fundamentally wrong is to consider the analogy that is drawn between it and plea bargaining. Plea bargaining is justified because the individual could be legitimately charged with the lesser included offense to which he pleads guilty. But as we have seen, for important reasons the Constitution includes no outcome for impeachment less than removal from office.

Some members have also proposed censure as a sanction from analogy to the legislative procedures by which members of each House censure its own members. The analogy fails because the Constitution expressly provides plenary authority to each House of Congress to fashion penalties for members of the legislative branch short of expulsion, but provides no such authority to discipline officers of other branches in the same manner.(24) It is pursuant to this explicit authority that each House can require one of its members to go the well of the House and receive the judgment of their peers. For the President or any other civil officer, this kind of shaming punishment by the legislature is precluded, since the impeachment provisions permit Congress only to remove an officer of another branch and disqualify him from office. Moreover, for the same reasons that a deal leading to a fine would set a dangerous precedent, "voluntary" agreement by the President to accept such punishment would also undermine the separation of powers.

It is true that nothing in the Constitution precludes any member of Congress from individually denouncing anyone. A resolution criticizing the President thus may be legally permitted as a loud collective shout from the floor. To understand the legal nature of such an resolution, however, shows that it is in no way equivalent to the solemn act of legislative censure flowing from express authority under the Constitution.

I would go so far as to say that the current interest in creating new forms of sanctions for the President reflects a cavalier attitude toward constitutional governance, and indeed illustrates the kind of lasting damage that the country risks from presidential misconduct. If a President cannot legitimately deny that he has breached the public trust there will be a widespread feeling that he must be punished. He or his supporters then may be willing to trade the prerogatives of his office for their personal or political benefit. Thus one way a President who has committed serious misconduct poses a threat to the Republic is the increased likelihood that he will agree to disastrous constitutional precedents to protect his own tenure.

In closing, let me directly address the argument that current impeachment proceedings must be ended, since they distract from the real business of government, such as maintaining a good economy or passing beneficial legislation. This sentiment simply cannot be squared with the Framers' paramount concern for the integrity of public officials. They recognized that the prosperity and stability of the nation ultimately rest on the people's trust in their rulers. They designed the threat of removal from office to restrain the inevitable tendency of rulers to abuse that trust. But this constitutional restraint can work only if citizens and legislators alike have the self-restraint to allow its processes to unfold solemnly, deliberately, and without concern for their own short-term gains and losses.





Endnotes

1. Art. II, sec. 4.

2. For a more comprehensive discussion of how the Constitution limits impeachment to only these two potential consequences, see notes 19-24 and accompanying text.

3. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 406 (1819)..

4. See Raoul Berger, Impeachment 62 (1973).

5. 2 Farrand 550.

6. 2 Farrand 550. The breadth of this phrase was the reason that Madison wanted to assign responsibility for impeachment to the Court rather than to the Senate, presumably in the hopes that they would impose some further judicial limitations.

7. See Alexander De Tocqueville, Democracy in America 109 (Mayer, ed. 1996). It is true that some commentators suggested that impeachment lies for the crimes by "public men." But this does not necessarily mean that crime must be committed in a public capacity. A crime is that of a public man if it reflects on his public character and thus presents a risk of unacceptable injury to the republic.

8. For instance, the House has impeached a judge for drunkenness because a judge persistently inebriated cannot administer the laws.

9. For instances, in which the officials for were impeached for bribery and tax evasion, see H.R. Res. 461, 99th Cong. (1986); Judge Harry E. Claiborne for tax evasion) and H.R. Res. 407, 100th Cong. (1988) (Judge Walter L. Nixon for perjury).

10. Article III, section 3 (" Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them Aid and Comfort").

11. Joseph Story, 2 Commentaries on the Constitution 802 (1833).

12. See Federalist No. 65 at 439 (Rossiter, ed. ). (Alexander Hamilton).

13. See Art. I, sec. 3 (oath required when trying impeachment). Art. II, sec. 1 (presidential oath); Art. VI (oath for all federal and state and federal officers. 4th Amend. (Oath for securing warrants); 14th Amend., sec. 3 ( preventing those who violated their oath under Art. VI by participating in the Civil War from holding office).

14. Art. I, sec. 3, cl. 7.

15. Art. II, sec. 3.

16. Art. II, sec. 1, cl. 8.

17. Some have suggested that language in Article III, section 1, to the effect that " Judges, both of the supreme and inferior courts, shall hold their offices during good Behavior," furnishes an independent basis for removing judges other than impeachment." This view is by no means clearly right, since the language does not provide for another mechanism of removal but simply denotes that federal judges, unlike other officials, do not serve for a fixed term of years, but for life. See, e.g., Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Kent. L. Rev. 707, 720 (1988). In any event, this clause has never been relied upon as basis for removing any judge. Thus, conduct of judges who have been removed for perjury and other misconduct are precedents for regarding such acts as "high Crimes and Misdemeanors."

18. 2 Farrand 64.

19. Art. II, sec. 4.

20. Art. I, sec. 3. cl. 7.

21. See Michael Gerhardt, The Federal Impeachment Process 60 (1995).

22. Art. I. Sec. 9, cl. 3.

23. Art. II, sec. 1, cl. 7.

24. See Art. I, sec. 5, cl. 2 ( "Each House may determine the Rules of its own proceedings, punish its members of disorderly behavior, and, with the Concurrence of two thirds, expel a member").