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Testimony of Laurence H. Tribe
Tyler Professor of Constitutional Law, Harvard University Law School

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

Defining "High Crimes and Misdemeanors": Basic Principles

I am honored to have been invited to appear before this Subcommittee of the House Judiciary Committee to shed whatever light I can on the vitally important topic of "The Background and History of Impeachment." Although I will of course be willing to address whatever questions members may have regarding the application of my testimony to the particular case of President Clinton, I have understood my assignment to be a broader and antecedent one: to analyze how the Constitution requires Congress to approach the threshold issue of deciding what constitutes an "impeachable" offense. Because so much has been written, and so much more has been said, about this topic, I have chosen to focus my comments on the basic principles that I believe should guide us in this endeavor, rather than to essay yet another detailed compilation of excerpts from the records of the 1787 Constitutional Convention, from accounts of the state ratification debates, from The Federalist Papers, from the commentaries of Blackstone and Story, from the 1974 Staff Report of the House Judiciary Committee on "Constitutional Grounds for Presidential Impeachment," and the like.



I begin with this historical note: Nearly a quarter of a century ago, the work of the House Judiciary Committee under the leadership of Representative Peter Rodino, in seeking to define impeachable offenses when dealing with a Republican President, set the stage on which the House Judiciary Committee under the leadership of Representative Henry Hyde plays out today's sober drama in dealing with a Democratic President. So too, what the Judiciary Committee does today in attempting to define impeachable offenses will set the stage on which future struggles over the possible impeachment of presidents to come, including presidents yet unborn, will be waged. Indeed, how this Subcommittee and ultimately the House of Representatives (and possibly the Senate) define impeachable offenses in this proceeding will play an important role not only on those occasions, hopefully rare, when the nation again focuses its energies and its attention on the possible impeachment and removal of a sitting president, but in the day-to-day life of the republic, shaped as it is by the strength or weakness of the presidential office, by the relationship between the executive and legislative branches, and by the kinds of people who feel called to public service and are willing to endure its rigors in whatever atmosphere of oversight -- from the most positive to the most poisonous -- awaits our public servants, including our presidents.



For this reason, it would be short-sighted indeed for any witness before this body, or for any member of Congress, to approach the task of defining "high crimes and misdemeanors" from a narrowly result-oriented perspective. To put it bluntly, anyone who would raise the bar on what constitutes an impeachable offense simply in an effort to save President Clinton, whether for partisan reasons or in a spirit of genuine patriotism, may live to regret the abuses by future presidents that might be unleashed were we to establish a precedent making it too difficult -- more difficult than the Constitution, rightly understood, contemplated -- to remove a president whose misuse of the awesome powers of that office endangers the republic. And, conversely, anyone who lowers the bar on what constitutes an impeachable offense simply in an effort to "get" President Clinton, whether for partisan reasons or in a spirit of equally genuine patriotism, may live to regret the abuses by future congresses, and the resulting incapacity of future presidents, that might just as easily be unleashed were we to establish a precedent making it too easy -- easier than the Constitution contemplated -- to remove a president simply because, as in a parliamentary system, the legislature has come to disagree profoundly with his or her public policies or personal proclivities and has thus lost confidence in the President's leadership.



For these reasons, and because I -- like many others who have expressed grave doubts about the propriety of using the impeachment device to deal with what President Clinton is alleged to have done -- hold no brief for the President's behavior and regard it as both inexcusable and worthy of condemnation, I believe the situation in which we find ourselves contains powerful, built-in safeguards -- safeguards that ought to function well to prevent all people of good will from artificially making the category of impeachable offenses too narrow or too broad. Not knowing whose ox might be gored in the long run by an error in either direction, anyone who takes the task ahead with the seriousness its nature demands will necessarily proceed under what the philosopher John Rawls famously described as a veil of ignorance(2) that can help us all go forward in a manner sufficiently focused on the long run and insulated against the temptations of short-term rewards and punishments.



With that preface, I turn to the principles that I believe ought to guide the search for the appropriate definition of impeachable offenses.



1. Because Congress has the last word in defining what constitutes an impeachable offense, it is more important, not less, that Congress get it right. It appears to be common ground that judicial review would be unavailable to check the House or the Senate in their definitions of high crimes and misdemeanors under Article II, Section 4 of the Constitution. The Supreme Court held in Nixon v. United States, 506 U.S. 224 (1993) -- in a case involving former federal judge Walter Nixon -- that Article I, Section 3, clause 6, which says "[t]he Senate shall have the sole Power to try all Impeachments," precludes Supreme Court review of whether the Senate, rather than sitting as a jury of 100, may instead delegate the task of hearing and reporting evidence to a committee. It would almost surely follow that Article I, Section 2, clause 5, which says "[t]he House of Representatives . . . shall have the sole Power of Impeachment," precludes Supreme Court review of whether the House has proceeded on a definition of impeachable offenses that is too lax or too strict. Nor is it at all plausible that the Chief Justice, who under Article I, Section 3, clause 6, "shall preside" when the "President of the United States is tried," would control the Senate's definition of an impeachable offense.



Thus, Congress is essentially on its own in this vital realm. But that is not to say that the deliberately political process of impeachment that the framers left unpoliced by judicial overseers is not bound by the Constitution -- by what it says as to impeachable offenses, and by what it means by what it says. Article VI provides that all Senators and Representatives "shall be bound by Oath or Affirmation, to support this Constitution." That duty is not relaxed whenever the judiciary is not on guard; it is heightened. Any solace that members of either the House or the Senate may sometimes take, in voting for a measure of contested constitutionality, that the Supreme Court will step in and save them from constitutional error if they are wrong -- solace that I have elsewhere argued is inappropriate even when judicial review is in fact available to conduct just such a rescue mission(3) -- is manifestly unavailable here. Err here, and live forever with the consequences, for no judge will appear as a deus ex machina to set the constitutional system straight. Thus, the statements sometimes heard to the effect that an impeachable offense is whatever the House and Senate say it is(4) are true only in the most cynical and constitutionally faithless sense. If those statements mean that Congress can "get away with murder" in this sphere, they are literally correct. But there are consequences to be suffered from defying the Constitution, even if those consequences do not include being reversed by judges. And if those statements about impeachable offenses being a content-less category, a mere mirror for the preferences of members of the House and Senate, mean that Congress simply is not constrained by the Constitution in this matter, then those statements are flatly false. Congress is indeed constrained, even if the only enforcer of that constraint is its own conscience.



This first principle has one significant corollary. When we say it is important that Congress get it right, and even more important because no court stands guard to keep the balance true, we should realize that we are speaking not simply of the Senate, whose task it is to try impeachments brought to it by this body, but of the House as well. Some have suggested that, because it will fall to the Senate, in any case where this body returns a bill of impeachment, to make a final judgment as to whether something the House deems impeachable is in fact impeachable, the House is somehow relieved of the full burden of having to decide the issue for itself. Passing the buck to the Senate -- impeaching because one thinks what the accused official did might well be deemed impeachable -- would be a profoundly irresponsible breach of the duty laid upon this body by Article I.



The prospect of a trial in the United States Senate, regardless of which federal officer is in the dock, cannot be equated with the prospect of an ordinary trial, civil or criminal, in the courts of law. When the Senate is enlisted to perform this unique task, not even delegating part of its work to a committee can obscure the inevitable distraction from the Senate's normal and proper functions in the lawmaking process. And when the Senate is asked to perform this task in the special case of a sitting president, both the distractions from its legislative role and the consequences for the nation as a whole, internationally as well as domestically, are monumental. The one occasion on which the Senate sat in judgment on a president, in the trial of Andrew Johnson,(5) provided just a foretaste of the far greater distractions and divisions that such a trial in the modern era would entail, whatever its outcome.



This is not to say that the House should shrink from impeaching a president where impeachment is called for; it is to say, however, that the consequences of passing the matter off to the Senate in order to send a message of disapproval or otherwise to avoid seeming to condone presidential misbehavior are far too grave to make that an acceptable option. If members of this body believe the President should be censured, mechanisms to achieve that end are available. If members believe the President should be criminally prosecuted, that remains an option after he leaves office. But allowing uncertainty over whether these other modes of accountability will be brought to bear in a timely and effective way to tempt one into voting to impeach where there has been no high crime or misdemeanor, taking refuge in the confidence that the Senate will not muster the requisite two-thirds vote to convict, would set a horrific precedent -- and would punish the entire nation in order to administer punishment to the President. I would urge every member to focus not on what we should do to Bill Clinton but on what impeaching Bill Clinton would do to the country -- and to the Constitution. To that end, it is vital that the House get it right, and not rely on the Senate to come to the rescue.



2. Getting it right means taking seriously exactly what the Constitution says on the subject, as well as the context in which the Constitution says it. When we look at the words of Article II, Section 4, telling us that the offenses for which presidents or any other civil officers of the United States may be impeached and, on conviction, removed from office, we encounter the curious phrase -- familiar today only because we have all been steeped in this business for some time -- "high Crimes and Misdemeanors." To take those words and their context seriously, it is essential that we not stop with the easy observation that they are theoretically capable of various definitions, that they have fuzzy boundaries, that not everybody agrees exactly on what they mean, and that they might indeed mean big crimes and little ones. Neither writing a constitution nor reading and applying one is a merely theoretical exercise. Yes, those words could mean any of a number of things, but the fact that this is the case with many, perhaps all, constitutional provisions does not give us license simply to fill in the meanings we find most pleasing.



We deal in the Impeachment Clause with one of the Constitution's architectural cornerstones. It identifies a key feature of the Constitution's structure, and of the form of government the Constitution created. As I, and many others, have argued in other settings, constitutional provisions of this structural sort are the least likely candidates for translation into open-textured, highly fluid, norms and ideals.(6) Unlike the Constitution's command that no state deprive anyone of "liberty" without "due process of law," for example -- a command that is famously flexible and whose content has evolved, many of us think quite properly, with the changing times -- the provision stating the circumstances in which federal officials, including presidents, may be impeached, convicted, and removed from office ought to be given as fixed and firm a reading as the logic of the situation permits. The basic criteria for what makes something a "high crime" or "misdemeanor" in the impeachment context should not be permitted to "morph" with the ebb and flow of attitude and opinion -- although, of course, as times change the set of acts that might represent abuses of power or assaults upon the state might change as well.



Some, though not I, think that at least the criteria for what makes something fit into a given constitutional category should be constant over time for every part of the Constitution, properly construed;(7) for them, it should be true a fortiori for the Impeachment Clause. For the rest of us, the important point is that the clause defines not simply the rights of individuals but the very design of the government on which we must, in the end, rely to defend those rights. To raise or to lower the impeachment bar as time goes on is to move the nation closer to an imperial presidency or to a parliamentary system, depending entirely on which way the impeachment winds are blowing. But those are not changes we should make casually or as the accidental byproducts of steps taken for entirely different reasons. If it is a parliamentary system people want, or something closer to such a system than we have had for two centuries, then amending the Constitution to achieve such a system or an approximation thereto is the only constitutionally proper course. Weakening the presidency through watering down the basic meaning of "high Crimes and Misdemeanors" seems a singularly ill-conceived, even a somnambulistic, way of backing into a new -- and, for us at least, untested -- form of government.



What, then, did "high Crimes and Misdemeanors" mean when those words were inserted into the Constitution? The surrounding text gives us more than a slight clue, for the words are embedded in the larger phrase, "Treason, Bribery, or other high Crimes and Misdemeanors." The word "other" is a dead giveaway: high crimes and misdemeanors are offenses that bear some strong resemblance to the flagship offenses listed by the framers -- treason and bribery. That the framers' choice of words here was entirely deliberate is most clearly shown by the fact that, when it came to the very different question of which offenses would be subject to interstate extradition, the framers began with the categories "treason, felony, or high misdemeanor,"(8) but ended by replacing the phrase "high misdemeanor" with the phrase "other crime,"(9) which evidently seemed more appropriate in a constitutional provision -- Article IV, Section 2, clause 2 -- dealing not with abuse of power or subversion of the constitutional order but with ordinary common-law or statutory crime. That alone should tell us that reading Article II's reference to "high Crimes and Misdemeanors" as some sort of shorthand for major and minor criminal offenses, or even as shorthand for felonies -- that is, for the most serious crimes -- would be a mistake. When the Constitution's authors meant to identify a particularly serious category of crime, they knew just how to do it. Thus, not only does the Interstate Extradition Clause speak of persons "charged in any State with Treason, Felony, or other Crime," but the Privilege from Arrest Clause speaks of congressional immunity from arrest during attendance of a congressional session "in all Cases, except Treason, Felony and Breach of the Peace." Article I, Section 6, clause 1. And the Grand Jury Clause of Amendment V guarantees "a presentment or indictment of a Grand Jury," with certain military exceptions, whenever a person is "held to answer for a capital, or otherwise infamous crime."



It follows that "high Crimes and Misdemeanors" cannot be equated with mere crimes, however serious. Indeed, it appears to be all but universally agreed that an offense need not be a violation of criminal law at all in order for it to be impeachable as a high crime or misdemeanor. A president who completely neglects his duties by showing up at work intoxicated every day, or by lounging on the beach rather than signing bills or delivering a State of the Union address, would be guilty of no crime but would certainly have committed an impeachable offense. Similarly, a president who had oral sex with his or her spouse in the Lincoln Bedroom prior to May 23, 1995 (the date on which D.C. Code Ann. '22-3502 was repealed),(10) or in a hotel room in Georgia,(11) Louisiana,(12) or Virginia(13) at any time, would be guilty of a felony but surely would have committed no impeachable offense.



And that brings us back to the word "other." What distinguishes certain offenses as "high Crimes and Misdemeanors" must be not the fact that serious crimes are involved but the fact that those offenses are similar, in ways relevant to what the devices of impeachment and removal are for, to treason and bribery. But that in turn means that, like treason and bribery, high crimes and misdemeanors, as terms of art, must refer to major offenses against our very system of government, or serious abuses of the governmental power with which a public official has been entrusted (as in the case of a public official who accepts a bribe in order to turn his official powers to personal or otherwise corrupt ends), or grave wrongs in pursuit of governmental power (as in the case of someone who subverts democracy by using bribery or other nefarious means in order to secure government office and its powers, or in order to hold onto such office once attained). And, sure enough, even a cursory examination of the precise history of the phrase "high Crimes and Misdemeanors," and of the path that phrase took as it found its way from 14th century England into the Constitution of the United States in the summer of 1787, confirms that understanding of what the words meant.



3. Getting it right requires paying close attention to the historic evolution of the Impeachment Clause. The story is a lengthy one, but its relevant elements can be set forth briefly. The Constitutional Convention wrestled with various formulations of the grounds for impeaching and removing federal officials, starting out with phrases that focused on the abuse or non-use of official power -- phrases like "malpractice and neglect of duty"(14) and oscillating between variants that would have precluded impeachment and removal altogether in the case of the president, (15) and variants that leading delegates such as James Madison feared would reduce the president to a creature of the legislature.(16)



By late July 1787, the Committee of Detail had settled on "treason, bribery, or corruption" instead of "malpractice and neglect of duty,"(17) and shortly thereafter the reference to "corruption" was dropped.(18) On September 8, George Mason of Virginia objected that "treason and bribery" was too narrow.(19) That pair of words nicely captured the possibility that sufficiently grave assaults on the state, like high treason, might be carried out by a public official not through misuse of his official powers but in a traitorous sort of moonlighting -- shades of Aaron Burr come to mind, and of Jonathan Fassett, the Vermont assemblyman impeached by a state legislature in the colonial period for leading a mob that attempted to shut down a county court.(20) What, then, was missing? Not, apparently, room to multiply the examples of conduct injurious to the state but not involving abuse of official power. For Mason's proposed remedy for the narrowness he perceived was the addition of the term "maladministration,"(21) a term clearly limited to conduct involving improper use of the powers entrusted to a public official. Mason's argument for adding maladministration to treason and bribery was straightforward: There might be "attempts to subvert the Constitution" that would not fit the definitions of treason or of bribery but would nonetheless imperil the republic.(22)



James Madison did not disagree with Mason's reason for going beyond treason and bribery; he objected only to Mason's proposed solution in the notion of maladministration. And he objected not because he thought that notion too narrow, believing that conduct other than abuse of power should be impeachable, but because he feared that the breadth and vagueness of Mason's proposed addition would reduce the Executive to serving "during the pleasure of the Senate."(23) Mason then countered with an alternative borrowed directly from 14th century England: "other high crimes and misdemeanors against the State," which passed without debate (at least without debate recorded by Madison) by a vote of 8-3.(24) Immediately thereafter, "State" was replaced by "United States,"(25) which was in turn dropped without explanation by the Committee of Style when, on September 12, it reported the final language of the Impeachment Clause: "Treason, Bribery, or other high Crimes and Misdemeanors."(26)



There is no evidence that the deletion of the phrase "against the United States" was meant to do anything but eliminate a redundancy; the deletion appears to have been not substantive but stylistic, inasmuch as the very concept of "high Crimes and Misdemeanors," which when first used as early as 1386(27) denoted political crimes against the state, contained within its four corners the requirement that the system of government itself be the target of the wrong. Blackstone notes that the use of the word "high" in the context of treason implied not simply a more significant offense -- as in the notion of a major rather than a minor crime -- but, rather, an injury to the crown, distinguishing it from "petit treason," which involved betrayal of a private person.(28) For sufficiently grave abuses of official power -- abuses entailing encroachment on the prerogatives of another branch of government or usurpations of the power of popular consent and representation -- serious injury to the state seems implicit in the abuses themselves. But such injury to the state or, what amounts to the same thing, to the constitutional structure, may in exceptional cases be brought about by means other than an abuse of power entrusted to a public official. The judge or private citizen who lends support to an enemy engaged in an attack on the nation, or who leads a private mob in an attempted coup, does not abuse official power but threatens grave injury to the state, either in an act of treason or in what is surely "[an]other high Crime[] and Misdemeanor[]."



Although in the English practice impeachment was not even restricted to officeholders, much less to official misdeeds, and although the English practice did not limit penalties to removal from office and disqualification from further officeholding,(29) the American colonies, and later states, reacted against the enormous concentration of power in the legislature that borrowing these features of parliament's impeachment authority would entail. Influenced by the writings of John Adams and others, American states transformed impeachment by restricting it to officeholders, limiting it essentially to official misdeeds, and confining the punishment to removal and disqualification.(30)



Against this background, it apparently did not occur to the framers or ratifiers that some sufficiently monstrous but purely private crimes against individuals might require impeachment and removal of the criminal in order to safeguard the government and the people it serves. The ratification debates, like the debates at the Constitutional Convention, focused solely on high offenses against the state and on grave abuses of -- or gravely culpable failures to use -- official power. Thus, when Vice President Aaron Burr killed Alexander Hamilton in a duel in July 1804, leading to Burr's indictment for murder in New York and New Jersey,(31) Burr served out his term, which ended in early 1805, without any inquiry in the House of Representatives as to whether his murder of Hamilton might be an impeachable offense! Indeed, rather than urging their colleagues in the House to consider returning a bill of impeachment, eleven U.S. Senators wrote to the governor of New Jersey asking him to end the prosecution of the flamboyant Vice President, so as "to facilitate the public business by relieving the President of the Senate from the peculiar embarrassments of his present situation, and the Senate from the distressing imputation thrown on it, by holding up its President to the world as a common murderer."(32)



Today, I would suppose, the specter of being governed by "a common murderer" -- and of the United States being held up to the world as a nation so governed -- would lead at least some students of the English and colonial history to question whether the remedy of impeachment and removal must be withheld even from the most heinous of crimes, at least when committed by a sitting president, simply because the crime in question involved no abuse of presidential power and did not in itself endanger the nation as a polity. There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable omission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense.(33)



4. Exceptions to the general rule that an impeachable offense must itself severely threaten the system of government or constitute a grievous abuse of official power or both must not be permitted to swallow that rule. Both the text and the context we have examined, and the history of the phrase the framers used, preclude any casual movement from something like the example of murder committed by a sitting president to any broad notion that all serious crimes -- say, felonies involving the administration of justice -- are impeachable even if they are not committed through an abuse of the official powers entrusted to the alleged criminal, and even if their commission does not genuinely threaten the nation and its system of government.



It is always possible to argue, when confronted by a serious crime, that the system would crumble if everyone followed the wrongdoer's example. If everyone took President Richard Nixon's allegedly false filing of tax returns under oath, including backdating of documents, as a model to emulate, the nation's tax system, and thus its defenses, would crumble. Yet there was no realistic basis to suppose that the Nixon example would start any such stampede, and the simple proposition that, if all did as Nixon had done, the consequences would be catastrophic did not mislead the House Judiciary Committee into treating the President's alleged tax evasion as an impeachable offense: By a vote of 26-12, the Committee soundly declined to treat it as such.(34) Similarly, it is important to see the fallacy in the alluring argument that every instance of perjury, or of witness tampering, or of conspiracy to suppress evidence relevant to a civil proceeding or to a grand jury, significantly injures the legal system itself and thus the nation because, if everyone did it, the system obviously could not function. It is no doubt true that, if perjury and witness tampering became the order of the day, our government would be severely hurt. But if that were the test -- if an offense became impeachable even when it entailed no abuse of the offender's official position and caused no grave injury to the nation provided one could argue that such injury would ultimately occur if the offense became not exceptional but universal -- then the carefully crafted safeguards against legislative hegemony and presidential weakness hammered out at the Constitutional Convention would amount to nothing. Find a sitting president guilty of some offense that, if universalized, would bring down the system -- or maneuver the president into committing some such offense -- and one would, under the hypothesized test, have a solid basis for removing that president from office. These "sky is falling" arguments disrespect not only the Constitution's text and history; they disrespect common sense.



5. The Take Care Clause and the Presidential Oath of Office cannot properly be invoked so as to make the President of the United States more vulnerable to impeachment, conviction, and removal from office than other federal officials. We have already seen that the commission of a crime, whether state or federal, is neither a sufficient nor a necessary element of an impeachable offense. Indeed, the words "high Crimes and Misdemeanors" had little or nothing to do with the criminal law at the time they were incorporated into Article II of our Constitution; the term "misdemeanor" was not even employed in the criminal context, where it now connotes a minor offense, until centuries after the English period from which the framers borrowed it.(35)



All of that is true, some say, but the presidency is unique. The President alone takes a special oath whose every word is prescribed by the Constitution, an oath "faithfully to execute the Office of President of the United States and ... to the best of [his or her] Ability, preserve, protect and defend the Constitution of the United States." Article II, Section 1, clause 8. Beyond that oath, the President is enjoined by Article II, Section 3, clause 1 to "take Care that the Laws be faithfully executed." Thus, if the President should commit a federal crime -- not, it might be noted, a crime like murder, which typically violates only state law -- he or she will have failed to carry out the duty imposed by the Take Care Clause and, in a sense, will have violated his or her oath "faithfully to execute" the office.



Candor requires the concession that, for anyone who has not thought carefully about the Impeachment Clause and the consequences of this way of reading it, this line of argument has a beguiling simplicity and a down-to-earth appeal. But if this argument were to carry the day, it would follow that President Nixon should indeed have been impeached for filing a false tax return, and that presidents generally are in the unique position of being subject to impeachment and removal whenever it becomes possible to pin a federal offense -- any federal offense -- on them. Yet it simply cannot be the case under our Constitution that removing a sitting president should be easier, not harder, than removing a vice president, a cabinet officer, or a sitting federal judge. After all, the Constitution itself expressly recognizes the special gravity of what we do when we even try, much less remove, a president: It puts the Chief Justice of the United States in the chair to preside over the trial, something it does not do when any other federal officer, including the Vice President, is impeached and put on trial in the Senate. And, beyond this express recognition of how much is at stake, there is the brute fact that only when we put the President on trial are we placing one federal branch in a position to sit in judgment on another, empowering the Congress essentially to decapitate the Executive Branch in a single stroke -- and without the safeguards of judicial review. Neither of the other two branches of the national government is embodied in a single individual, so the application of the Impeachment Clause to the President of the United States involves the uniquely solemn act of having one branch essentially overthrow another. Moreover, in doing so, the legislative branch essentially cancels the results of the most solemn collective act of which we as a constitutional democracy are capable: the national election of a president. To suggest that, having deliberately rejected parliamentary supremacy at the founding of our republic, we should now embrace a theory that would make the President the most vulnerable of all federal officials to the drastic remedy of impeachment and removal -- truly the political equivalent of capital punishment -- is preposterous.



None of this is to say that the Take Care Clause is unimportant, or that presidential abuse that rises to an impeachable level might not take the form of a violation of that clause. Of course it might. Certainly, a president who ordered the IRS to stop collecting federal income taxes for six months as part of his reelection campaign, or the FDA to stop enforcing the laws against marijuana use because he was philosophically opposed to the regulation of marijuana or because he was widely known to have used it as a youth and feared accusations of hypocrisy, would have committed an impeachable high crime or misdemeanor of the most dramatic sort by shredding his obligation to execute the laws of the country. But that is a far cry from what occurs if a president personally violates several related federal criminal laws in the course of trying to cover up an embarrassing sexual affair, without turning any executive agency into an instrument of the president's wrongful conduct or otherwise abusing the powers of the presidency or working grave injury to the nation and its government.



Applying These Principles



It may be useful to contrast the conclusion that presidential misconduct even involving such offenses as perjury may, depending upon the circumstances, involve no abuse of official power and no serious harm to the system of government and hence no impeachable offense, with the potentially impeachable offenses that might have been uncovered -- and might yet be uncovered -- in the areas of inquiry with which the Office of Independent Counsel began its investigations of President Clinton more than four years ago. Thus, it remains theoretically possible that the President might be found to have committed impeachable offenses if there were convincing proof that he was personally connected to the allegations involved in "Filegate," where it is said that the White House procured some 400 FBI files on members of the Reagan and Bush administrations.(36) Clearly, a president who deliberately uses an executive agency to seek "dirt" on political opponents is abusing presidential power to undermine the political processes established by the Constitution and thereby cause the most serious injury to our constitutional system. There might even be circumstances in which a president, by deliberately looking the other way with a wink and a nod while lower executive officials performed such nefarious work while maintaining maximum plausible deniability for their chief, would have committed an impeachable violation of the Take Care Clause.



Similarly, if President Clinton were responsible for the abuses alleged in Travelgate, in which seven members of the White House travel office were fired in 1993 apparently to make room for a distant cousin of the President,(37) one might at least make a forceful argument that, despite the absence of serious harm to the nation as a whole, such corrupt misuse of presidential power would be so close to bribery that it too should qualify as a high crime and misdemeanor. So too if President Clinton had induced the Pentagon or The White House to break the ordinary hiring rules for that agency in order to find a sinecure for a young intern in exchange for her willingness to file a false affidavit.



But none of these things, and nothing truly comparable, has been alleged against President Clinton. Even if, for example, he arranged a job for the young woman in question at a private firm in the expectation that she would then be less likely to contradict his denial of any improper sexual affair, neither an abuse of presidential power as such, nor conduct demonstrably injurious to the nation, would have occurred, and impeachment would accordingly be improper.



The strongest case for identifying an impeachable offense in the allegations currently pending against the President is probably to be found in the claim that he committed perjury before the grand jury or obstructed its work not simply to avoid personal embarrassment and indictment for a private wrong (in the form of prior false statements under oath in a civil deposition into which the President felt he had been trapped), but to avoid a constitutional check by staving off impeachment -- even if the impeachment he sought to avoid would in fact have been unwarranted. If it could be shown that President Clinton deliberately sought to usurp the impeachment power of Congress -- part of which had been delegated through the Independent Counsel Act to the grand jury in this matter -- by preventing the referral called for in that Act from containing a full account of his own prior conduct, then at least the outlines of a high crime or misdemeanor might be visible.(38) But attributing to the President such a constitution-subverting program, rather than the more straightforward effort to minimize embarrassment and reduce the risk of criminal indictment, seems implausible and indeed unfair.(39) And, even assuming such an impeachment-triggering scheme, the threat of substantial harm to the nation that would be required to establish a high crime or misdemeanor is nowhere to be found.



Applying the principles set forth in this statement, therefore, I would be hard pressed to find in anything that has been alleged against President Clinton thus far a defensible basis to impeach and remove a president from office. What other options might be available to Congress in these circumstances, where the President himself has conceded that he behaved indefensibly, is beyond the scope of this statement. So too is the question whether, if indeed the public is tired of this whole matter and believes that the President has been made to suffer enough for his sins, Congress has some sort of obligation to let the matter rest.



One thing is clear in the latter regard: Anyone who insists that Congress has the converse obligation -- an obligation, having taken up the impeachment cudgels and begun to wield them in a setting that might on reflection prove ill-suited to such drastic remedies, to pursue this course to the bitter end -- is mistaken. Just as ordinary prosecutors have discretion not to push their power to the outer limits, and not to take to trial someone they believe it would serve no useful purpose to pursue further, so too the House of Representatives, entrusted by Article I, Section 2, clause 5, with the "sole Power of Impeachment," has discretion -- even more clearly than does the average prosecutor -- to cease and desist rather than pressing on. Article II, Section 4 contains only one mandatory provision: It mandates that the President or any other federal officer "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." If the Senate convicts, there is no room for clemency; the convicted offender must be removed. But that is the only "must" in the picture.



Some argue that, at least if something that might technically fit the definition of a high crime or misdemeanor is believed to have been committed by the President, the House has a "duty" under the Constitution to impeach the president and hand him over to the Senate for trial. But there is no more in the Constitution to support that argument than there is to support the argument that, having begun a formal impeachment inquiry, the House must see the matter through. The Constitution, in this matter as in many others, leaves ample room for judgment, even for wisdom, in the deployment of power. What it leaves no room for is the impeachment of a president who has not committed "Treason, Bribery, or other high Crimes and Misdemeanors."

1. 0 For identification purposes only.

2. 0 See John Rawls, A Theory of Justice 12 (1971).

3. 0 See, e.g., Laurence H. Tribe, American Constitutional Law 16 (2d ed. 1988).

4. 0 See, e.g., 116 Cong. Rec. H11913 (daily ed. Apr. 15, 1970) (statement of Rep. Gerald Ford). But four years later, Gerald Ford, as Vice President, said he could find no valid grounds to impeach President Richard Nixon. See Philip Shabecoff, N.Y. Times, at 1 (Jan. 16, 1974).

5. 0 See generally William H. Rehnquist, Grand Inquests 143-274 (1992).

6. 0 See Laurence H. Tribe, Taking Text And Structure Seriously: Reflections On Free-Form Method In Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1245-1248 (1995).

7. 0 See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38-47, 133-43 (1997)(dialogue with L. Tribe).

8. 0 2 Max Farrand, The Records of the Constitutional Convention of 1787 174 (1911).

9. 0 See id. at 2:443.

10. 0 See D.C. Law 10-257, 501(b), 42 DCR 53.

11. 0 See Ga. Code Ann. 16-6-2 (criminalizing oral sex and expressly excluding marriage as a defense).

12. 0 See La. Rev. Stat. Ann. 14:89 (criminalizing "unnatural carnal copulation" and making no exception for married couples); State v. Phillips, 365, So.2d 1304, 1308 (La. 1978) (holding that the statute includes oral sex).

13. 0 See Va. Code Ann. 18.2-361 (criminalizing oral sex and making no exception for married couples).

14. 0 1 Max Farrand, The Records of the Constitutional Convention of 1787 78 (1911).

15. 0 Although no surviving draft would have eliminated presidential impeachment altogether, that option was favored by Charles Pinckney of South Carolina, among other delegates. See id. at 2:64-69.

16. 0 See id. at 2:550.

17. 0 See id. at 2:172.

18. 0 See id. at 2:495.

19. 0 See id. at 2:550.

20. 0 See Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 84-85 (1984).

21. 0 See 2 Max Farrand, The Records of the Constitutional Convention of 1787 550 (1911).

22. 0 Id.

23. 0 Id.

24. 0 Id.

25. 0 See id. at 2:545.

26. 0 Id. at 2:600.

27. 0 See 1 Cobbett's Complete Collection of State Trials 89-91 (1809).

28. 0 See 4 Sir William Blackstone, Commentaries on the Laws of England 75 (15th ed. 1809).

29. 0 See Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 67 (1984).

30. 0 See id. at 64-67.

31. 0 See 1 Milton Lomask, Aaron Burr: The Years from Princeton to Vice President, 1756-1805 353-361 (1979). The New York murder indictment was quickly replaced, for want of jurisdiction, with the misdemeanor of uttering and sending a challenge. See id. at 357-58.

32. 0 Charles Biddle, Autobiography of Charles Biddle 308 (1883) (quoting the letter).

33. 0 See Charles L. Black, Impeachment: A Handbook 39 (1974) (advancing a similar argument).

34. 0 See Sam J. Ervin, Jr., The Whole Truth: The Watergate Conspiracy 282 (1980).

35. 0 See 2 Sir William Holdsworth, A History of English Law 357, 365 (4th ed. 1982).

36. 0 See John F. Harris & George Lardner, Jr., Key White House Figure in FBI Files Case on Leave, Wash. Post, at A1 (June 16, 1996).

37. 0 See Ann Devroy & Micheal Isikoff, Clinton Staff Went Past Reno to FBI, Wash. Post, at A1 (May 25, 1993).

38. 0 See Report of the House Judiciary Committee, Impeachment of Richard M. Nixon, President of the United States, Report No. 93-1305, at 188 (Aug. 20, 1974) (third article of impeachment) (alleging that Nixon had assumed "to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives").

39. 0 President Nixon's conduct in thwarting the work of the House Judiciary Committee involved efforts to conceal his own involvement in "actions demonstrated by other evidence to be substantial grounds for impeachment of the President," id., something that could not be said of any possible thwarting of the grand jury's inquiry by President Clinton, and something for which no explanation extrinsic to the Executive-Legislative clash could be offered.