Constitution Watch: The Impeachment of America

‘‘Raising his voice [in the House of Commons] till the arches of Irish oak resounded, he spoke.” Thus does Macaulay begin his account of Edmund Burke’s celebrated speech in 1788, pressing for the impeachment of Warren Hastings. Burke had brought forth a mass of evidence of “high crimes and misdemeanors” by Hastings, Governor-General of India. With the aid of a brace of lawyers, Hastings had tried to stonewall the proceedings. An exasperated Burke responded: “These gentlemen of the law, driving us from law to law, would, in the end, leave us with no law at all.” Hastings pleaded that he had done nothing that others before him had not done. Burke retorted that Hastings’ judges should “not derive their principles from the wicked, corrupt, and abominable practices of any man whatever.” He said that “statesmen who abuse their positions … are tried … not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of morality.” His stirring peroration was an appeal to God’s higher law and spoke of the national honor (“I impeach him in the name of the English nation whose honor he has sullied”), and of a public trust “betrayed.” Burke’s conception of impeachment has long been held in England and America as definitive.

In the American Constitution’s Article II, Section 4, the framers provided that all officers of the United States “shall be removed from Office on Impeachment for and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” At a time of widespread constitutional illiteracy, deliberate constitutional contrivance, and the related question of the impeachment of William Jefferson Clinton, our focus needs riveting on the real meaning of that clause. Under it, is the president impeachable? What significance does it bear for our society if Clinton is not impeached and convicted?

The framers’ aim was to protect society against what English law called “great offences” (not only crimes like treason and bribery, but abuse of power, misapplication of public funds, gross dishonor of office, and corruption). The power of impeachment was deemed essential by the framers to the protection of the liberty of a democratic society. Inherent, too, in the eyes of the framers, was their view that the nation must have virtuous leaders for its very safety; impeachment was a powerful weapon to help assure that. And the framers deemed virtuous character essential to no office of leadership more than to the presidency. The historic model is George Washington, no saint before becoming president, but determined, once in office, to honor the office by maintaining spotlessness of character.

The effect of conviction of a president following impeachment is severe. Hamilton, in The Federalist Papers, describes it as “a perpetual ostracism from the esteem and confidence and honors and emoluments of his country.” But, contrary to off-the-mark comment rife today, the impeachment clause does not speak of “punishment.” Conviction results simply in removal from office (with disqualification, under Article I, Section 4, to ever again hold any federal office of trust or profit). Some, at this hour, insist that the evidence in the proceedings must establish “proof beyond a reasonable doubt.” That, too, is wide of the mark. The impeachment process may involve a criminal, but it is not a criminal proceeding. The pragmatic framers mandated impeachment simply when a majority in the House believe grounds exist—and conviction, when, after a trial of the issues, two-thirds of the Senate agree—a solid safeguard for an incumbent against arbitrary action. And the principled pragmatism of the framers shows itself in yet another aspect of the Impeachment Clause: its breadth. The nation has available a clause for its protection, very broad in terms, “not limited to the niceties of a narrow jurisprudence.”

The House of Representatives, on October 6 of last year, voted 258 to 176 to pursue an impeachment inquiry in response to the Starr Report, thus setting in motion the train of events that has culminated in an historic constitutional crisis. The report did not charge the president with treason or bribery but detailed eleven charges of other impeachable offenses. These changes Starr amplified on November 19 in his lengthy appearance before the House Judiciary Committee. While Starr has all along been the subject of vehement attacks, his Report and the subsequent actions of the House have unleashed a tidal wave of comment on impeachment, seemingly designed to satisfy the public’s right to be misinformed.

Some of this comment has been political in a way plain for all to see but, as such, highly persuasive to multitudes. This is the “our President as victim—Starr as McCarthy” imagery. The bias it packs has had, from October on, the potential to collapse the pursuit of Starr’s charges—a collapse by which we will have taken a further step in our disregard for the Constitution. But a purely political resolution of the impeachment crisis has not been the sole reliance of those who decry the impeachment effort. They have resorted to publicizing interpretations of the Constitution that, if suffered to be acknowledged in our polity, will be precedent that will certainly be more destructive of the constitutional rule of law than a simple down vote on an impeachment resolution. Consider the most publicized of these interpretations:

It is argued that the framers simply had no clear intent in drafting Article II, Section 4: It means anything each generation wants it to. Which is to say, it should be regarded as, in fact, void for vagueness. On that view a president may be held to account for his misdeeds only through the processes of criminal law or by correction through the political process—not by ouster of even the most evil of occupants. Such was the psychology that ensued following the failure of the House’s 1867 impeachment of Andrew Johnson to produce conviction. But does not this view, leaving a hole in the Constitution, deprive the people of an invaluable weapon for the protection of the liberty of a democratic society? So it was believed, a century later, in the impeachment proceedings against Richard Nixon. Harvard Law Professor Laurence Tribe saw the Nixon impeachment articles as embracing the English common law’s specifications of the “great offences.” This revival of strict constitutionalism by the Congress was then celebrated by no end of liberal academicians.

It is also argued that, even if the impeachment clause is not unmanageably vague, it can’t be applied to a president for any misconduct in office except his actual commission of a crime. Even assuming that Clinton committed no crimes, the Nixon case is again instructive. There the House Judiciary Committee had based two of its articles of impeachment, not on alleged criminal conduct of Nixon, but upon “gross breach of trust or serious abuse of power”—those “great offences” Congress deemed to fall within the meaning of “high crimes and misdemeanors.”

Dead wrong in their refusal to apply the Nixon impeachment principle to Clinton (and thus, their implied repudiation of controlling common law principle), a group of academicians, in a full-page ad in the New York Times on October 30, sought to move the case against impeachment to new ground—or, more exactly, to outer space. These were “Historians in Defense of the Constitution.” In hyperbole close to hysteria, the historians said that the ongoing impeachment process, if carried forward, “will leave the presidency permanently disfigured and diminished.” Is it not strange that the impeachment process, not Clinton, would be thought to leave the presidency “disfigured and diminished?” Not at all. Here was a careful, orchestrated ploy, captained by Arthur M. Schlesinger, with 390 academicians signing onto a piece of propaganda—propaganda, because it avoided any discussion of the constitutional issues, because it wallowed in theatrics (“protracted national agony”), and because it echoed stock partisan jargon (“get back to the public business”). I was interested in what the professors would have to pay for this ad and was told by the Times that such a presentation would cost at least $75,000. That would be about $200 a head—a noble sacrifice for the professors to make “in defense of the Constitution.” But perhaps only their signatures, not their money, had been solicited for this costly political promotion.

It is argued by Lloyd Cutler, former counsel to Clinton, that a president is elected by all the people and for a limited term, and that involving him in impeachment proceedings would seriously impair his ability to exercise his duties of office. Cutler’s first two points are obvious. But this president, if the sworn testimony in the Starr Report is to be believed, has freely indulged official time in planned and dangerous liaisons, night and day. Is this believable?

Starr’s essential case—his Report— is a document unread by most of the public. No admirer of Clinton, I nevertheless read Starr’s Report with the harsh demeanor an attorney must show in preparing a witness before he puts him on the stand in trial: Assume that he is wrong in everything he says, test him to the limit. Reading the Report with determined skepticism, I found it a masterpiece of cogent, diligent, and ethical labor. Starr has observed the demands of his commission and carefully stayed within its limitations. All of this he confirmed by his sterling performance on November 19 before the House Judiciary Committee.

While his critics have insisted that due process has been denied because the president was given no chance to cross-examine adverse witnesses, the hearings’ records are now closed following testimonies by Clinton in which his attorneys had every opportunity to rebut charges against him. So too with the record of the charges of obstruction of justice. Nothing in the ensuing Judiciary Committee hearings has disturbed Starr’s charges. It is said that the charges of perjury are to be dismissed because they concerned the private and, some say, morally trivial matter of kinky sex with a kinky girl—which is not, as Clinton devotees so rightly say, “official business.” But the report’s message is that the subject matter of his perjury is irrelevant. While Clinton’s critics, on this point, rightly declaim him for “lying under oath,” their stress is mostly on lying and perhaps too little on oath. It is doubtless due to our culture’s submissiveness to secularism that we rarely any more hear of the significance of the oath.

But oaths, because they are essential to the protection of the public, are weighted with meaning and importance higher and heavier than the pledge given in, say, the signing of contracts. The oath is the keystone of our judicial system. Trivializing it as merely ceremonial diminishes the meaning of perjury, and minimizes sanctions for it, leading inevitably to the dissolution of the rule of law. Bearing in mind not only oaths of the multitude of public officers throughout the nation, but the myriad lawsuits and criminal proceedings in which the interests of the public and individuals are involved, it is clear that the “rule of law” is not some philosopher’s ideal but is something intimately connected to our daily lives.

As I write, a momentous implosion is occurring in the Congress. On the day you read this, that implosion may be history. But should a decision have ensued not to convict Clinton, or, worse, a failure even to impeach him, our people will have judged themselves by that inaction. A “death of outrage,” yes, but, in that fact, a birth—the birth of the monster of lawlessness, tiny now, but with the promise of chaos to come. America, by complicity, will have impeached itself.

William Bentley Ball

By

William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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