They were erecting a moral standard because they believed that only virtuous men could maintain a republic. As one constitutional scholar has pointed out, acts unrelated to job performance are proper subjects for impeachment because “a perjurer or a forger simply could not command the public respect indispensable to the administration of justice.”20 Note, though, that even in the case of perjury or forgery—criminal acts—the rationale is not simply that the officer has violated the criminal law, but that such a violation discredits his office, and that failure to punish it would damage the government.
Impeachment was the means by which the Republic would defend itself from officeholders who could no longer command the public’s trust. As Hamilton stated: “Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment.”21 The framers recognized that the credibility of the government would be undermined and the nation threatened if the president, judges, or other government officers were seen to be personally corrupt or self-aggrandizing, as if they were above the law.
SUBSTANCE AND MEANING
Despite its six hundred years of history, the term “high Crimes and Misdemeanors” has been unfairly described as meaning “whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.”22 This is a statement about procedure rather than substance.
As a procedural matter it is true that, theoretically, the House could impeach and the Senate could convict for an offense that is not a “high Crime and Misdemeanor.”
All this means is that no one could stop them, just as no one could stop the Senate from concluding in 1797 that senators are exempt from impeachment. (If they thought they could get away with it, the Senate might conclude that senators are immune from elections, too.) Similarly, the House, Senate, president, and Supreme Court can all pretend that Roscoe Filburn growing wheat on his lot to feed to his livestock affects commerce under the Constitution. There is no appeal from an unconstitutional Supreme Court ruling, just as there is no appeal from an impeachment conviction. But the absence of an appeal doesn’t mean “high Crimes and Misdemeanors” has no meaning, any more than “affecting commerce” or any other particular set of words in the Constitution has no meaning.
The general categories of impeachable conduct that developed in the four hundred years of use in Great Britain were these:• corruption
• betrayal of trust
• abuse of official power
• neglect of duty
• encroachment on Parliament’s prerogatives
• misapplication of funds
Examples of impeachable conduct by officeholders included appointing “unfit persons to office” (often relatives and retainers). These were offices they had the strictly legal right to fill, so at worst this was mere neglect of duty. But appointing “unfit persons” denied the king’s subjects the benefits of just and efficient administration. Similarly, Justice Joseph Story included as an impeachable offense “habitual disregard of the public interests, in the discharge of the duties of political office.”23
English courtiers were impeached for persuading the king to give them excessive gifts. These favors from the crown were not in themselves illegal, but it was held that using their access to the king for personal benefit was an abuse of power.
Obviously, the categories tend to bleed into one another and specific incidents might fall into more than one category. For example, compromising the country’s national security interests by leasing ports to the Chinese government or granting waivers for the transfer of sensitive technology could constitute corruption, betrayal of trust, or neglect of duty. Using the FBI and the IRS to harass a civil servant whose pink slip was sought by the president’s friend and contributor might qualify as corruption, abuse of power, or neglect of duty (if the president was simply unaware of his subordinate’s machinations). Granting perks and government jobs to people whose silence is sought constitutes corruption, abuse of power, and betrayal of trust—perhaps even misapplication of funds.
THE PROMISED LAND
Despite the high-sounding nature of these categories from the old country, oral sex from the interns in the Oval Office will do. Even in England impeachable conduct included personal vices. Men of weak character would place the government in disrepute. As was remarked in one English case, officers of the crown should not act so as to bring “scandal on the public justice of the Kingdom.”
But when the impeachment device made its way across the ocean to America, it was inserted into a Constitution that created a government unlike any other. The different context gave impeachments a different color. Watergate-era cliches about the president “subverting constitutional government” were overwrought rhetoric then; this is not the standard now. To paraphrase the current “just about sex” line, Watergate was about a two-bit breaking and entering. And unlike with Monica Lewinsky, it wasn’t committed by the president, or even by people who worked at his White House, but by people who worked for his campaign committee. Grand-sounding treacheries weren’t required by the framers, weren’t required for Nixon, and aren’t required now. It’s enough for the president to be a pervert.
The British categories for high crimes and misdemeanors weren’t rejected by the framers so much as they were expanded and reshuffled for use in a different country. The Philadelphia convention in 1787 adopted the impeachment remedy in the process of creating the first government in the history of the world that would have separated powers, checks and balances, and sharply limited powers. And, of course, no king. The reach and purposes of impeachment would be different in a constitutional republic. Personal misconduct took on a larger role in impeachments, for example, and policy disputes became irrelevant to impeachable conduct.
Impeachments in Great Britain had been used as a weapon in the ongoing and turbulent power struggle between Parliament and the king. Describing the standard reason for an impeachment, the Earl of Danby, a leader of the impeachment of Clarendon, said that if he did not succeed in hanging Clarendon for high treason, he, the Earl of Danby himself, would be hanged instead.24 (And in the “whirligig of politics” the Earl of Danby was in fact later impeached—but only imprisoned.25) The king could not be impeached, but Parliament could weaken him by impeaching his ministers.
Consequently, impeachments in Great Britain tended to fall into ponderous, grand-sounding categories such as “abuse of power” and “encroachment on Parliament’s prerogatives.” Meanwhile, actual impeachments in this country have been for things like “consorting with harlots” and “drunkenness.”
The only impeachment convictions ever rendered by the United States Senate were for the high crimes and misdemeanors of: Drunkenness and Senility; Incitement to Revolt and Rebellion Against the Nation; Bribery; Kickbacks and Tax Evasion; Tax Evasion; Conspiracy to Solicit a Bribe; and False Statements to a Grand Jury.26 While Clinton’s defenders act as if an impeachable offense must be some immediate threat to the nation—such as the discovery that the president was conspiring with communist agents to turn over vital missile technology to Red China—impeachment was intended to be used, and always has been used, to remove officers who simply “behave amiss.”
Impeachment scholar Raoul Berger remarked of impeachment American-style: “Once initiated to topple giants… impeachment has sunk in this country to the ouster of dreary little judges for squalid misconduct.”27 But the American variations on impeachable crimes flow directly from the Constitution itself. Power struggles were resolved in advance by the Constitution; others would be resolved with constitutional mechanisms such as presidential vetoes, veto overrides, and judicial review.
Another difference between impeachment in Great Britain and impeachment in this country is that Congress does not have the au
thority to hang or otherwise punish the impeached officers. Some might say that eliminating the possibility of beheading or hanging cabinet officials for “treasons” defined retrospectively by the legislature was a step up.
One additional distinction the Constitution requires is this: policy disputes are not supposed to be resolved by resort to impeachment. Since impeachment was used in Great Britain as a weapon against a king whose veto Parliament could not override, impeachments frequently addressed policy disputes with the king. (These were often resolved with a hanging.) Members of Parliament couldn’t stop the king from entering into treaties they didn’t like, but they could impeach his ministers who gave the king such “bad advice.”28 This was really a method to “condemn policies which they believed pernicious to the realm.”29
By contrast, the Constitution gives Congress plenty of tools, short of impeachment, to oppose a president’s “pernicious” policies. Moreover, the chief magistrate would not govern by divine right, but by the consent of the people. Elections decide policy; impeachments judge character. Staging impeachments over policy disagreements doesn’t make sense in the context of the American Constitution.
That policy disagreements cannot form the basis for an impeachable offense in this country is more than a logical deduction from the structure and purposes of the Constitution. At the Constitutional Convention, Madison explicitly rejected “maladministration” as a ground for impeachment. He said “so vague a term will be equivalent to a tenure during the pleasure of the Senate.” (And thus, “high Crimes and Misdemeanors” was adopted instead.)30
Other comments from the framers further demonstrate that the purposes of impeachment did not include policy disputes—but did include personal misconduct. Edmund Randolph said, for example: “No man ever thought of impeaching a man for an opinion. It would be impossible to discover whether the error in opinion resulted from a wilful mistake of the heart, or an involuntary fault of the head.”31 Apparently, a “wilful mistake of the heart,” when discernable, would constitute grounds for impeachment and removal.
When Hamilton described impeachable offenses as “political,” he did not mean partisan. The president cannot be impeached for issuing executive orders that are strongly opposed by New York Times columnist Anthony Lewis. Rather, high crimes and misdemeanors are “political” in the sense that they “relate chiefly to injuries done immediately to the society itself.”32 Since policy matters are necessarily off the table, in a sense, that leaves only “personal misconduct,” or as Edmund Randolph put it, “wilful mistakes of the heart.”
Perhaps the more significant American innovation on impeachment was that the chief magistrate could be impeached. Indeed, it was the president the framers had in mind when they drafted the impeachment clauses.
Having just fought a war to get rid of a king, the framers had “the perfidy of the chief magistrate”33 clearly in their sights when they included broad grounds for impeachment. They discussed the Constitution’s impeachment power in terms of removing a president who “misbehaves” or “behave [s] amiss,” as two of the delegates put it.34 Madison wrote that impeachment was meant to remove presidents for “incapacity, negligence, or perfidy.”35 And Hamilton wrote that the entire process of selecting a president was designed to ensure that “some fit person” notable for “ability and virtue” would be chosen for that office. As a back-up mechanism to prevent rogues from holding office, they provided for impeachment.
To have the president’s behavior propel the country into a national discussion of whether oral sex counts as adultery would have been a blatant “high Crime and Misdemeanor,” if the framers could possibly have imagined any president would sink so low.
THE LAST TIME
But one doesn’t have to look back to the Constitutional Convention for the standards. This country last faced the need to remove a president just twenty-five years ago during the presidential scandal known as “Watergate.” Half the country actually lived through this most recent precedent for impeaching a president.
On July 27, 1974, the House Judiciary Committee adopted three articles of impeachment against Richard Nixon. The charges against him were neatly summarized in two sentences at the bottom of the indictment:In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.
Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.
To say that Nixon was forced to resign for acting in a manner “subversive of constitutional government” is meaningless without knowing what acts comprised that “subversion.” In brief, Nixon’s subversion consisted of: One presidential lie, one invocation of presidential privilege, and zero criminal offenses.36 The standard for “constitutional government subversion”—or whatever the impeachable offense is called—should not be a function of poll numbers plus the misery index.
Impeachment, as the country was reminded in 1974, is intended to reinforce the heavy constitutional cables that hold even heads of state to the rule of law. If a president can slip these cables, we no longer have a constitutional republic. We end up with an “Imperial President,” as Anthony Lewis and Company ceaselessly intoned during the Nixon presidency, right on up to the election of President Carter (to be reintroduced during the Reagan years).37
As Nixon discovered, the president’s obligations go far beyond the requirement that he not criminally obstruct justice. Madison explained, “If the President be connected, in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.” Using the power of the presidency to “pardon crimes which were advised by himself ” or to “stop inquiry and prevent detection” of crimes was, according to Madison, an impeachable offense.38
Nixon talked about political audits by the IRS, but no political audits were ever conducted (except of Nixon himself). Nixon invoked one privilege one time (and this was somewhat legitimate, since the Supreme Court did in fact recognize a brand new legal privilege). Nixon permitted his subordinates to delay one investigation once—for two weeks.
The worst that could be said of Nixon’s alleged “obstruction of justice” was that he thought the president had a right to fight a legal case, just like a private citizen might. But as Nixon’s first special prosecutor, Archibald Cox, said, “[T]here is a radical difference between what people expect of a president and his aides and what they will cynically tolerate from time to time in municipal aldermen or county commissioners.” A president cannot act like a municipal alderman; he certainly should not be able to act like O.J.39
If Nixon telling one lie, not under oath, constituted the creation of an “Imperial Presidency”40 demanding the president’s impeachment, what has Clinton created by telling repeated lies, not only to the public, but under oath?
Lying to the American people is a clear betrayal of trust. There is no question that this is an impeachable offense, assuming the “lie” does not fall under the president’s duties, such as protecting the military as commander in chief. That may sound odd, given how thoroughly politicians are associated in the public eye with lying. But throughout American history, acknowledged instances of presidents lying to the nation are both rare and notorious.
In fact, Nixon’s lie—that the White House had conducted its own internal investigation of the Watergate break-in and found that no White House personnel had been involved—was actually cited in the first article of impeachment voted by the Rodino Committee. Article I charged Nixon with, among other things, “making or causing to be made false or misleading statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted…” (emphasis added).
The Watergate special prosecutor, Leon Jaworski, said of Nixon’s dis
grace and resignation: “What sank him was his lying.”41 Even President Nixon’s most loyal defenders abandoned his cause when they found that he had indeed lied to the public. Just on one point. “The problem is not Watergate or the cover-up.… It’s that he hasn’t been telling the truth to the American people…. The tape makes it evident that he hasn’t leveled with the country for probably eighteen months. And the President can’t lead a country he has deliberately misled for a year and a half.”42 That, incidentally, was how Nixon’s speechwriter, Pat Buchanan, explained to Julie Nixon that her father had to go.
Meanwhile, President Clinton has lied repeatedly, openly, and directly to the American people. He does not even seem to care whether there is a plausible sense in which his lies might be justified as half-truths—so long as he can get away with the lie, even temporarily. During the 1992 presidential campaign he brushed off his affair with Gennifer Flowers and his status as a draftdodger with this doggerel deceit: “a woman I never had sex with and a draft I never dodged.” Six years and countless lies later, he had taken to giving the country schoolmarm lectures, knowing his word would not be believed: “Listen to me… I never had sexual relations with that woman [Monica Lewinsky].” Clinton defender Lanny Davis is no Pat Buchanan.
Even the president’s few remaining defenders in the criminal defense bar don’t bother pretending to believe him anymore. They say his lies about Gennifer, Paula, Kathleen, and Monica don’t matter because those are “about sex.” No, actually, not all his lies are “about sex”; the lies “about sex” just happen to be the ones he told under oath. It’s impossible even to keep track of all the lies he has told. As Democratic Senator Bob Kerrey casually remarked of the president, “Clinton’s an unusually good liar. Unusually good. Do you realize that?”43