Neglect of Duty
Duke of Buckingham (1626), misdemeanors, misprisions, offenses, and crimes: … neglected as great admiral to safeguard the seas….52
Peter Pett, Commissioner of the Navy (1688), high crimes and misdemeanors: negligent preparation for the Dutch invasion; loss of a ship through neglect to bring it to mooring.53
Buckingham and Pett were charged with safeguarding the seas; the president is charged with safeguarding the executive branch. Yet the president has habitually deflected charges of corruption or abuse of power by eagerly claiming the mantle of negligence and incompetence. That was the White House’s defense of, for example, Lippo operative John Huang’s access to classified material at Clinton’s Commerce Department; the disappearance of subpoenaed documents, such as the first lady’s billing records; the Travel Office firings; the FBI investigation of Billy Dale; the nine hundred FBI files being illegally reviewed by Craig Livingstone; the obstruction of the FBI’s investigation of Vince Foster’s office; the felonious solicitation or receipt of campaign donations by Vice President Al Gore54 and the first lady’s chief of staff, Maggie Williams; the presidential audience accorded “hustler” Johnny Chung. And so on, and on, and on.
The one common thread running through all these corrupt practices and abuses has been that Clinton was president. But forget what that might mean. The very least President Clinton can be accused of is neglect of duty—an impeachable offense. And this is the very claim the president invariably raises as his excuse.
“Mistakes were made” didn’t suffice to duck responsibility in the seventeenth century.
Betrayal of Trust
Buckingham put valuable ships within the grasp of the French, and when Orford weakened the navy while invasion threatened. (1626)55
After a one-year investigation into the transfer of technology to Red China by two American companies, the Pentagon concluded: “United States national security has been harmed.” But as the Justice Department was impaneling a grand jury, President Clinton gave the companies “a get-out-of-jail-free card.” They were big Clinton campaign contributors.
Why does Red China now operate the Long Beach Naval Facility?
Encroachment on or Contempt of Parliament’s Prerogatives
Sir Richard Gurney, lord mayor of London (1642), high crimes and misdemeanors: thwarted Parliament’s order to store arms and ammunition in storehouses.56
Chief Justice North (1680), high crimes and misdemeanors: assisted the Attorney General in drawing a proclamation to suppress petitions to the King to call a Parliament.57
Justice Berkley and other Justices were impeached for uttering opinions that Charles I could obtain “Ship Money Taxes” without resort to Parliament. (1637)58
One of the president’s most risible acts of lawlessness occurred on September 18, 1996, when he declared 1.7 million acres of state and federal lands in southern Utah a “National Monument.” Only Congress can create national wilderness areas or national parks. Congress was not about to declare this land a national wilderness: in addition to being remote, barren, and ugly, the area contained the Kaiparowits coal field, one of the largest untapped resources of high-Btu clean coal in North America.
But the president’s maneuver cut Congress out of the process by declaring the land a national “monument” under the Antiquities Act of 1906, which allows the president to so designate “objects of historic and scientific interest.” Some objects declared monuments under this act have been large—the Grand Tetons and the Grand Canyon, for example. But they have also been coherent natural objects… the Grand Tetons and the Grand Canyon, for example. Yet this was merely undistinguished land mass. It was an encroachment on Congress’s prerogatives to designate wilderness areas.
Various Utah counties and administrative agencies promptly sued the president for this “mother of all land grabs,” as Senator Orrin Hatch (R-UT) called it. According to some in the Utah delegation, Clinton’s interest in blocking the use of clean coal mines in southern Utah may be explained by the alternative source for high-grade coal: Indonesian coal mines, owned by Clinton’s friends, the Lippo Group.59
Misapplication of Funds
Chancellor Michael de la Pole, Earl of Suffolk (1386), high crimes and misdemeanors: applied appropriated funds to purposes other than those specified.60
Sir Edward Seymour (1680), high crimes and misdemeanors: applied appropriated funds to public purposes other than those specified.61
One of the least noticed facets of the cover-up of Vince Foster’s office after his suicide is that he had been performing personal legal work for the Clintons. Government lawyers are not supposed to be running their private legal practices out of the Department of Justice or the White House. Forget whatever corrupt dealings Foster may have been working on in his White House office—Bernard Nussbaum squirreled those away, and, as one senator put it, “the American people will never know really what was in there.” Foster was not given a White House office and a government salary so he could perform personal legal work for the Clintons.
President Clinton isn’t even embarrassed about using government staff for his multifarious legal problems: his administration has boldly raised the attorney-client privilege to block testimony about any communications between the Clintons and their taxpayer-supported White House lawyers. The communications have absolutely nothing whatsoever to do with official White House business. In order to obstruct justice, Clinton casually cites his administration’s misapplication of government funds.
AMERICAN RIPPLE: NO KING
Though the framers were adopting a “term of art” when they designated “high Crimes and Misdemeanors” as impeachable offenses, they were inserting it in a Constitution “established by the people and unalterable by the government.”62 Impeachable offenses would clearly have new color and tone under a constitutional republic.
For openers, there was no king; the Constitution was “paramount.” 63 In the English system anyone could be impeached, save members of the royal family. By contrast, impeachment American-style was pointedly directed toward impeaching the very nonroyal president—though all other civil officers remain impeachable, as well. The president could be impeached, as Madison said, merely for “neglect[ing] to superintend” his subordinates, thus allowing them to perpetrate with impunity their own impeachable offenses.64 And, of course, the Constitution’s impeachment power was praised at the state ratifying conventions for applying to a president who himself “misbehaves”65 or “behave[s] amiss.”66
The other difference is that conviction for high crimes and misdemeanors in the English system might be consummated with a hanging or, at the very least, a prison sentence. This is striking since an impeachable offense was never thought to require criminal conduct, even in Great Britain. But it was used as a weapon against great abuses of power by the king’s ministers—or the “tools of royal oppression.” The idea was to impeach and hang the king’s ministers before they hanged the impeaching officers.67
In American impeachments, the punishment can be only removal from office and possibly a prohibition on holding any other office of public trust with the United States. Quite obviously, lesser punishments presuppose lesser crimes.
Moreover, such punishments also suggest a particular kind of offense: high crimes and misdemeanors in the American system were intended to address “the misconduct of public men.” As Hamilton noted, impeachable offenses are those that violate “some public trust.” It is simply “the first step in a remedial process.”68 In the words of the Rodino Report, “The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government.”69
Section 3 of the Rodino Report, titled “Grounds For Impeachment,” cites numerous statements from the Constitutional Convention, the state ratifying conventions, and constitutional scholars describing impeachable offenses under the new Constitution:
[T]hose who behave amiss, or betray their public trust.
—C
harles Cotesworth Pinckney of South Carolina70
The President may be impeached if he “misbehaves.”
—Edmund Randolph of Virginia71
The President using his pardoning power to “pardon crimes which were advised by himself.”
—George Mason of Virginia
If the President were to “stop inquiry and prevent detection” before indictment or conviction.72
[P]olitical offenses, growing out of personal misconduct…
—Justice Joseph Story, Commentaries on the Constitution73
As the Rodino Report notes, “From the comments of the framers and their contemporaries, the remarks of delegates to the state ratifying conventions, and the removal power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly.” Nor, in practice, have Americans ever viewed the impeachment remedy narrowly. The seven federal impeachment convictions in the nation’s history were for:• Drunkenness and Senility (Judge John Pickering, U.S. District Judge for the District of New Hampshire—1803-1804);
• Incitement to Revolt and Rebellion Against the Nation (Judge West W. Humphreys, U.S. District Court Judge for the District of Tennessee—1862);
• Bribery (Judge Robert W. Archibald, Circuit Judge, U.S. Court of Appeals for the Third Circuit—1912-1913);
• Kickbacks and Tax Evasion (Judge Halstead Ritter, U.S. District Court Judge for the Southern District of Florida—1936);
• Tax Evasion (Judge Harry E. Claiborne, U.S. District Judge for the District of Nevada—1986);
• Conspiracy to Solicit a Bribe (Judge Alcee Hastings, U.S. District Judge for the Southern District of Florida—1988-1989);
• False Statements to a Grand Jury (Judge Walter L. Nixon, Jr., U.S. District Judge for the Southern District of Mississippi—1988—1989).74
Impeachment “of dreary little judges for squalid misconduct,”75 including purely personal misconduct, was consistent with the purpose of impeachment in a self-governing republic.
THE IMPEACHMENT OF PRESIDENT JOHNSON: NOT POLICY
The 1868 impeachment of President Andrew Johnson, and his hairsbreadth escape from removal by the Senate, illustrates the difficulty of meeting the requirement of a two-thirds Senate vote, even during an era when Congress would just as soon impeach the president as override his veto. Congress was whipped up over President Johnson’s opposition to its Radical Reconstruction designs on the South after the Civil War.76
Without going into great detail about the policy and constitutional disputes between Congress and President Johnson, both had plausible arguments.77 Immediately after the Civil War, Congress refused to recognize the congressional delegations sent by the eleven southern states. With the abolition of slavery, the size of congressional delegations was no longer limited by the threefifths rule for slaves. Obviously, but ironically, this was a great boon to the southern delegations. The North did not relish the prospect of losing in the legislature what it had just won on the battlefield. Still, Johnson believed Congress was acting unconstitutionally, that states had the right to choose their own delegations to Congress. A war had just been fought to keep the southern states from seceding, and now Congress was essentially telling southerners they couldn’t quit, they were being fired.
Johnson communicated his view by refusing to recognize the laws enacted by this Northern-only Congress. Johnson vetoed a series of Reconstruction bills and refused to enforce the military occupation of the Southern states. The final straw came when he fired Secretary of War Edwin Stanton, who was overseeing the military reconstruction in the South. Anticipating just this action, Congress had recently enacted the Tenure of Office Act of March 2, 1867. The Tenure Act required Senate approval for Stanton’s removal. Impeachment proceedings were begun immediately for Johnson’s refusal to obey the Tenure Act, a law he correctly perceived to be unconstitutional.
Articles of Impeachment were enacted by the House on March 3, 1868; they were sent to the Senate on March 5; and the trial began March 30. A request by the defense for more time before beginning the trial was refused. And when the defense counsel took ill during the proceedings and requested an adjournment for a day or two, the prosecutor’s response to the request, which typically would be “honored without demur,”78 was Kennedyesque demagoguery, with shades of the “Robert Bork’s America” speech.79 Congressman Benjamin Butler said: “[W]hile we are waiting for the attorney general to get well… numbers of our fellow citizens are being murdered day by day. There is not a man here who does not know that the moment justice is done on this great criminal [President Johnson] these murders will cease.”80
Feeling against Johnson was bitter. Indeed, Johnson had failed so stupendously to ingratiate himself with Congress81 that one of the managers of the prosecution called for abolishing the presidency altogether if the president was so uppity that he refused to follow an unconstitutional law.82 Another House manager proposed charging Johnson as an accessory to Lincoln’s murder.83
More than a century later all indications are that the president has hit up a White House intern for oral sex, sexually assaulted a White House volunteer, obstructed justice, suborned perjury, and perjured himself, among many other infractions. The leader of the Senate—and the opposition party—quickly stepped to the plate… to criticize the prosecutor. They don’t make opposition parties like they used to.
In the case of Johnson’s impeachment, what the spunky 1868 Congress had in the way of enthusiasm, it lacked in constitutional authority. The mistake Congress made with respect to impeachment was to think mere policy disagreements sufficed for an impeachment. A policy disagreement is an example of what impeachment was not intended to address. In the words of constitutional scholar Raoul Berger, “A president… is not to be removed merely for differing with Congress.”84 Each branch of government has its arsenal of powers by which it may frustrate the will of another.
As Supreme Court Justice Louis Brandeis explained in his duly famous description of the Constitution’s distribution of powers:The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. 85
Opposing Congress’s will, within his constitutionally delegated powers, was Johnson’s offense, and for that he was impeached. Mercifully, the two-thirds vote requirement was stiff enough to save Johnson—by a single vote—from conviction and removal by the Senate. Today, it seems, one would need a five-person vote requirement in the “Republican Senate,” to say nothing of the constitution’s two-thirds vote requirement, to remove any president for even enormous, impeachable crimes.
THE NEAR IMPEACHMENT OF PRESIDENT NIXON
Whatever one thinks of the “evolving Constitution,” the framers’ abstract statements about what could get a president impeached are not as powerful as what almost got a president impeached, and did lead to a president’s resignation, just a couple of decades ago. Watergate is recent precedent. The articles of impeachment against President Nixon constitute compelling evidence of the sort of conduct that constitutes a “high Crime and Misdemeanor.”
Impeachment proceedings against President Nixon were set in motion not by the underlying crime committed by persons known to the president but by Nixon’s resistance to the investigation. Nixon refused to produce tapes of his conversations with top advisers, claiming executive privilege.86 He offered a series of compromises including providing the grand jury with summaries of “private presidential papers and meetings,” to be authenticated by a Democratic senator—albeit a “nearly deaf” Democratic senator.87 Special Prosecutor Archibald Cox refused to entertain these offers, believing he was entitled to every man’s evidence, including the president’s.
The special prosecutor served at the pleasure of the president, so on Saturday, October 20,
1973, the president ordered him fired, and the investigation returned to the “career professionals” at the Department of Justice. But Attorney General Elliot Richardson immediately resigned rather than follow the president’s order; Nixon then called on Deputy Attorney General William Ruckelshaus, who likewise refused to fire Cox and resigned instead.
That was it. The following Tuesday impeachment resolutions in the House were “raining down.”88 Though the polls showed substantial majorities of Americans opposed removing the president through impeachment,89 that Congress was not cowed by the polls, and formal impeachment hearings were begun in the House. They don’t even make opposition parties like they used to twenty-five years ago.
President Richard Nixon became the second president to face impeachment hearings in more than one hundred years. Almost a year later—after the Supreme Court had, on July 24, 1974, rejected Nixon’s executive privilege claim for all presidential communications—he became the first president to resign.