Mr. BARRETT. I know, I didn't say you have. I think others have indicated if there is some sort of agreement to be worked out, it could be worked out in the Senate. My question to you is whether you think there are any constitutional underpinnings for that to

occur.

Mr. MCGINNIS. No.

Mr. BARRETT. Do you think that every impeachable offense requires impeachment in the House?

Mr. MCGINNIS. No. I read the Constitution to say that everyone must be removed if they are impeached. I don't think the Constitution says you impeach every person. I associate myself with Professor Parker in that sense. It is a two-step process.

Mr. BARRETT. So if there is, if I can use the phrase, prosecutorial discretion, the appropriate body for that to occur would be in the House of Representatives?

Mr. MCGINNIS. It would be an appropriate body. I think the Senate could also simply decide not to convict.

Mr. BARRETT. Certainly. But in that case, if we have a situation here where maybe the American people feel the President should be censured, if this body were to impeach, the Senate would not be able to drop those charges. Maybe they could censure, sort of sua sponte, since there is nothing

Mr. MCGINNIS. The Senate could ultimately decide not to convict the President, obviously.

Mr. BARRETT. Obviously. Professor McDowell, would you agree with that analysis, the entire analysis? Which body has the discretion, the House or the Senate?

Mr. MCDOWELL. I think there is a discretion here, certainly, that you have to weigh the evidence. Somebody said earlier that this House does not sit as a grand jury and this is not like an indictment. I think it is closer to that than that comment would suggest. You have to weigh the evidence and decide whether these are impeachable offenses, not based on partisan calculations but based on historical understanding, rooted in the common law, rooted in our experience. But when it comes down to it, you have to make a judgment as to whether that constitutes an impeachable offense or not, and if it does constitute an impeachable offense, do you have the political will to take it forward and vote articles of impeachment? Mr. BARRETT. And very quickly, do you believe that every impeachable offense requires impeachment by the House?

Mr. MCDOWELL. No, I don't.

Mr. SCOTT. I yield the balance of my time to the gentlewoman from Texas, Ms. Jackson Lee.

Ms. JACKSON LEE. I thank the ranking member very much for his kindness. Let me just note that Professor Charles Black stated in Impeachment: a Handbook, that impeachment should be invoked only against serious assaults on the integrity of the processes of government, and such crimes that would so stain a President as to make his continuance in office dangerous to the public order.

I have two questions, one for Professor Holden, whose theory I was most gratified to hear, because he responded to the public concern-I think we should be speaking to the public today—and another question for Professor Sunstein.

Professor Holden, you compared impeachment to a caged lion; that it is of such a magnitude, such an impact on the public order, that we should be cautious in how we treat its implementation. Can you respond to that?

Professor Sunstein, my question is, how high an order is impeachment? How dangerous would its utilization be in terms of the attack on the very sovereignty of the Nation? As we proceed, should we be cautious, should we accept indictments as finality, or should we deliberate cautiously about this?

Professor Holden, your caged lion, if you would.

Mr. HOLDEN. My answer is very brief and very direct. We are starting down a path of using impeachment as an additional device. You are doing it with judges, we are in the second time of doing it with Presidents. And once that gets to be common practice, everybody will want to use it for every device they wish.

I saw the red light before. I said that the Secretary of Health and Human Services had better shudder in the future, because all of the people who are opposed to partial birth late-term abortions or other such highly sensitive matters where they have deep convictions will be going after the Secretaries who get in the way.

The next target on the agenda will be Attorneys General. All Attorneys General should be fearful. And there are some members on the committee who should be fearful, though I do not know who they are, because somebody in the next 15 or 20 years will be either a presidential potentiality or a Cabinet officer, which is a civil officer, and somebody will be after them, and this is a pressure device, not a final solution.

No, it is absolutely awful. Frankly, they made a mistake, they should never have put it in. The British from whom they copied it stopped using it in 1806, and they didn't know it. It should not be done anymore unless it is overriding, and there is nothing here overriding.

Ms. JACKSON LEE. Professor Sunstein, if you would?

Mr. CANADY. The gentlewoman's time has expired some time ago. Ms. JACKSON LEE. Will the Chairman allow Professor Sunstein to briefly finish the answer? Excuse my voice.

Mr. SUNSTEIN. The danger is there would be retaliation on both sides and it would be like an arms race. That is the danger. That is very dangerous.

Mr. CANADY. The gentleman from Georgia, Mr. Barr, is now recognized.

Mr. BARR. Thank you, Mr. Chairman. I would like the Clerk, I have two documents to distribute, and I ask unanimous consent to have them inserted in the record. They will be given both to the witnesses and the members. One is simply Article I regarding the impeachment of Richard Milhouse Nixon. The other is simply a draft document regarding impeachment of Mr. Clinton. I would like to use them for questioning of the witnesses.

[The information follows:]

ARTICLE I

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take

care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:

On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic national Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such unlawful entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities. The means used to implement this course of conduct or plan included one or more of the following:

(1) making or causing to be made false or misleading statements to lawfully authorized investigative officers and employees of the United States;

(2) withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;

(3) approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;

(4) interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the Office of Watergate Special Prosecution force, and Congressional Committees;

(5) approving, condoning, and acquiescing in the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witness or individuals who participated in such unlawful entry and other illegal activities;

(6) endeavoring to misuse the Central Intelligence Agency, an agency of the United States;

(7) disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;

(8) making false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct; or

(9) endeavoring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence of false testimony, or rewarding individuals for their silence or false testimony.

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 case 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.

Impeaching William Jefferson Clinton, President of the United States, of high crimes and misdemeanors.

Resolved, That William Jefferson Clinton, President of the United States, is impeached for high crimes and misdemeanors, and that the following article of impeachment be exhibited in the Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and all the people of the United States of America, against William Jefferson Clinton, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

ARTICLE I

In his conduct of the office of the President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has attempted to corrupt justice in that:

In May 1994, Paula Corbin Jones filed a lawsuit against William Jefferson Clinton in the United States District Court for the Eastern District of Arkansas. Ms. Jones alleged that during his Governorship of Arkansas, President Clinton sexually harassed her and intentionally inflected emotional distress during an incident in a Little Rock hotel room.

In May 1997, the United States Supreme Court unanimously rejected President Clinton's claim of constitutional immunity from a lawsuit during his tenure in office. Subsequent thereto, William Jefferson Clinton, using the powers of his high office and betraying his constitutional duty to take care that the laws are faithfully executed, not sabotaged, engaged personally and through subordinates, friends, and Monica Lewinsky in a course of conduct or plan calculated to corrupt justice in the Jones v. Clinton lawsuit by withholding and concealing truthful information and by deceits under oath.

On January 16, 1998, the Special Division of the United States Court of Appeals for the District of Columbia Circuit issued an order that empowered the Office of the Independent Counsel headed by Mr. Kenneth Starr "to investigate to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case of Jones v. Clinton." Subsequent thereto, William Jefferson Clinton, using the powers of his high office and betraying his constitutional duty to take care that the laws are faithfully executed-not sabotaged-engaged personally and through his subordinates, friends, and others in a course of conduct calculated to corrupt justice in the Office of the Independent counsel grand jury investigation by withholding and concealing truthful information and by deceits under oath.

The means employed to attempt to corrupt justice in the Jones v. Clinton lawsuit and the Office of the Independent counsel grand jury investigation have included at least all of the following:

[1]

Making, causing, and seeking to induce the making of false or misleading statements in the Jones v. Clinton case and in the Office of the Independent Counsel grand jury investigation of William Jefferson Clinton.

[2]

Withholding and collaborating in the withholding of truthful information from the United States District Court presiding in the Jones v. Clinton litigation.

[3]

Condoning and acquiescing in witnesses with respect to the giving of false or misleading statements in the Jones v. Clinton litigation and in the Office of the Independent Counsel grand jury investigation.

[4]

Making false and misleading public statements for the purpose of deceiving the people of the United States into believing that he did not have a sexual relationship or affair with Monica Lewinsky, that he had testified truthfully in his Jones v. Clinton deposition, and that he intended full, speedy and truthful cooperation with the Office of the Independent Counsel grand jury investigation of contrary allegations;

or

[5]

Endeavoring to cause Monica Lewinsky to expect and receive favored treatment as a reward for her silence or false testimony in the Jones v. Clinton litigation and the Office of the Independent Counsel grand jury investigation.

In all of this, William Jefferson Clinton 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 William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office.

Mr. BARR. While that is being done, I would like to echo what my colleague Mr. Rothman expressed, and that is a fear that we not take steps to enact, either de facto or de jure, two different standards, one standard for Republicans and one standard for Democrats.

Simply by way of background but also some relevance, during my tenure as a U.S. Attorney appointed by President Reagan I had the opportunity to unfortunately fulfill the responsibility to prosecute cases involving public corruption of various public officials, Republican and Democrat. And during my tenure, and this was consistent with the policies of both the Reagan and Bush Administrations, I pursued those cases of corruption against Democrats and Republicans equally-we did not have one standard for Democrats and one for Republicans including, as I believe I mentioned briefly in my opening remarks, prosecution of a sitting member of this committee during the time that he sat as a member of this committee for perjury before a Federal grand jury.

The first document, I am not sure which order they are in, but I would like the panelists to look briefly at Article I involving President Nixon. There has been some discussion of this article today, and I have not heard anybody posit this article as not consistent with constitutional and historical standards for impeachable offenses and would not have properly formed the basis for at least part of the impeachment of Richard Nixon.

The second is a draft article of impeachment with regard to Mr. Clinton.

The article with regard to Mr. Nixon of course posits that the underlying offense, which occurred on June 17, 1972, was a break-in not committed by the President but by political operatives working for the President's reelection committee. Obviously, therefore, that