tells me this process is not about punishment, but rather protecting the public trust.

There are some who say that alternative punishments, such as censure or fine have public appeal as a way out, but there is a growing consensus of scholars who agree that such alternatives have no constitutional basis and would violate the separation of powers, setting a dangerous precedent for future proceedings. For those on the other side of the aisle who call for punishment, I would ask, how and under what authority?

A third concern is on the question of what constitutes an impeachable offense. For those who call for a definition, I would ask, what specific definition would you propose as an improvement upon that of our Founding Fathers? And going beyond the abstract, what definition are you willing to set as a precedent for future unknown cases?

As I have received my education in public service, I have always been instructed by the people that there should be a higher standard for those in public office. In fact, our Federal sentencing guidelines impose additional penalties for those who abuse a position of public trust.

Some conclude that perjury is an impeachable offense for a Federal judge but not a President because there should be a higher standard for impeaching the President of the United States. If that reasoning were adopted, we would in effect be setting a lower standard for the President than any other office in the land. Is that the right policy? Is that the right message for our country?

In addition, for those who advance the argument that perjury is not an impeachable offense, how do they address the tougher question on obstruction of justice? If one witness is to believed, the President of the United States orchestrated his White House staff to conceal evidence pursuant to a lawful subpoena. Now this may seem a trivial matter to some, but as an attorney who has represented plaintiffs in a civil rights litigation, I am concerned about tipping the scales of justice in favor of the wealthy and the powerful.

My final concern deals with the question of punishment. There are some who concede that alternative punishments are not within the power of the legislative branch. They then argue that impeachment should not be pursued because the President can be held accountable for any criminal offenses after he leaves office. That would mean that if this committee finds criminal conduct, we would simply refer it back to the Independent Counsel for prosecution in the year 2001. Is that really getting this ordeal behind us? Is that really moving on? It would appear that such a delay would be harmful to our nation and harmful to the office of the presidency.

I hope that the witnesses today will address the concerns I have expressed. Please be assured that though I view these charges as profoundly serious, I have not concluded the outcome of this endeavor. I do not believe that the unpleasantness of the present circumstances justifies playing_fast and loose with the Constitution for the sake of expediency. To do so would be to imperil the very system of justice upon which our great Nation was built.

I thank the Chair.

24

Mr. CANADY. Thank you, Mr. Hutchinson.

Without objection, the written statements of other membe the Judiciary Committee will be inserted in the record of this ing.

[The prepared statement of Mr. Gallegly follows:]

PREPARED STATEMENT OF ELTON GALLEGLY, A REPRESENTATIVE IN CONGRESS
THE STATE OF CALIFORNIA

As you know Mr. Chairman, I am not a member of this subcommittee. Ho I believe this is an important hearing for all members of the Judiciary Comr In fact, every member of Congress should carefully listen to today's witnesse the matters discussed today will help to improve our understanding of what impeachable offense, not only with regard to the current inquiry, but for dential wrongdoing for many years to come.

Make no mistake about it, a standard for impeachment already exists. It is in Article II, Section 4 of the Constitution and it provides for impeachme "Treason, Bribery, or other high Crimes and Misdemeanors." However, like other provisions in the Constitution, such as "freedom of speech" or "due pr one must carefully examine the historical precedents of the impeachment cla order to gain a clearer understanding of its meaning.

Without this historical perspective, the impeachment process risks becom tool in the hands of those whose ever-changing views on what constitutes a peachable offense will be shaped by political calculation and polls. This can allowed to happen.

Politics will always be a part of the impeachment process. This is inevitable. ever, impeachment questions-whether one argues for or against impeachm a specific case should never become only about politics.

Últimately, the decision on impeachment rests in the conscience of each m of Congress. However, this decision must be an informed one, grounded in fact precedents instead of spin and sound bites.

Lastly, developing a better understanding of the history of impeachment and constitutes an impeachable offense will help this committee to conclude this in in short order. If the President and his advisors cooperate fully, it is my hop we will finish even before our year-end deadline. Congress can then once again on improving education for our children, reducing crime and the other imp day-to-day problems confronting our country.

Thank you, Mr. Chairman. I yield back the balance of my time.

[The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS F

THE STATE OF TEXAS

In light of the subject of today's hearing, I think it is important that we hear the legal experts. But there are two experts who are not here who have ma sightful observations about what constitutes "high Crimes and Misdemeanors who have unique perspectives.

Barbara Jordan, a distinguished member of this Judiciary Committee durin Nixon impeachment proceedings, made this statement:

The South Carolina ratification convention impeachment criteria: thos impeachable "who behave amiss or betray their public trust."

Beginning shortly after the Watergate break-in and continuing to the pr time, the president engaged in a series of public statements and action signed to thwart the lawful investigation by government prosecutors. More the president has made public announcements and assertions bearing o Watergate case which the evidence will show he knew to be false.

These assertions, false assertions, impeachable, those who misbehave. who "behave amiss or betray their public trust."

James Madison again at the Constitutional Convention: "A president i peachable if he attempts to subvert the Constitution."

The Constitution charges the president with the task of taking care tha laws be faithfully executed, and yet the president has counseled his aid commit perjury..

Leon Jaworski, the special prosecutor during the Nixon impeachment proceed wrote a book titled, The Right and the Power about his experience. This is wh said:

No government office, not even the highest office in the land, carries with it the right to ignore the law's command, any more than the orders of a superior can be used by government officers to justify illegal behavior.

The President-a lawyer-coached Haldeman on how to testify untruthfully and yet not commit perjury. It amounted to subornation of perjury. For the number-one law enforcement officer of the country it was in my opinion, as demeaning an act as could be imagined.

President: Just be damned sure you say I don't remember. I can't recall. I can't give any honest. . . an answer that I can recall. But that's it.

There was evidence that the President conspired with others to violate 18 U.S.C. 1623-perjury-which included the President's direct and personal efforts to encourage and facilitate the giving of misleading and false testimony by aides.

In the end, Nixon was forced to resign because the people had lost confidence in him. He had lied too often. The members of the House Judiciary Committee realized this, and that is why they concluded unanimously that he had been guilty of obstructing justice.

As we hear from our witnesses today, I think it would also be interesting to know whether they agree with Bill Clinton's definition of "high Crimes and Misdemeanors" when he was a law professor. He said then:

I think that the definition should include any criminal acts plus a willful failure of the president to fulfill his duty to uphold and execute the laws of the United States. [Another] factor that I think constitutes an impeachable offense would be willful, reckless behavior in office. .

President Clinton's conduct in office raises several grave questions. Did the president lie under oath in a court of law? Did he stand in the way of the judicial process? Did he abuse the powers of his public office? Did the president violate his public trust? Did he violate the Constitution and his oath of office? These are the questions that go to the heart of a government of laws, not persons.

My constituents often remind me that if any business executive, military officer, professional educator, or anyone in a position of authority had acted as President Clinton may have, their career would be over. So a question that needs to be addressed today is, Should the president be held to a lesser standard?

[The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF CHRISTOPHER B. CANNON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH

Mr. Chairman, as a member of the Full Committee, I am honored to have the chance to participate in this critical hearing today.

For most of this year our nation has struggled with fashioning a proper response to President Clinton's improper conduct with Monica Lewinsky and the actions spawned by that relationship. With the launching of an impeachment inquiry by the House, we are now faced with determining whether or not Mr. Clinton's conduct is impeachable. Today's hearing is an important step towards resolving that question. On review of the testimony put forth by today's distinguished panel, it is clear that our panelists span the range of views concerning the meaning and application of the Constitution's critical term of "Treason, Bribery, or other high Crimes and Misdemeanors."

My own views, going into today's hearing, are close to those of Professor Presser in that I believe the Founders saw impeachment as a tool to protect the fundamental integrity of our political system. In the current instance, I believe that President Clinton's moral authority has been crippled. We, as a Congress, have a duty to either restore his moral authority by some form of vindication or to remove him from office. Maintaining the public integrity of our political system will tolerate no less. But, today, I am willing to set my personal views aside (perhaps not totally) and listen.

Thank you, Mr. Chairman.

Mr. CANADY. We will now go to our first panel of witnesses. You have been waiting patiently.

The first witness on our first panel will be Gary L. McDowell, who is director of the Institute for United States Studies at the University of London. He is a Royal Historical Society Fellow and a Royal Society of Arts Fellow. Dr. McDowell teaches in the areas of American constitutional law and the judicial process and Amer

ican government. Dr. McDowell has published numerous works on the Constitution and American government, including the books, Friends of the Constitution; Writings of the "Other" Federalists and Our Peculiar Security; Essays on the Written Constitution.

Next we will hear from Michael J. Gerhardt, who currently teaches at the College of William & Mary School of Law. Professor Gerhardt was the Dean of Case Western Reserve University Law School from 1996 to 1997, and also taught at Cornell Law School from 1994 to 1995. He has published numerous works on the Constitution and impeachment, including a book entitled The Federal Impeachment Process: A Constitutional and Historical Analysis.

We will also hear from Matthew Holden, Jr., who is the Henry L. and Grace M. Doherty Professor of Government and Foreign Af fairs at the University of Virginia. He is the author of such books as The Divisible Republic; Varieties of Political Conservatism; and Continuity and Disruptions: Essays in Public Administration.

Next we hear from John C. Harrison, who is associate professor of law at the University of Virginia Law School. Professor Harrison started his tenure at the University of Virginia in 1993 after working as Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel. Professor Harrison currently teaches in the areas of administrative law, constitutional law and Federal courts. He was appointed by President Bush to the National Commission on Judicial Discipline and Removal.

Next we hear from Cass Sunstein, who is Karl Llewellyn Professor of Jurisprudence at the University of Chicago School of Law. He is the author of After the Rights Revolution; Reconceiving the Regulatory State: The Partial Constitution Democracy and the Problem of Free Speech; and co-author of Constitution Law: Cases and Commentary. Professor Sunstein has served as the vice chair of the American Bar Association Committee on Separation of Powers and Government Organizations.

Next we hear from Richard D. Parker, who is Williams Professor of Law at Harvard University Law School. Professor Parker has published numerous works on the Constitution, including the law review article, "The Past of Constitutional Theory and Its Future," and the book, Here the People Rule: A Constitutional Populist Manifesto. Professor Parker's current research involves the politics of the contemporary practice of argument about constitutional law. Next we hear from the distinguished historian Arthur M. Schlesinger, Jr., professor of history at the City University of New York. Professor Schlesinger worked as an aide in the Kennedy administration and has written numerous books on race relations and gender issues in the United States. Professor Schlesinger has also written extensively on the Constitution and American Government. His works include, Coming of the New Deal; The Cycles of American History; Robert Kennedy and His Times; and The Disuniting of America: Reflections on a Multicultural Society.

Next we hear from John O. McGinnis, professor at Yeshiva University Cardozo School of Law, who has been at Cardozo since 1991. In 1987, Professor McGinnis was appointed Deputy Assistant Attorney General at the Department of Justice's Office of Legal Counsel. Professor McGinnis has written numerous law review articles on a wide array of subjects, and has previously testified be

fore the Senate Judiciary Committee regarding the impeachment of Federal judges.

Father Robert Drinan is our next witness. Father Drinan is a professor of law at Georgetown University Law Center. He served in the United States Congress as a Representative from Massachusetts, where he was Chair of the Subcommittee on Criminal Justice of the House Judiciary Committee during the Watergate impeachment inquiry. He currently teaches courses in the areas of constitutional law, civil liberties and legislation.

The final witness on our first panel will be Stephen B. Presser, who is the Raoul Berger Professor of Legal History at the Northwestern University School of Law. Professor Presser holds a joint appointment with the J.L. Kellogg Graduate School of Management and also teaches in Northwestern's Department of History. Professor Presser has published numerous books on the area of constitutional law, including: Law and Jurisprudence in American History: Cases and Materials; Recapturing the Constitution: Race, Religion and Abortion Reconsidered; and The Original Misunderstanding: The English, the Americans, and the Dialectic of Federalist Jurisprudence.

Without objection, the full written statements of each of the witnesses will be made a part of the record. Each witness on this panel will be recognized for 10 minutes. I would ask that in light of our time constraints today, that you please observe the light. I hope everyone can see the light. When the yellow light is illuminated, that means that you have only a minute left, so you should begin concluding your remarks.

It is the custom of the subcommittee to ordinarily recognize the witnesses for 5 minutes. We have expanded that to 10 minutes, but we will ask you to confine yourself to the 10 minutes allotted, and I will note that the use of the full 10 minutes is not mandatory. Ms. JACKSON LEE. Mr. Chairman?

Mr. CANADY. The gentlelady from Texas is recognized. The gentlelady is not a member of the subcommittee. This is a subcommittee hearing.

Ms. JACKSON LEE. I thank you for your indulgence. It is just a point of information. I do recognize that, and I want to thank the Chairman and the Ranking Member for allowing us to be present, and I assume that you indicated our statements would be included for the record. Will there be an opportunity for the nonmembers of this subcommittee to ask questions?

Mr. CANADY. I thank the gentlelady, and she has anticipated the statement that I was about to make.

At the conclusion of the testimony by the witnesses on this panel, each member of the subcommittee will be recognized for 10 minutes for the purpose of asking questions. During that period, members of the subcommittee may yield a portion or all of their time to other members of the Judiciary Committee who wish to ask questions. This is a procedure that we have, as you know, followed in the past in the subcommittee. It has been our consistent procedure when other members of the Judiciary Committee wished to participate in the proceedings.

We believe that the arrangements that we have set forth for today will give everyone the flexibility that we need so that we can