Because a witness swears that he will "speak the truth, the whole truth, and nothing but the truth, touching the matter in question," there is no place where a person under oath can cleverly lie and not commit perjury. The witness cannot legitimately conceal “any truth, which relates to the matter in adjudication” because to so conceal "is as much a violation of the oath, as to testify a positive falsehood; and this whether the witness be interrogated to that particular point or not." It is not enough, Paley observed, for the witness afterward to say that he was not forthcoming "because it was never asked of me""; an oath obliges to tell all one knows whether asked or not. As Paley notes, "the law intends. to require of the witness, that he give a complete and unreserved account of what he knows of the subject of the trial, whether the questions proposed to him reach the extent of his knowledge or not.” 98 Nor is it sufficient an excuse that "a point of honor, of delicacy, or of reputation, may make a witness backward to disclose some circumstance with which he is acquainted." Such a sense of shame or embarrassment cannot "justify his concealment of the truth, unless it could be shown, that the law which imposes the oath, intended to allow this indulgence to such motives." 99 Similarly, linguistic contortions with the words used cannot legitimately conceal a lie or, if under oath, perjury. Paley's argument on this point merits a complete hearing: As there may be falsehoods which are not lies, so there may be lies without literal or direct falsehood. An opening is always left for this species of prevarication, when the literal and the grammatical signification of a sentence is different from the popular and customary meanings. It is the willful deceit that makes the fie; and we willfully deceive, where our expressions are not true in the sense in which we believe the hearer apprehends them. Besides, it is absurd to contend for any sense of words, in opposition to usage, for all senses of words are founded upon usage, and upon nothing else, 100 Thus the most common terms of oaths sworn include a promise not only to tell the truth, but the broader promise to tell the whole truth and nothing but the truth. Willful deceit is the key to whether a witness commits perjury or not, whatever the means chosen. 101 The moral and legal inheritance of the founding generation included the belief that the violation of an oath was nothing less than "treachery." 102 None of the major writers with whom the founders were intimately conversant saw perjury as anything but one of the most serious offences against the commonwealth. 103 In his widely cited Treatise on the Pleas of the Crown, for example, William Hawkins explained that there were certain kinds of offences that were "infamous, and grossly scandalous, proceeding from principles of down right dishonesty, malice or faction;" and it was under this rubric that he included "perjury and subornation of perjury." Indeed he went further arguing that "perjury... is of all crimes whatsoever the most infamous and detestable." 104 Perjury was, in the first instance, tied to jurors who might give a false verdict and "for several centuries no trace is to be found of the punishment of witnesses for perjury." 105 And even after it originated in the Star Chamber, it was only by "slow degrees [that] the conclusion that all perjury in a judicial proceeding is a crime was arrived at." 106 In 1562-63 there came the first statute providing pen 98 Ibid., I:200; 201. 99 Ibid., I:201. 100 Ibid., I:188-89. Pufendorf was of a similar mind: Witnesses, he said, should not have “an opportunity by insidious or equivocal expressions to evade the force of their obligations.” Should they so break their oath they will discover the truth that God is the "avenger of perjury." On the Law of Nature and Nations, IV. II. III, pp. 121; 119. 101 As Thomas Wood put it, "it cannot be presumed that one would commit perjury without design." A New Institute of the Imperial or Civil Law (London, 1730), III. 10. xiv, pp. 288–89. 102 Algernon Sidney, Discourses Concerning Government, ed. Thomas West (Indianapolis: Liberty Fund, 1990), p. 225. 103 For a helpful compilation of many of the common law sources on "oaths" and "perjury" see under those heads in Giles Jacob, A New Law Dictionary, (9th. ed.; London: Strahan and Woodfall, 1772). 104 A Treatise on the Pleas of the Crown, 1:318; 319. Pufendorf put it even more strikingly: "Perjury appears to be a most monstrous sin, in as much as by it the forsworn wretch shews that he at the same time condemns the divine and yet is afraid of human punishment; that he is a daring villain towards God, and a sneaking coward towards men." Of the Law of Nature and Nations, IV. II. II., p. 118. 105 Stephens, History of the Criminal Law, III:241. 106 Ibid., III:247. alties for those who committed both perjury and subornation of perjury.107 Thus were human punishments made to augment the fear of divine vengeance for lying under oath.108 This was, in Pufendorf's view, absolutely essential, as he noted by quoting Demosthenes: Those who escape your justice, leave to the vengeance of the gods; but those on whom you can lay hands, never consign over to Providence without punishing them yourselves. 109 It was by this joint power of the sacred and the secular that men could put their faith in oaths as a means of securing truthful testimony from those sworn to give it. And by such oaths and the punishments to be meted out for perjury, the commonwealth could secure the proper administration of justice within the courts of law. Perjury was no longer just a sin; it was a crime. Based on the foregoing analysis and review of the historical record, the conclusion seems inescapable, based on the expressed intent of the framers, the wording of the Constitution, the writings of the principal legal authorities known to the framers, and the common law, that perjury would certainly be included as a "high Crime and Misdemeanor" in an impeachment trial under the United States Constitution. Further, the record fails to support the claim that impeachable offences are limited to only those abuses that occur in the official exercise of executive power. As seen in the authorities, impeachable offences, in both English and American history, have been understood to extend to "personal misconduct," "violation of . . . trust," and "immorality or imbecility," among other charges. 110 Conclusion There is no power granted to the House of Representatives more formidable than "the sole power of impeachment." Knowing as they did the dangers of subjecting those in high office to the mere passion and caprice of the moment, the founders sought to create a power to impeach that would be capable of "displacing an unfit magistrate" but within the confines of a written and ratified Constitution of enumerated and limited powers. Thus did they limit the reasons for which an impeachment could be undertaken to "Treason, Bribery, or other High Crimes and Misdemeanors." The success of the founders in creating the impeachment power to be both politically effective and safe to the demands of republican government is seen most clearly in how few have been the instances of its use. Lord Bryce described the power of impeachment over a century ago as "the heaviest piece of artillery in the congressional arsenal" and thus "unfit for ordinary use." The process seeking to remove a president, he said, “is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at." 111 The constitutional provisions for impeachment were intended, in part, to secure the chief executive from being driven from office for mere partisan reasons. To get rid of a president-or to try to Congress has to have good cause. As Bryce said, one does not use impeachment for light and transient causes, “as one does not use steam hammers to crack nuts." 112 In the end, the determination of whether presidential misconduct rises to the level of "high Crimes and Misdemeanors," as used by the framers, is left to the discretion and deliberation of the House of Representatives. No small part of that deliberation, guided as it must be by the history and meaning of “high Crimes and Misdemeanors," must address what effect the exercise of this extraordinary constitutional sanction would have on the health of the republic, as weighed against the necessity of making clear that in America no one is above the law. In the end, that is what matters most and must bear most heavily on the members of the House of Representatives as they consider what they must do in the weeks ahead. Mr. CANADY. Thank you, Professor McDowell. 107 Holdsworth, History of English Law, IV:515–18. 108 "The two expedients of the oath and the perjury penalty are similar in their operation; that is, they influence the witness subjectively against conscious falsification, the one by reminding him of ultimate punishment by a supernatural power, the other by reminding him of speedy punishment by a temporal power." Wigmore, Evidence, Sec. 1831, V:432. 109 Of the Law of Nature and Nations, IV. II. II., p. 118. 110 Story, Commentaries on the Constitution, II:274; Simpson, Treatise on Federal Impeachments, p. 144, n. 6; Curtis, History of the Origin, Formation, and Adoption of the Constitution, II:260. 111 James Bryce, The American Commonwealth, 2 vols. (Indianapolis: Liberty Fund, 1997), I:190. 112 Ibid. Professor Gerhardt. MICHAEL J. GERHARDT, PROFESSOR OF LAW, COLLEGE OF WILLIAM & MARY SCHOOL OF LAW Mr. GERHARDT. Thank you, Mr. Chairman. I want to thank the Chair and Representative Scott for the opportunity to be a shared witness. It is a privilege to be a part of this and the other distinguished panel. There are, I think, at least three lessons to draw from the history of impeachment that might be useful for the subcommittee to keep in mind. First, the most common examples of impeachable offenses cited in the Constitutional and Ratifying Conventions were for great or dangerous offenses causing some serious injury to the Republic and/or reaching the special trust held by virtue of the office held. The framers also emphasized that the ultimate purpose of impeachment was not to punish but to protect and preserve the public trust. The framers did not try to exhaust the list of potential impeachable offenses. Instead, they left it to subsequent generations, particularly to subsequent Congresses, to decide on a case-by-case basis. The second lesson relates to what we can learn from what Congress has found and not found constitutes an impeachable offense. Here I think there are two relevant sets. The first consists of attempted formal inquiries into presidential impeachments, and the second consists of attempted judicial impeachments. The first set is awfully small, perhaps too small to suggest very much. We have had two examples from the 19th century and one dramatic example from the 20th century. The two formal attempted presidential impeachments from the 19th century include the House's decision not to initiate a formal impeachment inquiry against President John Tyler and the Senate's refusal by a single vote to convict Andrew Johnson. These cases have some telling things in common. First, both men became President by means other than election, the deaths of the Presidents who had selected them as Vice Presidents. Second, neither was a member of the President's party. Third, neither was a member of the majority party in Congress. And perhaps most importantly, fourth, both were very aggressive in their efforts to frustrate congressional supremacy in national policy-making. The House's failure to impeach or even to authorize an impeachment inquiry against Tyler, and the Senate's failure to convict Johnson, confirm one of the most often repeated pronouncements of the framers, that impeachment is not designed to address policy differences or opinion. The Nixon episode in the 1970s has come to symbolize appropriate use of impeachment. We all assumed that President Nixon would have been impeached and removed. Like President Grant's Secretary of War William Belknap, President Nixon resigned when his impeachment and removal seemed inevitable. In the popular and scholarly mind, Nixon's impeachment represents the appropriate use of the impeachment process to address true abuse of power or the use of presidential power abusively. The other set of relevant precedents are judicial. As we all know, all seven of the people impeached or removed from office have been 46 Federal judges. The common features of these cases are the n that exists between the conduct alleged and the special trust o sponsibilities of the judicial officers impeached or removed in t cases. Of course, the critical question that remains is whether the s constitutional standard applies to judicial and presidential peachment. Interestingly, Representative Ford himself answ that question "yes." After having said that he thought what w constitute an impeachable offense rested with whatever a maj of the House thought. He went on to add at the end of his s ment that of course it is different when one talks about Preside they may only be impeached for great offenses. My answer is that the same standard applies to all impe ments. The constitutional language, after all, is uniform. The s standard applies to all impeachments, while the context to w the standard is applied is often different. The factors taken into account by the House, and particularl the Senate in the case of deciding whether any given miscon constitutes an impeachable offense, include the following: the cial duties; the degree of nexus between the misconduct alleged the official duties; the magnitude of the offense and the magni of its harm to the Nation; and, lastly, other conceivable mear redress. A final lesson, in my opinion, is that in deciding whether cer misconduct constitutes an impeachable offense, Members of gress at some point feel justifiably the pressure to make a j ment that will withstand the test of time. Alexander Hamilton warned that all impeachments begin partisan atmosphere. The critical question is whether impe ments can be conducted and reach resolution on a nonpart basis. The critical test is whether the judgments reached can w stand the test of time. Near the end of the Johnson impeachment trial, Senator Will Fessenden said that the burden is on Congress. In that case o ously on the Senate, as it is in every impeachment, to reach a j ment about what constitutes an impeachable offense on which he put it, all right-thinking people would agree. James Iredell very much the same thing in the North Carolina ratifying con tion. Twenty-five years ago the House Judiciary Committee, to everlasting credit, created such a model. Today the subcommi takes a step undoubtedly to create a similar model, but what happens today or tomorrow, the critical factor to keep in min that the ultimate judge is history. Thank you. [The prepared statement of Mr. Gerhardt follows:] PREPARED STATEMENT OF MICHAEL J. GERHARDT, PROFESSOR OF LAW, THE COL INTRODUCTION I am enormously grateful for the honor and privilege to share with you son my thoughts about the background and history of the federal impeachment p Over the past decade, I have had several occasions to review in detail the top today's hearing. In order to be of assistance to the Committee, I have organize testimony in three parts, with an eye toward illuminating to the fullest possibl tent and consistent with the weight of authority the historical issue of greatest OF temporary concern relating to impeachment-the scope of impeachable offenses. As background, Part I identifies the ways in which the founders purposely tried to distinguish the federal impeachment process from its British counterpart. One of the most important of these features was the founders' desire to narrow or restrict the range of impeachable offenses. Part II examines the likeliest meaning of the terms of art "other high crimes and misdemeanors" that provide the bases for federal impeachment. I believe that the weight of authority, as most other scholars and commentators have found, that these words constitute technical terms of art that refer to political crimes. For the most part, the founders did not regard political crimes to be the functional equivalent of indictable crimes; rather, they considered political crimes to consist of serious abuses of official power or serious breaches of the public trust, which might also but not necessarily be punishable in the courts. Given that the founders expected that the scope of impeachable officials would work itself out over time on a case-by-case basis, I turn in Part III to consider the possible lessons that might be derived from trends or patterns in the Congress' past impeachment practices. Three are especially noteworthy. The first is that criminal conviction or prosecution of an individual prior to impeachment dramatically increases the likelihood of impeachment. The second is the relatively widespread recognition of the paradigmatic case for impeachment as being based on the abuse of power. The three articles of impeachment approved by the House Judiciary Committee against President Richard Nixon have come to symbolize this paradigm. The great majority of impeachments if not all of the impeachments brought by the House and convictions by the Senate approximate this paradigmatic case, for most if not all of these cases involve the serious misuse of office or official power. There is a third conceivable trend based on the recognition of some legitimate impeachment actions falling outside of the first category (or paradigmatic case). The latter cases, best symbolized by the Claiborne decision, is that there may be some kinds of misconduct in which an impeachable official might engage that are so outrageous and thoroughly incompatible with an official's status or responsibilities that Congress has no choice but to impeach and remove an official who has engaged in such misconduct. I. The discussions of the delegates to the constitutional convention and state ratifying conventions provide some background for appreciating the distinctive features of the federal impeachment process. The founders wanted to distinguish the impeachment power set forth in the U.S. Constitution from the British practice in eight important ways. First, the founders limited impeachment only to "[t]he President and all civil officers of the United States," whereas at the time of the founding of the Republic anyone (except for a member of the royal family) could be impeached in England. Second, the delegates to the constitutional convention tried to narrow the range of impeachable offense for public officeholders to "treason, bribery, and other high crimes or misdemeanors," 2 while the English Parliament had always refused to constrain its jurisdiction over impeachments by restrictively defining impeachable offenses. Third, whereas the English House of Lords could convict upon a bare majority, the delegates to the constitutional convention agreed that in an impeachment trial held in the Senate "no Person shall be convicted [and removed from office] without the Concurrence of two thirds of the Members present."3 Fourth, the House of Lords could order any punishment upon conviction, but the delegates limited the punishments in the federal impeachment process "to removal from Office, and disqualification to hold and enjoy any Office or honor, Trust or Profit under the United States. . ."4 Fifth, the King could pardon any person after an impeachment conviction, but the delegates expressly prohibited the President from exercising such power in the Constitution.5 Sixth, the founders provided that the President could be impeached, whereas the King of England could not be impeached. Seventh, impeachment proceedings in England were considered to be criminal, while the Constitution separates criminal and impeachment proceedings. Lastly, the British pro 7 See generally Michael J. Gerhardt, The Constitutional Limits to Impeachment and its Alternatives, 68 Texas L. Rev. 1, 23 (1989). |