Censure has been used against Presidents once before. On 28 March 1814 he Senate voted to censure President Andrew Jackson on the ground that, in wÄLINE WIL ing federal funds from the Bank of the United States, he had "assumed upon r self authority and power not conferred by the Constitution and laws, but in tergation of both.*

Jackson responded on 15 April with a celebrated "Protest to the Senate." 'f'he Senate really believed he had committed "the high crime of violating the laws and Constitution of my country," then, Jackson said, the proper remedy was impeachment. Senatorial censure was "wholly unauthorized by the Constitution, and in derogation of its entire spirit. . . . In no part of that instrument is any such power conferred on either branch of the Legislature." Jackson emphasized "the pernicious consequences which would inevitably flow from... the practice by the senate of the unconstitutional power of arraigning and censuring the official conduct of the Executive." He rejected censure "as unauthorized by the Constitution, contrary to its spirit and to several of its express provisions, subversive of that distribution of powers of government which it has ordained and established." The basic problem with the proposal of a plea bargain in the form of a negotiated censure resolution is that Presidential acceptance of censure would hand one or both houses of Congress a new weapon to threaten and intimidate Presidents.

One must hope that any President guilty of personal misconduct falling below the level of impeachable offenses will so rebuke and castigate himself, and feel such shame in the eyes of his family, in the eyes of his friends and supporters and in the eyes of history, that he will punish himself for his own self-indulgence, callousness and stupidity.

Mr. CANADY. Professor McGinnis.

STATEMENT OF JOHN O. MCGINNIS, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY Mr. MCGINNIS. Thank you very much, Mr. Chairman.

Mr. CANADY. You need to pull the microphone close to you and

make sure that it is on.

Mr. MCGINNIS. Thank you, Mr. Chairman, and thank you, Ranking Member, and thank you, other Members, for the opportunity to speak before you here today.

I will speak on two issues: First, the question of what constitutes an impeachable offense, and secondly, what are the possible punishments that are allowed under impeachment proceedings.

First, let me just briefly state, and I have discussed this at greater length in my testimony, that I believe that impeachanie offenses include all serious and objective misconduct that undermines an of ficial's fitness for further service in office. I believe there is sinstantial reason to believe this definition meets the structure of the Constitution.

After all, the purpose of impeachment, the only sanction for the impeachment process, is removing an official from office at pes just far enough and no further than removing further possiblity f future injury to the Republic.

I think also that this definition is one that dearty comes rom the Convention. At that time Madison thought it was mute a mad power, high crimes and misdemeanors and sad the President could be impeached for any misdemeanor Throughout mir us50!** the Impeachment Clause has reached all serious and injective ma conduct, interferes with fitness for office neluding, Pentessor Harrison has suggested tax evasion, including previnis / Bryny including even drinkenness in office

I would like now, if i may tum to the question of some if ne arguments that have been made by prerole witness raise t is not my purpose here to say that the Print MILE WE

peached for these offenses simply to clear away the legal underbrush from arguments that try to limit this House's discretion to the rid the Republic of an official who is unfit for office because of serious misconduct.

The first argument that high crimes and misdemeanors must concern the abuse of official power because treason and bribery concern official power is mistaken at the outset. It is simply not the case that bribery requires the use of official power. A President could himself or for some private motive bribe a judge, and then he would be impeachable under the express language of the judge. Indeed, Justice Joseph Story, the foremost early commentator on the Constitution, made this point over 150 years ago, when he rhetorically asked, suppose a judge or other officer receives a bribe not connected with his office; could he be entitled to any confidence? Would these reasons for removal be just as strong if he were a case of a bribe taken in official duties?

Moreover, the distinction between private and public conduct does not, I think, attempt to get out the real purposes of the clause, which is removing an official who is unfit for office.

Secondly, some have questioned whether some acts of perjury are impeachable. Perjury is very much like bribery, and bribery is impeachable by express terms of the Constitution. In what way is bribery like perjury? Like bribery of a judge, perjury or obstruction of justice always interferes with the coordinate branches of government to the detriment of a citizen's rights, and therefore is directed against the state.

Indeed, I think we can look from the Constitution itself to the prominence of oaths for all officials about the central necessity of truth-telling under the Constitution.

Previous societies had depended on established religions or hierarchies for social cohesion, but the United States was then different. It was a bold experiment precisely because it depended on the rule of law to protect the rights of each citizen, and the rule of law, in turn, is grounded on the duty of every citizen to testify truthfully under oath.

Fidelity to one's oath is also crucial to retain the public trust and confidence of a republican leader, because it demonstrates that despite his high position, he is as much subject to the social compact as any citizen, even the least of the citizens. Thus, lying under oath by a public official can in any context be a public harm because it strikes both practically and, for the President in particular, symbolically at the heart of the republican order.

Finally, it has been suggested that impeaching a President should require a higher legal standard than impeaching a judge. I think that also has no basis in the Constitution. As Professor Harrison has pointed out, the standard in the Constitution is the same. Indeed, Madison at the time pointed out that impeachment was unnecessary for legislators because they acted collectively and the corruption of a single legislator was less dangerous to the republics. By the same reason, the unfitness of one of our district court judges, as damaging as that is, is far less dangerous to the Republic than the unfitness of its chief magistrate. And the chief magistrate of the Republic is responsible for taking care that the laws be faithfully executed.

As a former official in the Justice Department, I know that much of the work of the President and his subordinates is not partisan at all, but it involves protecting the rights of the citizens in their day-to-day business; and the question I think the committee has to ask is whether denying a citizen the right of a day in court through perjury or obstruction of justice bears on these general responsibilities of the President.

Finally, let me just briefly suggest that there is really no other means in the Constitution, other than removal from office, that flows from impeachment. This, I hope we can have a high degree of consensus among scholars here today on, even if we disagree about other matters.

It is quite clear that impeachment is the only punishment, only sanction, that is thought to come out of the impeachment process. And the framers were very specific in only limiting it to removal, because if the framers had made impeachment, allowed other kinds of punishments to occur, it would no longer be an awesome weapon and Congress might be able to use it to harass executive officials or otherwise interfere with the operations of coordinate branches. It is sometimes said that censure here should be a possibility because censure can be made on the analogy of the legislative branch censuring some of its own Members. I think if you look at the clause of the Constitution that authorizes the legislature to censure its own Members, allowing quite plenary power to punish its own Members for disorderly behavior, it is nothing like the impeachment provision which only has one punishment, removal from office, required; and then allows Congress to go on to choose whether to also disqualify that official from office.

I think this is an extremely important point because what we do here, I think, makes a lot of difference to the Republic in the future, because what really will release legislative power will be to have a whole panoply of punishments that extend from impeachment.

Finally, Mr. Chairman, I would like to address myself to those who have said that the concern about impeachment is that they are a distraction from government, therefore, that is a good reason that we should really end these impeachment proceedings. I think that simply cannot be squared with the framers' paramount concern for protecting the integrity of public officials. They recognized that prosperity and stability didn't only depend on the good management of the economy, didn't depend on beneficial legislation. It ultimately rests on the people's trust in their rulers, and they designed the threat of removal from office to restrain the inevitable tendency to breach that trust.

But that constitutional restraint can only work if citizens and legislatures alike have the self-restraint to allow its processes to unfold solemnly, deliberately, and without concern for their own short-term gains and losses. Impeachment is not about popularity, it is about maintaining the public trust, and the framers understood that those concepts were very different indeed.

Thank you.

Mr. CANADY. Thank you.

[The prepared statement of Mr. McGinnis follows:]

PREPARED STATEMENT OF JOHN O. MCGINNIS, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY

Thank you for the opportunity to appear before the Committee on the important subject of the history and background of impeachment. I will first discuss two issues of lasting importance to constitutional governance the meaning of "high Crimes and Misdemeanors" and the issue of what sanctions Congress may impose on civil officers of the United States, including the President. During the course of this testimony, I will try to address some of the arguments other scholars and citizens have been making about both these issues in relation to current events.

The Constitution states that "the President, the Vice President and all civil officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."1 To understand the meaning of "high Crimes and Misdemeanors," we must understand the purpose of this clause. Like other constitutional mechanisms, impeachment responds to a particular problem of governance in this case how to end the tenure of an officer whose conduct has seriously undermined his fitness for continued service and thus poses an unacceptable risk of injury to the republic.

This purpose is evident from the structure of this provision and other provisions relating to impeachment. First, the only legal consequences that flow from impeachment proceedings-removal from office and potential disqualification from future office-make little sense unless impeachment is aimed at removing unfit officials.2 Impeachment permits no penal sanctions and contemplates no consequences short of removal. The consequences of impeachment and conviction go just far enough, and no further than, removing the threat posed to the republic by an unfit official. The procedure for impeachment-indictment by the House and trial by the Senate suggests that the Framers were interested in addressing any misconduct seriously undermining fitness rather than addressing some fixed list of offenses or even some set of offenses determined by some abstract rule. If impeachable offenses could be set out in such a determinate matter, it would have made more sense to give the responsibility for evaluating them to the judiciary, the arbiter of cases under determinate rules. On the other hand, if the task of impeachment requires the evaluation of a range of offenses in relation to fitness for office, the logical place for such responsibility is in Congress, the repository of prudential judgement. Judging whether misconduct undermines fitness and makes continued service an unacceptable risk to the republic requires inferences not readily reducible to fixed rules, particularly because fitness for service involves both immediate, practical considerations ("Does this misconduct interfere with the official's day to day execution of his duties?") and symbolic considerations ("Does this official's misconduct dangerously lower the standards for future officeholders.") In addition, particular misconduct may not itself interfere with current tasks, but may reveal defects in an officer's integrity that present an unacceptable risk of future misconduct in areas where misconduct could harm the republic.

On its face the phrase "Treason, Bribery, and other high Crimes and Misdemeanors" wholly comports with the same overriding purpose of impeachment-preventing injury to the republic from seriously unfit officials. Because the categories of misconduct that may undermine fitness to serve cannot be determined in advance, the phrase unsurprisingly does not provide a closed list of impeachable offenses. Nor does it provide on its face some abstract rule for what is "impeachable," other than that which flows from the purpose and structure of the clause and related impeachment provisions. It is true that locating the impeachment process in Congress under a standard requiring prudential judgement raises another problem of governance the danger that impeachment may make civil officers dependent on the caprice of legislators. But the structure of the impeachment provisions addresses this problem without resorting to a fixed set of impeachable offenses or an arbitrary test for determining their content. In employing the phrase "high Crimes and Misdemeanors" the Framers used a phrase that on its face refers to objective misconduct and not to political differences or disagreements. Indeed, requiring a predicate of an objectively bad act as a precondition to impeachment assures that more than a simple legislative vote of "no confidence" is needed for removal.

Moreover, in keeping with their recognition that mere “parchment barriers" could not be relied on to protect against political excesses, the Framers did not, in any event, simply depend on a linguistic phrase to prevent abuse. Instead, they protected against the inappropriate removal of officials by establishing a high procedural hurdle. They required a substantial supermajority of one branch of the legislature-two-thirds of the Senate to approve the removal of any officer. They under

Footnotes at end.

scored the need to avoid partisan considerations in such a procedure by putting Senators under a special oath for the trial, an oath which is unique for legislative proceedings. And in the case of Presidential impeachment, they even required the Nation's highest judicial officer-the Chief Justice of the Supreme Court-to preside over the trial and thereby check any partisan procedural devices. In this manner they both assured that officials seriously unfit for office could be removed but did not make them unduly subservient to the legislature.

Thus, the evident purpose and structure of impeachment clauses show that "high Crimes and Misdemeanors" should be understood in modern lay language as something like "objective misconduct that seriously undermines the official's fitness for office where fitness is measured by the risks, both practical and symbolic, that the officer poses to the republic." The requirement of objective misconduct assures that a civil officer cannot be removed for reasons of policy, but only for an affirmative act of serious misconduct. The requirement that the act seriously undermine the official's fitness for office assures that the focus will be on inferences drawn about his fitness, because it is unfitness that may create an unacceptable risk of injury to the republic.

On the other hand, this definition leaves substantial room for judgment in Congress on the nature of the objective misconduct seriously affecting service in office. This is as it should be, because there could be no checklist of impeachable offenses in a constitution that would stand the test of time, and thus protect against the continuing danger to the republic that comes from seriously unfit officials. As Chief Justice Marshall stressed almost two hundred years ago, in interpreting the general authorities of Congress, "we must never forget that it is a constitution we are expounding." 3

This interpretation of "high Crimes and Misdemeanors" is further supported by the historic meaning of the phrase, the debates at the Constitutional Convention, and the constitutional practice of over two hundred years. First, English history shows that the phrase "high Crimes and Misdemeanors" was a term of art that was not limited to a fixed set of crimes under positive law or the common law of general criminal offenses. 4 Instead, under its rubric the English parliament fashioned a common law of misconduct for officials. It exercised a wide discretion to indict officials for bad acts that made them no longer fit to serve and thus a potential danger to the kingdom.

The history of the adoption of the phrase at the Constitutional Convention also shows that it allows Congress broad discretion to take action in light of serious affirmative misconduct that undermines fitness. It is true that the Convention struck from the original draft of the principal impeachment provision language that permitted impeachment for “maladministration."5 But that decision simply shows that the Framers recognized that negligence in supervision of the office is so much in eye of the beholder that it would inevitably allow disagreements over public policy to enter into impeachment proceedings. The decision not to permit impeachment the basis of maladministration is wholly consistent with authorizing it on the basis of objective misconduct that bears on the official's fitness.

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At the Convention, the substitute phrase "high Crimes and Misdemeanors" was thought to be broad in scope. Madison believed that it allowed the President to be tried for "any act which might be called a misdemeanor."6 Subsequent commentators were also impressed by its wide scope. Alexander De Tocqueville, the acute analyst of the American political system noted that all observers of the Constitution were struck by "the vagueness" of the standard for impeachment.7

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Congressional practice confirms that "high Crimes and Misdemeanors" is broad enough in scope to reach all misconduct that undermines fitness to serve course, most offenses giving rise to impeachment have also been serious crimes be cause such violations so undermine a person's integrity as to call into question the official's ability to serve. However, even when the conduct at issue may have been a crime, the House of Representatives has often framed the articles in a manner that avoids legal technicalities, and focuses directly on the conduct that detects from the office of the person accused. Perjury and tax evasion have in the past been grounds for impeachment because they reflect on the fitness of those officals who have sworn to uphold the law, not simply because they are crimes.

Once we have grasped the purpose and history of impeachment, we on read..y see that some current legal arguments about the scope of the phrase "2 Cre and Misdemeanors" are simply wrong. For instance, it has been

cause Treason and Bribery are crimes requiring the abuse of officia, power, a.. Crimes and Misdemeanors" must concern the abuse of official power but eve premise of this argument is inaccurate. An executive branch office judge in order to receive favorable treatment in a civil cases on He could be removed under the express language of the clause despite the fact that TE