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CONTENTS

HEARING DATE

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Alstyne, William Van, Duke University School of Law

Bell, Griffin B., Esq., King & Spalding, Atlanta, GA

Bloch, Susan Low, Professor of Constitutional Law, Georgetown University

Law Center

Cooper, Charles J., Esq., Senior Partner, Cooper, Carvin & Rosenthal, Wash-

ington, DC.

Drinan, Robert F., S.J., Professor, Georgetown University Law Center, and

Member, House Judiciary Committee, 1971–1981

Gerhardt, Michael J., Professor of Law, College of William & Mary School

of Law

Harrison, John C., Associate Professor of Law, University of Virginia School

of Law

Holden, Matthew, Jr., Department of Government and Foreign Affairs, Uni-

versity of Virginia
McDonald, Forrest, Historian and Distinguished University Research Profes-

sor, University of Alabama

McDowell, Gary L., Director, Institute for United States Studies, University

of London

McGinnis, John O., Professor of Law, Benjamin N. Cardozo School of Law,

Yeshiva University

Parker, Richard D., Williams Professor of Law, Harvard University Law

School

Pollitt, Daniel H., Graham Kenan Professor of Law Emeritus, University

of North Carolina School of Law

Presser, Stephen B., Raoul Berger Professor of Legal History, Northwestern

University School of Law

Rakove, Jack N., Coe Professor of History and American Studies, Stanford

University

Schlesinger, Arthur M., Jr., Professor of History, City University of New

York

Sunstein, Carl R., Karl N. Llewellyn Distinguished Service Professor of Juris-

prudence, University of Chicago School of Law
Tribe, Laurence H., Tyler Professor of Constitutional Law, Harvard Univer-

sity Law School
Turley, Jonathan, Shapiro Professor of Public Interest Law, George Washing-
ton University School of Law

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Alstyne, William Van, Duke University School of Law: Prepared statement

Barr, Bób, a Representative in Congress from the State of Georgia: Additional

203

81

218

250

information

Bell, Griffin B., Esq., King & Spalding, Atlanta, GA: Prepared statement

170

196

(III)

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234

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106

Bloch, Susan Low, Professor of Constitutional Law, Georgetown University

Law Center: Prepared statement

Canady, Hon. Charles T., a Representative in Congress from the State of

Florida, and chairman, Subcommittee on the Constitution: Prepared state-

ment

Cannon, Christopher B., a Representative in Congress from the State of

Utah: Prepared statement

Cooper, Charles J., Esq., Senior Partner, Cooper, Carvin & Rosenthal, Wash-

ington, DC.: Prepared statement

Drinan, Robert F., S.J., Professor, Georgetown University Law Center, and

Member, House Judiciary Committee, 1971–1981: Prepared statement

Gallegly, Elton, a Representative in Congress from the State of California:

Prepared statement

Gerhardt, Michael J., Professor of Law, College of William & Mary School

of Law: Prepared statement

Harrison, John C., Associate Professor of Law, University of Virginia School

of Law: Prepared statement

Holden, Matthew, Jr., Department of Government and Foreign Affairs, Uni-

versity of Virginia: Prepared statement
McDonald, Forrest, Historian and Distinguished University Research Profes-

sor, University of Alabama: Prepared statement
McDowell, Gary L., Director, Institute for United States Studies, University

of London: Prepared statement

McGinnis, John O., Professor of Law, Benjamin N. Cardozo School of Law,

Yeshiva University: Prepared statement

Parker, Richard D., Williams Professor of Law, Harvard University Law

School: Prepared statement

Pollitt, Daniel H., Graham Kenan Professor of Law Emeritus, University

of North Carolina School of Law: Prepared statement

Presser, Stephen B., Raoul Berger Professor of Legal History, Northwestern

University School of Law: Prepared statement

Rakove, Jack N., Coe Professor of History and American Studies, Stanford

University: Prepared statement

Smith, Lamar S., a Representative in Congress from the State of Texas:

Prepared statement

Scott, Robert C., a Representative in Congress from the State of Virginia:

Additional information

Schlesinger, Arthur M., Jr., Professor of History, City University of New

York: Prepared statement

Sunstein, Carl R., Karl N. Llewellyn Distinguished Service Professor of Juris-

prudence, University of Chicago School of Law: Prepared statement
Tribe, Laurence H., Tyler Professor of Constitutional Law, Harvard Univer-

sity Law School: Prepared statement
Turley, Jonathan, Shapiro Professor of Public Interest Law, George Washing-

ton University School of Law: Prepared statement

Watt, Melvin L., a Representative in Congress from the State of North Caro-

lina

Additional information

Letter dated November 4, 1998, from Thomas E. Mooney to Julian Ep-

stein

Letter dated November 6, 1998, from Abbe David Lowell to Thomas

E. Mooney, and David P. Shippers

Letter dated November 9, 1998, from Thomas E. Mooney and David

P. Schippers to Abbe David Lowell

Letter dated November 9, 1998, from John Conyers to Hon. Henry J.

Hyde

Letter dated November 11, 1998, from Abbe David Lowell to Thomas

E. Mooney and David P. Shippers

Letter dated November 12, 1998, from Thomas E. Mooney and David

P. Shippers to Abbe David Lowell

Letter dated November 14, 1998, from Jerome M. Zeifman to Hon. Henry

Hyde .....

APPENDIX

Material submitted for the hearing

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BACKGROUND AND HISTORY OF

IMPEACHMENT

MONDAY, NOVEMBER 9, 1998

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,

Washington, DC. The subcommittee met, pursuant to notice, at 9:35 a.m., in room 2141, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.

Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, Ed Bryant, Bill Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, John Conyers, Jr., Jerrold Nadler, and Melvin L. Watt.

Also present: Representatives Bill McCollum, Stephen E. Buyer, James E. Rogan, George W. Gekas, Howard Coble, Lamar S. Smith, Elton Gallegly, Steve Chabot, Edward A. Pease, Christopher B. Cannon, Mary Bono, Lindsey O. Graham, Barney Frank, Zoe Lofgren, Sheila Jackson-Lee, Martin T. Meehan, William D. Delahunt, Robert Wexler, and Steven R. Rothman.

Staff present: John H. Ladd, chief counsel, Subcommittee on the Constitution; Cathleen Cleaver, counsel, Subcommittee on the Constitution; Sharee Freeman, counsel, Committee on the Judiciary; Tom Mooney, general counsel, Committee on the Judiciary; Daniel Freeman, counsel and parliamentarian, Committee on the Judiciary; Susana Gutierrez, clerk, Subcommittee on the Constitution; Brian Woolfolk, minority counsel, Committee on the Judiciary; Perry Apelbaum, minority general counsel, Committee on the Judiciary; Julian Epstein, minority chief counsel and staff director, Committee on the Judiciary; Stephanie Peters, minority counsel, Committee on the Judiciary; and Samara Ryder, minority counsel, Committee on the Judiciary.

OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY. The Subcommittee on the Constitution will come to order.

The purpose of today's hearing is to receive testimony from legal and constitutional scholars on the background and history of impeachment. It is the intention of the Chair to recognize himself and the Ranking Minority Members for 10 minutes for opening statements, and then to recognize each member of the Subcommittee on the Constitution for 5 minutes for each opening statement.

The Chair will now recognize himself for an opening statement for 10 minutes.

(1)

Today this subcommittee meets to receive testimony on the important subject of the "Background and History of Impeachment." We will hear from two panels of distinguished witnesses on this grave subject. I am hopeful that the testimony we hear today, diverse as it most certainly will be, will provide the members of the Judiciary Committee with information that will help us reach an informed and considered judgment on the ultimate issues that are raised in the impeachment inquiry which was authorized by the House on October 8th.

At the outset, it should be understood by everyone that the purpose of today's hearing is not to establish a fixed definition of impeachable offenses under the Constitution. The House has never, in any impeachment inquiry or proceeding, adopted either a comprehensive definition of ""highCrimes and Misdemeanors" or a catalog of offenses that are impeachable. Instead, the House has dealt with the misconduct of Federal officials on a case-by-case basis. The House has determined whether impeachable offenses were committed by officials accused of wrongdoing on the basis of a full understanding of the facts of each individual case. That is a model that has been consistently followed throughout the more than 200-year history of impeachment in the United States, and that is a model which the Judiciary Committee is now following in the inquiry with respect to President Clinton.

Although we will search in vain for any simple or clear-cut definitions, there are certain general principles which do emerge from the background and history of impeachment.

The Constitution grants the House the "sole power of impeachment.” But that does not mean that the House exercises unfettered discretion. Contrary to the assertion of Gerald Ford that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” the power of the House to impeach is not an arbitrary power. Impeachment must not be a raw exercise of political power in which the House impeaches whoever it wishes, for any reason it deems sufficient. Indeed, it is the solemn duty of all of the Members of the House in any impeachment case to exercise their judgment faithfully within the confines established by our Constitution. When an impeachment is at issue, all partisan considerations must be put aside, and Members must be guided first and last by their oath to support the Constitution.

As we will hear in today's testimony, various issues are hotly contested. The committee will have an opportunity to hear from some of the country's most articulate advocates of competing perspectives on the crucial issue of the scope of “high Crimes and Misdemeanors." All of the members of the committee have, I know, already given considerable thought to this question. All of us are mindful of the work done by the Judiciary Committee in 1974 in the impeachment inquiry with respect to President Nixon, and we look to that work for guidance in our present task.

There has been much discussion recently concerning the report on "Constitutional Grounds for Presidential Impeachment” prepared by the staff of the Nixon impeachment inquiry. Unfortunately, bits and pieces of that report have been pulled out of context, creating a false impression concerning the fundamental principles set forth in the report.

We should consider carefully what the report actually says. In discussing the nature of impeachable offenses, the report concludes, and I quote:

“The emphasis has been on the significant effects of the conduct—undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of governmental process, adverse impact on the system of government.

The report goes on to state, and I quote again:

"Because impeachment of a President is a grave step for the Nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government, or the proper duties of the presidential office.”

The references to "undermining the integrity of office, disregard of constitutional duties and oath of office, adverse impact on the system of government, and conduct seriously incompatible with the proper duties of the presidential office” in the inquiry staff report are echoed in another study of impeachment that was prepared at about the same time. The report on “The Law of Presidential Impeachment” prepared by the Association of the Bar of the City of New York in January of 1974 states, and I quote:

“We believe that acts which undermine the integrity of government are appropriate grounds whether or not they happen to constitute offenses under the general criminal law. In our view, the essential nexus to damaging the integrity of government may be found in acts which constitute corruption in, or flagrant abuse of the powers of, official position. It may also be found in acts which, without directly affecting governmental processes, undermine that degree of public confidence in the probity of executive and judicial officers that is essential to the effectiveness of government in a free society. .

Both the report of the Nixon impeachment inquiry staff and the report of the Association of the Bar of the City of New York contain a thoughtful distillation of the general principles that emerge from the background and history of the impeachment process which can help guide our further deliberation concerning the charges against President Clinton. It is important to understand that this distillation of principles was made long ago without any reference to the controversy that now is before us. By any reasonable interpretation, the evidence presented to the House by the Independent Counsel, if it remains unrebutted, establishes that the President is guilty of impeachable offenses under these principles.

The evidence before us clearly supports the conclusion that the President is guilty of multiple acts of lying under oath, obstruction of justice, and other offenses. If the allegations of the Independent Counsel are ultimately determined to be true: First, the President, through obstruction of justice and false statements under oath, sought to conceal the truth in a sexual harassment case. Then the President engaged in a seven-month cover-up of those earlier offenses, a cover-up which culminated in the giving of false testimony by the President to the grand jury on August 17.

It is important to understand the context of the President's initial false statements under oath that are shown in this evidence.

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