Impeachment, it is clear, is intended to be a mechanism to protect against a rogue President threatening the constitutional form of government. According to constitutional scholars, it was never intended to be a crafty way for Congress to be able to remove or harass a President whenever it pleased.

Constitutional scholars have stressed the importance of the nexus between the offense and the effect the offense has had on the officeholder's official duties. In defining the limits of which types of actions constitute "other high Crimes and Misdemeanors," Congress has generally applied what has best been described as a fiduciary standard. In other words, officeholders are either elected or appointed to an office and are delegated powers of that office for which they owe a duty of care, and the officeholder is authorized to act only within the bounds of authority granted to him by that office. Any substantial misuse, abuse, or neglect of this authority is limited by removal through the impeachment process.

However, actions unrelated to duties of the officeholders are considered not worthy of impeachment unless they are so exceptional in nature that they destroy the officeholder's ability to continue to fulfill his or her duties. Clearly, no such offense has been alleged here, and in fact the public opinion of the President's performance is at an all-time high for this President and among the highest levels for all Presidents.

Furthermore, the scholars have refuted attempts by impeachment supporters to argue that the last three impeachments support lowering the standard. The fact is that all of these impeachments involved judges and allegations that their actions and circumstances affected their offices. Two of the judges, in fact, were incarcerated on criminal convictions during their impeachment trials. Obviously, a judge who is sentenced to prison for crimes is unable to perform his duties as a judge either during or after incarceration.

Duties of a judge and duties of a President, and the context of potential abuses of their offices, are very different. The ability of judges to execute their official duties is based on impartiality and lack of bias, while the job of a President is inherently partisan. I look forward to the witnesses addressing the Majority's attempts to make impeachment of judges the same as impeachment of a President, despite the clear distinctions both in their positions and in the history and precedents for both.

Today, we will hear from roughly an equal number of witnesses on different sides of this issue, but the American public should not be fooled by the hearing's illusion that the constitutional experts are equally divided on whether Starr's allegations are impeachable. Make no mistake about it, the overwhelming majority of scholars have said loudly and clearly that the Starr allegations are not impeachable offenses and that Congress is endangering the future of our constitutional form of government by treading down this dangerous path.

Finally, I would like to thank our witnesses today for agreeing to appear and for the time that they have spent preparing their testimony. This hearing is like no other that most of us have ever experienced. The record of this hearing will influence our democracy for hundreds of years after we have all departed. Your places

in history will be established, and I hope that we will all be remembered as courageous statesmen who were able to rise above the politics of faction in order to save the future of our constitutional form of government. The task at hand deserves nothing less. After this hearing, Mr. Chairman, I will ask Chairman Hyde and Ranking Member Conyers to convene a full Committee on the Judiciary to meet and deliberate on the information we have learned at this hearing. The American people deserve an opportunity to have their Judiciary Committee meet and determine the question of whether any of Ken Starr's allegations, even if assumed to be true, rise to the level of impeachable offenses.

If the members of the committee listen closely to today's witnesses, to the 400 historians and 400 law professors, for the history and precedents of impeachment, I believe that we will conclude that the allegations outlined in the Starr report do not meet the constitutional standards for impeachment and we will be able to bring this inquiry to a close. Further, Mr. Chairman, I believe that the American people have now clearly told us that it is time to move on. So I look forward to the testimony and thank you for convening the hearing.

Mr. CANADY. Thank you, Mr. Scott.

Mr. Hyde is recognized.

Chairman HYDE. Mr. Chairman, I yield my 5 minutes to the distinguished gentleman from South Carolina, Mr. Inglis.

Mr. INGLIS. I thank the gentleman for yielding.

Mr. Chairman, on July 24th and 25th, 1974, the 38 members of this Committee on the Judiciary delivered their individual opening statements prior to the debate on the articles of impeachment against Richard Nixon. Our predecessors are the only people in this century, prior to members of this committee, who have considered an impeachment of a President and the many questions that such a process raises. For my opening statement, here are some of the pertinent thoughts in their own bipartisan words.

[Videotape shown.]

[Transcript of video follows:]

TRANSCRIPT OF VIDEO

Here in their own words are some of those thoughts direct from the July 24-25, 1974 Rodino Committee debate on articles of impeachment.

CHAIRMAN PETER RODINO

The Founding Fathers with their recent experience of monarchy and their determination that government be accountable and lawful, wrote into the Constitution a special oath that the President, and only the President must take at his inauguration. In that oath, the President swears that he will take care that the laws be faithfully executed.

"The great wisdom of our founders entrusted this process to the collective wisdom of many men. Each of those chosen to toil for the people at the great forge of democracy-the House of Representatives has a responsibility to exercise independent judgment. I pray that we will each act with the wisdom that compels us in the end to be but decent men who seek only the truth.

DEMOCRAT HAROLD D. DONOHUE

"... Now, in truth, there were and there are no positive material instruments available to us such as those by which we can measure a precise distance or pronounce the exact time of day to guarantee the errorless performance of our duty. The human means through which we must try to make the right measurement of

conduct that is required in this historical task exists only in the individual minds and consciences of each of the committee members. . . ."

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REPUBLICAN ROBERT MCCLORY

Preserving our Republican Party to my mind does not imply that we must preserve and justify a man in office who would deliberately and arbitrarily defy the legal processes of the Congress, nor can our party be enhanced if we as Republican members of the U.S. House of Representatives, tolerate the flouting of our laws by a President who is constitutionally charged with seeing that the laws are faithfully executed as provided in article 2.

We will enhance our Republican Party and assure a viable two party system only if we are courageous enough and wise enough to reject such conduct even if attributed to a Republican President. The second question we must answer is not what is best for our party, but what is best for our Nation.

DEMOCRAT ROBERT W. KASTENMEIER

Impeachment is one way in which the American people can say to themselves that they care enough about their institutions, their own freedom and their own claim to self-government, their own national honor, to purge from the Presidency anyone who has dishonored that office. This power of impeachment is not intended to obstruct or weaken the office of the Presidency. It is intended as a final remedy against executive excess, not to protect the Congress against the President, but to protect the people against the abuse of power by a Chief Executive. And it is the obligation of the Congress to defend a democratic society against a Chief Executive who might be corrupt.

Justice Brandeis warned Americans of the dangers of illegality of official conduct. 'In a government of laws,' he wrote, 'the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If government becomes a law breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy. . . .”

REPUBLICAN TOM RAILSBACK

Some of my friends from Illinois-I received all kinds of mail; some of my people say that the country cannot afford to impeach a President. Let me say to these people, many of whom are good supporters and friends, I have spoken to countless others including many, many young people, and if the young people in this country think that we are not going to handle this thing fairly, if we are not going to really try to get to the truth, you are going to see the most frustrated people, the most turned-off people, the most disillusioned people, and it is going to make the period of LBJ in 1968, 1967, look tame. So I hope that we just keep our eye on trying to get to the truth.

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DEMOCRAT WALTER FLOWERS

You know, the power of the Presidency is a public trust, just lye our office. And the people must be able to believe and rely on their President. Yet, there is some evidence before us that shows that the President has given solemn public assurances to the people involving the truth and the faith of his powerful office when those assurances were not true, but were designed to deceive the people and mislead the agencies of government who were investigating the charges against Mr. Nixon's men. If the trust of the people and in the world of the man, or men, or women, to whom they have given their highest honor, or any public trust is betrayed, if the people, cannot know that their President is candid and truthful with them, then I say the very basis of our government is undermined. . .

DEMOCRAT BARBARA JORDAN

'Who can so properly be the inquisitors for the nation as the representatives of the nation themselves?' (Federalist 65) The subject of its jurisdiction are those offenses which proceed from the misconduct of public men. That is what we are talking about. In other words, the jurisdiction comes from the abuse of some violation of public trust. It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an Article of Impeachment means that the member must be convinced that the President should be removed from office. The Constitution doesn't say that. The powers relating to impeachment are an essential check in the hands of this body, the legislature, against and upon the encroachment of the Executive. In establishing the division between the two

branches of the legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the Framers of the Constitution were very astute. They did not make the accusers and the judges the same person.

REPUBLICAN LAWRENCE J. HOGAN

Now, the first responsibility facing members of this committee was to try and define what an impeachable offense is. The Constitution does not define it. The precedents which are sparse do not give us any real guidance as to what constitutes an impeachable offense. So each of us in our own conscience, in our own mind, in our own heart, after much study, had to decide for ourselves what constitutes an impeachable offense. Obviously, it must be something so grievous that it warrants the removal of the President of the United States from office. I do not agree with those that say that an impeachable offense is anything that Congress wants it to be and I do not agree with those who say that it must be an indictable criminal offense. But somewhere in between is the standard against which we must measure the President's conduct.

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DEMOCRAT JAMES R. MANN

Do yet in the United States the people still govern? Do they govern through elected representatives? In this era of power that our governmental system has brought us to in the world where our involvement in foreign trade and foreign affairs puts the President in front as the symbol of our national pride and as the bearer of our flag, and here we have in the House of Representatives 435 voices speaking on behalf of different constituencies with no public relations man employed by the House of Representatives, and I wonder if the people still do want their elected Representatives to fulfill their oath to preserve, protect, and defend the Constitution of the United States. Do you want us to exercise the duty and responsibility of the power of impeachment, whether that means conviction or exculpation?

You know, some of the things that cause me to wonder are the phrases that keep coming back to me, 'oh, it is just politics,' or, 'let him who is without sin cast the first stone.'

Are we so morally bankrupt that we would accept a past course of wrongdoing or that we would decide that the system that we have is incapable of sustaining a system of law because we aren't perfect? . . ."

Mr. INGLIS. Thank you, Mr. Chairman.

Mr. CANADY. Thank you, Mr. Inglis.

The gentlewoman from California, Ms. Waters, is recognized. Instead, the gentleman from Michigan, Mr. Conyers, will be recognized.

Mr. CONYERS. Thank you, Mr. Chairman, members of the committee, and to the very distinguished legal scholars and former members and judges, and my former Judiciary member colleague, Father Drinan, who joins us here this morning.

On two separate occasions, the President of the United States has been chosen, and it was William Jefferson Clinton. He was elected to that office. Now, to proceed to nullify a presidential election on the basis of authoritarian privacy-invading questions about sex, questions the government does not have the legal power to ask, is producing irreparable harm to our Nation and to its Constitution. There is no crime of perjury arising out of questions the government doesn't have the legal authority to ask. We must stop at the earliest moment this terrible carnival, this confusing, anguishing, national experience that is before us.

Electing a President under our Constitution is the most important expression of the political sovereignty of the whole of the American people. To diminish, countermand, or nullify the legitimacy of a presidential election for behavior rooted in personal private conduct, diminishes and debases and abuses our Constitution, our Nation, the office of the Presidency, and the rule of law itself. The purpose of the Constitution is to unify the Nation in opposition

to autocracy and to abuses of constitutional authority, and that is being dangerously undermined and diminished by the presently invoked processes of a political and unconstitutional impeachment. Perjury and sublimations that are rooted and based exclusively upon an illegal invasion of personal privacy like sex is not treason, bribery, high crimes, or misdemeanors.

So I join those of another era who said that when we created the Independent Counsel Act, we never dreamed that a special prosecutor could use these enormous powers to investigate accusations of the private sexual conduct of a President. The office of Independent Counsel is manufacturing the circumstances in which criminal conduct may occur.

So I am here to hope and pray that all of us will remember that there have only been 15 impeachments in the 209 years of our Nation's history. There has never been an impeachment on personal misconduct of the kind that is brought forward here. It doesn't exist. And so what we are doing here is creating a huge and perhaps lasting damage to the office of the presidency, and we are now turning the impeachment process, article II, section 4 on its head, to become a political instrument to be used at the will of a headstrong Congress.

I beg and implore my colleagues on this committee to listen carefully to all of the testimony and then ask yourselves at the conclusion of this hearing, has anything in the narrative submitted by Mr. Starr reached a level that would sustain and warrant an article of impeachment? And if the answer is no, then we have a duty, a responsibility, to bring this to the earliest conclusion that we can. Thank you, Mr. Chairman.

Mr. CANADY. Thank you.

The gentleman from Tennessee, Mr. Bryant, is recognized.
Mr. BRYANT. Thank you, Mr. Chairman.

In part, today I am reminded of the story where a businessman, notorious for a lack of integrity, announced to Mark Twain that before this businessman died, he intended to make the pilgrimage to the Holy Land, climb Mount Sinai, and read the Ten Commandments aloud at the top.

Twain replied, "I have a better idea. You could just stay home in Boston and keep them."

Let there be no doubt that but for the conduct of this President, his own Attorney General's invocation of the Independent Counsel statute, and the United States Constitution itself, none of us would be here today.

I am pleased to have such a distinguished panel of witnesses, eminently qualified, and I suspect that most if not all of them will say today that Congress alone has the constitutional duty of defining an impeachable act. As such, Professor Tribe succinctly writes, we must get it right. I agree.

Well, what is right? We will not reach an accord today, I suspect, among all of our 19 experts, on what is right, though undoubtedly we will hear history and impeachment precedents discussed; we will hear how some would distinguish official conduct from private conduct and personal actions which don't damage or abuse the government as a whole.