But there has never been any sensible definition of censure. Is it an admonition? A rebuke? A reprimand? Presumably it has no legal consequences.

The only occasion when a congressional censure was enacted was in the 1830s when President Andrew Jackson received a censure from the Senate. Not surprisingly, that censure was initiated by Senator Henry Clay whom Jackson had defeated in the presidential race. The censure was subsequently expunged.

The Constitution clearly states that the House may impeach or not impeach. The Separation of Powers grants, guarantees the President immunity from any other penalty. To encourage or allow the House to censure the President for misconduct bypasses the only process set forth in the Constitution to penalize the President. A vote to censure a President by one or both parties of Congress would establish a dangerous precedent which would weaken the institution of the presidency. It would invite an erosion of the Separation of Powers in ways in which the framers sought carefully to prevent.

I can envision, Mr. Chairman, if one censure was set forth by the House or the Senate, that almost every election cycle we would have the Congress censuring the President if he were of a different party; and as Professor Schlesinger suggested, that would weaken any road to independence and integrity of the President over a long period of time.

In conclusion, it seems clear from all we know about the long history and the rich tradition surrounding impeachment that the framers intended that impeachment was placed in the Constitution as a final safety net in case, somehow, the separation of powers did not work, the political process had failed, and that a near-tyrant in the executive branch could not be stopped by any means short of removal.

Thank you very much, Mr. Chairman.

Mr. CANADY. Thank you, Father Drinan.

[The prepared statement of Father Drinan follows:]

PREPARED STATEMENT OF ROBERT F. DRINAN, S.J., PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER, MEMBER, HOUSE JUDICIARY COMMITTEE 1971-1981 The framers of the United States Constitution knew that every president would have many political enemies. The authors of the Constitution consequently made the president virtually immune from legal action. They knew furthermore that America was inventing not a system of parliamentary democracy but a system in which the majority of the members of the Congress could not call or win a vote of no confidence.

But the founding fathers knew that in an extreme case there would be a need to remove a president before the time of his re-election. This was especially true since the writers of the Constitution feared (long before the time when a president was limited to eight years in office) that a president could aggregate power to himself and stay in office as if he were a member of a royal family.

Benjamin Franklin noted that the method adopted in impeachment and removal was devised as a process to prevent the assassination of a president by an exasperated and hostile adversary.

The framers sharply curtailed the availability of impeachment which had been liberally used and abused in England. At first the authors of the Constitution made treason and bribery the only offenses that merited impeachment. This was broadened to include "mal-administration" but then was restricted to include other high crimes and misdemeanors. The word "other" is most significant. It clearly implies that the "high crimes and misdemeanors” must be comparable or close to "treason and bribery."

The United States Congress has almost always understood that impeachment was designed by the founding fathers to be a remedy intended only for à dire situation for which no other political remedy exists. The one exception was the impeachment of President Andrew Johnson in the tumultuous years after the Civil War. It seems to be the consensus of historians and analysts that the impeachment of Johnson was motivated primarily by political and partisan reasons and hence was a misuse of the power of the House of Representatives to impeach a president.

Similarly the House has been very reluctant to use its power to impeach since in all of American history it has used that power on some 20 occasions-mostly on federal judges.

The impeachment process is by its very nature somewhat political. The power was not given to the courts or the executive branch of government but to the House of Representatives the entity of government closest to the people. The only involvement of the courts is the role played by the Chief Justice who is to preside at the trial of a president (not judges or other civil officers) in the Senate.

Perhaps the best definition of impeachment is found in the classic work on jurisprudence by Justice Joseph Story of the United States Supreme Court, which states that impeachment is "proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity."

Impeachment, therefore, should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury.

Impeachment is a non-criminal and a non-penal proceeding.

Of equal importance is the fact that the impeachment of a president must relate to some reprehensible exercise of official authority. If a president commits treason he has abused his executive powers. Likewise a president who accepts bribes has abused his official powers. The same misuse of official powers must be present in any consideration of a president's engaging in "other high crimes and misdemean

ors."

This House Judiciary Committee in 1974 recognized this distinction. It was clear that President Nixon had back-dated his taxes in order to claim a tax deduction for his papers which was no longer available at the time he and his accountants prepared his income tax return. This was a serious offense, probably a felony. But the House Judiciary Committee in a vote of 26-12 on a non-partisan basis, declined to make this conduct an impeachable offense. As a member of the House Judiciary Committee at that time, I voted with the 26 members who believed that the President's misconduct was not impeachable.

This decision confirmed the fact that an indictable offense need not be impeachable. All of the literature concerning the Constitutional Convention demonstrates that there is no evidence that any member of that convention expressed the opinion that impeachment was only intended to cover indictable offenses. That is the conclusion of the learned volume of Professor Raoul Berger entitled Impeachment: The Constitutional Problems. Professor Berger states that

One may fairly conclude that indictability was not the test of impeachment. He expands on this by asserting that "In sum high crimes and misdemeanors (are) without roots in the ordinary criminal law and which, as far as I can discover, had no relation to whether an indictment would lie in the particular circumstances.

The non-criminal character of the impeachment process is uniquely important in the case of the recommendations set forth by the office of Independent Counsel. These are framed as a criminal indictment.

In addition, for the first time in American history, an entity in the executive branch of government has performed the work specifically delegated by the Constitution to the U.S. House of Representatives. This fact is enormously important because it seems to change and distort the legal machinery designed by the framers for the process of impeachment; it is a process which, in the very words of the Constitution, is in the "sole" power of the House.

It is noteworthy that in 1974 the Special Prosecutor gave information and facts to the House Judiciary Committee; he did not urge impeachment. He knew that the power to recommend impeachment was committed solely to the House in the Constitution itself.

The history and definition of impeachment do not yield all of the clarity which everyone might wish. But the intention of the founding fathers as found in the ways in which Congress for over 200 years has reacted to the impeachment process demonstrates a consensus that is clear and remarkably consistent. Impeachment is a

unique and extraordinary weapon which should be considered only in extreme cases when impeachment is the only remedy available to oust a president even though the majority of the nation's voters elected him.

On the contrary the idea of a Congressional "censure" for the President has no legal or Constitutional history. It needs to be considered only because the majority of citizens in this country state in polls at this time that they oppose impeachment but desire some form of Congressional "sanction" as a way of expressing their disapproval of the President's conduct. They propose a "censure" as a compromise or a plea bargain. But there has never been a definition of "censure." Is it an admonition, a rebuke or a reprimand? Presumably it has no legal consequences.

The only occasion when a Congressional censure was enacted was in the 1830's when President Andrew Jackson received a censure from the Senate. Not surprisingly it was initiated by Senator Henry Clay whom Jackson had defeated in the presidential race. The censure was subsequently expunged.

The Constitution states clearly that the House may impeach or not impeach. The separation of powers guarantees the president immunity from any other penalty. To encourage or allow the House to "censure" the President for misconduct bypasses the only process set forth in the Constitution to penalize a president. A vote to censure a president by one or both bodies of Congress would establish a dangerous precedent which would weaken the institution of the presidency. It would invite the erosion of the separation of powers in ways which the framers sought carefully to prevent.

It seems clear from all that we know about the long history and rich tradition surrounding the impeachment clause that the framers intended that impeachment was placed in the Constitution as a final safety net in case somehow the separation of powers did not work and that a near tyrant in the executive branch could not be stopped by any means short of removal. The extremely cautious approach which should characterize any consideration of the use of the impeachment clause should be intensified when an independent counsel and not the Congress has initiated the possibility of impeachment. The Constitution made it clear that the framers placed the power to bring action for impeachment not in the courts or in the executive branch or the Senate but in the agency in government which is closest to the people-the House. Impeachment is not a criminal matter or a judicial procedure. It is one that depends in significant ways on the people. It is the people who elected a president who should be consulted before the Congress seeks to impeach him and remove him from office.

er.

Mr. CANADY. Now our last witness on this panel, Professor Press

STATEMENT OF STEPHEN B. PRESSER, RAOUL BERGER PROFESSOR OF LEGAL HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW

Mr. PRESSER. Thank you, Mr. Chairman. It is a great honor and a great privilege to be invited to testify before you this morning, and a gruesome responsibility to be the tenth man on a 10-man panel. Please bear with me for just a few minutes.

We are here because of something that was done 211 years ago in Philadelphia, and it is your job today to carry out responsibilities that were entrusted to you when the Federal Constitution was ratified 2 years later. Like Professor Sunstein, I want to go back to first principles. I want to talk a little bit about what made that Constitution necessary, and how it helps us understand your responsibilities.

In the years following American independence, there was a tremendous doubt whether the 13 former colonies would be able to survive as independent States. Their State legislatures behaved with extraordinary irresponsibility, refusing adequately to fund the Revolutionary War effort and refusing to commit the resources necessary for the enforcement of commercial contracts or for a stable currency.

It was the view of the 55 men who met in 1787 that the State legislators and other State officials often lacked the integrity and honor to behave responsibly, and that too many of them were shameless demagogues who cared more about furthering their own wealth and careers than they did for looking out for the welfare of the people.

The remedy for these ills, the men who met at Philadelphia believed, was the creation of a new Federal Government which would have the power to protect us from threats, both external and internal. Great discretion and great power were given to the new government and, in particular, to the President of the United States. The authors of The Federalist, the most famous contemporary explication of the Constitution, emphasized that the power and responsibilities of the President were awesome and that only a person with extraordinary integrity and the highest reputation for honesty and virtue could be trusted to bear it.

John Jay, writing in Federalist 64, made it plain that the impeachment mechanism, removal for treason, bribery or other high crimes and misdemeanors, was a guarantee that the President would be such an exemplary person. If he was not, Jay's clear implication was, he ought to be removed from office.

It is no coincidence that the man the framers had in mind as the first President of the country was George Washington, then, as now, regarded as the father of his country and the very plutonic form of virtue, honor, integrity and probity.

In The Federalist and in the debates of the Constitutional Convention, it is explained that the constitutional obligation-and it is an obligation to impeach and remove from office for treason, bribery or other high crimes and misdemeanors, covers a multitude of possible offenses, as we have heard this morning. All of these offenses, as far as the framers were concerned, however, share some things in common. All of them are instances in which an official has subverted the Constitution and the laws, and has betrayed the interests of the people he is supposed to serve.

Such a betrayal is most obviously indicated as we have learned by the words "treason" or "bribery." But the phrase "high Crimes and Misdemeanors," as Professor McDowell told us, also had a clear meaning to the framers who adopted the phrase from over 400 years of English impeachment experience.

English proceedings for impeachment were brought because of the commission of high crimes and misdemeanors and included proceedings brought to remove officials who refused to carry out the duties of their office, officials who wrongly used their offices for personal gain instead of public service, or of officials who wrongly interfered with the regular course of legal proceedings. These were all cases of offenses against the state, of attempts to undermine the Constitution as the framer, George Mason, called them.

In order for President Clinton properly to be made a subject of impeachment proceedings then, you would have to accuse him of a similar offense against the state, a similar attempt to undermine the Constitution. That means you have to ask yourself what our Constitution, what our Nation, is really all about.

Now, there are many things that might be said on this point, but I will say only one, picking up a major theme of this morning. In

deed, if I had to boil the results of my 24 years teaching and writing about our constitutional history down to a single proposition, it would be that one often advanced by our second President, John Adams, that our system is supposed to be a government of the laws and not of men. We are supposed to be governed by persons of virtue, disinterestedly applying our Constitution and our laws. This is our constitutional faith, as Professor McGinnis suggested. It is a sort of secular religion of American law.

The charges lodged against the President by Judge Starr and by your committee's chief investigator, Mr. Schippers, must be examined against this background, and you have to decide if they are the sort of matters the framers meant to cover by the phrase "high Crimes and Misdemeanors." If these allegations are true, though it appears that the President has repeatedly failed to tell the truth under oath in a Federal Court proceeding, he has repeatedly failed to tell the truth under oath in Federal grand jury proceedings, he has apparently engaged for many months in what Mr. Schippers has described as a conspiracy to obstruct justice by enlisting others to prevent them from cooperating with the Office of Independent Counsel and by seeking to get others falsely to testify before the grand jury—if these charges are true and that is a big "if," and I think you have to decide that-but if it is true, then the President has engaged for many months in a calculated and shameful effort to deceive and frustrate the enforcement of both our civil and criminal laws to serve his personal ends.

The President of the United States takes an oath to support the Constitution, and the Constitution, as you have heard, requires him faithfully to execute the laws. If what Judge Starr and Mr. Schippers have said is true, even if the President has broken his oath of office and set out to betray this trust, you have to decide if these charges are true. You have to ask not only has the President committed serious criminal offenses, but you have to ask yourself a deeper question: Has he clearly demonstrated that he is not the kind of a man of virtue, honor and integrity that his constitutional office demands?

It is very significant that George Washington in his farewell address emphasized that if oaths ever lost their sacred sense of obligation, that in his words, it would shake the foundation of the fabric of government itself.

If Judge Starr and Mr. Schippers are right, this is what President Clinton has been doing. George Washington, I think, would have advised you to carry these proceedings forward to determine the truth of these charges, and if they were true, to impeach and remove this President.

One of our fellow witnesses today, Professor Schlesinger, observed, when impeachment proceedings were contemplated for President Nixon, that if the President had indeed committed acts which undermined the basis of our democracy, the Office of President would be strengthened for the future and not weakened by exercising the constitutional remedy of impeachment. As Professor Schlesinger put it so eloquently then, the continuation of a law breaker as chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity abroad. Professor Schlesinger was right.