to draw on,25 and it appears clear that the framers intended and understood that the phrase "high Crimes and Misdemeanors" was to be interpreted according to the meaning it was given by English Common Law.26 As Justice Joseph Story was later to write, "The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties."

"27

Raoul Berger, in his book on impeachments, has given us a handy summary of some of the impeachment proceedings brought in England before the framing of our Constitution, proceedings described as involving all or part of the phrase "high Crimes and Misdemeanors." These included the proceedings brought against the Earl of Suffolk (1386), who "applied appropriated funds to purposes other than those specified;" the Duke of Suffolk (1450), who "procured offices for persons who were unfit and unworthy of them; [and who] delayed justice by stopping writs of appeal (private criminal prosecutions) for the deaths of complainants' husbands;" Attorney General Yelverton (1621), who "committed persons for refusal to enter into bonds before he had authority so to require; [and who also was guilty of] commencing but not prosecuting suits;" Lord Treasurer Middlesex (1624) who "allowed the office of Ordinance to go unrepaired though money was appropriated for that purpose [and who] allowed contracts for greatly needed powder to lapse for want of payment;" the Duke of Buckingham (1626) who "though young and inexperienced, procured offices for himself, thereby blocking the deserving; [who] neglected as great admiral to safeguard the seas; [and who] procured titles of honor to his mother, brothers, kindred;" Justice Berkley who "reviled and threatened the grand jury for presenting the removal of the communion table in All Saints Church; [and who] on the trial of an indictment, . . . 'did much discourage complainants' counsel' and 'did overrule the cause for matter of law;'" Sir Richard Burney, Lord Mayor of London (1642), who "thwarted Parliament's order to store arms and ammunition in storehouses"; Viscount Mordaunt (1660), who "prevented Tayleur from standing for election as a burgess to serve in Parliament; [and who] caused his illegal arrest and detention;" Peter Pett, Commissioner of the Navy (1668) who was guilty of "negligent preparation for the Dutch invasion; [and who was responsible for] loss of a ship through neglect to bring it to mooring;" Chief Justice North "[who] assisted the Attorney General in drawing a proclamation to suppress petitions to the King to call a Parliament;" Chief Justice Scroggs (1680), who "discharged a grand jury before they made their presentment, thereby obstructing the presentment of many Papists; [and who] arbitrarily granted general warrants in blank;" Sir Edward Seymour (1680) who "applied appropriated funds to public purposes other than those specified;" and the Duke of Leeds (1695) who "as president of the Privy Council accepted 5,500 guineas from the East India Company to procure a charter of confirmation." 28

One way of characterizing all of this English experience is to say, as Joseph Story did, that "lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power." 29 The English cases lend further support to the notion derived from The Federalist and the text of the Constitution that impeachable offenses, "high Crimes and Misdemeanors" if you will, are acts that are inconsistent with the obligations and duties of office, are acts that involve putting personal or partisan concerns ahead of the interests of the people, and are acts which demonstrate the unfitness of the man to the office.

The Constitution, The Federalist, and the English common law experience give a very good general idea of what was meant by the Constitution's impeachment clauses. The meaning of "high Crimes and Misdemeanors" is thus capable of being understood as it was to the framers. It is important also to understand, however, that it is impossible to fix with certainty the complete enumeration of impeachable offenses, and it is impossible to escape the fact that the Constitution vests complete and unreviewable discretion with regard to impeachment and removal in Congress. Hamilton recognized this too:

This [the trial of impeachments] can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors [The House of Representatives] or in the construction of it by the judges [the Senate], as in common cases serve to limit the discretion of courts in favor of per

25 The first use of the phrase "high Crimes and Misdemeanors" is in an impeachment proceeding against the Earl of Suffolk in 1386. Berger, supra note 21, at 59.

26 Id., at 71, 87, 87 nn. 160-161.

27 Joseph Story, Commentaries on the Constitution of the United States 288 (one volume student edition, 1833, reprinted 1987).

28 Berger, supra, at 67-69.

29 Id., at 69, quoting Justice Story.

sonal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons [and so it is placed in the hands of the entire Senate].30

All of this and more, of course, has led earlier students of impeachment to believe that the phrase "high Crimes and Misdemeanors" does not necessarily encompass only criminal acts, but is a general term to refer to any kind of misuse of office that the Congress finds intolerable.31 Indeed, Gerald Ford's famous suggestion that "high Crimes and Misdemeanors" means anything the House of Representatives wants it to mean,32 reflects the essential notion that the Constitution confers broad discretion on this House to make up its own mind about what kinds of conduct should lead to an impeachment proceeding.33 It is more than a little presumptuous, then, for me or any other law professor-or even 400 history professors-to tell you how you should define "high Crimes and Misdemeanors"-the oath you took to uphold the Constitution requires you to make that determination for yourselves, because the maintenance of the quality of the Executive which the Constitutional structure demands is part of your job.

It should be remembered, after all, that the Constitution, while it gives you discretion to determine whether a particular act or series of acts amounts to grounds for impeachment, requires you to move forward to impeach if you determine there are such acts. The language of Article II, Section 4 is imperative: "The President, 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." 34 Once you determine that impeachable acts have been committed, you have no choice—if the Constitution is to function as the framers' understood-you must impeach, leaving the decision on removal to the Senate. In the exercise of your discretion, though, as we have seen, there are some guidelines from the text of the Constitution, from the contemporary exposition in The Federalist, in the debates over the impeachment provision, and in the examples from English practice: impeachable offenses are those that demonstrate a fundamental betrayal of a public trust; they are those that suggest the federal official under investigation has deliberately failed in his duty to uphold the Constitution and laws he was sworn to enforce; and they are those which suggest that the official does not possess the virtue or character necessary to maintain the faith of the people in his honesty and wisdom. This is a determination to be made by the peoples' representatives in the House of Congress closest to the people themselves you.

30 Madison, Hamilton, & Jay, supra note 4, at 382.

31 This was the conclusion reached, for example, in the Report by the Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment, Committee Print, Committee on the Judiciary, 93d Cong. 2d Sess., Feb. 1974: "The emphasis [in impeachment proceedings] has been on the significant effects of the conduct-undermining the integrity of the office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government."

32 What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be suficiently serious to require removal of the accused from office... there are few fixed principles among the handful of precedents." 116 Cong. Rec. H. 3113-3114 (daily ed. April 15, 1970) (statement of Congressman Gerald R. Ford).

33 There is, however, some indication from Hamilton, in Federalist 65 that the kind of acts which amount to impeachable offenses will also give rise to the possibility of criminal prosecution-which may lead to the conclusion that there must be a crime before there can be an impeachment:

[T]he punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.

Id., at 382. In this connection it should be noted that one of the country's foremost authorities on impeachment, the distinguished legal historian who gave my chair to Northwestern Law School, after an exhaustive review of the records of impeachments concluded that a "crime" was not necessary for something to constitute an impeachable offense, even though he believed that Gerald Ford's claim to "an illimitable power" in Congress to impeach went too far. Raoul Berger, Impeachment: The Constitutional Problems 53-62 (1973).

34U.S. Constitution, Art. II, Section 4 (emphasis supplied).

52-326 98-5

But perhaps it would not be untoward of me, in light of what I have tried to suggest about the Framers' understanding, briefly to consider the charges so far levied against President Clinton, and to express an opinion about whether they rise to the level the framers' thought necessary. As this is written, there are two formulations of these charges that have come before you. The first is from Judge Starr's report to you, and the other is by the Committee's chief investigator, David Schippers.

Judge Starr submitted what he believed to be "substantial and credible information" regarding eleven impeachable offenses. These were Judge Starr's allegations that (1) President Clinton repeatedly lied under oath regarding his sexual relationship with Monica Lewinsky, during the pre-trial discovery process in the civil case brought against him by Paula Jones, (2) President Clinton lied under oath to the grand jury about his sexual relationship with Monica Lewinsky, (3) President Clinton lied under oath during his civil deposition in the Jones case, when he stated that he could not recall being alone with Ms. Lewinsky and when he minimized the number of gifts they had exchanged, (4) President Clinton lied under oath during his civil deposition in the Jones case concerning conversations he had with Ms. Lewinsky about her involvement in the Jones case, (5) President Clinton endeavored to obstruct justice by attempting to conceal evidence of his relationship with Ms. Lewinsky from the judicial process, (6) President Clinton had an understanding with Ms. Lewinsky that they would lie under oath in the Jones case about their relationship, and President Clinton endeavored to obstruct justice by suggesting that Ms. Lewinsky file an affadavit which would prevent her deposition in the Jones case and which would enable him to avoid having his testimony contradicted by her and would enable him to avoid questions about her, (7) President Clinton endeavored to obstruct justice by helping Ms. Lewinsky obtain a job in New York at a time when she would have been a witness against him were she to tell the truth during the Jones case, (8) President Clinton lied under oath in describing his conversations with Vernon Jordan about Ms. Lewinsky, 9) President Clinton endeavored to obstruct justice by attempting to influence the testimony of Betty Currie, (10) President Clinton endeavored to obstruct justice by refusing to testify for seven months in a grand jury investigation while simultaneously lying to potential grand jury witnesses knowing that they would relay the falsehoods to the grand jury, and (11) President Clinton did not follow his constitutional duty to faithfully execute the laws when he misled the American people and Congress regarding the truth of his relationship with Ms. Lewinsky, when he allowed and encouraged his wife, his Cabinet, and his associates to perpetrate untruths regarding his relationship with Ms. Lewinsky, when he repeatedly and unlawfully invoked Executive Privilege to conceal evidence from the grand jury, when he refused to answer relevant questions before the grand jury, and when he misled the American people on August 17, 1998 by stating that his answers in the January civil deposition had been "legally accurate." 35

Your Chief Investigative Counsel, Mr. Schippers, based on the referral from Judge Starr, recast Judge Starr's evidence into fifteen purportedly impeachable offenses, including that (1) The President may have been part of a conspiracy with Monica Lewinsky and others to obstruct justice by providing false and misleading testimony under oath in a civil deposition and before a grand jury, withholding evidence, and tampering with prospective witnesses, (2) The President may have aided, abetted, counseled, and procured Monica Lewinsky to file and caused to be filed a false affidavit in the case of Jones v. Clinton, et. al., (3) The President may have aided, abetted, counseled, and procured Monica Lewinsky to obstruct justice by filing a false affidavit (4) The President may have engaged in misprision of felonies by taking affirmative steps to conceal Monica Lewinsky's felonies in connection with her submission of a false affidavit, (5) The President may have testified falsely under oath in his deposition in Jones v. Clinton regarding his relationship with Ms. Lewinsky, (6) The President may have given false testimony under oath before the federal grand jury on August 17, 1998, regarding his relationship with Ms. Lewinsky, (7) The President may have given false testimony under oath in his deposition in Jones v. Clinton regarding his statement that he could not recall being alone with Ms. Lewinsky and minimizing the number of gifts they had exchanged, (8) The President may have testified falsely in his deposition concerning conversations with Ms. Lewinsky about her involvement in the Jones case, (9) The President may have endeavored to obstruct justice by engaging in a pattern of activity calculated to conceal evidence from the judicial proceedings in Jones v. Clinton regarding his relationship with Monica Lewinsky, (10) The President may have endeavored to obstruct justice in Jones v. Clinton by agreeing with Ms. Lewinsky on a cover story, by causing a

35 The Starr Report: The Official Report of the Independent Counsel's Investigation of the President 9-15 (Prima Publishing edition, 1998).

false affidavit to be filed by her, and by giving false and misleading testimony in his deposition, (11) The President may have endeavored to obstruct justice by helping Ms. Lewinsky obtain a job in New York at a time when she would have given evidence adverse to Mr. Clinton if she had told the truth in the Jones case, (12) The President may have testified falsely under oath in his deposition in Jones v. Clinton concerning his conversations with Vernon Jordan, (13) The President may have endeavored to obstruct justice and engage in witness tampering in attempting to coach and influence the testimony of Betty Currie before the grand jury, (14) The President may have engaged in witness tampering by coaching prospective grand jury witnesses and by telling them false accounts intending that the witnesses would repeat these before the grand jury, and (15) The President may have given false testimony under oath before the federal grand jury on August 17, 1998.36

In either version, if true, these allegations show a pattern of conduct, extending over many months, on the part of the President, of deception, of lying under oath, of concealing evidence, of tampering with witnesses, and, in general, of obstructing justice by seeking to prevent the proper functioning of the courts, the grand jury, and the investigation of the Office of Independent Counsel. These offenses, if true, would undoubtedly amount to criminal interference with the legal process, but more to the point, they would demonstrate that the President had failed to live up to the requirements of honesty, virtue, and honor which the framers of the Constitution and the authors of the Federalist believed were essential for the Presidency. These offenses, if true, would bear a clear resemblance to many of the English precedents of impeachment for interfering with orderly processes of law, for tampering with the grand jury, and for seeking to use one's office for personal rather than public ends. These offenses, if true, would show that President Clinton engaged in a pattern of conduct which involved injury to the state and a betrayal of his Constitutional duties, because President Clinton would have thereby abused his office for personal gain and betrayed the ideal that ours is a government of laws and not of men.

If these allegations are true, then the President, instead of carrying out his oath of office to uphold the Constitution and faithfully to execute the laws, sought instead to subvert the judicial process specified in Article III, and, in order to protect himself from an adverse judgment in the Jones proceeding, sought to frustrate the laws designed to protect Ms. Jones and others like her. There are those who will argue before you that what the President did was simply to lie about his private sexual conduct. It should be remembered, however, that the essential allegation in Jones v. Clinton was that the President misused his governmental office (then as Governor of Arkansas) to attempt to procure sexual favors from Ms. Jones, and the allegations of impeachable offenses of the President now before you all flow from efforts of the President to suppress the truth in the course of Jones v. Clinton. It should also be remembered that Judge Starr expanded his investigation to include the facts regarding Ms. Lewinsky because Judge Starr believed that he could discern a pattern of interference with judicial proceedings on the part of the President which Judge Starr had before encountered in the Whitewater investigation.37 Judge Starr's inquiry, after all, has never been about sex, it has been about abuse of power, obstruction of justice and other impeachable offenses.

There may still be further allegations of impeachable offenses from Judge Starr to come before you,38 but looking only to the allegations made by Judge Starr and by your Chief Investigator detailed above, there is more than enough to require you to move forward now. These allegations concern conduct by the President in which he allegedly ignored his Constitutional obligations to take care that the laws be faithfully executed, and instead used his august position to frustrate enforcement of the law. If these allegations are true, then the President has acted in a manner against the interests of the state and he has sought to subvert the essence of our Constitutional government-that ours is a government of laws and not of men. If these allegations are true, then the President has engaged in conduct that can only be described as corrupt, and corrupt in a manner that the impeachment process was expressly designed to correct.

For many people, apparently, the allegations against the President can still be characterized as "lying about sex," and it is difficult for many people to believe that such conduct is anything but a private matter, far removed from Constitutional procedures or requirements. The President is accused of much more than "lying about sex," of course, as Judge Starr and Mr. Schippers have made plain. It is appropriate to note in passing, however, that our legal tradition has never made any distinction

36 Presentation before the Committee on the Judiciary, U.S. House of Representatives, Monday, October 5, 1998.

37 Starr Report, supra note 35, at 38.

38 Id., at 47-48.

about the content of matters that might involve perjury, obstruction of justice, or tampering with witnesses. No person and least of all no President, who is sworn faithfully to execute all the laws, can pick and choose over which matters he will be truthful and which he will not, particularly when he is under oath.

An oath, and the virtue of one swearing to it, perhaps lightly regarded by many today, were not so lightly regarded at the time of the Constitution's framing. Our best evidence of this is George Washington's statements in his famous "Farewell Address." The "Farewell Address" is the first President's "one outstanding piece of writing," and is regarded as comparable in importance to Thomas Jefferson's Declaration of Independence, Alexander Hamilton's financial plan, or James Madison's journal of the proceedings of the Constitutional Convention." 39 Like the Declaration, Hamilton's ideas about the importance of Commerce and Manufacturing, or the Constitutional Convention, Washington's Farewell Address offers a valuable and authentic glimpse into what the framers considered vital for the new Republic they were founding. In that Farewell Address, in one of its most important passages, the man whom the framers designated as their First President, asked "[W]here is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?" Somewhat later in the address Washington added:

It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabrick?" 40 Washington, the Platonic Form of an American President, believed that the oath taken in court was a fundamental security for all that was held dear in American Society. He believed that those who took their oaths in vain were eroding the foundation of American government, and that they had lost the virtue which he believed essential to sustain freedom and popular sovereignty. Even if all President Clinton had done were to lie under oath in a judicial proceeding, the first President would have believed that President Clinton was engaged in an effort to "shake the foundation of the fabrick" of our Constitutional scheme. It is clear, based on this, that George Washington would have recommended President Clinton's impeachment, and this would likely have been the view of Madison, Hamilton, Jefferson, and Mason as well.

The allegations against President Clinton amount to much more than lying under oath, however. I think that the framers' view of the Constitution means that if these allegations are true, then the oath that you took to support the Constitution 41 requires you to impeach the President.

Mr. CANADY. At this time, the subcommittee will recess until the hour of 1 o'clock. We will then reconvene for questions of the witnesses on the first panel, and then proceed with the second panel. The subcommittee will stand in recess until the hour of 1 o'clock. [Luncheon recess.]

Mr. CANADY. The subcommittee will be in order. At this time we will have a round of questions for the members of this panel. As I announced earlier, each member of the subcommittee will be given 10 minutes for the purpose of asking questions. I will now recognize myself to begin the questions.

I would like to begin by talking a little bit about the procedures that we have followed in this inquiry in the context of the history of procedures that have been used in earlier impeachment inquiries, and most particularly in the case of President Nixon.

Father Drinan, you were there as a key participant in those proceedings.

39 Frank Donovan, editor, The George Washington Papers 258 (1964). There is much speculation among historians about whether the Farewell Address was primarily drafted by Alexander Hamilton, but it has still come down to us as the wisdom of our First President.

40 George Washington, "To The People of the United States [the Farewell Address]," September 19, 1796, reprinted in II John Marshall, The Life of George Washington 479 (1930 reprint) 41U.S. Constitution, Art. VI, Paragraph 3 provides that "The Senators and Representatives shall be bound by Oath or Affirmation, to support this Constitution.

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