be accompanied with "disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States." U.S. Const. art. II, 3, c. 7.

Both Franklin and Randolph emphasized the need for the public to view the process as responding to questions of fitness to avoid "irregular[]" responses. Records vol. 2, supra, at 67 (Franklin) (noting that, absent a system of impeachment, citizens can resort to violent action); Id. at 67 (Randolph) ("The propriety of impeachments was a favorite principle with him; Guilt wherever found out to be punished. The Executive will have great opportunities of abusing his power Should no

regular punishment be provided, it will be irregularly inflicted by tumults & insurrections."). Madison created a system by which such powerful pressures could be directed to allow some release within the legislative branch rather than resisted to the point of social explosion.

The brilliance of Madison was his recognition that factions and divisions within a nation can, if left unresolved, fester into open conflict or "convulse the society." The Federalist No. 10 at 80 (James Madison) (Clinton Rossiter ed. 1961). Madison saw the natural inclination of citizens to divide on issues of importance to a democratic system since "[t]he latent causes of faction are . . . sown in the nature of man." Id. at 79. Rather than emphasize only aspirational collective values,25 Madison emphasized the importance of recognizing factional divisions and the need to force such divisions into the open for a majoritarian result. Id. at 80 ("The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.") The bicameral system was a result of this approach.

Impeachment is at times essential to address factions produced by the misconduct of a Chief Executive. There is no more dangerous or divisive a question in a democratic system than the legitimacy of a president to govern. Alexander Hamilton warned that charges of impeachable conduct "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused." The Federalist No. 65, at 396-97 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The test of the system was to create a process that could handle such intense pressures while protecting against majoritarian abuse. Impeachment provides a public forum to address these concerns and, when appropriate, subject a Chief Executive to a new vote of legitimacy. The bicameral structure of impeachment allows for serious questions of legitimacy in the Chief Executive to be raised in an open and deliberative fashion.26 It was a process by which illegitimacy could be remedied by removal and legitimacy could be redeemed by acquittal.

"High crimes and misdemeanors" is a standard directed at conduct by a president that is so serious as to undermine his political and legal legitimacy to govern. See Charles L. Black, Jr., Impeachment: A Handbook 49 (1974) (“I think we can say that 'high Crimes and Misdemeanors,' in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not 'criminal,' and which so seriously threaten the order of political society as to make pestilent and DANGEROUS THE CONTINUANCE IN POWER OF THEIR PERPETRATOR.") (capitalization in original). Madison noted that there are times when the public should not have to wait for the termination of a term to remove a person unfit for the office. Madison explained that:

[It is] indispensable that some provision should be made for defending the Community ag[ain]st the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more with the compass of probable events, and either of them might be fatal to the Republic.

25 Madison criticized previous philosophers for their assumptions about human interests and behavior. The Federalist No. 10, at 81 ("[t]heoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would at the same time be perfectly equalized and assimilated in their possessions, their opinions, and their passions.").

26 Certainly in the judicial impeachments, the notion of illegitimacy brought on by improper or offensive conduct was readily accepted in the eighteenth century under the Constitution. This illegitimacy basis for impeachment continued throughout our history with judges often charged with bringing "disrepute" upon their offices. See, e.g., Impeachment of Halsted L. Ritter, 80 Cong. Rec. 5602-08 (1936); see also Wrisley Brown, The Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684, 692 (1913) (noting that impeachment was appropriate for "an official dereliction of commission or omission, a serious breach of moral obligation, or other gross impropriety of personal conduct which, in its natural consequences, tends to bring an office into contempt and disrepute.").

While there may be a variety of disabilities that were not viewed in the 1700s as falling with "the compass of probable events," the impeachment process was available to the public to avoid the paralysis of a president serving in office with the title but not the legitimacy to govern.

Such legitimacy concerns are not confined to the Framers. Congress has previously emphasized legitimacy issues in impeachment inquiries of both presidents and other officers. In the presidential impeachment_cases, Congress has often stressed conduct that undermined both the office of the President and the legitimacy of the President to govern.27 Various presidents have been the subject of proposed articles of impeachment, including Presidents John Tyler, Andrew Johnson, Grover Cleveland; Herbert Hoover, Harry S. Truman, Richard Nixon, Ronald Reagan, George Bush, and now William Clinton. These proposed articles often included issues touching on fitness, character, or legitimacy. Most of these allegations were, however, clearly partisan, often abusive, and largely unsuccessful.

In the articles of impeachment against President Richard Nixon,28 the House tied each specific act to the charge that the President's conduct was "contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States." 3 Deschler's Precedents of the United States House of Representatives, H. Doc. 94-661, 94th Cong., 2d Sess., Ch. 14, § 15.13, 638–643 (1974) (Article I through Article III). The use of impeachment to address legitimacy issues was made by the New York bar during the Nixon hearings:

It is our conclusion, in summary, that the grounds for impeachment are not limited to or synonymous with crimes (indeed, acts constituting a crime may not be sufficient for the impeachment of an officeholder in all circumstances). Rather, 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 it essential to the effectiveness of government in a free society. . . At the heart of the matter is the determination committed by the Constitution to the sound judgment of the two House of Congress-that the officeholder has demonstrated by his actions that he is unfit to continue in the office in question.

Committee on Federal Legislation of the Bar Association of the City of New York, The Law of Presidential Impeachment 8 (1974).

While there is considerable debate over the relevance of the judicial impeachment standards to a presidential impeachment,29 one aspect of the judicial impeachments

27 The first president to face an impeachment inquiry vote in the House was President John Tyler in 1843. President Tyler was charged with a variety of noncriminal acts including "shameless duplicity, equivocation, and falsehood with his late Cabinet and Congress." Impeachment of the President of the United States, Congressional Globe, vol. 12, Jan. 10, 1843, p. 144. The vote of the House was 127 to 83 against "the charges." Id.

28 The articles of impeachment against President Johnson included various noncriminal (and clearly abusive) bases for removal, including the allegation that the President "with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces against Congress [and] the laws of the United States duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled and within hearing." Journal of the House of Representatives of the United States, 40th Cong., 2nd Sess. (Washington: GPO, 1868) pp. 440-450; see also The Impeachment of the President, Congressional Globe, vol. 39, March 2-3, 1868, pp. 1613-42.

29 The effort to distinguish the roles of the President and judges to support an argument for a different standard is problematic. First, the argument that the impeachment of a judge will not reverse a popular election (as it would a President) ignores the fact that impeachment does not reverse an election since the Vice-President replaces the President in succession. The suggestion that this process is in any way analogous to a parliamentary system, where a government is replaced, is meritless. Second, comparisons to the other branches is not always to the benefit of the President. For example, some of the delegates appeared to favor impeachment to guarantee the removal of a president due to his special powers in comparison to Congress. Madison noted that impeachment was necessary in cases of "incapacity, negligence or perfidy" because a president guilty of such acts could not be relied upon to lead a government or foreign affairs. Records vol. 2, supra, at 65-66. Madison noted this makes the president more dangerous than legislative officers with the same failings:

The case of the Executive Magistracy was very distinguishable, for that of the Legislative or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose

is probative. After the ratification of the Constitution, judicial impeachments were commenced during the lifetime of many of the delegates. From these early cases to the present time, the House has included legitimacy articles that charged judicial officers with bringing disrepute upon their offices. There was no outcry at such noncriminal bases for impeachment or the right of the public to review conduct that is so offensive as to be viewed as incompatible with an office. 30

This view of impeachment as addressing legitimacy issues is certainly present in modern impeachment trials where Congress has often sought removal based on such articles as "[b]y his conduct, raising substantial doubt as to his judicial integrity, undermining confidence in the integrity and impartiality of the judiciary, betraying the trust of the people of the United States; disobeying the laws of the United States, and bringing disrepute on the Federal courts and the administration of justice by the Federal courts." Articles of Impeachment Against Judge Walter L. Nixon, Jr., as Amended, S. Doc. 101-17, 101st Cong., 1st Sess. 21-27 (Oct. 5, 1989) (Article III); see also Report of the Impeachment Trial Committee on the Articles Against Judge Alcee L. Hastings, S. Rept. 101-156, 101 st. Cong., Sess, 3 (Oct. 2, 1989) (including Article XVII for "undermin[ing] the trust of the people of the United States."); Congressional Impeachment Process and the Judiciary: Documents and Materials on the Removal of Federal District Judge Harry E. Claiborne, 19; Document I, 1-6 (1987) (including Article IV which charges "betraying the trust of the people of the United States and reducing the confidence in the integrity and impartiality of the judiciary, thereby bringing the federal courts and administration of justice by the courts into disrepute.").

The view of the impeachment process as a vehicle for dealing with legitimacy questions reinforces the need of the House to submit credible evidence of serious crimes to the Senate. A president then will be given the opportunity to testify under "oath or affirmation" as to the allegations. If a president lies to Congress at that moment, there should be no further question about his unsuitability to continue in office. Cf. 4 Elliot, supra, at 127 (Iredell) (noting that, in the course of official dealings with Congress, the president "must certainly be punishable for giving false information to the Senate.") If a president testifies truthfully, however, the Senate may acquit even in the face of likely criminal acts. The difference is that this decision will have been made in a Senate trial specifically created for such review with representatives of all three branches. The President's conduct is reviewed by legislative figures designated by the Framers due to their length of term and special institutional characteristics. If a president leaves such a body with his office intact, he can claim a form of political legitimacy that was gained by exposing himself to removal by will of the public.

There are obviously some acts that do not raise serious questions of the legitimacy of a president as a person of "good virtue" or veracity. However, there are many criminal or noncriminal acts that seriously undermine such legitimacy in a person who_must “take Care that the Laws be faithfully executed." U.S. Const. art. II, 3; cf. Gerhardt, supra, 68 Tex. L. Rev. at 88 ("The answer seems to be that someone who holds office also holds the people's trust, and an officeholder who violates that trust effectively loses the confidence of the people and, consequently, must forfeit the office.").

An allegation of criminal acts in office by a president represents the greatest threat to legitimacy and should ordinarily go to the Senate for review. The legitimacy of a president is seriously undermined when he has committed acts for which average citizens have been prosecuted. This anomaly creates the appearance that the President stands above the law. This was precisely the concern of Framers like George Mason when he argued for the need of impeachment by asking a relevant rhetorical question: "Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?" Records vol. 1, supra, at 66; see also 2 Story, supra, at 278-79 (noting that impeachment "holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the

their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administrated by a single man, loss of capacity or corruption was more within the compass of probable events and either of them might be fatal to the Republic.

Id. at 66.

30 For example, recent impeachments of judicial officers include: Judge Harry_Claiborne (income tax evasion); and Judge Walter Nixon (perjury). See Gerhardt, supra, 68 Tex. L. Rev. at 4 n.11.

laws."). The circumvention of a Senate trial creates an appearance of special extrajudicial status in the President and undermines the legitimacy of prosecution of average citizens by the Executive Branch. It also undermines the oath of the President that he will execute the federal laws that he himself has violated.

While criminal allegations should militate in favor of submission to the Senate, particular mitigating and aggravating factors will ordinarily be considered. The most important of these factors is premeditation. As with any prosecutor, Congress must inquire into the quality of the criminal act in terms of intent and premeditation. There is a considerable difference between an act committed under the influence of alcohol like drunk driving and a pre- meditated criminal act by a president. If the House believes that the President acted with full premeditation and knowledge of the criminal conduct, it would be difficult to justify a vote against submission to the Senate for a consideration under the procedures laid out by the Framers.

Articles I through III reflect the genius of the Madisonian Democracy to direct pressures that often tear apart other systems. Madison was particularly keen on the use of open and deliberative process to bring factions to the surface where they can be addressed. When a president stands accused of criminal acts in office, he creates a division among the public as to his legitimacy to serve as president. Rather than have such issues go unanswered, the Framers created a process by which a president would be called to defend his conduct and submit to will of the Senate as representatives of the citizens. This process is political and redemptive. The danger of threshold exclusions in the House is that the public is denied the value of this political judgment. This is why it is sometimes more important how we reach a decision than what we decide.

C. Inherent Dangers of a Threshold Exclusion Under Article II

The thrust of my testimony today is to refute any textual or originalist basis for a clear exclusion of alleged criminal conduct in this crisis from the scope of the impeachment clause. As an alternative, I have suggested a functional interpretation of the impeachment standard. The academics appearing today clearly have different views of these matters and I look forward to reading the testimony of academics with whom I disagree but for whom I have tremendous respect.

While I do not want to dwell on our differences, two letters have been circulated by law professors and historians, respectively. These letters advance different claims as to the basis of the threshold definition of impeachment. I would like to briefly comment on those letters since, like various other law professors, I obviously declined to sign the law professors' letter when it was circulated.

The two letters reach identical conclusions with significant differences in argument. The historians, identified collectively (and exclusively) as "Historians in Defense of the Constitution," leave no doubt as to the intent of the Framers. While I expect that the historians appearing as majority witnesses today can address their apparent de facto position as "historians in opposition to the Constitution," I found the sweeping originalist claims of the letter to be astonishing. The letter, signed by some of our most renowned historians, states categorically that "[t]he Framers explicitly reserved [impeachment] for high crimes and misdemeanors in the exercise of executive power." Furthermore, the historians add that the impeachment of President Clinton for these alleged crimes in office "will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress."

I will not repeat my view of the textual or historical record to refute this claim beyond noting that I cannot find any explicit, clear, or compelling evidence of original intent in the debates. What is remarkable about this letter is the complete failure to consider the countervailing separation of powers issue: how a new precedent excluding certain crimes from the scope of impeachable conduct would "permanently disfigure[] and diminish[]" the Presidency. If the letter is advancing a functional argument, there should be some minimal attention to the long-term consequences of a new doctrine that a president may lie under oath and commit crimes with regard to some undefined subjects without facing impeachment. The casual dismissal of the alleged crimes committed by President Clinton as "private behavior" ignores the fact that criminal acts are routinely committed for the most personal and absurd reasons. If a president can lie in order to hide such personal behavior, what else may he lie about? If he can lie to the Judicial Branch, can he lie to the Legislative Branch on these subjects when the tripartite system demands reliable communication between all three branches? Can he commit other criminal acts in addition to lying under oath as part of such behavior without risk of impeachment? Casual assertions about criminal acts committed by presidents in office can provide catastrophic results for a constitutional system.

Not only does the record lack the "explicit" statements noted (but not quoted) by the historians, some of the Framers actually suggest impeachment as a method of applying the same laws to the Chief Executive that are applied to average citizens. For example, Hamilton stated that, when a president stands accused of criminal acts, he can be impeached and "[h]e may afterwards be tried & punished in the ordinary course of the law-His impeachment shall operate as a suspension from office under the determination thereof." Alexander Hamilton, Speech at the Convention (June 18, 1787), reprinted in William M. Goldsmith, The Growth of Presidential Power: A Documented History 99 (1974). Nevertheless, according to the historians, a president may commit any criminal act and remain in office so long as the criminal act is not "in the exercise of executive power." There is no suggested exception to this position in the letter. Thus, a president may openly commit molestation or murder without suffering impeachment. Such a principle would allow the system to be paralyzed by perceived illegitimacy in the Chief Magistrate based on the most artificial of distinctions. Since a President is constitutionally required to "faithfully execute" the laws of the United States, many would view the status of a presumed criminal actor to be incompatible with the "public" not the "personal" life of the Chief Executive.

My difference with the historians may reflect our different academic perspective and professional training. As a lawyer, the notion of excluding conduct based on a casual category of "private behavior" is stupefying. If adopted, we would have to apply this standard in a host of different circumstances and future presidents would rely on this standard to guide their actions. Until this crisis, many of us assumed that the line of conduct was a bright line: a president cannot commit crimes in office. Frankly, we have had every type of president in office from drunkards to dullards.31 Their only limitation was that, if they committed criminal acts, they would have to answer for their conduct in the well of the Senate. There is no explanation why this minimal requirement of conduct is so debilitating for a president. Holding a president to the laws that he must faithfully execute does not diminish our system, it reaffirms our most sacred principle that no individual is above the law.

In prior commentary on this issue, various legal academics have advanced the same categorical exclusion of any acts that are not directly linked to use of executive authority. However, some of the same academics also insist that a president could never be indicted before impeachment. Thus, a president could openly commit a crime like child molestation and remain in office through two terms. In fact, according to this interpretation, the Framers accepted that a president_could have remained immune from prosecution through multiple terms since the Constitution did not have limitations on terms in office. There is little basis in the historical record to support such a result.

The joint letter of the law professors takes a different approach from the historians. While some law professors have advanced original intent or textual arguments in commentary on the crisis, the letter of the law professors acknowledges that "[n]either history nor legal definitions provide a precise list of high crimes and misdemeanors. Reasonable persons have differed interpreting these words." The law professors then advance an argument that the definition of "high crimes and misdemeanors" must be tied to the exercise of executive authority. Yet, the law professors then state that they accept that president can be impeached for "private" conduct.32 Thus, according to these law professors, the impeachment clause does not categorically limit impeachable offenses to official acts or use of executive authority. Thus, the only remaining test is that private conduct must be "heinous." The law

31 There appears to be a sudden interest in the sexual habits of the Framers, who are now being politically exhumed and "spinned" as part of the crisis. This is particularly the case of Alexander Hamilton's affair with Maria Reynolds in the summer of 1791. This affair occurred while Hamilton was Treasury Secretary and commentators have stressed that the subsequent scandal involved allegations that Hamilton used this office to assist his lover's husband in illegal transactions. Since there was no call of impeachment or punishment, it is argued that the drafters and their contemporaries did not view such scandals to be matters of public concern. The facts of this matter have been grossly misrepresented. See generally Claude G. Bowers, Jefferson and Hamilton (1925). Hamilton was in fact confronted with these allegations by congressional leaders. Hamilton was able to present documents to show that there were no such illegal transactions and that his lover's husband was trying to blackmail him. When the Jeffersonians attacked Hamilton on this false charge in later years, he publicly admitted the affair and submitted the documents proving the allegations to be untrue. There was no action taken because there was no evidence of any conduct other than a consensual sexual relationship.

32 Various signatories to the letter of law professors presumably have abandoned any claim that the language or history of the impeachment clauses categorically excludes private acts and must be limited to uses of executive authority.