Background and History of Impeachment

This is not a case in which the President was surprised by a question about Ms. Lewinsky. On the contrary, the President knew that Ms. Lewinsky might very well be the subject of questions at the deposition conducted in January of this year. The evidence overwhelmingly points to the conclusion that the President went to that deposition with a calculated plan to lie and that at the deposition, after having taken an oath to tell the truth, the whole truth, and nothing but the truth, the President made multiple false statements.

Among other things, the evidence also overwhelmingly supports the conclusion that the President corruptly sought to influence the testimony of potential witnesses before a Federal grand jury in an effort to interfere with the due administration of justice.

The President's lawyers and some of the witnesses who will testify today contend that such conduct by a President of the United States is not impeachable under our Constitution. I am constrained to disagree.

Such conduct is indeed "seriously incompatible with the proper performance of constitutional duties of the presidential office," namely, the preeminent presidential duty to "take care that the laws be faithfully executed." No one can offer a satisfactory explanation of how multiple acts of lying under oath and obstruction of justice are compatible with the constitutional duties of the President or of his oath of office.

Obstruction of justice and lying under oath by a President inevitably subvert the respect for law which is essential to the wellbeing of our constitutional system. Such misconduct by the President sets an example of lawlessness and corruption, an example that cannot fail to have an "adverse impact on the system of government." A President who is guilty of such acts, acts involving calculated and sustained criminal conduct, steps outside the role assigned to him by the Constitution as the chief defender of the rule of law. He turns his back on the unique place he occupies in our system of government and takes on the role of one who by his own conduct directly attacks the rule of law, and consequently stands as a disgraceful and pernicious example before the whole Nation. If the President is guilty of the offenses charged against him, he must be called to account under the Constitution for the commission of "high Crimes and Misdemeanors." He must be called to account for putting his selfish personal interests ahead of his oath of office and his constitutional duty. He must be called to account for the undermining of the integrity of the high office entrusted to him by the people of the United States. He must be called to account for setting a dangerous example of lawlessness and corruption. He must be called to account for subverting the respect for law which is the foundation of our Constitution.

[The prepared statement of Mr. Canady follows:]

PREPARED STATEMENT OF CHARLES T. CANADY, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION, AND A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, Today the Subcommittee meets to receive testimony on the "Background and History of Impeachment." We will hear from two panels of distinguished witnesses on this important 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 hearings is not to establish a fixed definition of impeachable offenses under Article II of our Constitution. The House has never in any impeachment inquiry or proceeding adopted either a comprehensive definition of "high Crimes 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 the model that has been consistently followed throughout the more than 200-year history of impeachment in the United States. And that is the 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 our 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. Instead, it is the solemn duty of all the members of the House in any impeachment case to exercise their judgment faithfully within the confines established by the 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 the 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:

"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 the governmental process, adverse impact on the system of government." (emphasis added)

The report goes on to state:

"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." (emphasis added)

The references to "undermining the integrity of the 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 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:

[W]e 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. . . (emphasis added)

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. 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. This was not a case in which the President was surprised by a question about Ms. Lewinsky. On the contrary, the President knew that Ms. Lewinsky might very well be the subject of questions at the deposition conducted in January of this year. The evidence overwhelmingly points to the conclusion that the President went to that deposition with a calculated plan to lie and that at the deposition, after having taken an oath to tell the truth, the whole truth, and nothing but the truth, the President made multiple false statements.

Among other things, the evidence also overwhelmingly supports the conclusion that the President corruptly sought to influence the testimony of potential witnesses before a federal grand jury in an effort to interfere with the due administration of justice.

The President's lawyers and some of the witnesses who will testify today contend that such conduct by a President of the United States is not impeachable under the Constitution. I am constrained to disagree.

Such conduct is indeed "seriously incompatible with... the proper performance of constitutional duties of the presidential office" namely, the preeminent presidential duty to "take care that the laws be faithfully executed." No one can offer a satisfactory explanation of how multiple acts of lying under oath and obstruction of justice are compatible with the constitutional duties of the President or his oath of office.

Moreover, no one can explain why the conduct charged against the President does not "undermine the integrity of office." The President's misconduct falls directly within the category of acts which may not directly involve the affirmative misuse of official power, but which nevertheless "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." Obstruction of justice and lying under oath by a President inevitably subvert the respect for law which is essential to the well-being of our constitutional system. Such misconduct by the President sets an example of lawlessness and corruption-an example that cannot fail to have an "adverse impact on the system of government." A President who is guilty of such acts-acts involving calculated and sustained criminal conduct-steps outside the role assigned to him by the Constitution as the chief defender of the rule of law. He turns away from the unique place he occupies in our system of government and takes on the role of one who by his own conduct directly attacks the rule of law, and consequently stands as a disgraceful and pernicious example before the whole nation.

Alexander Hamilton, writing not long after the Constitution was adopted, well expressed the harm that would come to our Republic from those who by their example undermine respect for the law. In a statement that bears repeating, Hamilton wrote:

"If it were to be asked, What is the most sacred duty and the greatest source of security in a Republic? the answer would be, an inviolable respect for the Constitution and Laws-the first growing out of the last. Those, therefore, who . . . set examples, which undermine or subvert the

authority of the laws, lead us from freedom to slavery; they incapacitate us for a government of laws.

...

If the President is guilty of the offenses charged against him, he must be called to account under the Constitution for the commission of "high Crimes and Misdemeanors." He must be called to account for putting his selfish, personal interests ahead of his oath of office and his constitutional duty. He must be called to account for undermining the integrity of the high office entrusted to him by the people of the United Sates. He must be called to account for setting a dangerous example of lawlessness and corruption. He must be called to account for subverting the respect for law which is the foundation of our Constitution.

Mr. Scott, you are recognized for 10 minutes.

Mr. SCOTT. Thank you, Mr. Chairman. I want to thank you, Chairman Hyde, and Ranking Member Conyers for convening this historic meeting, and I also want to thank the witnesses who will testify before us today.

As a Member of the House Judiciary Committee and the Ranking Member of this subcommittee, I share the responsibility with my colleagues in ensuring that these proceedings will be fair and consistent with our responsibility to the Constitution, as we consider impeachment. Of tantamount importance to this sobering responsibility is our obligation to maintain the proper perspective, and that no matter what we think of Bill Clinton and his tawdry escapades with an intern, what we do during these proceedings will affect the future strength and independence of the presidency as an institution.

Since the issuance of the Starr report, I and a number of my colleagues on the Judiciary Committee have called for this hearing on the constitutional implications of impeachment in order that the committee members could be well informed in the actions we take, to avoid making mistakes that may endanger our constitutional form of government.

One of the very first orders of business after the House decided to begin the Watergate inquiry was to review the history of impeachment and development of standards. An elaborate memorandum was issued by the committee days after the inquiry vote and months before any potentially damaging information was dumped into the public or any evidence was reviewed. This exercise was conducted despite the gravity of the allegations brought against President Nixon and the overwhelming historical precedents which supported the position that those allegations fell well within the definition of impeachable offenses.

The situation before us today is very different from Watergate. We are not contemplating impeaching a President because he has had the IRS harassing his political enemies by conducting audits on their taxes or because he misused the CIA by having them attempt to undermine a congressional investigation into other abuses of his power. Instead, we are investigating whether a President's alleged lying about details of a sexual affair warrants his removal from office. Moreover, we have been warned repeatedly that these allegations are nowhere near what is necessary to overturn a national election.

Despite these warnings, this committee has turned a deaf ear to hundreds of years of precedents and to the Constitution that has kept this country strong and unified. Instead, this committee has plunged this country into an impeachment inquiry without ever de

termining what impeachment is and which if any of the allegations, even if true, might constitute impeachable offenses.

The National Law Journal conducted a survey of 12 nationally prominent constitutional law professors and found that 10 of the 12 conclude that, based on historic precedents of impeachment, not one of Ken Starr's allegations is an impeachable offense. Furthermore, most of the scholars said the question wasn't even close. Two weeks ago, over 400 of the country's most prominent historians wrote a letter saying that the Starr allegations are not impeachable offenses, and I would like to direct the committee's attention to a blowup of this letter over here.

In addition, this past Friday we heard from the Nation's constitutional law professors. Over 400 have signed letters saying that not only are Starr's allegations not impeachable, but also that the continued pursuit of an impeachment inquiry is threatening our constitutional form of government. While the strong and dire warnings from over 400 historians and 400 law professors cannot serve as a substitute to our constitutional obligations to determine if any of the alleged offenses are impeachable offenses, they definitely reflect the importance of this hearing today in applying the available scholarship to our proceedings.

The pleas of the scholars should inspire the committee to engage in a logical analysis of how this inquiry should proceed. A determination of whether any of the allegations alleged, even if true, are impeachable is the first step in a rational process. In conducting this analysis, a number of issues must be addressed and questions answered.

What is impeachment? Why is it included in the Constitution? What effect does an offense have to have on the constitutional form of government to warrant impeachment? What actions have been worthy of impeachment before, and what actions were not deemed worthy of impeachment? Without this hearing, there would be no logical manner to outline the parameters of what is impeachable. All of the precedence directs us to ask those questions and to proceed accordingly.

Even a cursory review of impeachments reveals that there is no constitutional authority to forcibly remove the President simply because we dislike him, or because we don't respect him, or because we disapprove of his actions when those actions do not constitute "Treason, Bribery, or other high Crimes and Misdemeanors." In fact, the scholars have told us that by proceeding with an inquiry based on allegations that do not meet these standards, we risk doing irreparable harm to our system of government by establishing a dangerous and partisan impeach-at-will precedent that will forever weaken the institution of the presidency.

The presidency was intended to be free from subversion by the legislature. Three separate and co-equal branches were envisioned by the drafters of our Constitution, and it is for this reason that impeachment is limited to the constitutionally explicit "Treason, Bribery, or other high Crimes and Misdemeanors." Maladministration was rejected as an impeachable offense because the term was considered to be too broad and, therefore, a threat to the independence of the executive branch, and because it would make it too easy for Congress to impeach a President with whom it did not agree.

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Background and History of Impeachment: Hearing Before the Subcommittee on ...