in another setting referred to impeachment as a caged lion, and I have said you should not let the lion out of the cage. I mean by that much the same thing that James J. Kilpatrick, with whom I am not normally expected to agree, said in a recent article in the Buckley magazine that he was not referring to impeachment, he was referring to a court's decision to allow the Paula Jones case to proceed while the President was in office. And he said with his directness that the court is wrong. He said it will open up trumpedup lawsuits against future Presidents.

If twice in this century, twice in 25 years we open up the impeachment process, we domesticate this weapon. We do not lead to successful impeachments, we lead to successful impeachment wars. All civil officers, Vice Presidents are susceptible, Cabinet officers are susceptible, and people who are deeply motivated-I am out of time, and I will stop. If you have a question, I will come back to it.

[The prepared statement of Mr. Holden follows:]

PREPARED STATEMENT OF MATTHEW HOLDEN, JR.,1 DEPARTMENT OF GOVERNMENT AND FOREIGN AFFAIRS, UNIVERSITY OF VIRGINIA

Mr. Chairman, Members of the Committee: I am deeply appreciative of the invitation to put before you today my views in this critical hearing on "The Background and History of Impeachment." My statement today is elaborated and expanded from a version that served as the basis for my statement in the Congressional "Town Hall' Briefing, on October 1, 1998. At that time, I had a skeptical view, but had reached no definitive conclusion as to the process. After much reflection in the next three weeks, I reach the conclusion stated in this paper. I should also make very clear that the views here are mine alone, and do not represent the views of any institution or organization with which I have any connection or responsibility. The impeachment of judges involves questions of a qualitatively different character. I do come somewhat in the spirit of John Milton, upon whose magisterial language I draw:

They who to states and governors of the Commonwealth direct their speech, high court of parliament, or wanting such access in a private condition, write that which they foresee may advance the public good, I suppose at the beginning of no mean endeavor, not a little altered or moved inwardly in their minds; some with doubt of what will be the success, others with fear of what will be the censure, some with hope, others with confidence of what they have to speak.2

Let me start with what is common ground that we all know. Impeachment is the making of an accusation against a public official.3 An impeachment is similar to any other accusation in one respect. It embarrasses the accused official. But it does not take away any authority. It may have little, if any, consequence until the accused has been found guilty in a trial. We are here discussing Presidential impeachment. With respect, from a deep concern for the political system, the process should now be terminated.

The issues have thus far been framed principally in legal terms. I do not claim legal competence, and leave those critical issues to others. I approach the impeachment issue as a political scientist. As one who has thought about governmental matters for some years, though admittedly without the benefit of a legal education, I express the view that Congress is fundamentally doing the wrong thing. Its focus is upon "what should be done about Bill Clinton?" based upon the predicate that at all cost, something must be done. Congress may have the ingenuity to craft some means, within its unchallenged powers under Article I, other than impeachment, of

1 Communication, substantive or technical, on this statement should be directed to the author at: Department of Government and Foreign Affairs, University of Virginia, Room 232 Cabell Hall, Charlottesville, VA 22903 USA. Fax: 804-924-3359 E-mail: mh3q@virginia.edu.

2 From "Areopagitica," in Stephen Orgel and Jonathan Goldberg (Eds.), John Milton, New York: Oxford University Press, 1991, 237.

3 Steven E. Gifis, Law Dictionary, Hauppage, NY: Barrons Educational Series, 1996, 236; and, Black's Law Dictionary, Sixth Edition, St. Paul: West Publishing Co., 1990, 753.

responding to the situation. But any further proceeding under the impeachment mode degrades the Constitution by seeking to squeeze from it authority that cannot be located there. Moreover, it sets the path for many years of intense political struggle in which all sorts of groups and interests seek to exploit this newly revived

weapon.

The reported business transactions known as "Whitewater," as well as the reported inquiry into certain records of some Republican leaders, known as "Filegate," might in principle involve substantial issues about which citizens should rightly be concerned. Various speculations have appeared for a long time as to the nature and direction of the Independent Counsel's inquiry. At one time, the speculation was that the First Lady had become the target of the investigation. 5

When the public media reported that the office of Independent Counsel had begun to make inquiries into the President's social relationships with various women, I privately characterized it as 'peephole politics.' It seemed to me to indicate that there was little definitive to report as the important matters with which the investigation had begun. Within the past eleven months or so the original matters have been no part of any report of the Independent Counsel that is publicly known. As it happens, the secondary matters-various personal relationships between the President, Ms. Monica Lewinsky (and, assertedly, possibly others) have come to the forefront.

It is important, first of all, to state that the reported "outrage" and "disgust" with the things the President is reported to have done may be less than meets the eye. There is one cluster of critics whose attitudes are about the sexual relationships. The basic core, however is composed of those who so intensely dislike Bill Clinton, that there is nothing he could do that would satisfy them, except remove himself from American politics. In one case, there was the business executive whose house guest I was, described Clinton, on the basis of his pre-1992 history, in terms that even now I would not put into a document.

The question is whether a critic of that degree would ever fail to find any basis for impeachment. Then there are the critics whose formulations do come after Ms. Lewinsky appeared in the public consciousness. For some critics, adultery is the besetting ill, in that sex outside marriage is inherently bad.

Another set of critics seem similar to a business executive who thought it deceptive to discuss what was impeachable and what was not. The objection was President Clinton's having sex with a female young enough to be his daughter. He "turned her head" and "took advantage." Presumably, he did not have such strong objections or reactions to the fact of an extra-marital relationship in itself.

Still another set of critics is troubled by what they see as an essential mechanical relationship, and by sex that approaches the R-rated, if not X-rated, "kinky" type. For some others, it may be less what happened than in its revelation, which "embarrassed us (Americans in general) in front of the world." Still others are troubled by the presumptive callousness that yielded such embarrassment to his wife and daughter, for whom the critics feel a certain sympathy. All this is about the sexual relationship itself. Some critics shift to the ethical or legal level in talking about the President's responses in attempting to cover up the relationship. Thus, the action that they find objectionable is "trying to get others to lie about it." This enters into the terrain that some find the most decisive, namely "lying to the grand jury." For many people, thus, the experience since 1993 proves what they already knew. The person involved is no good, and should not be in office. Finally, at the political level, amongst those who identify with him politically, the injury consists in "causing us who supported him, admired him, or found our futures tied to him to be injured." Some of the same people overlap with others who assert the President's actions undermined good policy, by contributing to a situation in which sexual harassment would now be given less weight. Finally, there are those who worry about his own emotional state or interior world-"compulsive" is hard to overcome, no matter how good the persons's intentions or strong the sense of regret or sorrow for what has been done. All these attitudes, and perhaps others, appear somewhere in the decision-making process.

The question that many want to focus upon is "what should be done about Bill Clinton?" There are now those who urge impeachment of the President under present conditions. There are, of course, at least a few persons who have been urg

4(The matter designated "Travelgate" never seemed to be of any consequence, although I might stand to be corrected.)

5 Rush Limbaugh, who has a certain standing amongst those who strongly disapprove of President Clinton, appeared to criticize the President for statements that Limbaugh said indicated the President had no confidence that his wife could withstand the charges that Limbaugh expected would be forthcoming.

ing impeachment since 1994, 6 or at various points since then. The President's most intense critics say that the answer is "impeach him, try him, convict him, remove him from office, and then indict him, try him, convict him, and sentence him" on criminal charges.

But the key that most people appear to accept that the criterion is in that in the Constitution. Presidents may be impeached, according to the formal language for "treason, bribery, or other high crimes and misdemeanors." No responsible person claims that treason or bribery are at stake in 1998, so the present issue will be governed by the ability to decide what the President did falls within or without the residual category of "high crimes or misdemeanors."

Even in asking if "these acts"-reported acts by the President-"are impeachable," which is the highest-ranking question so far, Congress has given inadequate attention to the fundamental question of the health of the political system. Some of those now urging impeachment, say that impeachable offenses are whatever the House wants to say they are. That may be true in the sense that, if a solid and undeterred majority shall want to do so, no one can prevent their doing so. The question is whether the House should now exercise so awesome a power and resurrect this impeachment as a weapon. My answer now is that it should not. Any decision to impeach and remove a President should take into account the health of the political system, and should be reached only on the gravest conditions.

Virtually everyone who has put views on the public record agrees that the actions by the President are not to be condoned, whether those actions be his relationship with Ms. Lewinsky or his lies in the legal process that followed. But Members of Congress, whose obligation is to uphold the Constitution, should approach the Presidential impeachment question with full seriousness about that Constitution itself. Chief Justice William H. Rehnquist has referred to the impeachment power as a "wild card" in the Constitution. If it had been used more, it would have reduced both the independence of the President from legislative control and the independence of the judiciary. 7

The Constitution was not made by obvious agreement amongst people who had a consensus, nor by people who somehow got the right principles out of the middle of the air. Rather, it arose out of a set of political leaders who very much wanted to create a new arrangement, against another set of leaders who did not want this new arrangement, even when they did not know exactly what else they wanted. The viability of the constitutional system should not itself be taken for granted. In dealing with these 1998 manifestations, members of Congress today must recognize the complexity of the system within which they are placed, and of the delicacy of not disarranging the essential features.

Congress has both authority and responsibility to make prudent judgments as to what is consistent with the requirements of the political system. Indeed, the House, in particular, has both authority, and responsibility in the interest of protecting the constitutional system, precisely to exercise prosecutorial discretion. It is common, in the exercise of prosecutorial discretion, to make a judgment whether something should go forward, even if there is a legal basis on which an argument for going forward can be made.

I. THE HEALTH OF THE POLITICAL SYSTEM IS THE KEY ISSUE

The impeachment effort is leading us into actions that greatly imperil the political system. Now as some, including some members of Congress, will denounce "politics," I have to say a few words about the political system. "System" is not a bad word. Everyone who has ever had a physical injury knows all the adjustments you have to make because one thing, that you never thought about before (such as your back) is not working properly. The body is a system. Some years ago I served on a corporate board with a banker, a remarkable man now deceased, who would say "you press down on something here, something else pops out over there." He was talking about the system in which decisions were made.

Now let us combine the word "politics" with the word "system."

"Politics" is not a bad word, nor necessarily a word about something bad. Walton Hamilton, a brilliant man, a lawyer who never went to law school, I am told, though he taught at one, defined politics in "the Aristotelian sense." He spoke of “the us

"I have not taken the opportunity to go back and find the citation, but I take note of the magazine writer who, in 1994, expressed his forecast (and his hope from the view he held) that "he'll be gone by the end of the year." The "he" referred to was the President.

7William H. Rehnquist, "The Impeachment Clause: A Wild Card in the Constitution," 85 Northwestern University Law Review 4 (1991), 903–918.

8 Robert Jervis, System Effects: Complexity in Political and Social Life, Princeton: Princeton University Press, 1997, 5-6 and, especially, 6, n. 10.

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ages and traditions, the arrangements and practices, which human beings are governed, and by which human beings attempt to shape destiny." (Hamilton's actual text refers to "men," and I have substituted "human beings." Whenever I teach about half to three quarters of the undergraduates are women, and I have learned that contemporary usage often requires one to stop and make the formal statement that the term "men" really refers to "human beings." So I do it here as well.) 9 Some mean, when they speak of "political," something akin to infantry squad tactics, in which one side will get the other side, with no restraint shown. I know about "the televised soapbox and the wrangle for votes." Politics is how people organize to conduct their common affairs, whether in public government or, for that matter, in corporations, trade unions, churches, and all other human institutions. 10

Whenever a purpose is chosen, there is a logic of action that follows. You cannot sustain the purpose and take actions that undermine what the initial action was intended to protect, or that facilitate actions that the initial action was designed to prevent. More than anything else, the impeachment technique is designed to protect the separation of powers system and to prevent its being negated. The political logic would have to be that if a strong executive were to be created, independent of the legislative body, and if the legislative body could not dismiss the executive, then it would have to have some other means of influence or control in the extreme cases where the fundamental authority of the legislative body would otherwise be negated. The offenses attributed to the President, or the actions attributed to the President, have virtually no relation to the reasons for having impeachment in the Constitution.

II. WHENCE CAME IMPEACHMENT?

The American impeachment is a modified version of English impeachment. To understand the modified version we need some idea of the original, especially as “six hundred years of history" is a term being heard more often. There are some rough benchmarks in time past: about six hundred years ago when the English began to use impeachment; a little under five hundred years ago when they let it alone; about three hundred and seventy years ago when they started using it again with a vengeance; two hundred years ago when the American constitution framers made provision for it; and a little under two hundred years ago when the English let it fall away again.

The English experience is relevant for three reasons.

1. It is the basis for what the framers knew in 1787, and we can best explain the decisions embodied in the language of the Constitution by starting with what the framers knew and when they knew it.

2. Lawyers rely upon the history as establishing a concept of the law.

3. Human beings change, in basic motivations and reactions, very little, although action changes because of circumstances and conditions. The kind of conflict involved in impeachments in the past are likely to show themselves in impeachments of the present.

Twentieth century Americans, in order to grasp what the framers decided, need to take account of what the framers knew. The American Framers in 1787 did not have any good models at hand as to how to make a new governmental system.11 They more or less designed a system combining the elective Presidency, the bicameral Congress, and the separation of powers ("the regular distribution of power into distinct departments" as Hamilton calls it) and checks and balances. 12 They did not have experience with the type of system they were creating, though some, nota

9 Walton Hamilton, The Politics of Industry, New York: A. A. Knopf, 1957, 6.

10 Since, in these debates about the impeachment issue and the future of President Clinton, there will be a great many references to the framers of the Constitution, Congress, writers and commentators, and citizens in general would be well advised to take in account the views about human nature that the framers gave voice to repeatedly.

11 Calvin Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787, New York: Agathon Press, Inc., 1988.

12 The separation of powers was specifically described by Alexander Hamilton as an American improvement in "the science of politics." In Federalist No. 9, Hamilton to "the petty republics of Greece and Italy" and the pessimistic conclusions to be inferred. "The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients." The principles that he mentions have the separation of powers at the head of the list that also includes checks and balance "the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election; these are wholly new discoveries, or have made their principal progress towards perfection in modern times." Federalist No. 9 (Modern Library edition), 48.

bly James Madison, had done a good deal of preparatory work. (Madison had, indeed, gone in for what would now be a massive research project of the type that a private foundation or some governmental study commission would undertake.13) A few were widely read, and some had a good deal of experience, though this can be overstated since they were so young a group. 14 In any event, every member had lived under English government, bought and sold goods under English practices, lived under English law, and had some knowledge of English history. They did generally turn to English experience for inspiration—the young (30 year old)—Alexander Hamilton being the notable exception, and sometimes turned away from it on purpose. But absent turning, it was what they adopted more or less without thinking because it was too hard to act de novo on everything, and what sometimes they chose on purpose.

They had the English practice of impeachment before them and on purpose chose to continue it with some modifications. When, in the 1998 debates in the United States, people refer to the relevance of "six hundred years of history," they refer to the fact that Parliament had, in the past, been a court before it became a law-making body. As the court function declined, some fragments remained in the ability of the House of Lords to try members of the nobility. Then, simply summarized, in the 1300s (the fourteenth century), the House of Commons began to exercise a prosecutorial function of making accusations, and the House of Lords to exercise the judicial function of trying the cases. The first reported cases came in the late 1300s when Edward III was king. 15 The practice continued off and on until middle of the 1400s (15th century). 16 Though it can be seen as procedure, impeachment was primarily a factional weapon, and hardly, if ever, was a neutral means merely to handling disputes between persons. The English, having put it away, did not pick it up for one hundred and sixty-two years, when the ancient weapon was adapted to a new use in 1621. When impeachment came into use again, it was a very large weapon of political combat in a time of even more dangerous competition than it had been in the earlier period.17 Sir William Holdsworth comments: "Never were impeachments so numerous as in the latter half of the seventeenth century: never were the criminal acts with which ministers were charged supported by such slender evidence. 18

Tthe number of impeachments declined in the 18th century, the time that the Constitution framers knew personally. Yet the technique of impeachment still was being followed. The American framers adapted this technique about four hundred years (1787) after the English developed the basic device (1376). When they picked impeachment, they had a background to know what they were doing. The relevant facts of English practice probably were well known to the Framers, since the technology of their time allowed them to get information from England for anything up to about a month before, which was about the same as to get a letter from Georgia to Boston. As an example, George Mason made specific reference to "Hastings," while discussing impeachment in the Federal Convention of 1787. This was on September 8, 1787.19 So Mason and others could have had a pretty good idea of everything up to June or July of 1787. In explaining why treason might exclude some actions that he wanted within the scope of impeachment, Mason said: "Hastings is not guilty of treason."

"20

What the framers did not seem to recognize, incidentally, was that impeachment was already falling away. They could not know that the trial of Warren Hastings, itself starting while ratification was starting, would be one of the last two English

13 William Lee Miller, The Business of May Next, Charlottesville: University Press of Virginia, 1994.

14 Stanley Elkins and Eric McKitrick, "The Founding Fathers: Young Men of the Revolution," Political Science Quarterly LXXVI, No. 2 (196?), at 203–206.

15 "MCP," (Michael C. Prestwick), John A. Cannon (Ed.), The Oxford Companion to British History, New York: Oxford University Press, 1997, 333 conveniently details the first impeachments in 1376.

16 Frederick W. Maitland, The Constitutional History of England, Cambridge: University Press, 1920, 215 offers a thumb-nail sketch.

17 Roger Lockyer, Buckingham: The Life and Political Career of George Villiers, First Duke of Buckingham, 1592-1628, New York: Longman, 1981, 90-93.

18 Sir William Holdsworth, A History of English Law, Boston: Little. Brown and Company, 1924, 260.

19 Elliot's Debates, Vol. V. 528.

20 Elliot's Debates, Vol. V (September 8, 1787), 528.