VI. IMPEACHMENT IS A CAGED LION: SHOULD IT BE LOOSE IN THE STREETS?

Someone, at a responsible level, must face up to the fact that impeachment is a caged lion, and ask seriously, and without prejudice, whether letting that lion loose in the streets will leave anyone safe. The final observation is that someone, at some responsible level, must face up to the fact that impeachment is a caged lion. When is it worthwhile to let the lion loose in the streets?

The House of Representatives is placed by the constitutional prescription in the role analogous to that of the prosecutor. When is it necessary to go forward? In the narrower domain of ordinary criminal law, the criminal prosecutor considers many factors in deciding whether to bring charges. Among others, the prosecutor considers "the strength of the evidence, the suspect's background and characteristics, the costs and benefits of obtaining a conviction and the attitude of the community toward the offense the suspect is believed to have committed." 79

The discussion for the past four years, and especially for the past ten months, has not gotten to this, the nexus of the most serious issue. The discussion has focused upon attitudes toward the person who now occupies the office of President, and secondarily upon what people believe is the evidence. But the most serious issue is different. There has been a continual avoidance of the costs and benefits of impeachment when considered in relation to the whole political system.

There is some discussion of the attitude of the community, often in puzzlement as to the difference between opinion reflected in mass poll data and opinion expressed by those commentators whose profession it is to express opinion. I can recall a television commentary, in August 1998, when a panelists were asked about the reason that public audiences generally did not have the same intense feelings about the Clinton-Lewinsky information as the television journalists did. One panelist said: "We'll just have to educate them." Such commentary fails to consider that the general public may already have made its judgments, however rough, that the "cost" of further action against the President may exceed the "benefit" to the political system. The general public has good reason to believe that, on the basis of past performance, its evaluation of such a cost-benefit ratio may be more clear-minded than that of many reporters and editors from whom they have heard.

To initiate an impeachment (accusation of asserted "high crime" or "high misdemeanor") against the President would impose far too heavy a burden upon the political system since no reasonable person argues that the acts under discussion in any way disable, or potentially disable, the Congress. Neither Congress nor courts is disabled, or under any potentiality of being disabled, or the President would not now be on the defensive. Impeachment and conviction of a President would mean replacing an entire administration.

Within the parameters of the Constitution some significant institutional features have developed, and it is to their interrelationships that the idea of the "system" refers. Our ability to operate under this Constitution, with a strong Presidency, has given the United States a remarkably stable government. If, for example, the United Štates had a parliamentary regime, President Reagan probably would have had to yield in 1982 under the pressure of economic recession. If that were so, he could never have evolved to a de facto partnership, as some see it, with Gorbachev toward winding down the arms race.

The President has a unique combination of formal and informal powers that revolve around his centrality to the Executive Branch, his role as the prime leader in national security policy, his leadership of one of the political parties, and his twentieth century role in legislative leadership, strongly affected by all his other powers, but grounded in his possession of the veto, which effectively makes him one third of the legislative process.

The President does not prevail all the time in these domains, or even in any one of them. But the President's role in several of them is almost always critical, and is so even now.80

The normal requirement of American government engages all these resources, as Presidents work with, against, and around a variety of allies and opponents. If any President were to be removed, no other person could exercise equivalent leadership until the successor had developed his own relationships.

The level of cost to the system goes far beyond this. It is in the intense animosity that almost surely will have developed.

79 Frank W. Miller, Robert O. Dawson, George Dix, and Raymond Parnas, Prosecution and Adjudication, 4th Ed. (Westbury: The Foundation Press Inc., 1991), 695.

80 This is reflected in Republican protests about the farm bill which they have had to accept much more on President Clinton's terms than they wish, even as he faces the impeachment proceeding. Washington Times, October, 1998; and, Wall Street Journal, October, 1998.

These 17th century cases that I mentioned earlier are not mere decoration, but have direct application. Lawyers, of course, use them to trace the very meaning of the law itself.81 These historical cases help me to state a simple hypothesis: Whatever new weapon is introduced into the political battle tends soon to become domesticated, even banalized, so that its use is more and more common judgment. It will be adapted and adopted by many other groups. James J. Kilpatrick was not talking about impeachments, but about law suits against future Presidents since the Supreme Court hold the Paula Jones law suit out until the conclusion of the President's term. But his statement the decision "is likely to encourage trumped-up harassments of future Presidents on down the line" 82 is apposite.

Impeachment investigations, trumped-up and otherwise, will virtually be mandated by going forward on this one. Richard H. Tawney, who wrote an account of the governmental career of Lionel Cranfield, also wrote that "The resurrection of (this) antiquated weapon [. . . ] produced some forty impeachments between 1621 and 1688."83 That is sixty seven years (67) times twelve months for a sum of eight hundred and four months (804). Divided by forty (40), the number of impeachments, the result is on a straight line average one impeachment every twenty months. In fact, of course, these impeachments came in clusters, rather than on a straight-line average basis. But the echoes from 17th century England, with its fifteen to twenty impeachments during a three year period, with numerous impeachments on slender evidence,84 are not to taken lightly. In the slow moving 17th century, factions brought each other to the test-whether routinely over long periods or more intensely in periodic bursts. We should not expect an impeachment in 1999 or 2000 to let the United States slip back into political tranquillity.

The better hypothesis is that we should expect more turmoil. The twentieth century has been, since World War II perhaps, somewhat similar to the 17th century in one respect: intense ideological antagonisms. Even in the past twenty years, when it might have been thought to decline, there are intense ideological battle groupings, easily activated. The resultant turmoil will be made far worse by an impeachment on the grounds that we now know. Massive distrust will feed it. Ideological antagonism will feed it. Well-financed political entrepreneurs will feed it. Instantaneous communication of information, disinformation, and misinformation will feed it. Impeachment as technique will increasingly be domesticated as legal defense funds, political action committees (PACS), and many other techniques have been domesticated. Private groups will urge their Congressional friends to initiate calls for independent counsels or other procedures to inquire into whether there might be a basis for determining that someone has violated, or conspired to violate, some law. Those who urge this resurrection should, if they believe that the political system concern is worthwhile, have a public duty to weigh carefully whether the result they achieve is the result they want to achieve.

It is thus likely that we will see attempts to initiate impeachment actions against other presidents. In each instance, one may assume that such effort will be made by people who genuinely believe their charges, and who believe they have credible cases. Since all successful efforts depend upon coalitions, explicit or de facto, such efforts will become successful only as varieties of other groups and persons join the efforts on a variety of grounds. There must be a number of upward mobile Congressmen, Senators, and Governors Republican as well as Democratic-who should expect to find themselves absorbed in such controversies over the next two, three, or four presidential cycles.

Congressional leaders know that impeachment does not have to stop with a President. The same provision (Article II, Section 4) also applies to "the Vice President, and all civil Officers of the United States." Cabinet officers and sub-Cabinet officers are also civil officers. There is no reason for adversaries not to seek to invoke the process whenever they are deeply angry, or simply calculatedly rational, about some action. Is it beyond the imagination that, as many people genuinely believe that abortion is an ultimate evil, impeachment attempts would not be initiated against some Secretary of Health and Human Services on the basis that he or she is conducting policies favorable to this perceived evil? Is there any reason to believe that some Attorney General, even the present one, might not be the object of attempted impeachment actions if he (or in the present case she) were resolutely to decline to

81U.S. House of Representatives, Committee on the Judiciary (93rd Congress, 2nd Session), Impeachment: Selected Materials on Procedure, Washington: Government Printing Office, 1974. 82 James J. Kilpatrick, in Symposium, “U.S. v. Clinton," National Review, September 28, 1998,

46.

83 Richard H. Tawney, Business and Politics Under James 1: Lionel Cranfield as Merchant and Minister, Cambridge: Cambridge University Press, 1958, at 248.

84 Holdsworth, op. cit., 260.

initiate some independent counsel investigation desired by Senate leaders? Is there any reason to suppose that such an Attorney General would be even more at peril for limiting, or exercising the legal discretion to terminate, an independent counsel investigation if the Independent Counsel were to wish to continue? Is the Independent Counsel a civil officer also within the scope of Article II, Section 4, if there are those who are motivated to make the effort?

Even regulatory commissioners, beyond Presidential direction, are also civil officers, are they not? What reason is there for affected interests not to use this newly available weapon? While the impeachment of Federal judges does not provide much to go on, as to standards for evaluating Presidential impeachments, there is one response in which the reverse situation becomes part of the system threat. The Article III courts subject to the same threats of punitive impeachment actions regardless whether they succeed-if someone becomes dedicated to making their lives miserable.

This is, again, not to be taken lightly. Even under the stricter standards that apply to Article III judges there are Members of Congress who have, within the past three years, been known to argue that judges making "wrong" decisions should be impeached.85 Will this approach be withheld if Federal trial judges depart from what have been thought conventional procedures? For example, a trial judge had appointed a special master to conduct certain proceedings involving the Justice Department's current litigation against Microsoft. In due course, he was obliged to dispense with the special master by virtue of an appeals court decision. The judge has reportedly "told lawyers for both sides that he may ask [this dismissed special master] to write a 'friend of the court' briefly summarizing his views on the case. "86 Is it beyond reasonable belief that, under intense conditions, someone would choose to impeach such a judge in such a case?

Clearly, my approach is framed, as stated in the first place, in political_system terms. This does not imply that impeachment should never be employed. It does, however, suggest a balancing test: specifically, that the gravity of the presidential offenses should be weighed against the potential of far greater costs to the whole country. The assigning some behavior to the category of those "other high crimes and misdemeanors"-parallel to treason and bribery-should be done only with utmost seriousness, and assessed with maintaining the essentials of the political system (or "the structure of government" or "institutional stability") as the prime purpose.

The maintenance of this kind of seriousness will be increasingly problematic, in somewhat the same way of maintaining a high level of dignity has already proved problematic. House leadership has, presumably with all seriousness, urged dignity. But since the beginning of 1998, every level of the inquiry has become more raucous than anyone in the leadership predicted before. It will continue to go beyond control unless there is some clear decision that produces the contrary. Alexander Hamilton was right to say in Federalist No. 65: "The prosecution of [actions deemed impeachable] ... 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." 87 That tells us that such matters should be approached with prudence and wisdom.

The impeachment process lends itself to the persistent conflict of factions. Each of which will seek to use the process to advance its own material goods and its own revered symbols, to pursue vengeance and feud as they were Capulet and Montague. Case in point: On October 8, 1998, during the House debate on the resolution to launch an impeachment inquiry into the conduct of President Clinton, one man from Alabama called the CNN conservative phone line to say that what he enjoyed was frustration and defeat in the eyes of the liberals who had been having it all their way, having been in power for 40 years. Such a statement should be seen as the cloud no bigger than a man's hand. Again, to cite Hamilton: "In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

The importance of prosecution, with impeachment as its leading case, as a weapon of recurrent group conflict becomes more important as each side disputes the morality and the methods of the other. Political leaders have already lost too much of the lessons of how to trade with each other and learn instead to turn each conflict into

85 The references in support of this are not immediately at hand, but they will be found in the ABA Journal and in the National Law Journal.

86 Washington Post, Friday, September 25, 1998, F1.

87 Federalist, 65, p. 423.

a dramatic morality play, or to an occasion of political vengeance. The magnification of conflict is something we have seen before. Congress should do nothing further to let this lion loose in the streets. Prudence and wisdom argue for terminating this process. Close the cage.

Mr. CANADY. Professor Harrison.

STATEMENT OF JOHN C. HARRISON, ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW

Mr. HARRISON. Mr. Chairman and Ranking Member, I think I can be quite brief. I want to talk about the bearing on the subject today of one particular precedent in the conduct of the House of Representatives with respect to impeachment, that of Judge Harry Claiborne about 12 years ago.

Judge Claiborne was impeached, convicted and removed from office for committing income tax evasion-not for bribery, not for corruption in office, not for anything directly connected to his office, but for committing serious misconduct that called into grave question his integrity and that damaged the reputation

Mr. CANADY. Some members ask that you pull the microphone closer.

Mr. HARRISON. Judge Claiborne was convicted of income tax evasion, which is to say conduct unrelated to his office, unrelated to his official powers, not for abuse of office. Judge Claiborne was in strained financial resources. He had income; he didn't report it. He was convicted and then impeached by the House of Representatives, convicted by the Senate and removed from office.

Again, what he did did not directly do any particular damage to the State, unless you count the loss of tax revenue. It did not involve the abuse of office. It was private misconduct. Its connection to his office was that it strongly indicated that he could not be trusted, that he was a person lacking in integrity who could not properly carry out the responsibilities of a Federal judge. It also cast grave doubt on the overall integrity of the Federal judiciary. I think that the Claiborne precedent indicates that private misconduct, that is to say not involving the abuse of official power, can be a ground for impeachment and conviction when it bears on fitness for office; again, when it calls into question someone's integrity and trustworthiness. Naturally, when you talk about a precedent that has to do with a Federal judge, the question arises whether such precedents are applicable to the President of the United States.

First, the Constitution draws no distinction. The impeachment provision in Article II says that the President, Vice President and all civil officers are subject to impeachment and removal for high crimes-treason, bribery, or other high crimes and misdemeanors. It is the same standard for all of those officers.

Second, the requirement of integrity is at least as strong for the President as it is for the Federal judiciary. It is common for the President to have to make decisions that are much like those of a Federal judge, in that they require that personal considerations and sometimes, for example, partisan considerations be put aside. The President is the Nation's chief law enforcement officer, the boss of the United States Attorneys. Extremely delicate criminal prosecution decisions may come before the President, who is the

Chief Executive in whom the executive power is vested by the Constitution. There are certain considerations that the President is not supposed to take into account in making the decision whether to initiate a prosecution that can send someone to prison. Keeping those considerations out of the decisionmaking is the very sort of thing that a judge is required to do.

There is thus a close relationship, a close similarity in the requirements of integrity of the office of the President and the office of a Federal judge. Indeed, given the vast powers of the presidency, the standard for the President should be higher than for any other. Now, all of that is not to say that it is not a legitimate political consideration, in deciding whether to impeach or whether to convict a President, to realize that the President is elected by all the people as the sole officer, other than the Vice President, so elected. Those are perfectly legitimate considerations, but they seem to me to be considerations of policy, not considerations of constitutional law. With respect to the law, the standard is the same for the President and for judges, and hence I think that the Claiborne impeachment and removal bear strongly on the question of impeaching the President.

Thank you.

[The prepared statement of Mr. Harrison follows:]

PREPARED STATEMENT OF JOHN C. HARRISON, ASSOCIATE PROFESSOR OF LAW,

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

Thank you Mr. Chairman. The Subcommittee has invited me to participate in this hearing on the background and history of impeachment. I wish to address specifically the history of judicial impeachment and its bearing on the impeachment of a President. Questions concerning judicial impeachment came before the National Commission On Judicial Discipline and Removal, on which I served along with two distinguished former members of the House Judiciary Committee, Robert W. Kastenmeier and Hamilton Fish, Jr.

My conclusion is that the practice of the House of Representatives strongly supports the proposition that a civil officer may be impeached for serious misconduct that compromises the officer's integrity or fitness for office, whether or not the conduct itself involves abuse of office or injures the government. This principle emerges most clearly from the House's action on the impeachment of Judge Harry E. Claiborne in 1986.

Judge Claiborne, while a United States District Judge for the District of Nevada, violated the federal income tax laws. During 1979 and 1980 he received fees connected with his former law practice that he did not declare on his federal tax returns. After a jury trial in the United States District Court for the District of Nevada, Judge Claiborne was convicted on two counts (one for 1979 and one for 1980) of filing a false return in violation of 26 U.S.C. 7206(1).

On the recommendation of the Committee On the Judiciary, the House of Representatives impeached Judge Claiborne before the Senate. The House presented four articles of impeachment. Articles I and II rested directly on Judge Claiborne's criminal behavior. Article III rested on the fact that he had been convicted of crimes. H.R. Rep. No. 99-688, at 1-3 (1986) (hereafter Claiborne Report). According to the Report, Article III stood "for the proposition that when a federal judge is convicted of a felony and has refused to vacate his office he has misbehaved in office and by conviction alone he is guilty of having committed high crimes' in office as that term is set out in the United States Constitution." Id. at 22. Article IV alleged that Judge Claiborne's misconduct "has betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary, thereby bringing disrepute on the Federal courts and the administration of justice by the courts." Id. at 2. The Report explained that Article IV "makes clear that Judge Claiborne's conviction for falsifying his income tax return for two consecutive years does more than tarnish only his personal reputation as a member of the judiciary. The consequence of his illegal and improper actions has brought his court and the entire federal judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality of the administration of justice." Id. at 23