A Panel Presented on November 13, 1998 at the Federalist Society's
1998 National Lawyers Convention by the Federalism & Separation
of Powers Practice Group.
Tom Griffith: Let us begin
with a review of first principles. When the Framers began their
work in Philadelphia in 1787, there was at least one principle upon
which there was consensus: Congress was to be the primary political
force in the Federal Government. The Framers' expression of that
view is found throughout the Constitution, including their description
of Congress' powers in the first article of the Constitution.
The role of the executive, by contrast, was hotly debated, reflecting
in part the Framers' commitment to republican government, but also
the historical yearning for monarchy. Thanks in large measure to
the success in New York of an independently elected executive, and
the force of the arguments by James Wilson of Pennsylvania in favor
of a unitary executive, what emerged from the Philadelphia convention
was the foundation for the creation of a powerful executive.
The Antifederalist fears were ameliorated in part by the realization
that the first occupant of the office of the President and thus
the chief architect of its traditions and practices was very likely
to be George Washington, the very epitome of civic virtue. Nevertheless,
the Constitution, drafted by men whose view of a fallen human nature
made them deeply suspicious about any concentration of governmental
power, let alone concentration of power in a single person, created
multiple checks intended to prevent the President from overreaching
First, the President was placed under oath, an outward pledge made
under an immediate sense of responsibility to God. That oath was
to faithfully execute his office and to preserve and defend the
Constitution. The President's term was also fixed at four years,
meaning the electorate could remove him from office by the ballot.
Second, Congress was given the power to appropriate, to legislate,
to ratify treaties, to play a role in the appointment of executive
and judicial officers, and by virtue of the impeachment clauses,
to remove from office those guilty of treason, bribery, and other
high crimes and misdemeanors.
With those express powers came the inherent power of Congress to
investigate the conduct of the executive branch. Furthermore, over
time we have agreed as a people that the President is subject to
judicial compulsion in at least the civil arena, and to some extent
within the criminal area as well.
Given this scheme, what are the appropriate remedies that should
be directed at Presidential misconduct? The impeachment clauses
create a remedy only twice pursued in earnest in the history of
our Republic. Historically, Congress has on occasion formally reproved
the President in today's parlance, a censure. The creation of an
independent counsel revived the debate raised but not resolved by
the Framers over whether a sitting President is properly subject
to indictment by the judicial branch. But are there other remedies?
PAUL GIGOT: Rather than
join the debate over legal remedies, what I want to do for a few
minutes this morning is talk about what I think we've learned from
the Clinton years about the best way to hold the President accountable
for wrongdoing. And in particular I want to make what is perhaps
an unconventional argument that I hope some of you might take issue
with. I want to argue that the cause of presidential accountability
in the real political world would have been much better served had
we never heard of Independent Counsel Kenneth Starr.
First, Mr. Starr's appointment in 1994 had the ironic effect of
giving Mr. Clinton an all-purpose political shield on questions
of ethics during the last two years of his first term. Whitewater
questions would come up in the press, and the President could and
did say publicly that the independent counsel is investigating that,
even if quietly his lawyers were resisting and resisting and resisting.
But the public heard him say I'm cooperating, and plausibly he was.
FBI files? I'm cooperating fully with the independent counsel. Travelgate?
I'm cooperating. We're doing all we can. Mr. Starr is looking into
Far from being Mr. Clinton's enemy, by bringing no significant
action against the Clinton White House before the election, Mr.
Starr became Mr. Clinton's political shield up through the months
before 1996 and the election of 1996.
Now this White House line changed after the election, of course,
which leads to my second point. I think the Starr example shows
that the very independence of the independent counsel statute makes
him an ideal political foil. Because Ken Starr was appointed not
by Janet Reno, but by Judge David Sentelle and the three-judge panel,
who knows Lauch Faircloth, Judge Starr was immediately accused of
being a political prosecutor. It's fair to say that Ken Starr's
political mistakes sometimes played into this argument, but I would
argue that the White House would have found some reason to demonize
him in any event.
The fact that those of us who know Judge Starr realize that this
is especially absurd in his case. As a political matter, from now
on every White House will spend months conditioning a public that
is already cynical about politics, cynical about political motives,
that every special counsel is a mere political partisan.
Third, the Clinton and Starr experience shows that an independent
counsel lets the regular institutions of accountability in our system
off the hook. Those of us in the press who play an important role
of oversight, probing, and digging, will instead stop when an independent
counsel is appointed and basically sit and wait for leaks from lawyers
or witnesses before the grand jury. It's a hell of a lot easier.
We start to report on events, not as a case of Presidential accountability,
but as a political fight between the White House and the independent
counsel's office. We play into that very spin the White House tends
to make. Meanwhile Congress uses the independent counsel as an excuse
to avoid the truly hard work of executive oversight.
Now it's safe to say that no one in the current Republican Congress
reminds me of John Dingell when it comes to oversight. But even
short of John Dingell, I think it's safe to say that this is in
part because oversight is hard. It's difficult work. It sometimes
requires that you pay a political price; you invest political capital,
and frankly many Republicans are only too happy to pass the buck
to Ken Starr.
Worst of all, Mr. Starr's appointment gave Janet Reno a free pass.
The Attorney General was able to toss every new scandal , from FBI
files, to Travelgate, right into the lap of Mr. Starr and wash her
own hands of it. I think most incredible was the fact that she paid
no political price for siding with the White House on privilege
claims to resist testimony against an independent counsel's office,
that is, according to the Supreme Court argument in Morrison v.
Olson, technically under her jurisdiction. That is after all why
the Court said the Independent Counsel statute was constitutional.
It may be true to argue that without Mr. Starr we would never have
learned about Monica Lewinsky. On the other hand, given the Paula
Jones case, we very well might have found out. And the fact is that
it is Mr. Starr who filed the Lewinsky case with Congress. This
prosecutor, who's been so demonized all these months, has now made
it easier for Democrats to justify resisting the President's impeachment.
They've been able to change the subject from the President's lying
to the conduct of Ken Starr's investigation, as you will see when
Mr. Starr goes up next week, I suspect.
Now again I'm not saying that Ken Starr should not have proceeded
as he has. The independent counsel statute is the law of the land
and should be followed as long as it is the law of the land. Mr.
Starr has had a very difficult job, a job not many of us would want
to do, I dare say. But in hindsight I think we can argue that the
cause of Presidential responsibility would have been better served
had no independent counsel statute existed and had we stuck with
the checks and balances the Founders of our Constitution envisioned.
In the case of Whitewater, Janet Reno had already appointed a special
counsel under her own auspices, and I suspect that she would have
been obliged to do the same thing about the FBI files case as well,
and perhaps even been more likely to appoint one in the campaign
finance scandal case if Starr hadn't already existed out there as
an example that the public said they would just as soon avoid.
The special counsel within the jurisdiction of the Justice Department
is what existed in both the Watergate and the Teapot Dome cases,
after all, and those cases worked out pretty well. I think it's
safe to say the White House would not have been able to demonize
someone appointed under the Attorney General's auspices, and if
Janet Reno had appointed someone who didn't do the job or attempted
to cover up, that would in turn have become a political issue.
No matter how the impeachment debate ends up in the next few weeks
or months, the conclusion I draw is that we're much better off going
back to the Constitution. When the Independent Counsel law comes
up for renewal this year, I hope Congress kills it. Then those of
us, the rest of us who are supposed to hold Presidents accountablethe
Congress, the press, the judiciarycan go back to doing our
jobs and not pass the buck.
JIM HAMILTON: Some think,
including many Republicans, I believe, that the steam has gone out
of the impeachment proceedings after the election. I think this
remains to be seen. Certainly the Republicans on the House Judiciary
Committee are pushing ahead. It is not clear to me why they have
chosen Ken Starr to be the only witness for the majority. It's also
not clear to me why the Democrats at one time had contemplated calling
Starr will make out a forceful case against the President, despite
the criticism he has received that Paul talked about. He is a man
of ability. He is going to appear mildmannered when he testifies
before the committee. He will be agreeable. You remember when he
was the chief appellate lawyer of the United States he was referred
to as the Solicitous General. And I suspect that will come across
But Mr. Starr of course is also vulnerable, for example, for pursuing
the Lewinsky matter without court approval, for interrogating her
for an entire day without her lawyer being present, for his prior
contacts with the Jones camp, and for the alleged leaks of grand
jury information that certainly have drawn the attention of Chief
Judge Norma Johnson. I can assure you that all of these issues will
be explored in some detail by the Democrats on the Judiciary Committee.
But my bottom line is that both sides both sides
should be leery of Mr. Starr's testimony, and next Wednesday will
be an interesting day.
Now as we all know, the Constitution allows impeachment only for
high crimes and misdemeanors such as treason or bribery. If you
read what the Framers had to say, I think it's clear that the Constitution
is basically talking about crimes against the state. George Mason,
who proposed this language, "high crimes and misdemeanors,"
said it referred to great and dangerous offenses, that is, to attempts
to subvert the Constitution, and Alexander Hamilton spoke of abuse
of some public trust and of political offenses that relate chiefly
to injuries done to the society itself.
Now I certainly would concede that if the President engaged in
some heinous crime like murder, a crime where it would be dangerous
to have a perpetrator of an act of this sort at liberty, that would
be an impeachable offense. But I think short of that what the Founders
were talking about were crimes against the state. And it's important
that the impeachment bar be kept rather high. We don't want to change
our system to a parliamentary system where a President can be forced
out by a no-confidence vote and the result of a Federal election
Now I realize that people of good will can disagree about whether
what the President has done is an impeachable offense. I agree that
his conduct is reprehensible and should be punished. But I would
argue that lying about essentially a private affair is not a grave
offense against the state. It is more of a low crime than a high
crime. Lying about treason, bribery, matters of national security,
might be a high crime, but not this. Hundreds of historians and
law professors agree with this assessment and apparently so also
do the voters.
In my view a more fitting and proportional punishment than impeachment
would be a censure resolution by the Congress combined with a fine
of some bite. Now some argue that a censure resolution is not constitutional,
that the remedy is impeachment or nothing. But I submit to you that
that notion is wrong. When Thomas Jefferson was the Vice President,
and of course then the President of the Senate, he wrote a manual
for his own use that is now referred to as Jefferson's Manual, and
this manual has been long relied on, particularly by the House,
and it is still reprinted in part in the manual of the House Rules
that is in use today. In it Jefferson observed that a House could
use the form of resolution to express its principles, opinions,
and purposes, and indeed the House manual, the current House manual,
says that in modem practice concurrent resolutions have been developed
as a means of expressing the principles, opinions, and purposes
of the two Houses.
The eminent law professor, Charles Black, in his book on impeachment,
specifically argues that a concurrent resolution of censure might
be used to condemn the actions of a President when the impeachment
remedy is just too severe.
Moreover, according to the Congressional Research Service, President
Jackson was effectively censured by the Senate, and Presidents Buchanan
and Tyler were effectively censured by the House.
I frankly don't see why the Republicans resist the notion that
they may in some form, like a resolution, rebuke the President.
I mean, goodness gracious, they rebuke the President every day.
Turn on C-SPAN. Read the Senate Whitewater and campaign finance
reports. There's plenty of rebuke being delivered.
I think a censure resolution would not be, as some have contended,
an unconstitutional bill of attainder. The last time I looked, a
bill of attainder is legislation. It requires the signature of the
President. A concurrent resolution of course is not legislation,
and requires no Presidential signature.
I agree that the President could not be forced, as President Ford
has suggested, to take his censure in the well of the House, and
I also agree that the President could not be forced to pay a fine.
But in my judgment the President would be well advised to accept
some form of censure plus as punishment. And of course if the President
agrees to some form of censure plus to put the matter at rest, I
think there would be no constitutional problem.
Now I'd like to conclude with a personal thought. With the Republicans
somewhat dispirited and in disarray, some have suggested, some commentators
have suggested that no impeachment or sanction of any kind may result.
I am a long-time friend and supporter of President Clinton, but
I personally would not advocate a result where there is no sanction.
The President has acted badly, and he's lied about it, and in my
view some punishment is appropriate. And I say this not only as
a citizen, but as the father of three teenagers who know the President.
I think the young people of this Nation need to know that no matter
how accomplished one is, how brilliant, affable, powerful, that
people who do wrong will be punished. This is important, an important
message to leave.
Thus I hope that the Congress, Democrats and Republicans working
together in some bipartisan manner, if that is still possible, will
find an appropriate way to express their condemnation of the President's
conduct through some type of censure resolution. And I hope that
the President will have the grace and the good judgment to accept
a congressional sanction as a continuing part of his atonement.
I hope this can be done quickly, and thus that the Nation can be
saved from a prolonged, unseemly, and degrading proceeding. Quite
frankly, I think we've all heard enough about Monica Lewinsky.
PETER WALLISON: Jim Hamilton
suggested that although high crimes and misdemeanors probably were
intended to be offenses against the nation in some way, he had to
admit that there were circumstances under which a particular kind
of crime which is not an offense against the nationand he
mentioned murder, but there could be many otherswould be impeachable.
And that's obviously true. There are some crimes that are not offenses
directly against the nation which would have to be impeachable,
because impeachment is the only way to remove an offending President
But, once you admit that some crimes can be impeachable, even though
not offenses against the Nation, then the testimony of people like
Arthur Schlesinger that lying under oath or obstruction of justice
does not rise to the level of an impeachable offense becomes simply
an opinion. There is obviously no historical basis for this view.
Nor is this strictly a legal question.
The fundamental question I think is not whether lying under oath
is an impeachable offense. The fundamental question is whether the
impeachment process itself is a political process or a judicial
The evidence is very strong, I think, that the Framers intended
it to be a political process. They had the opportunity to bring
the Supreme Court into the process in some way when they were developing
the constitutional provisions here, and they chose not to do so.
They left it entirely in the hands of the political organs, and
House and the Senate.
Now the implications of this for our current situation are I think
quite significant. There are fundamental differences between a judicial
and a political process. In a judicial process the offense is defined,
the facts are compared to the offense, and if there is a congruence
between the facts and the offense, the punishment is prescribed.
Generally speaking, the objective of the judicial process is justice.
In a political process, however, a number of competing considerations
and objectives are weighed. Generally speaking, the objective is
an outcome that will be in the interests of the Nation as a whole.
To be sure, it is still necessary to find an impeachable offense.
Even though it is not possible at this juncture to determine precisely
what the Framers meant by the term "high crimes and misdemeanors"
and I would suggest it is a fruitless effort, almost a delaying
tactic, to insist that it be defined before Congress acts on this
matter we know that they meant something more than maladministration.
They rejected that in the course of their debates, and, therefore,
they had something in mind that was fairly serious. Indeed, to maintain
the integrity of our constitutional system, we have to continue
to insist that serious offenses are the standard by which an impeachment
might be maintained.
However, once it is determined that the President has committed
an impeachable offense, the matter does not necessarily end there
if we are talking about a political process. I suggest that if it
is a political question, then after it is determined that the President
has committed an impeachable offense, the next question is whether
he should be impeached, convicted, and removed from office.
I happen to believe that lying under oath to a grand jury is an
impeachable offense, but I still believe that the House Judiciary
Committee could make such a finding and not necessarily vote to
recommend impeachment to the whole House. This would be because
in their judgment impeachment and removal from office would not
be in the best interests of the Nation.
Let me give an illustration. Assume that a President does exactly
what Richard Nixon did in the Watergate matter. And let's assume
that shortly after the discovery of the so-called "smoking
gun" tape which precipitated his downfall and what would ultimately
probably have been his impeachment, the United States faces a serious
crisislet's say an earthquake on the west coast, or a biological
or nuclear attack by terrorists. Would it be reasonable for Congress
at this juncture to impeach and remove a sitting President? I don't
think so. This might be the outcome in a judicial proceeding where
the wheels of justice more or less grind on, but in a political
context Congress would be expected to make a somewhat nuanced choice
about whether it makes sense to remove the President when the Nation
is facing a crisis. And I suggest that if we think about it in those
terms, we begin to see that it must be a political decision that
Congress is making here, and not necessarily a judicial decision.
Seen in this light, then, it is not necessary for Congress to impeach
the President in order toin Henry Hyde's wordsvindicate
the rule of law. The rule of law will be vindicated if and when
the President is indicted and tried and either convicted or acquitted
after he leaves office, and we are assuming here that a sitting
President cannot be indicted while he is in office. That's a question,
but it seems to be accepted by the current independent counsel and
a number of other legal scholars.
By the same token, impeachment should not be seen as a punishment.
It is a process to remove from office a person who has shown by
his acts that he is not fit to hold the office, that it would be
inimical to the interests of the Nation as a whole. Instead, Congress
should consider what is in the best interests of the Nation at this
With this background, we might consider today's situation. What
is in the best interest of the Nation at this point? I'm obviously
not going to suggest what Congress should do. If I were a Congressman,
I would recommend that, if the evidence so shows, make a finding,
that the President lied under oath, and obstructed justice, and
declare its view that these are impeachable offenses. That vindicates
for the future the fact that serious crimes, things such as perjury
and obstruction of justice, can be impeachable. Then Congress should
declare that after the President leaves office, he should face the
punishment for this if in the course of the appropriate criminal
trial it is determined that he is in fact guilty. He should be tried
and ultimately face whatever penalties an ordinary person under
the law would face.
However, Congress can still state at that point, for a number of
supervening reasonseven though the President has committed
an impeachable offensehe should not be removed. Maybe one
of those reasons would be that he only has two more years to serve,
or that there is not a sufficient consensus in Congress that the
President be removed from office.