I am grateful to the Miami Lawyers Chapter of the Federalist Society
for the opportunity to be here this evening. In May of last year I
had an opportunity to address the Federalist Society in Tampa on the
same subject which is my topic for this evening.
No one could have predicted the events that have unfolded in the
months since August 1998 when President Clinton gave testimony before
the grand jury. And no one could have predicted the vast volume
of talk devoted to this subject.
Tonight my purpose is not fully to survey this sad episode. I have
no doubt that everyone here knows the outline of this matter very
well. I suspect that you have heard enough of the details of this
case. Instead of more of that, I will respond to a particular argument
attacking the constitutional legitimacy of the impeachment proceedings
against President Clinton. This argument which I will outline
in a moment is just one of the many arguments made against
the impeachment of the President.
To put this particular argument in context, it is important to
understand that the lines of attack on the impeachment proceedings
can be divided into three broad categories: substantive, procedural,
and ad hominem.
In the first category arguments that focus on the substance
of the case for impeachment there were three major arguments.
These are that the President was not guilty of the offenses charged
against him; that those offenses even if proven true
were not sufficiently serious to constitute "high crimes and
misdemeanors" under Article II, Section 4 of the Constitution,
and finally that given all the circumstances, impeachment and removal
of the President would undermine the institution of the Presidency.
The second category of arguments those based on appeal to
procedural fairness focused primarily on the supposed need
for greater specificity in the charges against the President and
on the supposed need for live witnesses in the proceedings before
the Judiciary Committee.
The final category of arguments I mention last by no means because
it is of least importance. Indeed, the ad hominem arguments advanced
against the impeachment proceedings were used by the President's
defenders to frame the whole debate about impeachment. The First
Lady herself set the stage for the use of this line of argument
when she spoke more than a year ago of a "vast right-wing conspiracy."
First, the motives of Judge Starr, the Independent Counsel, were
attacked, and then it was the turn of the supporters of impeachment
in the House. An ongoing effort was made to discredit the impeachment
proceedings on the ground that they were motivated by hatred of
the President and partisan political objectives.
Tonight it is my purpose to consider a variant of the claim that
the impeachment of President Clinton was a partisan undertaking.
The argument I will address does not, however, attack the motives
of those who supported impeachment of the President. On the contrary,
it concedes or assumes the rectitude of their intentions. It is
not an ad hominem argument, but a substantive argument concerning
the appropriate political conditions justifying exercise of the
impeachment and removal of power.
I focus on this argument not because I believe it is ultimately
persuasive which I obviously do not but because it
constitutes something more than the tendentious special pleading
represented by the other arguments. Unlike so many of the other
claims made by the President's defenders, this argument is anchored
in principle and is worthy of serious discussion.
One of my law professors, a distinguished constitutional scholar,
elegantly stated this argument in a letter to me in January 1998,
which I will quote at some length. He wrote:
I believe the President's forced removal from office would work
more harm on the institution of the Presidency than his disgraced
continuation in it, because that removal has the appearance of a
partisan enterprise carried out virtually exclusively by the President's
political opponents. In saying this, I don't mean to cast any doubt
on the integrity of your motives, or those of your Republican colleagues.
It is, however, a fact that you acted with virtually no Democratic
votes in the House proceedings and none at all in the Judiciary
Committee. This fact has indelibly stamped the impeachment enterprise
as a partisan effort, no matter how honorable your motives are.
The dispositive constitutional principle for me, in this circumstance,
is the old maxim that justice must not simply be impartially administered,
but must also appear to be impartial and that appearance
has been dashed by the absence of virtually any support from the
President's own party in the House. This is the central difference,
for me, between the Nixon impeachment effort and the current enterprise.
I know that this effectively gives the minority party a veto in
derogation of the principle of majority rule. But in this matter
of high constitutional significance, I believe that this kind of
veto is best for the protection of democratic principle; and this
requires forbearance visible forbearance by the majority
to defer to minority views and thereby to protect democratic principle.
The core of this argument is what the professor describes as the
"old maxim that justice must not simply be impartially administered,
but must also appear to be impartial." The appearance of impartiality
so the argument goes is essential to the legitimacy
of an impeachment. And unless there is a significant bipartisan
support for the impeachment, the appearance of impartiality will
necessarily be lacking. Thus an impeachment cannot be legitimate
and proper in the absence of bipartisan support.
While I acknowledge that this is a serious and principled argument,
in my view it is ultimately unsuccessful because it does not fit
well in the structure of the constitutional provisions relating
to impeachment. Moreover, it evidences a view of the impeachment
process that is at odds with what the framers of the Constitution
Before I address those specific constitutional issues, I'd like
to make a brief point about the maxim that justice must appear impartial
as well as be impartial. It is no doubt true that in the administration
of justice whatever the context the appearance of
impartiality as well as its reality should always be our goal. Public
confidence in the administration of justice necessarily depends
on public understanding. All of this should virtually go without
saying. Actions that create a perception of unfairness are to be
avoided. But those who administer justice cannot be required to
be the guarantor of the public perception of their work. Sometimes
that perception is shaped largely by extraneous forces and circumstances
that are beyond the control of those who administer justice. And
I would suggest that it is a dangerous policy indeed to prohibit
actions which the fair administration of justice in fact requires
simply because some segment however large of the public
judges those actions to be other than just. Adopting such a policy
promises to reward those who seek to undermine the faithful administration
of justice by false charges of unfairness.
Having made that general point, I will acknowledge that in the
impeachment proceedings we made one significant error that may have
unnecessarily undermined public confidence in the proceedings. It
was, I think, a serious mistake to adopt the impeachment inquiry
resolution with no restriction on the scope of the inquiry.
It is true that the resolution adopted was modeled closely on the
resolution adopted for the inquiry concerning President Nixon, and
thus had the support of precedent. But in the face of strong Democratic
opposition to the open-ended scope, it would have been wise to limit
the inquiry to the matters within the scope of the referral from
the independent counsel. Ultimately, each of the articles of impeachment
adopted by the House Judiciary Committee related to matters within
the scope of the referral. So, the broad scope of the inquiry resolution
proved to be entirely unnecessary.
An inquiry resolution of limited scope would have been likely to
command broad bipartisan support. As it was, the broader resolution
was opposed by the overwhelming majority of Democrats, and the impeachment
proceedings were instituted in a manner that unnecessarily heightened
and highlighted partisan divisions and thereby undermined public
confidence in the process. Although it most likely did not affect
the outcome of the impeachment proceedings, it was nonetheless a
serious mistake. It was a mistake which gave additional force to
the efforts of those who had set out to do everything in their power
to discredit the proceedings against President Clinton.
Now to the central question: Did the Framers of the Constitution
contemplate the use of the impeachment power against the united
opposition of a minority faction or party? Or did they intend that
the impeachment and removal of a President could be accomplished
only with the support of the those within the party or faction with
which the President was aligned?
In the often cited Federalist No. 65, Alexander Hamilton discusses
the potential impact of partisan considerations on impeachment proceedings.
This is a statement that was repeated many times in recent months.
After observing that impeachable offenses "are of a nature
which may with peculiar propriety be denominated POLITICAL, as they
relate chiefly to injuries done immediately to the society,"
Hamilton goes on to state:
"The prosecutions of them, for this reason, 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.
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 the parties than by the real
demonstration of innocence or guilt."
Hamilton was quite perceptive and prescient. He was certainly right
to expect that the process in the House and Senate for dealing with
the "misconduct of public men" would be open to political
influences influences which would have potential for thwarting
a decision "regulated . . . by the real demonstration of innocence
But Hamilton in no way suggests that partisan political divisions
should render the impeachment process inoperative. Such divisions
in the view of Hamilton are a potential impediment to the rendering
of a just judgment, but they are not a reason for putting aside
the responsibility of coming to a decision "regulated . . .
by the real demonstration of innocence or guilt."
From the perspective of Hamilton and the other Framers, I would
suggest that giving "the minority party a veto in derogation
of the principle of majority rule" is not the real problem.
After all, there is much in the Constitution in derogation of the
principle of majority rule. Indeed, establishing a constitutional
government is itself in derogation of majority rule. The real problem
with giving a united partisan minority such a veto is that it would
be in derogation of the goal of rendering a just judgment against
those public officers guilty of the "abuse or violation of
some public trust." Granting such a partisan veto would undermine
the constitutional scheme for maintaining the integrity of office.
But, I will quickly add, the Constitution does effectively establish
something very similar to such a minority veto in the requirement
of Article I, Section 3, that in impeachment trials before the Senate
"no Person shall be convicted without Concurrence of two thirds
of the Members present." Under that provision, there is clearly
the opportunity for a united minority on a partisan basis
to prevent the conviction of a President with which that
minority is aligned. Of course, that provision serves the fundamental
and worthy purpose of protecting the separation of
powers and ensuring that the Chief Executive would not serve at
the pleasure of the House and Senate.
But the Framers did not establish an analogous mechanism for the
initial stage of the constitutional process. Impeachment by the
House is accomplished by a simple majority vote.
Some have argued that the House should impeach only if it is convinced
both that an impeachable offense has been committed and that there
is at least a reasonable prospect of conviction in the Senate. This
argument essentially puts the House in the role of predicting the
judgment that the Senate would render. It thus severely reduces
the constitutional function of the House in the impeachment process.
The structure of the constitutional provisions relating to impeachment
makes plain that the Framers contemplated circumstances where the
House would impeach and the Senate would not convict. Action by
simple majority in the House and by two-thirds in the Senate virtually
The Framers struck a balance in the Constitution between preserving
a separate power of the Presidency, and providing a check on the
misconduct of the president. The independent significance of impeachment
by the House in that constitutional balance should not be overlooked
or underestimated. The act of impeachment itself has constitutional
significance and serves a constitutional function.
In the constitutional scheme, the ultimate sanction for the misconduct
of public officers is removal from office. The sanction of removal
establishes a higher standard of integrity in office in the most
direct and authoritative manner. That ultimate sanction is, of course,
within the exclusive province of the Senate.
But the action of the House in impeaching a President or other
civil officer also serves to establish a standard of integrity in
office. When the House impeaches it renders its judgment that the
conduct giving rise to the impeachment is harmful to our system
of government. When the House impeaches it issues a warning that
such misconduct will not slip by unnoticed, but that the offender
will pay at least some price for his misdeeds. When the House impeaches,
it marks an offender in a way that is not necessarily effaced by
the subsequent failure of the Senate to convict. The absence of
a two-thirds majority for conviction does not vitiate the decision
of the House to impeach. The legitimacy of the action of the House
ultimately must depend not on the vagaries of politics, but on the
"real demonstration of innocence or guilt."
In light of these factors, the positive constitutional function
of the proceedings against President Clinton can be understood.
By its action in this case the House of Representatives established
that the President who violates his constitutional duty and oath
of office by committing crimes against the system of justice will
be called to account for his misconduct. Over the long term, that
action by the House can only serve to strengthen the institution
of the Presidency and the system of justice.
* Charles T. Canady is a Member of the United States House of Representatives
from Florida, and served on the House Committee on the Judiciary
during the proceedings concerning the impeachment of President William
J. Clinton. This lecture was presented to the Miami Chapter in Spring
1999. The text of the lecture has been revised and edited to fit