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Impeachment

How Will The Trial Of Bill Clinton Affect Future Impeachments?

Impeachment, the constitutional method for removing presidents, judges, and other federal officers who commit "Treason, Bribery, or other high Crimes and Misdemeanors," requires a majority vote by the House of Representatives, and then conviction by a two-thirds vote in the Senate. President WILLIAM JEFFERSON CLINTON's impeachment trial was the fifteenth in U.S. history, and the second of a president. ANDREW JOHNSON, the other president to be impeached by the House of Representatives, was acquitted by the Senate in 1868 in a vote that mostly followed party lines. Especially in light of prior impeachments, seven of which ended with the removal of federal judges, Clinton's case will affect the future use of impeachment, the process of impeachment, and the definition of "high Crimes and Misdemeanors."

Clinton's experience, like Johnson's, shows that impeachment can be a tool of political warfare. Although the U.S. Constitution only requires a House majority for impeachment, many scholars and other commentators say it should be a bipartisan effort to remove a president who is dangerous to the nation. However, the world of academia differs from that of politics. In contrast, House Republicans pursued Clinton by disregarding polls that said two-thirds of the nation opposed impeachment. The vote in the House then fell mostly along party lines. Future House majorities could use this precedent to impeach a political opponent without substantial public support.

The price of the impeachment, however, was high for House Republicans. Speaker NEWT GINGRICH (R-Ga.) resigned after mid-term elections in November 1998, trimming the Republican House majority to six votes. Then, upon exposure of his own extramarital affair, Speaker-elect Robert L. Livingston (R-La.) resigned on the day of impeachment, urging Clinton to follow his example. Republicans and Democrats alike might hesitate to pursue another unpopular impeachment with so much at risk. However, when Democrats someday control the House of Representatives with a Republican in the White House, the human temptation for revenge will be great. As historian Benjamin Ginsberg observed,"The history of American politics over the last few decades is that the victims of a political attack denounce it as an illegitimate endeavor—but within a few years adopt it themselves. It's like an arms race."

As for the process of impeachment, Clinton's experience may affect the future use of witnesses and the viability of censure. The House Judiciary Committee declined to call a single witness to any of Clinton's misconduct, relying instead in the investigation by Independent Counsel KENNETH W. STARR. Democrats criticized this procedure, asking how the House could vote on impeachment without an independent investigation. (In fact, the only other time the House failed to conduct an investigation was when it impeached President Johnson, suggesting that such an approach is political.) During Clinton's trial in the Senate, however, Democrats themselves opposed calling witnesses, a political move motivated by fear that witnesses would reveal something leading to conviction. House managers running the prosecution, who now wanted 15 witnesses after calling none in the House, had to settle for just three. Everyone will remember that lesson next time.

As an alternative to impeachment, Democrats tried to introduce censure resolutions in both the House and Senate. Republicans defeated these efforts. Some said censure was not a legal option, as the U.S. Constitution provides for censure of members of Congress but not presidents. Democrats, however, pointed to past censures of Presidents ANDREW JACKSON, JOHN TYLER, and JAMES BUCHANAN, and suggested that Republican opposition stemmed from a desire to brand Democrats as supporting Clinton's misconduct during upcoming elections.

Any future impeachment, whether of a president, judge, or other civil officer, will revisit the question of what constitutes "high Crimes and Misdemeanors," which is undefined in the U.S. Constitution. Those in favor of impeaching Clinton argued that perjury and OBSTRUCTION OF JUSTICE of any kind are impeachable because they subvert the RULE OF LAW, making it impossible to expect lawful behavior from ordinary citizens and even future presidents, who are charged by the Constitution with taking "Care that the Laws be faithfully executed." Those who opposed impeachment said that while perjury and obstruction of justice are wrong, they are not impeachable offenses unless they concern the president's official duties and present a danger to the nation.

Clinton's impeachment by the House and acquittal by the Senate thus will affect future interpretation of "high Crimes and Misdemeanors" in many ways. The House Judiciary Committee recommended impeachment for perjury in Clinton's deposition in a civil lawsuit, and for perjury in his criminal GRAND JURY testimony. The House voted to impeach only for the latter, suggesting that perjury in a criminal matter is impeachable, while perjury in a civil matter is not.

The Senate, however, voted to acquit Clinton of perjury and obstruction of justice even though most Republicans and Democrats believed Clinton lied under oath and tried to influence the testimony of other witnesses. As explained by Senator Richard H. Bryan (D-Nev.), "The president's conduct is boorish, indefensible, even reprehensible. It does not threaten the republic." This suggests that misconduct, even perjury, that is unrelated to the president's official duties and does not present a danger to the nation is not impeachable.

As such, Clinton's acquittal creates a double standard for impeachment of presidents and judges. In 1986, the House impeached and the Senate convicted Judge Harry E. Claiborne for filing false income tax returns. In 1989, the House impeached and the Senate convicted Judge Walter L. Nixon Jr., for lying under oath about conduct unrelated to his official duties. In neither case did anyone suggest that lying about personal conduct is not an impeachable offense. In fact, the House managers' report concerning Judge Nixon said, "It is difficult to imagine an act more subversive to the legal process than lying from the witness stand. A judge who violates his testimonial oath and misleads a grand jury is clearly unfit to remain on the bench. If a judge's truthfulness cannot be guaranteed, if he sets less than the highest standard for candor, how can ordinary citizens who appear in court be expected to abide by their testimonial oath." The Senate's acquittal of Clinton suggested that lying about private matters is an impeachable offense for judges, but not for presidents.

Finally, the most significant effect of Clinton's impeachment and acquittal may be to define "high Crimes and Misdemeanors" to mean whatever the public wants. Scholars and politicians argued that the term purposefully is vague and undefined to allow Congress to handle each instance in the best interests of the nation. According to constitutional scholar Laurence H. Tribe, "[u]nless the rights of individuals or minority groups are threatened, our governing institutions are structured to make the sustained will of a significant majority all but impossible to topple—as the failure of the effort to remove President Clinton will dramatically illustrate." Even Senator Orrin G. Hatch (R-Utah), who voted to convict Clinton, said,"It's not just law. It's politics …. And you have to combine those two and say—and this ought to be the prevailing question—what is in the best interest of our country, of our nation, of our people."

FURTHER READINGS

Amar, Akhil Reed. 1999."On Impeaching Presidents." Hofstra Law Review 28 (winter).

Austin, Jan, ed. 1999. Congressional Quarterly 1998 Almanac. Washington, D.C.: Congressional Quarterly.

Baker, Peter, and Juliet Eilperin. 1998."Clinton Impeached." Washington Post (December 20).

Carney, James, John F. Dickerson, and Karen Tumulty. 1999. "Nightmare's End." Time (February 22).

Cooper, Charles J. 1999. "A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice as High Crimes and Misdemeanors." Harvard Journal of Law and Public Policy (spring).

Coyle, Marcia. 1999. "Impeachment Lessons for the House Are Stark." National Law Journal (February 22).

Gettinger, Stephen. 1999. "Impeachment's Future: Just Another Political Weapon?" CQ Weekly (February 13).

"Impeachment of the President: Interpreting 'High Crimes and Misdemeanors'." 1999. Congressional Digest (February).

Marcus, Ruth. 1999. "House Managers Warn of Trial's Future Impact on Presidency." Washington Post (January 12).

——. 1999. "Scholars Weigh Likelihood of Future Impeachments." Washington Post (February 15).

——. 1999. "With Precedents as a Guide; Senators' Decisions, as Well as Rules, Will Affect Process." Washington Post (January 14).

Samuelson, Robert J. 1998. "Nixon's Revenge." Washington Post (December 23).

"Special Report: Impeachment of the President." 1999. CQ Weekly (February 13).

Tribe, Laurence H. 1999. "And the Winner Is…" New York Times (February 12).

"The Verdict; Constitutional Justice." 1999. New York Times (February 13).

Weisberger, Bernard A. 1999. "Impeachment Aftermath." American Heritage (February).

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