A reader sent an e-mail question on the meaning of "high crimes and misdemeanors" and whether former President Clinton's position makes sense under the common law and British impeachment law. In my opinion, yes. A fully reasoned answer with authorities requires much too much space for this site. Consequently, I provide here after my opinion a few interesting pieces from some sources. Among so many books and articles to read, those unfamiliar with the process should start with Alexander Hamilton's Number LXV in THE FEDERALIST for an appreciation of the solemnity and delicacy of impeachment.
My Opinion Before the Judiciary Committee Vote:
The alleged actions of President Clinton do not constitute high crimes and misdemeanors which are the intended objects of impeachment. Clearly the efforts to make legal arguments in appropriate legal forums do not constitute obstruction of justice. The piggish behavior of the President, given his history and position, is brutishly stupid, but not an impeachable offence. Finally, assuming that the President did lie to the public about the affair, and assuming he did wilfully and unreasonably quibble about the meaning of "sexual relations," these are not high crimes and misdemeanors in violation of the public trust in matters of State. An intelligent man with an enormous ego in an important office under great public scrutiny is not likely, under most circumstances, to admit such stupidity and irresponsibility in his private life. These are personal failings of our president, for which the people might not re-elect him if he could run for office again, but they are not corrupt crimes against the United States. Of course, perjury is a felony, and to the extent the President committed such a crime he should be subject to the possibility of criminal process like any one else. Impeachment is a political process designed to remove officers who breach the public trust in matters of state.
March 9, 1999
Final Comment (and no more)
The process of impeachment seemed to move along inexorably. I worried about its implications for the future of the presidency and our country. This impeachment struck menacingly at the structure of our democracy; the border of distance and protection between the legislative and the executive was fraying. The legislature in this democracy must not exercise a power to take away the choice of the people (the President) unless, and only when, removal becomes necessary for the safe and proper functioning of government. The framers of our constitution regretted putting this decision in the hands of the legislature for fear that it would act on partisanship, but gave this power to the legislature because the people must be the ultimate decision-makers.
ARTICLE II, SECTION 4:
Commentaries on the Laws of England, Book the Fourth, by William Blackstone, Oxford 1769, from the 1983 facsimile Special Edition of The Legal Classics Library, Division of Gryphon Editions, Birmingham, Alabama.
But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom. A commoner cannot however be impeached before the lords for any capital offence, but only for high misdemeanors: a peer may be impeached for any crime.
The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; who are in cases of misdemeanors considered not only as their own peers, but as peers of the whole nation. This is a custom derived to us from the constitution of the antient Germans ....
For, though in general the union of the legislative and the judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents are the parties injured: and can therefore only impeach.
Records of the Debates in the Federal Convention of 1787, as reported by James Madison, from the 1989 facsimile Special Edition of the Legal Classics Library, Birmingham, Alabama.
9. Resolved. that a national Executive be instituted to consist of a single person. to be chosen by the national legislature. for the term of seven years. with power to carry into execution the national Laws, to appoint Offices in cases not otherwise provided for to be ineligible a second time, and to be removable on impeachment and conviction of mal practice or neglect of duty, ....
Mr. GOVERNOUR MORRIS's opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him. One would think the King of England well secured against bribery. He has as it were a fee simple in the whole kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to justice however we should take care to provide some mode that will not make him dependent upon the Legislature.
Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I -------- solemnly swear, (or affirm) that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery, or corruption.
"The Committee of Eleven to whom sundry resolutions &c were referred on the 31st of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz
Col. MASON. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He moved to add after "bribery" "or maladministration." Mr. Gerry seconded him.
MR. MADISON So vague a term will be equivalent to a tenure during pleasure of the Senate.
MR. GOVERNOUR MORRIS, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.
Col. MASON withdrew "maladministration" & substitutes "other high crimes and misdemeanors against the State."
On the questions thus altered
N.H. ay. Mass. ay. Ct. ay. N.J. no. Pa. no. Del. no. Md. ay. Va. ay. N.C. ay. S.C. ay. Geo. ay.
The Debate on the Constitution, Part One, 1993 by the Literary Classics of the United States, New York, N.Y., from the facsimile Special Edition 1993, Gryphon Editions, New York, New York.
[From James Iredell on the Presidency, Spies, the Pardoning Power, and Impeachment, at the North Carolina Convention, July 28, 1788:]
The punishment annexed to conviction on impeachment, can only be removal from office, and disqualification to hold any place of honour, trust or profit. But the person convicted is further liable to a trial at common law, and may receive such common law punishment as belongs to a description of such offences, if it be one punishable by that law.
[From James Iredell on Impeachment: "It Must Be for an Error of the Heart, and Not of the Head" at the North Carolina Convention, July 28, 1788:]
A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread. But when he knows that nothing but real guilt can disgrace him, he may do his duty firmly if he be an honest man, and if he be not, a just fear of disgrace, may perhaps, as to the public, have nearly the effect of an intrinsic principle of virtue. According to these principles, I suppose the only instances in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other.