Impeachment and Trial
"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Never has a public issue been so heatedly and contentiously debated as the recent impeachment and trial of President Clinton. Impeachment and trial are regarded as agents of the last resort to constitutionally accuse and remove federal civil officers who commit crimes against the state; or misuse their office in such a way that threatens our system of government and laws. William Jefferson Clinton is the first President to be impeached since Andrew Johnson in 1868. Johnson was acquitted in his Senate trial by a single vote. In 1974, President Richard M. Nixon decided to resign before the entire House of Representatives could vote on articles of impeachment already approved by the House Judiciary Committee. The recent plight of President Clinton underscores the importance of understanding the basics of impeachment and trial, how the process works, possible grounds of impeachable offenses and a historical review of the Johnson and Clinton cases.
The Basics (menu)
The framework for impeachment is discussed in the Constitution of the United States. The United States House of Representatives has "the sole Power of impeachment (Article I, Section 2)." Impeachment is an accusation or, more precisely, a set of formal accusations brought against the President, Vice President or any other "civil Officer" of the United States government for "Treason, Bribery or other high Crimes and Misdemeanors" (Article II, Section 4). These formal accusations are codified as articles of impeachment. Prior to the impeachment of President Clinton, there have been only 13 impeachment trials of federal civil officers in the Senate. All but two were federal judges.
Each charge or offense is listed as a separate article of impeachment on which the House votes. A majority of the members of the House who are present must vote "yes" on at least one of the articles of impeachment for a trial to be held in the United States Senate. If none of the articles are approved, the process ends. On the other hand, when one or more articles of impeachment has been approved by the House, the official is "impeached" and will stand trial in the Senate.
The articles of impeachment are then brought before the Senate for trial. When the President of the United States is on trial, the Chief Justice of the Supreme Court presides (Article II, Section 3). Civil officers who can be impeached include cabinet officials, federal judges, presidents, vice presidents and Supreme Court justices, but not members of Congress.
The Senators sit as judges, interrogators and jurors. In this sense, their role comes closest to that of Supreme Court or other appellate level judges. Senators can make up the rules that govern the trial proceedings, ask questions through the Chief Justice and pass judgment on the guilt or innocence of the accused. To convict, two-thirds of the Senators present must vote "guilty" on at least one article of impeachment to remove an official from public office. In addition, the Constitution states that an official who has been convicted is then disqualified from holding any other public office (Article I, Section 3). There is no constitutional punishment beyond this. However, "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law (Article I, Section 3)." Once someone has been removed from office they can still be tried and convicted in a civil or criminal court, and possibly go to prison. To summarize, the House has the sole power of impeachment while the Senate the sole power to conduct the trial.
How the Impeachment Process Works (menu)
Listed below are eleven important steps in the presidential impeachment and trial process. The Chief Justice only presides at presidential impeachment trials and will serve as our example to illustrate the process. In non-presidential impeachment trials, the Vice President or Senate pro tempore (temporary president of the Senate) presides at the trial. The process includes constitutional requirements and rules which are adopted by both House and Senate regarding the internal process of impeachment and trial. A presidential impeachment trial is the only time when all three branches of government intersect in a constitutionally mandated process.
What Qualifies as an Impeachable Offense (menu)
The impeachable offenses of bribery and treason mentioned earlier are easily defined and understood. The interpretation of "other high Crimes and Misdemeanors" as grounds to impeach and convict a federal civil officer has been disputed by constitutional scholars. One thing the scholars do agree upon is that the adjective "other," in Article II, Section 4, implies that the high crime and misdemeanor must be on a par with a crime of treason or bribery. The crime would have to undermine the legal, institutional or democratic foundations of our system of government. To gain a better understanding what the Constitution says about impeachment, it is first important to become acquainted with the origins of the impeachment process and the Framers role in shaping it for our Constitution.
The origins of the phrase "high Crimes and Misdemeanors" comes from English Common Law in 1386. The phrase not only referred to common criminal acts but also acts such as "maladministration" (i.e., incompetence) or other serious political offenses such as "misconduct in office." Later as British democracy began to blossom, the House of Commons was given impeachment power and the House of Lords removal power. However, the Crown had to sanction to such actions. Impeachment became a more common practice in the late 17th century as the dominion of royalty began to recede while the Parliament became more powerful in Britain. One of the most famous cases involved the Earl of Clarendon among whose crimes was selling Dunkirk to France in the 1660s without permission from the Lord Protector of England, Oliver Cromwell. This impeachment was symbolic of a larger issue dividing Protestants and Catholics in England.
The Framers Role (menu)
The Framers were concerned that impeachment not be used as a political tool as it had in England. In all likelihood, this is the reason they deliberated over impeachment for four months during the Constitutional convention of 1787 before coming to a solution. The initial drafts of what became Article II, Section 4 of the Constitution tried different approaches to define what an impeachable offense was: "mal-practice or neglect of duty," "treason, bribery and corruption" or "treason or bribery" or "maladministration" appeared in early drafts.
The breakthrough occurred when Colonel George Mason of Virginia made a suggestion which would serve as the foundation for Article II, Section 4. The phrase was "high Crimes and Misdemeanors against the state." Masons suggestion was further refined by the Constitutional Convention to read: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors against the United States".
The Committee on Style and Arrangement of the Constitutional Convention, who were in charge of grammar and syntax deleted the phrase against the United States because they considered it to be repetitive. The clause still meant that actions taken by a civil officer must threaten the legal or political system in such a way that irreparable damage would be done if unpunished. For example, if the President murdered someone "besides the injury done to individuals, they (i.e., the crimes) strike at the very being of society. " How does this apply today? The controversy in the Clinton impeachment trial regarded whether or not the alleged acts of perjury (lying under oath) and obstruction of justice, in fact, "strike at the very being of society" undermining our system of laws and justice.
Possible Grounds for Impeachment (menu)
What is an impeachable offense? After all, it seems that the term "other high Crimes and Misdemeanors" is somewhat vague while treason and bribery are quite obvious. The categories discussed in this section cannot possibly cover every possible instance of an impeachable crime; but they do represent the major types of impeachable offenses. We start with the narrowest grounds of impeachable offenses and end up with the broadest grounds of high crimes and misdemeanors. One could argue that all six categories are impeachable or one could contend that only the first category applies or a combination of several of the categories. The different classifications of possible impeachable offenses, which follow, are explained below. Only treason and bribery are not discussed because those high crimes and misdemeanors are self-explanatory.
Impeachments and Trials of Presidents (menu)
Andrew Johnson (menu)
After Lincolns untimely assassination in April of 1865, as the Civil War was ending, Andrew Johnson assumed the Presidency from his position as Vice President. Johnson was an anti-secessionist Democrat who ran with Lincoln on a bi-partisan ticket and was elected with him in 1864 as Vice President. Since Johnson was a Democrat and the Congress was controlled by Republicans, it was not surprising that there would be clashes over Reconstruction policies when he assumed the presidency.
While acknowledging the reality of the liberation of Blacks from slavery, Johnson did not support the call for civil or voting rights protections under law. Furthermore, he did not believe that the South should be harshly punished for its actions in the Civil War. These policies enraged many Republicans who overrode President Johnsons vetoes on civil rights legislation. In another move, a group of a fiercely abolitionist Congressmen and Senators, known as the "Radical" Republicans, restricted the presidents power to fire cabinet officials by passing The Tenure of Office Act of 1867 over the veto of President Johnson.
The Tenure of Office Act stated that the President could not remove cabinet officers from the United States government unless the Senate consented. He did have the right to suspend cabinet or other appointed officials from their duties when the Senate was not in session. That suspension, however, would end once the Senate was back in session unless they passed a resolution agreeing with the Presidents actions.
The impeachment controversy began when Andrew Johnson fired his Secretary of War, Edwin Stanton with whom he had been feuding with for nearly a year. Stanton was popular among Republicans and had served ably in his position during the Civil War under Lincoln. However, behind the scenes he had been disrupting the Reconstruction policies of President Johnson. When Johnson sought to remove Stanton, it violated the Tenure of Office Act. Rather than test the constitutionality of the law before the Supreme Court, the House acted immediately by approving eleven articles of impeachment against President Johnson. All but two were related to the removal of Stanton. One of the articles regarded speeches "that had been inflammatory and reflected badly on Congress." The last Article of Impeachment was a series of unconnected charges.
Under the Constitution, the President is given the power of appointment of "other public ministers" under Article II Section 2 with the advice and consent of the Senate. In addition, the President takes an oath to see that "laws be faithfully executed" under Article II Section 1 of the Constitution. Chief Justice William Rehnquist has written about how President Johnsons counsel skillfully argued for acquittal. The counsel stated that for a President to faithfully execute the laws, he "must be able to appoint subordinate officers whom he can place his trust, and be able to remove them when they cease to have his trust." Furthermore, the Presidents counsel argued that the record of the First Congress confirmed this interpretation.
Although, Republicans held a 42-12 seat advantage over Democrats in the Senate, three articles of impeachment were voted down. President Johnson survived by only one vote, on each of the three articles. Two-thirds of the Senate were unable to find the President guilty of a high crime and misdemeanor. The other eight articles of impeachment were never voted on by the Senate. Interestingly enough, none of the articles which were voted on related directly to the Tenure of Office Act of 1867; but it appears that the Presidents counsel had convinced enough Republicans with his presentation not to remove Johnson from office.
William Jefferson Clinton (menu)
William Jefferson Clinton is only the second American president to have been impeached and tried in the nations history. Unlike the public duel between Andrew Johnson and congressional Republicans, the Clinton impeachment process grew out of a private relationship that, for better or worse, had public consequences.
Whitewater Independent Counsel, Kenneth Starr, was given the opportunity to enlarge his investigation, by the Attorney General, into the President when he believed there was evidence that Mr. Clinton and his friend, Washington attorney Vernon Jordan, may have helped former intern Monica Lewinsky get a job in order to secure her testimony in the Paula Jones sexual harassment suit. Ms. Lewinsky denied that she had a sexual relationship with the President in her deposition before the Jones attorneys. About a week later, on January 26, 1998, President Clinton made his first public statement on the Lewinsky matter, stating, "I did not have sexual relations with that woman." Clinton had already given a deposition before the Jones attorneys and testified to the same thing.
During the spring of 1998, Independent Counsel, Kenneth Starr called numerous witnesses before a grand jury investigating charges of perjury (lying under oath about a sexual relationship), obstruction of justice and other wrongdoing with President Clinton as the main target. During the summer of 1998, Mr. Starr secured the cooperation of Monica Lewinsky. Before a federal grand jury, Ms. Lewinsky recanted her earlier story in the Jones deposition and now testified to having had a sexual relationship with President Clinton.
On August 17, 1998, the President in a federal grand jury appearance stated that he engaged in "inappropriate intimate contact" with Ms. Lewinsky. It is this phrase, more than any other that has served as the basis of the prosecution and defense in the Clinton impeachment trial.
The Independent Counsel and congressional Republicans contended that Clintons answer demonstrated that he was failing to tell the truth about a sexual relationship to a Federal grand jury by being evasive and uncooperative. They argued that he refused to provide details of his relationship with Ms. Lewinsky in the Oval Office which would corroborate Lewinskys story. The White House and some congressional Democrats argued that anyone could read between the lines regarding what the President meant and that he was not more specific to avoid further embarrassment to himself and his family.
Hearings were held before the House Judiciary Committee where articles of impeachment were drafted against the President. The four articles of impeachment were: 1) perjury before the grand jury; 2) perjury in the Paula Jones case; 3) obstruction of justice into the Independent Counsels investigation; and, 4) abuse of power. These articles of impeachment were then put to the House of Representatives for a full vote. The article of perjury before a federal grand jury passed by a vote of 228-206 and obstruction of justice into the Independent Counsels investigation passed by 221-212. The other two articles failed to pass the House. The articles adopted by the entire House were then placed before the Senate for trial.
The House managers arguing the case in the Senate trial contended that the President is the chief law enforcement official in the country. If the President lies before a federal grand jury about a sexual relationship, it is perjury, a crime which has put ordinary citizens and government officials in jail. Why should the President be held to a lower standard than any other citizen?
Second, the House managers argued that the President "prevented Paula Jones from obtaining truthful testimony and evidence that might have helped her lawsuit" against him by getting Monica Lewinsky to testify falsely. Such an attempt to cover-up the Presidents actions represents an obstruction of justice because he was trying to impede Ms. Jones right to a fair trial. Furthermore, the House managers argued that a womans ability to win a sexual harassment suit would be weakened if the chief law enforcement official of the nation, who willfully violates the law, is given a free pass by the Senate. Therefore, the House managers stated that the President should be removed from office.
The Presidents counsel argued that the Mr. Clintons actions were neither perjurious nor did they obstruct justice. The President counsels case was based on the following grounds: (1) Monica Lewinsky testified that the President never asked her to lie before a grand jury; (2) the case was nothing more than a "he said/she said" dispute with no other direct evidence showing that high crimes were committed; (3) there was no direct evidence that the President told White House officials or anyone else to cover-up his activities to obstruct justice; (4) that lying about a separate sexual relationship under oath which was not directly related to the facts of a sexual harassment suit (the Paula Jones case) could not be perjurious under the United States Federal Code of Laws; and, 5) even if they were crimes, they would not rise to the level of "high crimes and misdemeanors." The main premise of the last part of the President counsels argument was that even if the President lied about a sexual relationship under oath, that lie neither imperiled the country nor its institutions of government and democracy.
Alternatives to Conviction and Removal (menu)
The possibility that the Senate considered other options to conviction or acquittal of President Clinton was certainly not envisioned by the Framers of the Constitution. Whether these alternatives are constitutional is another matter. The censure option means that the Senate condemns the actions of President Clinton without any penalty. Censure was used in the past to condemn actions of Presidents Jackson and Buchanan, for example. Since censure is non-binding and not punitive, it probably is constitutional.
The finding-of-fact option calls for two votes: 1) a resolution stating that the President committed the crimes he was charged with by the House; and, 2) a vote on conviction or acquittal. However, the finding-of-fact alternative has caused concern among some legal experts. As University of Virginia Law Professor John C. Jeffries, Jr. stated: "The sanction for conviction is removal from office....Thats the constitutional command." There is no constitutional precedence for this option in any impeachment trial in the past. Some are concerned that such as action would carve out new legal territory unsupported by the Constitution. On the other hand, a finding-of-fact gives the Senate a stronger alternative to censure arguing that the President did commit a crime, but that crime did not warrant his removal from office.
For political scientists and other interested political observers, there is no way to assess the long-term impact of the Clinton impeachment trial on the American political system at such an early date. We do know that a series of weaker Presidents followed both Andrew Johnson and Richard Nixon. Will the presidency be weakened again after the Clinton era? We do not know how our political system will be affected in the short-term. All we can know is that in the long-term, our system of checks and balances among the branches of government is not likely to be destroyed by a single impeachment struggle, and will remain resilient as the Framers designed it to be.