High Crimes and Misdemeanors: The Case Against Bill Clinton
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4 Federalist No. 68, at 414 (Alexander Hamilton).
5 Federalist No. 68, at 413 (Alexander Hamilton).
6 Rodino Report at 22.
7 Berger at 62.
8 Rodino Report at 23.
9 Michael de la Pole had “purchas [ed] property of great value from the King while using his position as Chancellor to have the lands appraised at less than they were worth all in violation or his oath, in deceit of the King and in neglect of the need of the realm.” Rodino Report at n. 8.
10 Michael de la Pole had “brok[en] a promise he made to the full Parliament to execute in connection with a parliamentary ordinance the advice of a committee of nine lords regarding the improvement of the estate of the King and the realm: ‘this was not done, and it was the fault of himself as he was then chief officer.’” Rodino Report at 5. After describing thirteen English impeachments for noncriminal conduct, Berger observes that “[t]he foregoing examples by no means exhaust the list which could be adduced to illustrate that English impeachments did proceed for misconduct that was not ‘criminal’ in the sense of the general criminal law.” Berger at 69.
11 After describing thirteen English impeachments for noncriminal conduct, Berger observes that “[t]he foregoing examples by no means exhaust the list which could be adduced to illustrate that English impeachments did proceed for misconduct that was not ‘criminal’ in the sense of the general criminal law.” Berger at 69.
12 U.S. Constitution, Article II, section 2.
13 U.S. Constitution, Article III, section 2. This was not true in the English practice: even though impeachable offenses did not have to be “indictable crimes,” impeachment could be punished by death or imprisonment (Berger at 67). By contrast, the Constitution specifically provides that the sole punishments for impeachment and conviction are “removal from office, and disqualification to hold and enjoy” any other office of profit or trust with the United States. Article II, section 3.
14 See Berger at 81-82.
15 Tribe at 293-294.
16 Report of the National Commission on Judicial Discipline and Removal at 25 (August 1993).
17 Rodino Report at 23.
18 Rodino Report at 23.
19 Rodino Report at 22.
20 Federalist No. 66, at 402 (James Madison).
21 Berger at 80 (quoting James Wilson, from his Philadelphia Lectures, I Wilson at 324).
22 Rodino Report at 9 (emphasis in original).
23 Federalist No. 67, at 408-409 (Alexander Hamilton).
24 Federalist No. 69, (Alexander Hamilton).
25 James Wilson quoted in Rodino Report at 9.
26 Federalist No. 70, at 428 (Alexander Hamilton).
27 Federalist No. 70, at 429 (Alexander Hamilton).
28 Rodino Report at 9.
29 U.S. Constitution, Article II, section 4.
30 Though “impeachment” is assumed in common parlance to effect removal of the accused official from office, it does no such thing. Impeachment by the House of Representatives is the equivalent of indictment by a grand jury in a criminal proceeding. The trial is then held by the Senate, and only if two-thirds of the members present vote to “convict” is the officer removed from office. The term “impeachment” is often used to refer to the whole megillah—impeachment and removal from office—presumably to distinguish convictions of impeachment from criminal convictions.
31 U.S. Constitution, Article I, sections 2-3.
32 Federalist No. 70, at 427 (Alexander Hamilton). See also Rodino Report at 9. The president is “personally responsible for any abuse of the great trust reposed in him” (quoting James Iredell).
33 Report of the National Commission on Judicial Discipline and Removal at 29 and 31 (August 1993).
34 Report of the National Commission on Judicial Discipline and Removal at 37 (August 1993).
35 Rodino Report at 12.
36 116 Congressional Record H 3113-3114 (daily ed. April 15, 1970). To this extent Ford was right: the impeachment and removal of government officials is left entirely to the legislative branch, and in the case of a criminal conviction, some legislative body must first have written a law making the specific act criminal. In addition, some executive branch official must have decided to prosecute. Hamilton explained that the Constitution had limited the legislature’s power of removing executive branch officials by granting the House the power of impeachment, and the Senate the power of conviction: “The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches” (Federalist No. 66, at 420). In the case of actual criminal acts by an impeachable official, the accusing or prosecuting function, falls to the attorney general, or through the attorney general and a three-judge panel to an independent counsel.
37 Berger at 74.
38 As Berger has written, the phrase “‘high Crimes and Misdemeanors’ was adopted [by the framers] with knowledge that it had a ‘limited’ and ‘technical meaning,’ a meaning to be sought by recurrence to English practice.” Though it was “not as sharply defined as ‘treason’ or ‘bribery,’… it does have an ascertainable content in English practice” (Berger at 107 and 106).
39 Federalist No. 65, at 396 (Alexander Hamilton).
40 Berger at 70.
41 Berger at 70 and n. 83.
42 Berger at 70.
43 Rodino Report at 6.
44 Rodino Report at 6.
45 Berger at 67. The Rodino Report described the Duke of Suffolk’s “high Crimes and Misdemeanors” as “such various offenses as ‘advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws,’ ‘procuring offices for persons who were unfit and unworthy of them’ and ‘squandering away the public treasure.’” Rodino Report at 6.
46 Berger at 68.
47 Berger at 68.
48 Berger at 68.
49 Berger at 68.
50 Berger at 67.
51 See, e.g., Ross Mackenzie, “Between The Grand Inquisitor & The Church Lady, Assessing the Clintons,” Richmond Times Dispatch, June 22, 1997.
52 Berger at 68.
53 Berger at 68.
54 This is a felony under Section 607 of the U.S. criminal code.
55 Berger at 71.
56 Berger at 68.
57 Berger at 68.
58 Berger at 70, n. 82.
59 Brent Israelsen, “A Year Later, Grand Staircase-Escalante Issues Simmer; Grand Staircase Issues Simmer a Year Later,” Salt Lake Tribune, September 14, 1997.
60 Berger at 67.
61 Berger at 69.
62 Federalist No. 53, at 332 (James Madison).
63 Federalist No. 53, at 331 (James Madison).
64 Rodino Report at 15.
65 Rodino Report at 13 (Edmund Randolph of Virginia).
66 Rodino Report at 13 (Charles Cotesworth Pinckney of South Carolina).
67 Berger at 433-435.
68 Rodino Report at 13.
69 Rodino Report at 13.
70 Rodino Report at 13.
71 Rodino Report at 13.
72 James Madison was responding to these hypotheticals posited by George Mason of Virginia with the impeachment remedy. Rodino Report at 13-14.
73 Rodino Report at 17 [quoting 1 J. Story Commentaries on the Constitution of the United States sec. 764 at 559 (5th ed. 1905)].
74 Report of the National Commission on Judicial Discipline and Removal, at 30 (August 1993).
75 Berger at 3.
76 Eric L. McKitrick, Andrew Johnson and Reconstruction, 328 (1988) (cited in Berger at 261).
77 Johnson’s preferred course of action was to implement a “reconstruction of the Southern minds” before undertaking a “restoration of the Southern States.” See Berger at 261. Most historians now believe
Johnson’s policy “contained the greatest long-range wisdom,” but the post-Civil War Congress was in no mood for gradualism. Berger at 261.
78 Berger at 268.
79 In 1987 Senator Edward Kennedy (D-MA) denounced the respected federal judge by stating: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.” 133 Congressional Record S9188-S9189 (daily ed. July 1, 1987).
80 Berger at 268.
81 The Senate erupted in hoots of laughter when number 10 of the articles of impeachment against Johnson was read aloud: It charged the president with being “unmindful… of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches.” Berger at 273.
82 Berger at 270-271 [Benjamin Butler].
83 Berger at 270-271 [George S. Boutwell]. Another referred to the Constitution as that “worthless bit of old parchment” [Stevens].
84 Berger at 262.
85 Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J. dissenting).
86 Everett Carll Ladd, “Nixon, Clinton, and the Polls,” Wall Street Journal, April 1, 1998. (“In an April 1974 Harris survey, only 30 percent said Nixon was right to assert executive privilege in refusing to turn over tapes; 56 percent thought ‘he is using it as an excuse to keep important information from Congress which might convict him.’”)
87 Fred Emery, Watergate, 391, 393 and 395-396 (1994). Senator John Stennis was to authenticate the summaries. Though Senator Sam Ervin later claimed that he understood the agreed-upon compromise to consist of Nixon providing “whole verbatim transcripts” of the tapes to the committee, no one else at the meeting understood it this way. Senator Stennis understood that he alone would view or listen to the conversations unedited. The White House had flown Ervin in from North Carolina by a special Air Force plane to meet with the president in order to discuss the compromise. It is not clear what Ervin might have thought Nixon was getting out of a “compromise” to provide “whole verbatim transcripts,” other than keeping his personal secretary, Rose Mary Woods, very, very busy for a very long time. See Emery at 395-396.
88 Emery at 404.
89 Everett Carll Ladd, “Nixon, Clinton, and the Polls,” Wall Street Journal, April 1, 1998. (“In response to questions on whether Nixon should resign or should be forced out through impeachment, substantial majorities said throughout 1973 that he should not. Support for Nixon’s removal from office grew as the hearings proceeded in 1974—but even then tentatively. In early May 1974, three months before his resignation, 49% of respondents told Gallup interviewers that the president’s actions were not serious enough ‘to warrant his being impeached and removed from the presidency.’”)
90 John M. Broder, “Hillary Clinton Declines to Answer Some of Starr’s Questions,” New York Times, April 29, 1998. President Clinton corrected House Speaker Newt Gingrich on this point, saying that Gingrich was mistaken in stating that the president could simply dismiss the independent counsel. As Clinton noted correctly, “[T]hat’s not what the statute says.”
91 28 U.S.C. 596(a)(1).
92 According to Henry Kissinger’s memoirs, the Air Force was lackluster in its airlift efforts, until he complained to Nixon, who personally lit a fire under the appropriate general, leading to an enormous airlift, and, in Moshe Dayan’s words, the saving of the “Third Temple.”
93 Dr. Strangelove, Columbia Pictures, 1964.
94 Emery at 396. The Senate had passed the resolution unanimously on May 1, 1973. Emery at 355.
95 Emery at 396 and 398.
96 Emery at 400. Nixon’s private response to the news that Richardson would not fire Cox was: “I’m not surprised that that pious bastard cares more for his ass than his country.” Emery at 397.
97 Senator Lott, Republican leader of the Senate: “Well, just, you know, the House could say, well, it’s not serious enough for impeachment, but this is clearly conduct that is on the margin, and we don’t approve of, and the House Judiciary Committee would report out a censure resolution, and the House would vote on it.” CNN’s Evans & Novak, March 7, 1998.
98 Rodino Report at 9.
99 Nixon can be heard on the tapes saying, “What in the Christ did they think they were going to accomplish by bugging the National Committee of the Democratic Party?” Stuart Levitan, “Kutler’s Stunning Book Proves Depth of Nixon Evil,” Capital Times (Madison, WI) November 21, 1997.
100 Even Nixon believed he should be impeached if he had known about the Plumbers’ planned break-in of office of Ellsberg’s psychiatrist, Dr. Lewis Fielding, and did nothing to stop them. That act was at least in furtherance of a general request by Nixon for information on Ellsberg. “You see,” he told Haldeman, “because if I was informed, then, frankly, I am derelict… [and] they’ve got to blame me for not firing Hunt and that bunch right then.” Nixon remained tormented with the idea that he may have been informed of the Fielding break-in years after he left office, finally writing in his memoirs, “I do not believe I was told about the break-in.” (To this day, despite committed efforts, there is no evidence that he was.)
101 The Rodino Report also cites remarks on impeachment made in the House of Representatives during the First Session of the First Congress: “Madison argued during the debate that the President would be subject to impeachment for ‘the wanton removal of meritorious officers.’” Rodino Report at 15.
102 The familiar litany: Clinton on the White House’s improper possession of hundreds of FBI raw files: “It appears to have been a completely honest bureaucratic snafu…” (“White House Apologizes for Seeking FBI Records,” Reuters North American Wire, June 9, 1996). Clinton on the Travel Office firings: “I didn’t personally know anything about it till I read about it in the press” (Associated Press, January 29, 1997). Clinton on invoking executive privilege for Mrs. Clinton’s conversations: “All I know is, I saw an article about it in the paper today” (John F. Harris, “Clinton Finds There’s No Escape,” Washington Post, March 25, 1998).
103 Scrapbook, “Clinton’s Pentagon Papers,” The Weekly Standard, June 15, 1998.
104 George Lardner, Jr., “Democrats Hit Burton Over Tapes of Hubbell; House Chairman Accused of Doctoring Phone Transcripts,” Washington Post, May 4, 1998.
105 CNN’s Larry King Live, April 21, 1997. On June 25, 1998, Susan McDougal was released from prison for medical reasons (McDougal has a serious spinal condition).
106 Harvey Berkman, “Will the President Pardon His Friends?” The National Law Journal, November 4, 1996.
107 Rodino Report at 15. Citing 1 Annals of Congress at 872-878.
108 See, e.g., 18 U.S.C. sec. 607.
109 Stuart Levitan, “Kutler’s Stunning Book Proves Depth of Nixon Evil,” Capital Times (Madison, WI) November 21, 1997.
110 Stuart Taylor, Jr., “Why Clinton Will Miss Paula Jones,” National Journal, April 3, 1998. Taylor’s list of contradicting witnesses included: Paula Jones, Monica Lewinsky, Gennifer Flowers, Dolly Kyle Browning, Betty Currie, the four former Clinton bodyguards “and self-described procurers of women,” James McDougal, David Hale, and Webster Hubbell. Taylor writes that two of the troopers have also said under oath that “a Clinton political appointee warned them to keep quiet or risk unspecified consequences to themselves and their families.”
111 See Rodino Report at 11.
112 “President Clinton’s” Remarks,” Federal News Service, March 24, 1998.
113 Rodino Report at 13-14.
114 Lying to the American people was shoe-horned into an obstruction of justice charge. The lie was that the White House ha
d conducted its own thorough investigation and concluded that there was no involvement of White House personnel or campaign committee personnel in the Watergate break-in. This was a lie because the Watergate burglars had also performed national security plumbing work for the White House and one of the burglars worked at the campaign committee. It is less clear how lying to the American people—as distinct from lying to investigators or congressional committees, for example—could constitute obstruction of justice. Nonetheless, “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States” was listed in the articles of impeachment against Nixon as an impeachable offense.
115 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.
116 And, as Bob Woodward and Carl Bernstein portrayed Pat Buchanan’s reasoning for Nixon’s resignation, “The problem is… that he hasn’t been telling the truth to the American people…. [T]he President can’t lead a country he has deliberately misled for a year and a half.” Bob Woodward and Carl Bernstein, “The Final Days: Part Two” Newsweek, April 12, 1976.
117 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.
118 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.
119 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.
120 January 26, 1998, statement to the press from the Roosevelt Room of the White House.
121 James Langton, “Focus Clinton on the Rack: Bradlee: The End Could Come Within Weeks,” Sunday Telegraph, January 25, 1998.
122 John F. Harris, “In Quick Shift, White House Brandishes Facts; A Sudden Blitz of Facts About Willey,” Washington Post, March 18, 1998.
123 CBS’s Face the Nation, February 8, 1998.
124 Jack Nelson, “Impeachment Cloud Darkens,” Los Angeles Times, March 30, 1998.
125 Howard Kurtz, “McCurry Comments Provoke Speculation on White House Strategy,” Washington Post, February 18, 1998.