High Crimes and Misdemeanors: The Case Against Bill Clinton (49 page)
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14
See
Berger at 81-82.
See
Berger at 81-82.
15
Tribe at 293-294.
Tribe at 293-294.
16
Report of the National Commission on Judicial Discipline and Removal at 25 (August 1993).
Report of the National Commission on Judicial Discipline and Removal at 25 (August 1993).
17
Rodino Report at 23.
Rodino Report at 23.
18
Rodino Report at 23.
Rodino Report at 23.
19
Rodino Report at 22.
Rodino Report at 22.
20
Federalist No. 66, at 402 (James Madison).
Federalist No. 66, at 402 (James Madison).
21
Berger at 80 (quoting James Wilson, from his
Philadelphia Lectures
, I Wilson at 324).
Berger at 80 (quoting James Wilson, from his
Philadelphia Lectures
, I Wilson at 324).
22
Rodino Report at 9 (emphasis in original).
Rodino Report at 9 (emphasis in original).
23
Federalist No. 67, at 408-409 (Alexander Hamilton).
Federalist No. 67, at 408-409 (Alexander Hamilton).
24
Federalist No. 69, (Alexander Hamilton).
Federalist No. 69, (Alexander Hamilton).
25
James Wilson quoted in Rodino Report at 9.
James Wilson quoted in Rodino Report at 9.
26
Federalist No. 70, at 428 (Alexander Hamilton).
Federalist No. 70, at 428 (Alexander Hamilton).
27
Federalist No. 70, at 429 (Alexander Hamilton).
Federalist No. 70, at 429 (Alexander Hamilton).
28
Rodino Report at 9.
Rodino Report at 9.
29
U.S. Constitution, Article II, section 4.
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.
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.
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).
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).
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).
Report of the National Commission on Judicial Discipline and Removal at 37 (August 1993).
35
Rodino Report at 12.
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.
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.
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).
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).
Federalist No. 65, at 396 (Alexander Hamilton).
40
Berger at 70.
Berger at 70.
41
Berger at 70 and n. 83.
Berger at 70 and n. 83.
42
Berger at 70.
Berger at 70.
43
Rodino Report at 6.
Rodino Report at 6.
44
Rodino Report at 6.
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.
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.
Berger at 68.
47
Berger at 68.
Berger at 68.
48
Berger at 68.
Berger at 68.
49
Berger at 68.
Berger at 68.
50
Berger at 67.
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.
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.
Berger at 68.
53
Berger at 68.
Berger at 68.
54
This is a felony under Section 607 of the U.S. criminal code.
This is a felony under Section 607 of the U.S. criminal code.
55
Berger at 71.
Berger at 71.
56
Berger at 68.
Berger at 68.
57
Berger at 68.
Berger at 68.
58
Berger at 70, n. 82.
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.
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.
Berger at 67.
61
Berger at 69.
Berger at 69.
62
Federalist No. 53, at 332 (James Madison).
Federalist No. 53, at 332 (James Madison).
63
Federalist No. 53, at 331 (James Madison).
Federalist No. 53, at 331 (James Madison).
64
Rodino Report at 15.
Rodino Report at 15.
65
Rodino Report at 13 (Edmund Randolph of Virginia).
Rodino Report at 13 (Edmund Randolph of Virginia).
66
Rodino Report at 13 (Charles Cotesworth Pinckney of South Carolina).
Rodino Report at 13 (Charles Cotesworth Pinckney of South Carolina).
67
Berger at 433-435.
Berger at 433-435.
68
Rodino Report at 13.
Rodino Report at 13.
69
Rodino Report at 13.
Rodino Report at 13.
70
Rodino Report at 13.
Rodino Report at 13.
71
Rodino Report at 13.
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.
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)].
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).
Report of the National Commission on Judicial Discipline and Removal, at 30 (August 1993).
75
Berger at 3.
Berger at 3.
76
Eric L. McKitrick,
Andrew Johnson and Reconstruction,
328 (1988) (cited in Berger at 261).
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.
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.
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).
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.
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.
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].
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].
Berger at 270-271 [George S. Boutwell]. Another referred to the Constitution as that “worthless bit of old parchment” [Stevens].
84
Berger at 262.
Berger at 262.
85
Myers
v.
United States
, 272 U.S. 52, 293 (1926) (Brandeis, J. dissenting).
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.’”)
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.
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.
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.’”)
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.”
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).
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.”
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.
Dr. Strangelove
, Columbia Pictures, 1964.
94
Emery at 396. The Senate had passed the resolution unanimously on May 1, 1973. Emery at 355.
Emery at 396. The Senate had passed the resolution unanimously on May 1, 1973. Emery at 355.
95
Emery at 396 and 398.
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.
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.
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.
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.
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.)
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.
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.
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