Reason to impeach as ill-defined as ever Impeachable offense is what House says it is, Ford once joked

The Clinton Investigation

September 24, 1998|By Susan Baer | Susan Baer,SUN NATIONAL STAFF

WASHINGTON -- With Congress moving toward an impeachment inquiry of William Jefferson Clinton, the threshold question for lawmakers today is the same one House members faced nearly a quarter-century ago in considering the fate of President Richard M. Nixon: What should Congress deem an impeachable offense?

Already, there is sharp disagreement about whether President Clinton's behavior in the Monica Lewinsky scandal rises to the level loosely defined by the framers of the Constitution as "Treason, Bribery, or other high Crimes and Misdemeanors."

Clinton has been accused by independent counsel Kenneth W. Starr of lying under oath about his relationship with Lewinsky, of encouraging others to lie about it, of trying to hide gifts he gave her and of improperly using government lawyers to raise privilege claims.

Starr maintains the offenses amount to perjury, obstruction of justice and abuse of presidential power.

The White House, in stressing the private nature of Clinton's transgressions, has argued that impeachment was designed to protect the country against a president's "injury to the state," reserved for the "gravest wrongs -- offenses against the Constitution itself."

Some lawmakers, however, strongly disagree.

"The heart of the matter goes to allegations of perjury before the grand jury," said freshman Republican Rep. Asa Hutchinson of Arkansas. "It's the hallmark of our justice system. If the integrity of the grand jury is diminished, then our whole justice system will be weakened."

An impeachable offense, said Senate Majority Leader Trent Lott of Mississippi, "can be abuse of the public trust."

Chief Justice William H. Rehnquist, who would preside at a Senate trial of Clinton if Congress takes the process that far, seems to be in the middle on the definition.

In his book about the history of impeachment, Rehnquist says the charges should amount to "flagrant abuse of office," but goes on to list as examples: "perjury, bribery, and the like."

The nation has little experience with presidential impeachment, now being considered for only the third time.

Only one president, Andrew Johnson, was impeached. But the Senate, in 1868, fell one vote short of the two-thirds majority needed to convict, and he remained in office. President Richard M. Nixon resigned in 1974, shortly after the House Judiciary Committee voted to send three articles of impeachment to the full House.

Political process

With such ambiguous parameters, borrowed by the framers from English law, the presidential impeachment process has always been a political rather than legal process. As Gerald R. Ford, then a congressman, quipped in an oft-quoted 1970 House speech, "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."

In fact, interpretations of wrongdoing and even the standard for burden of proof are left to each individual member of Congress to decide for himself or herself.

"It's a different brand of law than we're used to," says John R. Labovitz, a Democratic lawyer on the House Watergate impeachment inquiry staff and author of a book on presidential impeachment.

"It is Congress establishing what the law is. It's hard for people to grasp asking politicians to behave as prosecutors and judges and create law. But that's really what the game is."

Labovitz and a promising 26-year-old lawyer fresh out of Yale Law School named Hillary Rodham were among those on the 43-member staff who worked on an initial background report during Watergate that laid out the grounds for impeachment.

The February 1974 report, "Constitutional Grounds for Presidential Impeachment," was based on reviews of past impeachments, English precedents, study of the drafting and ratification of the Constitution as well as input from legal scholars and historians. The so-called "grounds memo" has become the road map for subsequent impeachment debates.

California Rep. Zoe Lofgren, in a letter sent to Republicans on Friday and signed by all House Judiciary Committee Democrats, insisted that the Watergate guidelines be adopted today. "We must apply the same standards the Congress and Judiciary Committee members used when considering the conduct of the president in 1974," the Democrat wrote. "For if we do not, then our conduct, rather than fair and consistent, will appear instead to be arbitrary and partisan."

Whether an impeachable offense had to be a crime was the main question before the Watergate staff. The staff concluded it did not. For instance, if a president decided to move to Saudi Arabia so he could have four wives, he would not be breaking the law as long as his passport was in order, Yale University Law School Professor Charles L. Black Jr. theorized in a book on impeachment written around the time of Watergate. But that clearly would be grounds for removal from office.

Conversely, lawyers concluded that an indictable crime does not necessarily translate into an impeachable offense.

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