Testimony of Charles J. Cooper, Esq.
Cooper, Carvin & Rosenthal, Washington, DC
House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998
Chairman Canady and members of the Subcommittee on the Constitution of the Committee on the Judiciary.
Over the years, it has been my privilege, and my distinct pleasure, to have testified before this and other Congressional committees on a variety of important issues. Today, however, I cannot say that I am happy to be here. I can scarcely imagine a task less welcome to a lawyer than inquiring into the impeachability of certain crimes credibly charged against the President of the United States. Nor is it easy to think of a less pleasant assignment for the House of Representatives than inquiring into whether the President of the United States has engaged in wrongdoing warranting his impeachment. But this body's responsibility for performing this duty, however unpleasant, cannot conscientiously be avoided, for the Constitution prescribes that the "House of Representatives shall have the sole Power of Impeachment." U.S. Const. art. I, § 2.
The President has been credibly charged with lying under oath, both in his testimony in the Paula Jones sexual harassment suit and in his testimony before the grand jury investigating his alleged criminal wrongdoing. The President has also been credibly charged with obstruction of justice in connection with both the Jones suit and the grand jury's investigation. The President's lawyers, with the support of some of the witnesses before you today, argue that the President cannot constitutionally be impeached for the crimes that have been charged against him. The argument is not that presidential perjury and obstruction of justice can never qualify as impeachable offenses, but rather that these crimes, to be impeachable, must "involve the derelict exercise of executive powers." Letter from J. Rubenfeld, et al., to N. Gingrich (Oct. 6, 1998) ("Rubenfeld letter"). Under this view, because the President's alleged perjury and obstruction of justice grew out of his admitted effort to conceal his private sexual misconduct rather than to conceal a "criminal exercise of presidential powers," id., the alleged crimes do not rise to the constitutionally required level of "Treason, Bribery, and other high Crimes and Misdemeanors," U.S. Const. art. II, § 4.
As I shall discuss in detail, I believe that this view of the impeachment power is profoundly wrong. To be sure, serious crimes committed in the actual performance of official government functions are likely to constitute impeachable offenses in all cases. But the scope of the House's impeachment authority is not confined to such crimes, or even to crimes at all. To the contrary, "[i]mpeachment is a constitutional remedy addressed to serious offenses against the system of government." Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment, 93d Cong., 2d Sess. IV (Comm. Print 1974) ("Staff Report"). As Alexander Hamilton put it in The Federalist No. 65, impeachable offenses "relate chiefly to injuries done immediately to the society itself." And the crimes of perjury and obstruction of justice, like the crimes of treason and bribery, are quintessentially offenses against our system of government, visiting injury immediately on society itself, whether or not committed in connection with the exercise of official government powers. Indeed, in a society governed by the rule of law, perjury and obstruction of justice cannot be tolerated precisely because these crimes subvert the very judicial processes on which the rule of law so vitally depends.
But there is an additional and unique dimension to the gravity of the crimes of perjury and obstruction of justice when charged against a President. In a 1974 report, the Judiciary Committee's impeachment inquiry staff noted: "Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with . . . the proper performance of constitutional duties of the presidential office." Staff Report at IV. At the core of the President's constitutional responsibilities is his duty to "take Care that the Laws be faithfully executed." U.S. Const. art. II, § 3. And because perjury and obstruction of justice strike at the rule of law itself, it is difficult to imagine crimes that more clearly or directly violate this core presidential constitutional duty. Far from taking care that the laws be faithfully executed, a President guilty of perjury and obstruction of justice has himself faithlessly subverted them. Thus, while the crimes alleged against the President do not involve the "derelict exercise of executive powers," they plainly do involve the derelict violation of executive duties. Those crimes are plainly impeachable offenses.
I. Historical Background
The Impeachment Clause provides:
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.
U.S. Const., art. 2, § 4. While the meanings of "Treason" and "Bribery" are relatively clear (the former is defined in the Constitution itself and the latter by both statutory and common law), the term "high crimes and misdemeanors" is nowhere specifically defined. To understand the meaning of this term, we must examine how that term was understood by the founders who framed and ratified the Constitution, and how that term has been applied in relevant American precedent. In my view, an examination of these sources compels the conclusion that perjury and obstruction of justice constitute "high crimes and misdemeanors" under any plausible and logically consistent construction of that term.
Perhaps the most extended examination of the impeachment power during the founding period was undertaken by Alexander Hamilton in The Federalist Papers. In The Federalist No. 65 he identified as impeachable
those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
The Federalist No. 65 (Alexander Hamilton) (emphasis in original). Hamilton was quick to note, however, that no single recipe could embrace the full scope of impeachable offenses. Instead, he recognized the need to confer substantial discretion upon the impeaching body, both in its authority to define the scope of impeachable offenses, and in the procedures by which such offenses would be tried:
The necessity of a numerous court for the trial of impeachments is equally dictated by the nature of the proceeding. This can never be tied down by strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the Judges, as in common cases serve to limit the discretion of courts in favor of personal security . . . . The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.
Id. In these two passages, Hamilton captures the dominant themes that run
throughout the various sources of the meaning "high crimes and
misdemeanors." First, such offenses are "political" in the sense that "they
relate chiefly to injuries done immediately to the society itself" by the
"misconduct of public men."(1)
And second, within this broad definition, the
impeaching bodies must be given broad, but not unlimited, discretion to
define the precise scope of impeachable offenses.
And second, within this broad definition, the impeaching bodies must be given broad, but not unlimited, discretion to define the precise scope of impeachable offenses.
These broad themes were captured in the Constitutional Convention in Philadelphia in 1787. The initial draft of the Impeachment Clause made the President removable for "malpractice or neglect of duty." See 2 The Founders' Constitution 153 (Philip B. Kurland and Ralph Lerner eds., 1987). This formulation, however, was altered by the Committee of Detail to "treason bribery or corruption," and altered again, by the Committee of Eleven, to just "treason or bribery." See Raoul Berger, Impeachment: The Constitutional Problems 74 (Harv. Univ. Press 1973). Not until this point, it appears, did the Framers take up the issue of the scope of the impeachment power, with George Mason objecting that it was too narrow:
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.
The Founders' Constitution at 154. To broaden it, Mason proposed adding the term "maladministration" to treason and bribery. James Madison, however, objected that the term would extend the impeachment power too far, for "[s]o vague a term [would] be equivalent to a tenure during pleasure of the Senate." Accordingly, Mason withdrew "maladministration" and replaced it with the current phrase, "high crimes & misdemeanors," which was adopted by the Convention. Madison then argued that the power to impeach the President "for any act which might be called a misdemeanor" would render the President "improperly dependent" on the Legislative Branch. He recommended that the power to try impeachments be located in the Supreme Court rather than the Senate, but his motion failed. Id. at 154-55.
Thus, this brief exchange reflects that "high Crimes and Misdemeanors" was intended to extend the impeachment power to "great and dangerous offences" in addition to treason and bribery, but not to the amorphous concept of "maladministration," which would permit impeachment for mere incompetence or for policy disagreements with the Congress.
While this was the only occasion on which the Framers discussed the scope of "high crimes and misdemeanors," it is not the only place that they addressed the nature of impeachable offenses. Earlier on in the Convention, they addressed the question whether the President should be impeachable at all; and in the course of the debate, those arguing in favor of an impeachment power set forth some grounds that, in their view, would justify removing the President. Like Hamilton's test in The Federalist No. 65 and the broad contours set out in the debate over the text of the Impeachment Clause, this debate outlined the nature of impeachable offenses in broad strokes, apparently focusing, like Hamilton, on offenses inflicting injury on the body politic. James Madison, for example, spoke of the need to remove a President for "incapacity, negligence or perfidy." The Founders' Constitution at 153. Others described as impeachable offenses "mal-and corrupt conduct," "malpractice or neglect of duty," and "corruption." Id. at 152-53. But in this portion of the debate, the Framers also highlighted specific forms of foreseeable misconduct that, in their view, made the case for impeachment compelling. Madison, for example, warned that the President might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation and oppression. He might betray his trust to foreign powers . . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption . . . might be fatal to the Republic.
Id. at 153.
A broad view of the term "high crimes and misdemeanors," like that enunciated by Hamilton, also appears to have prevailed in the state ratification conventions. Of particular note is the North Carolina convention, where James Iredell, later to become a Supreme Court Justice, spoke at some length on the scope of impeachable offenses. One noted historian succinctly summarized Iredell's position, as well as that of Iredell's fellow North Carolinian, Governor Johnston, as follows:
[Iredell] understood impeachment as having been "calculated to bring [great offenders] to punishment for crime which it is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against government. [T]he occasion for its exercise will arise from acts of great injury to the community[.]". . . As examples of impeachable offenses, he suggested that "[the] president must certainly be punishable for giving false information to the Senate" and that "the president would be liable to impeachments [if] he had received a bribe or acted from some corrupt motive or other." . . . Governor Johnston, who would subsequently become the state's first U.S. senator, agreed that "[i]mpeachment . . . is a mode of trial pointed out for great misdemeanors against the public."
Michael Gerhardt, The Federal Impeachment Process 19 (1996) (internal citations omitted).
These historical sources--the framing debates at the Constitutional Convention, The Federalist Papers, and the ratification debates in the States--draw the broad confines within which the Framers believed impeachable offenses to fall. In short, within these confines fall "great offenses" that constitute violations of the "public trust" in the sense that they inflict injury upon the body politic. Beyond this, with the exception of the few illustrative examples provided in the course of the debates, the scope of impeachable offenses is largely left to be determined by the body charged with executing the impeachment power--the House of Representatives and the Senate.(2)
These same conclusions were reached in 1974 by the impeachment inquiry staff of the House Judiciary Committee. After surveying the relevant English and American authorities, the impeachment inquiry staff concluded that "[i]mpeachment is a constitutional remedy addressed to serious offenses against the system of government." Staff Report at IV. Such offenses inflict "injury to the commonwealth--that is, to the state itself and to its constitution . . . ." Id. at II.B.2 n.51. The impeachment power, the staff further noted, "is intended to reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office." Id. at III.C.3. And because "the scope of impeachment was not viewed narrowly" by the founders, "they adopted from English history a standard sufficiently general and flexible to meet future circumstances and events, the nature and character of which they could not foresee." Id. at II.B.3, I.
Perjury And Obstruction Of Justice Are Impeachable Offenses
Given that offenses against the system of government, inflicting injury immediately on the society itself, are at the core of the concept of "high crimes and misdemeanors," it follows that perjury and obstruction of justice are quintessential impeachable offenses. Before the framing of our Constitution and since, our law has consistently recognized that perjury subverts the judicial process and thus strikes at our nation's most fundamental value--the rule of law itself.
Indeed, in his Commentaries on the Laws of England, Blackstone differentiated between crimes that "more directly infringe the rights of the public or commonwealth, taken in its collective capacity," and "those which in a more peculiar manner injure individuals or private subjects." IV William Blackstone, Commentaries on the Laws of England 74, 176 (special ed., 1983). The latter category contained crimes such as murder, burglary, and arson. The former, however, catalogued crimes that could only be understood as assaults upon the state. Within a subcategory denominated "offenses against the public justice," Blackstone included the crimes of perjury and bribery. Id. at 127, 136-39. In fact, in his catalogue of "public justice" offenses, Blackstone places perjury and bribery side-by-side. Id.
Likewise, the Supreme Court has repeatedly noted the extent to which perjury subverts the judicial process, and thus the rule of law. For example, in a 1976 case the Court emphasized:
Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. . . . Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.
United States v. Mandujano, 425 U.S. 564, 576 (1976) (plurality opinion) (emphasis added).(3) All the more serious is perjury if committed in the context of a grand jury proceeding, and especially in an investigation of alleged perjury in a prior proceeding. For in such a case, the only victim of perjury is the rule of law.
The seriousness of the crime of perjury is confirmed by the fact that it was among the few offenses that the First Congress outlawed by statute. In 1790, in a statute entitled "An Act for the punishment of certain crimes against the United States," Congress made the crime of perjury, including perjury committed "in any deposition taken" in an action pending in federal court, punishable by imprisonment of up to three years, a fine of up to $800, disqualification from giving future testimony, and "stand[ing] in the pillory for one hour." 2 Annals of Cong. 2219 (1790). Today perjury is punishable by up to five years imprisonment in a federal penitentiary. See 18 U.S.C. §§ 1621-23.
In the context of an impeachment inquiry, moreover, there is an additional and unique dimension to the gravity of the crimes of perjury and obstruction of justice when charged against a president. The 1974 report of the House Judiciary Committee's impeachment inquiry staff emphasized that "in determining whether grounds for impeachment exist," one must understand "the nature, functions and duties of the office." Staff Report at II.C.3. And because impeachment of a president, "is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with . . . the proper performance of constitutional duties of the presidential office." Id. at IV. At the core of the president's responsibilities under Article II of the Constitution is his duty to "take care that the laws be faithfully executed." Indeed, the Supreme Court has called this responsibility "the Chief Executive's most important constitutional duty." Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992). It is no exaggeration to say that our Constitution, and the American people, entrust to the president singular responsibility for enforcing the rule of law. Perjury and obstruction of justice strike at the heart of the rule of law, and a president who has committed these crimes has plainly and directly violated his most important executive duty.
III. The "Official Crimes" Defense
As noted at the outset of this testimony, in recent weeks some of the President's supporters have advanced the extraordinary argument that he cannot constitutionally be impeached for the crimes that have been credibly alleged against him. In a letter to the Speaker of the House, a group of 13 law professors contends that these crimes do not rise to the constitutionally required level of "high Crimes and Misdemeanors." Rubenfeld letter. The law professors acknowledge that "lying under oath is a serious offense," and they concede that "[p]erjury and obstructing justice can without doubt be impeachable offenses." As currently charged against the President, however, these crimes are not impeachable offenses because they do not "involve the derelict exercise of executive powers." As the law professors put it: "If the President committed perjury regarding his sexual conduct, this perjury involved no exercise of presidential power as such. If he concealed evidence, this misdeed too involved no exercise of executive authority." Id.
Similarly, a group of some 400 historians, which calls itself "Historians in Defense of the Constitution," recently issued a statement asserting that the Constitution authorizes presidential impeachment only "for high crimes and misdemeanors in the exercise of executive power." Statement of Historians in Defense of the Constitution (1998) ("Historians' Statement"). These historians contend that "[i]mpeachment for anything else would, according to James Madison, leave the president to serve 'during pleasure of the Senate.' " Id.
I believe that this "official crimes" theory is demonstrably wrong, for it runs contrary to the text of the Impeachment Clause, to the understanding of the clause at the time of its framing, and to the actions by Congress in actual cases of impeachment. Turning first to the constitutional text, the Impeachment Clause speaks of "Treason, Bribery, and other high Crimes and Misdemeanors." U.S. Const. art. II, § 4 (emphasis added). This wording necessarily implies that treason and bribery are themselves "high Crimes and Misdemeanors," else the word "other" would not only be wholly superfluous, but affirmatively misleading. And the Impeachment Clause, by its express terms, prohibits treason and bribery without reference to whether the commission of those crimes is connected in any way to the offender's performance of his official functions. Thus, for example, if the president pays an illegal bribe to a judge in a private civil action in order to obtain a favorable ruling, then the president has committed the impeachable offense of bribery, even though the crime did not involve the "derelict exercise of executive powers."
In addition to being textually incoherent, the "official crimes" theory rests on a patent misreading of history. As noted, the historians assert that "[i]mpeachment for anything [other than official misconduct] would, according to James Madison, leave the President to serve 'during the pleasure of the Senate.' " Historians' Statement. Madison, however, said no such thing. Instead, as previously discussed, he objected that the term "maladministration" was so vague that the Senate would be empowered effectively to remove the President at its pleasure. He made no statement that could reasonably be construed as supporting an understanding of the impeachment power that would preclude its exercise for criminal conduct unrelated to the offender's office. Indeed, the term that Madison rejected--"maladministration"--is itself readily amenable to a construction that limits its scope to wrongdoing in connection with the administration of official functions. Moreover, the Framers had available to them, and rejected, the language of several state constitutions that arguably would have limited impeachable offenses to official misconduct. For example, the constitution of North Carolina allowed impeachment for "violating any part of this Constitution, maladministration, or corruption." See The Founders' Constitution at 150. The constitutions of Delaware and Virginia authorized impeachment for "maladministration, corruption, or other means, by which the safety of the [State] may be endangered"; New York's specified "mal and corrupt conduct in their respective offices," and Vermont's "maladministra-tion." Id. at 150-51. Likewise, the Framers explicitly considered, and rejected, the formulations "mal- and corrupt conduct," and "malpractice or neglect of duty." Id. at 152-53.
Obviously, then, the Framers were aware of language that on its face implied
a requirement of official misconduct but chose instead to adopt language that
did not. Indeed, after carefully reviewing the text and history of the term
"high Crimes and Misdemeanors," Justice Joseph Story(4)
the argument against the claim that the impeachment power is limited to
wrongdoing connected to the powers of office:
forcefully outlined the argument against the claim that the impeachment power is limited to wrongdoing connected to the powers of office:
[T]here is not a syllable in the constitution, which confines impeachments to official acts, and it is against the plainest dictates of common sense, that such restraint should be imposed upon it. Suppose a judge should countenance, or aid insurgents in a meditated conspiracy or insurrection against the government. This is not a judicial act; and yet it ought certainly to be impeachable. He may be called upon to try the very persons, whom he has aided. Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for removal be just as strong, as if it were a case of an official bribe?
2 Joseph Story, Comments on the Constitution of the United States § 802 (1833).
To be sure, the severity of wrongdoing is aggravated if facilitated by an official's governmental powers. A drug dealer on the streetcorner is bad enough, but a drug dealer on the police force is much worse. Still, while the official nature of wrongdoing might aggravate the crime, it cannot, for the reasons shown, serve as a dividing line between impeachable and unimpeachable offenses.
In sum, the crimes of perjury and obstruction of justice, whether or not committed in the exercise of official powers, are quintessential "high Crimes and Misdemeanors" under the Impeachment Clause. Indeed, the Congress has, in the recent past, unanimously and near-unanimously, so concluded. That is, in recent years, the Congress has several times impeached and removed from office federal judges on the basis of conduct that, in all relevant respects, is indistinguishable from that alleged against the President.
IV. The 1980s Judicial Impeachments
In the 1980s, three federal judges were impeached, convicted, and removed from office for making perjurious statements. It speaks volumes that, although each judge was represented by able counsel, none of them argued that perjury or making false statements are not impeachable offenses. Nor did a single Congressman or Senator, in any of the three impeachment proceedings, suggest that perjury or false statements do not qualify as "high Crimes and Misdemeanors." Finally, in two of the cases, it was undisputed that the perjury was not committed in connection with the exercise of the offenders' judicial powers, and yet no one suggested that the offenses, though private, might not constitute "high Crimes and Misdemeanors."
A. Impeachment of Judge Nixon.
In 1989, Judge Walter L. Nixon, Jr., was impeached, convicted, and removed from office solely for perjury and lying to federal officers. Judge Nixon's offense stemmed from his grand jury testimony and statements to federal officers concerning his intervention in the state drug prosecution of Drew Fairchild, the son of Wiley Fairchild, a business partner of Judge Nixon's. Although Judge Nixon had no official role or function in Drew Fairchild's case (which was assigned to a state court judge), Wiley Fairchild had asked Judge Nixon to help out by speaking to the prosecutor. Judge Nixon did so, and the prosecutor, a long-time friend of the Judge's, dropped the case.
When Judge Nixon was interviewed by the FBI and the Department of Justice, he denied any involvement whatsoever. Subsequently, a federal grand jury was empanelled and Judge Nixon again denied his involvement.
After a lengthy criminal prosecution, Judge Nixon was convicted on two counts of perjury before the grand jury and sentenced to five years in prison on each count. Not long thereafter, the House impeached Judge Nixon by a vote of 417 to 0. The first article of impeachment charged him with making the false or misleading statement to the grand jury that he could not "recall" discussing the Fairchild case with the prosecutor. The second article charged Nixon with making affirmative false or misleading statements to the grand jury that he had "nothing whatsoever officially or unofficially to do with the Drew Fairchild case." The third article alleged that Judge Nixon made numerous false statements (not under oath) to federal investigators prior to his grand jury testimony. See 135 Cong. Rec. H1802-03.
Neither Judge Nixon nor his "very able counsel," 135 Cong. Rec. H1804, even suggested that perjury was not a "high Crime or Misdemeanor." Indeed, Judge Nixon affirmatively acknowledged to the Senate, "If you find that the prosecution has clearly met its heavy burden of proof, . . . then you may vote to convict." 135 Cong. Rec. S14493, S14502 (1989). His sole defense was that he was innocent, "unjustly and wrongfully convicted." Id.
As the House Judiciary Committee Report on his impeachment concluded, "Judge Nixon's conduct was wholly unacceptable for a federal judge and [has] tainted the integrity of the federal judiciary. The Committee therefore recommends that Judge Walter L. Nixon, Jr., be impeached by the House of Representatives and tried by the United States Senate." H.R. Rep. 101-36 (1989). The House unanimously impeached Judge Nixon, and the House Managers' Report expressed no doubt that perjury is an impeachable offense:
It is difficult to imagine an act more subversive to the legal process than lying from the witness stand. A judge who violates his testimonial oath and misleads a grand jury is clearly unfit to remain on the bench. If a judge's truthfulness cannot be guaranteed, if he sets less than the highest standard for candor, how can ordinary citizens who appear in court be expected to abide by their testimonial oath?
House of Representatives' Brief in Support of the Articles of Impeachment ("Nixon House Br.") at 59 (1989). As House Manager Edwards further argued to the full Senate,
We deal here with a Federal judge who committed perjury. A man who lied to law enforcement officials in an interview, and then lied again in sworn testimony before a grand jury. . . . After carefully investigating the facts and hearing all the evidence, the House voted 417 to 0 in favor of three articles of impeachment. Accordingly, you must now grapple with the same question we faced in the House. Is a man who repeatedly lied fit to hold the high office of Federal judge? I hope you agree the answer is obvious. To preserve the integrity of the judiciary, to maintain public respect for law and order, Judge Nixon must be removed from the bench.
135 Cong. Rec. S14495 (statement of Rep. Edwards) (emphasis added).
House Manager Sensenbrenner addressed the question even more directly:
There are basically two questions before you in connection with this impeachment. First, does the conduct alleged in the three articles of impeachment state an impeachable offense? There is really no debate on this point. The articles allege misconduct that is criminal and wholly inconsistent with judicial integrity and the judicial oath. Everyone agrees that a judge who lies under oath, or who deceives Federal investigators by lying in an interview, is not fit to remain on the bench.
135 Cong. Rec. S14,497 (statement of Rep. Sensenbrenner) (emphases added).
The Senate agreed, overwhelmingly voting to convict Judge Nixon of perjury on the first two articles (89-8 and 78-19, respectively). As Senator Carl Levin explained,
The record amply supports the finding in the criminal trial that Judge Nixon's statements to the grand jury were false and misleading and constituted perjury. Those are the statements cited in articles I and II and it is on those articles that I vote to convict Judge Nixon and remove him from office.
135 Cong. Rec. S14,637 (statement of Sen. Levin).
B. Impeachment of Judge Hastings.
Also in 1989, the House impeached Judge Alcee L. Hastings for, inter alia, making numerous false statements under oath. The Senate convicted him, and he was removed from office. Initially, Judge Hastings had been indicted by a federal grand jury for conspiracy stemming from his alleged bribery conspiracy with his friend William Borders to "fix" cases before Judge Hastings in exchange for cash payments from defendants. William Borders was convicted, but, at his own trial, Judge Hastings took the stand and unequivocally denied any participation in a conspiracy with Borders. The jury acquitted Judge Hastings on all counts. Nevertheless, the House impeached Judge Hastings, approving sixteen articles of impeachment, fourteen of which were for lying under oath at his trial.
The House voted 413 to 3 to impeach. In the trial before the Senate, the House Managers' Report left no doubt whatsoever as to whether perjury alone is impeachable:
It is important to realize that each instance of false testimony charged in the false statement articles is more than enough reason to convict Judge Hastings and remove him from office. Even if the evidence were insufficient to prove that Judge Hastings was part of the conspiracy with William Borders, which the House in no way concedes, the fact that he lied under oath to assure his acquittal is conduct that cannot be tolerated of a United States District Judge. To bolster one's defense by lying to a jury is separate, independent corrupt conduct. For this reason alone, Judge Hastings should be removed from public office.
The House of Representatives' Brief in Support of the Articles of Impeachment ("Hastings House Br.") at 127-28 (1989) (emphases added). Representative John Conyers (D-Mich.) also argued for the impeachment of Judge Hastings:
[W]e can no more close our eyes to acts that constitute high crimes and misdemeanors when practiced by judges whose views we approve than we could against judges whose views we detested. It would be disloyal . . . to my oath of office at this late state of my career to attempt to set up a double standard for those who share my philosophy and for those who may oppose it. In order to be true to our principles, we must demand that all persons live up to the same high standards that we demand of everyone else.
134 Cong. Rec. H6184 (1988) (statement of Rep. Conyers).
C. Impeachment of Judge Claiborne.
In 1986, Judge Harry E. Claiborne was likewise impeached, convicted, and removed from office for making false statements. In particular, Judge Claiborne had filed false income tax returns in 1979 and 1980, grossly understating his income. As a result, he was convicted by a jury of two counts of willfully making a false statement on a federal tax return in violation of 26 U.S.C. § 7206(1). Subsequently, the House unanimously (406-0) approved four articles of impeachment. The proposition that Claiborne's perjurious personal income tax filings were not impeachable was never even seriously considered. As the House Managers explained,
[T]he constitutional issues raised by the first two Articles of Impeachment [concerning the filing of false tax returns] are readily resolved. The Constitution provides that Judge Claiborne may be impeached and convicted for "High Crimes and Misdemeanors." Article II, Section 4. The willful making or subscribing of a false statement on a tax return is a felony offense under the laws of the United States. The commission of such a felony is a proper basis for Judge Claiborne's impeachment and conviction in the Senate.
S. Doc. No. 99-48, at 40 (1986) (emphasis added).
House Manager Rodino (D-NJ), in his oral argument to the Senate, emphatically made the same point:
Honor in the eyes of the American people lies in public officials who respect the law, not in those who violate the trust that has been given to them when they are trusted with public office. Judge Harry E. Claiborne has, sad to say, undermined the integrity of the judicial branch of Government. To restore that integrity and to maintain public confidence in the administration of justice, Judge Claiborne must be convicted on the fourth Article of Impeachment [that of reducing confidence in the integrity of the judiciary].
132 Cong. Rec. S15,481 (1986) (Statement of Rep. Rodino).
The Senate agreed. Telling are the words of then-Senator Albert Gore, Jr. (D-TN), in voting to convict Judge Claiborne and remove him from office:
The conclusion is inescapable that Claiborne filed false income tax returns and that he did so willfully rather than negligently. . . . Given the circumstances, it is incumbent upon the Senate to fulfill its constitutional responsibility and strip this man of his title. An individual who has knowingly falsified tax returns has no business receiving a salary derived from the tax dollars of honest citizens. More importantly, an individual guilty of such reprehensible conduct ought not be permitted to exercise the awesome powers which the Constitution entrusts to the Federal Judiciary.
S. Doc. No. 99-48, at 372 (1986).
Notably, Judge Claiborne defended himself, inter alia, by claiming that he was the victim of a "vast" conspiracy, and, but for over-zealous and unscrupulous prosecutors, his crimes would never have been investigated in the first place. Although the prosecutorial misconduct alleged was serious, neither the House nor the Senate found it even remotely a barrier to impeachment. As then-Senator Gore explained,
[Judge Claiborne's] contention seems to be that but for a vast conspiratorial vendetta, his innocence would have been proven or the charges would never have been brought. Claiborne contends that full consideration of his claims on this score leads to several conclusions which will exonerate him. Specifically, he suggests that federal prosecutors pursued him so relentlessly and unscrupulously that they bargained for perjured testimony from a known criminal and spearheaded an illegal burglary of his home in search of inculpatory evidence. He claims that exculpatory evidence was withheld and that witnesses were either intimidated or unfairly coached. If accurate, these claims warrant serious scrutiny and I have cosponsored legislation to establish a special subcommittee to investigate the issue further. If the claims have merit, steps should be taken to rectify the wrong. Remedial measures, however, will in no way abrogate the finding that Claiborne has engaged in impeachable conduct.
132 Cong. Rec. S16,827 (1986) (statement of Sen. Gore) (emphasis added).
D. Official Versus Private Misconduct.
Two of these impeachments were predicated on crimes that were unrelated to the exercise of the judge's official powers. Judge Nixon's impeachment did not relate to any official action. Drew Fairchild's case was not before Judge Nixon; indeed, it was not even in the federal courts, so Judge Nixon could not have exercised his judicial powers in connection with it. Rather, he privately and informally asked a friend (who happened to be the prosecutor) to drop the charges. And his impeachment was even once-removed from that: he was not impeached for privately interfering with the prosecution, but instead for perjuring himself about his involvement (improper or not) before the grand jury.
Likewise, Judge Claiborne's impeachment involved no official conduct whatsoever. His false tax returns, filed under penalty of perjury, were criminal, but they were not at all incident to or connected with his exercise of official powers. His income tax returns were purely personal, and his private life resulted in his being a repeat felon. Nevertheless, in both proceedings, the House concluded (and the Senate agreed) that the judges' private criminal conduct was fully impeachable. As Rep. Hamilton Fish (R-NY) observed during the Claiborne proceedings,
[I]t is . . . self-evident that criminal conduct is a justifiable basis for a decision to impeach. . . . [But] [m]y overriding concern, given these facts, is public confidence in the integrity of the judicial branch and the individual Federal judges that exercise the most important responsibilities of that branch under our constitutional system. . . . Judge Claiborne is more than a mere embarrassment. He is a disgrace - an affront - to the judicial office and the judicial branch he was appointed to serve. . . . [I]n article II, section 4, of the Constitution, [the Founders] also recognized that judges and other high officers of the United States were not to be above the law. . . . Impeachable conduct does not have to occur in the course of the performance of an officer's official duties. Evidence of misconduct, misbehavior, high crimes, and misdemeanors can be justified upon one's private dealings as well as one's exercise of public office. That, of course, is the situation in this case. . . . There can be no doubt that conviction of a Federal crime falls within the definition of a "high crime" in article II, section 4 or the Constitution. . . . [Judge Claiborne's] refusal to resign, in the face of these facts and events, further demonstrates a disregard of his judicial responsibilities.
132 Cong. Rec. H4710 (1986) (statement of Rep. Fish) (emphasis added).
V. Applicability of Judicial Precedents to Impeachment of the President.
In order to avoid the conclusive force of these recent precedents--and in particular the exact precedent supporting impeachment for perjury--the only recourse is to argue that a "high Crime or Misdemeanor" for a judge is not necessarily a "high Crime or Misdemeanor" when committed by the President. The arguments advanced in support of this dubious proposition do not withstand serious scrutiny.
A. Good Behavior.
Some have argued that because judges serve during "good behavior," a different impeachment standard applies to them than to the President. This argument, although popular on the television talk shows, has been widely rejected by the Congress and by legal scholars. See, e.g., Berger at 132 ("[I]mpeachment for 'high crimes and misdemeanors' did not embrace removal for 'misbehavior' which fell short of 'high crimes and misdemeanors . . . .' ").
For example, the 1974 impeachment inquiry staff report explained as follows:
Does Article III, Section 1 of the Constitution, which states that judges "shall hold their Offices during good Behaviour," limit the relevance of the ten impeachments of judges with respect to presidential impeachment standards as has been argued by some? It does not. The argument is that "good behavior" implies an additional ground for impeachment of judges not applicable to other civil officers. However, the only impeachment provision discussed in the Convention and included in the Constitution is Article II, Section 4, which by its expressed terms, applies to all civil officers, including judges, and defines impeachment offenses as "Treason, Bribery, and other high Crimes and Misdemeanors."
Staff Report at II.C (emphases added).
Similarly, the House Managers observed in the Judge Claiborne proceeding that "[t]he sole impeachment standard for the President, Vice President and all civil officers of the United States, including federal judges, is found in Article II, Section 4 of the Constitution, which provides for removal from office for 'treason, bribery, or other high crimes and misdemeanors.' " S. Doc. No. 99-48, at 43 (1986) (emphasis added).
While there is some distant precedent for the inclusion of "misbehavior" as an additional ground for the impeachment of federal judges, see, e.g., Impeachment of Judge Robert W. Archbald, 6 Cannon 686 (1912); Impeachment of Judge Halstead L. Ritter, 80 Cong. Rec. 3486-88 (1936), "no judge has been removed for misbehavior alone." Office of Legal Counsel, U.S. Dep't of Justice, Legal Aspects of Impeachment: An Overview, Appendix I: The Concept of Impeachable Offense at 34 (1974). And, more to the point, the 1980s judicial impeachments did not consider or purport to determine whether perjury and false statements constituted "bad behavior"; rather, they expressly and unequivocally decided that perjury and false statements were "high Crimes and Misdemeanors" under Article II, Section 4--the exact provision applicable to the President.
B. The President Is Different.
Another argument made in support of establishing a unique constitutional test for impeaching Presidents is that, because the President is the head of an entire branch of government, impeaching him requires far worse conduct than does impeaching a simple federal judge, who is but one of many. See, e.g., Laurence H. Tribe, Democratic Forum on Impeachment 8 (Oct. 15, 1998) ("Removing a federal district judge, serious though it is, does not involve decapitating a branch of the Government."). There is no doubt that impeaching a President is a graver matter than impeaching a single judge, and this fact is certainly relevant to the question whether to impeach. But it is difficult to understand how the relative gravity of impeachment could render perjury and obstruction of justice--unquestionably "high Crimes or Misdemeanors" for federal judges--something less than "high Crimes or Misdemeanors" for the President. Either a particular crime is a "high crime or Misdemeanor," or it is not.
Moreover, even assuming that presidential "high crimes and misdemeanors" could be different from judicial ones, surely the President ought not be held to a lower standard of impeachability than judges. In the course of the 1980s judicial impeachments, Congress emphasized unequivocally that the removal from office of federal judges guilty of crimes indistinguishable from those currently charged against the President was essential to the preservation of the rule of law. If the perjury of just one judge so undermines the rule of law as to make it intolerable that he remain in office, then how much more so does perjury committed by the President of the United States, who alone is charged with the duty "to take Care that the Laws be faithfully executed."
Finally, the corollary to this argument, often offered in the same breath, is that impeachment of a President is a "constitutional crisis." This is not so. It is an event fully contemplated and provided for the Constitution. The fact that it may result in a new President does not make it a constitutional crisis, any more than does that same fact make each presidential election a crisis. And, while it is a political crisis for the particular President facing impeachment, presumably the Vice President stands by fit and able to step in and fulfill the role of President if necessary.
In sum, if perjury and false statements are "high crimes or misdemeanors" for a judge, then they are for a President as well.
In the middle of July in 1787, the Framers debated the question whether the Chief Magistrate of the new government should be removable on impeachment. George Mason carried the day with a simple question: "Shall any man be above Justice?"
1. 0 I hasten to note that in the late 18th century (and, to a certain extent, still), all violations of the criminal law were viewed as injuries inflicted upon the body politic (hence, criminal cases were, and are, denominated United State v. Smith). Indeed, this distinction, between public and private harm, was not used to differentiate among crimes, but between criminal and civil wrongs:
The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, is this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity . . . . [T]reason, murder, and robbery are properly ranked as crimes; since, besides injury done to individuals, they strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity.
IV William Blackstone, Commentaries on the Laws of England 5 (special ed., 1983) . Viewed in this light, Hamilton's standard for impeachable offenses clearly appears to embrace serious private crimes. In any event, the "public" crimes of perjury and obstruction of justice, like treason and bribery, are at the very core of the concept of high crimes and misdemeanors.
2. 0 Justice Joseph Story captured the essence of the matter as follows:
Not but that crimes of strictly legal character fall within the scope of the power; . . . but that it has more enlarged operation, and reaches, what are aptly termed, political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.
2 Joseph Story, Commentaries on the Constitution of the United States § 762 (1833).
3.0 See also, ABF Freight Sys. v. N.L.R.B., 510 U.S. 317, 324 (1994) ("False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a 'flagrant affront' to the truth-seeking function of adversary proceedings."); Brogan v. United States, 118 S. Ct. 805, 808-09 (1998) ("We cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function."); United States v. Norris, 300 U.S. 564, 573 (1937) ("Perjury is an obstruction of justice. . . .").
4.0 Professor Berger has observed that "Story's summary of the arguments betrays partiality to impeachment for unofficial misconduct. But conscious of the proprieties, for after all he was a Justice of the Supreme Court, he went on to say that he 'Expressed no opinion' because these are 'matters still sub judice,' that is, questions to be decided by the Senate." Berger at 198 n.31. Professor Berger likewise concluded that "[t]he necessity of dealing with offenses such as perjury and forgery in private transactions precludes a wholesale bar to inclusion of nonofficial conduct in 'high crimes and misdemeanors.' " Berger at 209 (emphasis added).