PRESIDENTIAL PARDONS

IMPEACH CLINTON? WHY NOT IMPEACH O.J.?

Jorge Souss, Esq.
Pietrantoni Mendez & Alvarez LLP

Recently, Senator Arlen Specter proposed that former President Bill Clinton be impeached for allegedly accepting money in return for pardoning millionaire scumbag Marc Rich. Others have joined the chorus, and news of payments to Mr. Clinton's brother-in-law, Hugh Rodham, for using his hefty influence to obtain pardons for a convicted drug kingpin and a convicted snake-oil salesman, have only raised the volume of the cantata. But I believe that Mr. Specter may be missing a golden political opportunity here. Instead of impeaching the former President, why not impeach acquitted murderer O.J. Simpson, whose personal approval ratings are even lower than Mr. Clinton's? Ridiculous, you say? Well, not quite, if we use the same flawed logic being disseminated by those who claim that a former officer of the United States is subject to impeachment.

When interpreting the U.S. Constitution, we must begin by looking at the text. Article II, Section 4 of the Constitution provides that "[t]he 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." Note that it does not say "former President" or "former civil officers." The word "President" appears 14 other times in Article II, and in every single case it is undisputed that it refers to the person serving as President, not to a former President. Nobody has ever claimed that a former President may act as the Commander in Chief, or grant pardons, or appoint Supreme Court Justices, all of which powers and duties are delegated to "the President" by Article II. Why the word "President" should be construed to mean something completely different in Article II, Section 4 than in the rest of that Article (and, indeed, the rest of the Constitution) is something that, to say the least, requires a very good explanation.

So how do Mr. Specter and his ilk account for this apparent contradiction? They point to Article I, Section 3, Clause 7 of the Constitution, which provides that "[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States." They claim that the fact that impeachment and conviction results in disqualification from holding future office means that the Framers contemplated the impeachment of not only current officeholders, but also of former officers who committed high crimes or misdemeanors during their tenure. In a nutshell, their theory is that impeachment is really all about punishing people who do bad things while in office, so the only relevant information is if the crimes were committed while serving as an officer of the United States, regardless of the person's current status. Unfortunately for Mr. Specter, this theory does not hold water.

Let us first look at the claim that impeachment is a means of punishing certain public officials. Nothing could be further from the truth, since the very language of Article I, Section 3, Clause 7 belies this claim. As mentioned above, "[j]udgment" in impeachment cases is limited to removal and disqualification. However, the clause continues, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law," which makes clear that officers convicted in an impeachment trial are still subject to criminal prosecution. Significantly, conviction in an impeachment results only in a judgment (which is a determination of guilt or innocence), while conviction in a criminal case results not only in a judgment, but also in punishment. Since the Constitution itself does not purport to be punishing impeached officers by removing them from office and disqualifying them from holding future office, it seems illogical to assert that impeachment is primarily concerned with meting out punishment. Thus, the proper punishment for a wicked ex-President is not impeachment, but criminal prosecution.

Their second assumption is that impeachment is exclusively concerned with crimes committed while in office. If this was truly the Framers' intent, why did they not simply add the phrase "committed while in office" after Article II, Section 4's "treason, bribery, or other high crimes and misdemeanors"? Besides, are we supposed to believe that if we now discovered that Christine Todd Whitman or Stephen Breyer (to pick two "officers of the United States" at random) were serial killers back in the early 1980s that Congress could not impeach them? Or that if George W. Bush robbed a jewelry store on the morning of January 20, a few hours before being sworn in, that he would not be subject to impeachment for such behavior? Such results would be unimaginable, and for good reason. The Framers provided for impeachment to protect the people from those unfit to hold public office, and evidence of this can manifest itself in crimes committed either before or after assuming such office.

So, since impeachable offenses are not limited to those committed while in office, why does Mr. Specter not impeach O.J. Simpson? Surely the crimes for which he was found liable in a civil court reach the level of high crimes and misdemeanors. And, just like Bill Clinton, unless Mr. Simpson is impeached, he is constitutionally eligible to become a federal judge or Ambassador to the UN. The absurdity of such a proposition, whose rationale is the speculative (and, suffice it to say, unlikely) scenario of O.J. Simpson someday being elected or appointed to a high office of the United States, leads one to believe that, irrespective of what English monarchists did 300 years ago or the opinions of anti-corruption zealots in Congress during the Gilded Age, perhaps impeachment should be limited to current officers after all, just as the Constitution says.

Impeaching Mr. Clinton for crimes committed as President would be no different than impeaching Mr. Simpson for the murder of his ex-wife and her friend. My advice to Mr. Specter is to hold hearings on former President Clinton's recent improprieties, thus providing assistance to the federal prosecutors whose job it is to indict, try and convict those who violate U.S. law. If Mr. Clinton broke the law, he belongs in jail. But do not subvert the Constitution by seeking the impeachment of William Jefferson Clinton. Mr. Clinton has done enough damage to the Constitution already.

March 1, 2001

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