Testimony of Daniel H. Pollitt
Kenan Professor of Law, Emeritus, University of North Carolina Law School
House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998
On September 17,1998 President Clinton admitted on nationwide television to a "relationship with Ms. Lewinsky, that was not appropriate. In fact, it was wrong." He thereby gainsaid earlier statements to the contrary, a denial of an affair when deposed in the Paula Jones lawsuit, on January 17, and a subsequent denial on television ("I did not have an affair with that woman").
Special Counsel Kenneth Starr reported to Congress that the President committed impeachable offenses for perjury in the Paula Jones deposition, and for "obstructing justice" when he concealed his sexual relationship with Ms. Lewinsky for this six month period.
Did Clinton commit an impeachable offense ("treason, bribery and other high crimes and misdemeanors") when he cheated on his wife and lied under oath about it?
Not if we follow our history.
* * *
The Early State Constitutions
The story begins in 1776 when the colonies declared their independence from Great Britain. They had felt the wrath of Imperial Royal Governors, and they wanted no more of it. They wrote impeachment clauses into their new constitutions authorizing the removal of officials for weighty crimes on high. Virginia provided that "The Governor and others offending against the state. . . by which the safety of the state may be endangered," shall be impeachable by the House of Delegates. Delaware authorized impeachment of high officials "offending against the state either by maladministration, corruption, or other means by which the safety of the Commonwealth may be endangered."
So it went, up and down the eastern seaboard. Massachusetts authorized the removal of officers "to prevent those who are vested with authority from becoming oppressors"; and North Carolina authorized impeachment of officials "offending against the state by violating any part of this Constitution, maladministration or corruption."
The common theme of the colonial impeachment clauses was grave abuse of official authority against the state, all to the detriment of the public peace and security.
The Constitutional Convention
This theme was continued when the Framers of our Constitution met in Philadelphia in the summer of 1787. The delegates argued fiercely whether the President should be impeachable at all, and if so, by what means and for what reasons.
Debate began on these issues on June 2, shortly after agreement that there should be one President (rather than three; one from the North, one from the South, and the third from the middle states) elected by the National Assembly.
John Dickenson (Delaware) opened the debate with the motion that the Executive be removable by the National Legislature on the request of "a majority of the legislatures of the individual states." Roger Sherman (Connecticut) countered that the National Legislature should have authority to remove the President "at its pleasure."
George Mason (Virginia) was shocked at this proposal to make the "Executive the mere creature of the Legislature"; and Hugh Williamson (North Carolina) supported Mason with the proposal that the President be impeachable "only on conviction of mal-practice or neglect of duty."
Debate continued on June 15 on William Paterson's (New Jersey) proposal that the National executive be removable "on application by a majority of the Executives of the several states." Alexander Hamilton (New York) objected to this "rudderless" method of ousting a president and insisted on suitable grounds. He suggested "mal and corrupt conduct" and a trial by a "court consisting of the Chief Judge of each State."
Debate continued on July 20 on the proposal that the Chief Executive be removable on "conviction for mal-practice or neglect of duty."
Charles Pinckey (South Carolina), Gouverneur Morris (Pennsylvania) and Rufus King (Massachusetts) objected to any impeachment clause whatsoever "fearing from the independence of the executive."
William Davie (North Carolina), James Wilson (Pennsylvania) and George Mason (Virginia) disagreed entirely, and spoke for the necessity of impeachment "when great crimes were committed." James Madison (Virginia) though it indispensable for some provision for "defending the Community against the perfidy of the Chief Magistrate." Gouverneur Morris (Pennsylvania) was swayed by these arguments and became "sensible of the necessity of impeachments." He recalled that "Charles II (of England) was bribed by Louis XIV (of France)" and concluded that the "Executive ought therefore to be Impeachable for treachery."
There was one last debate on this issue. On September 8 the Committee of Eleven (one from each State) recommended that the President be impeachable "for treason or bribery." George Mason (Virginia) though this did not go far enough as "treason will not reach many great and dangerous offenses." Primed by James Madison, Mason agreed to offer as a substitute for his initial, overly-vague suggestion of "maladministration" the phrase "Treason, bribery and other high crimes and misdemeanors against the state."
The delegates adopted this proposal by vote of 8 to 3, and sent it to the Committee on Style and Arrangements. That committee had no authority to alter the substance of the agreement; and the deletion of the clause "against the state" can only mean that the Framers thought it redundant.
The Ratification Debates
The Constitution was then sent to the states for ratification or rejection. In North Carolina, James Iredall told the convention that the Impeachment Clause was meant to guard against "tyranny and oppression." He "supposed that the only instances in which the president would be liable to impeachment would be where he had received a bribe" or gave "false information to the Senate to induce them to enter into measures injurious to their Country."
Alexander Hamilton echoed this theme in New York. He explained that impeachable offenses are those "which proceed from abuse or violation of some public trust. They are of a nature" he said "which may with propriety be denominated POLITICAL."
Impeachment In Practice
Impeachment, like the atom bomb, is a weapon to be used only on very rare and very special occasions. The House has impeached a public official on only thirteen occasions, and the Senate has voted to convict only five.
* * *Senator William Blount of Tennessee was impeached in 1797 by the House for violation of the Neutrality Act when he organized an army of frontiersmen and Creek Indians to drive the Spanish out of Florida. The Senate dismissed the impeachment, probably because it thought a Senator not to be a "civil officer," hence, not subject to impeachment proceedings. It had earlier expelled Blount pursuant to its authority to "punish its members for disorderly behaviour."
Secretary of War William Belknap was impeached by the House in 1876 for selling lucrative "post-trader" positions at Army Posts. He resigned hours after the impeachment vote. The Senate tried him anyway and voted to acquit. Many among those voting doubted the Senate's jurisdiction, Belknap no longer being a "civil officer."
The House has impeached eleven federal judges. The first, John Pickering in 1804, resulted from political spleen. He had used his position on the Bench to hurry the conviction under the Sedition Act of 1798 (which made it a crime to criticize a public official) of Jeffersonian office-seekers. When Jeffersonians won control of the House, the Senate, and the Presidency, it was pay back time. The Senate convicted him on the impeachment charge that he "acted contrary to his trust and duty" when he appeared on the Bench "in a state of intoxication and in a most profane and indecent manner invoked the name of the Supreme Being."
Not since 1804, not since the Pickering impeachment, has the Senate convicted a federal judge on charges ranging from "unjust, oppressive, and "arbitrary rulings" to "gross abuse of power"; see, e.g. Samuel Chase, 1804; James H. Peck, 1831; Charles Swayne, 1904; and Harold Louderback, 1932. Louderback, for example, owed his appointment to Senator Samuel Shortridge, and saw to it that the son of his benefactor got more then his share of the lucrative bankruptcy receiverships. The impeachment charged that he had brought the "administration of justice into disrepute" with "exorbitant allowances to personal and political friends." The Senator voted to acquit.
The situation differs when the impeachment charges "treason" (West H.
Humphreys was removed from his federal judgeship in 1862 when he abandoned
his federal post, without resigning it, to accept a similar position under the
Confederacy). And the Senate is quick to convict when "bribery" goes to the heart
of the matter, when federal judges succumb to the lure of easy money: Robert W.
Archbald (1912) was charged by the House and convicted by the Senate when he
used his judicial office "for his personal financial gain." A railroad currently in
litigation before his court had financed a grand tour of Europe for the entire
Archbald family. The judge subsequently approved the costs of the trip as part of
the necessary expenses of operating the railroad. Halsted Ritter, 1936 (failed to
report "kick backs" on his income tax return); Alcee Hastings (1989) (conspired to
solicit a bribe); and Walter L. Nixon, 1989 (made false statement to a grand jury
concealing a bribe). Andrew Johnson is the only President to have been
impeached by the House and tried by the Senate. The Republicans selected him as
the running mate for Lincoln in 1864, in the expectation that his being a Democrat
from Tennessee would pull electoral votes. With Lincoln's assassination and
war's end, the Reconstruction Congress and Reconciliation President were at
loggerheads. Congress passed civil rights laws; Johnson vetoed them. Matters
boiled over when Johnson sought to replace Secretary of War Edwin Stanton
(tough on the South) with Lorenzo Thomas (forgiving of the South). It was a
critical choice as the South was under military occupation. The House
immediately impeached Johnson, alleging that he had violated the Tenure of
Office Act, passed the previous year, which required enate approval for the
removal of various executive officials. The House also charged Johnson with
"failing to execute the laws" as required by the Constitution. The Senate voted to
acquit, one vote short of the required two thirds majority to convict.
The Republicans selected Grant as their next Presidential nominee (not the incumbent Johnson), but Tennessee returned him to the Senate. When he died, pursuant to his orders, he was buried wrapped in the American flag and his head put to rest on the Constitution.
Clinton's enemies often draw a parallel between Nixon and Clinton. Each lied to the American people, and each stonewalled the lie. But here the parallel ends.
President Nixon resigned after the House Judiciary Committee voted articles of impeachment against him: these alleged that he acted in a manner "subversive of constitutional government"; that he had "repeatedly engaged in conduct violating the constitutional rights of citizens"; that he had impaired "the due and the proper administration of justice"; and that he had contravened "the laws governing agencies of the executive branch." In simple language, he burglarized, he wire tapped, he turned the IRS lose on political enemies, he misused the CIA and misled the FBI.
In contrast, Clinton cheated on his wife, lied about it; and did his best for six months to cover it up. Certainly, as even he admits, not an honorable course of conduct. Adultery, yes, possibly even perjury. But impeachable offenses?
Not if we recall the spirit that in 1776 motivated Virginia and the other states to authorize impeachment of those "offending against the state by which the safety of the state may be endangered."
Not if we recall the Constitutional Convention where our forefathers authorized impeachment when "great crimes were committed against the state."
Not if we recall the Ratification Debates where impeachable crimes were described as those "which may with propriety be denominated POLITICAL."
Not unless we overlook consistent practice wherein the Senate has refused to convict absent the clearest cases of treason and bribery.
Where, as in the Nixon Impeachment, is there conduct "subversive of constitutional government?"
Impeachment of President Clinton, simply put, would turn two hundred years of constitutional history on end.
ILLICIT SEX AND LYING ABOUT IT
The Framers of our Constitution, many of whom sat in the early Congressional bodies, did not consider illicit sex, or even lying about it, an impeachable offense.
The ink was hardly dry on the Constitution when the Congress, in 1792, investigated allegations that Alexander Hamilton, the Secretary of the Treasury, had engaged in "improper speculation" with one James Reynolds. The Treasury Department had authorized his release from prison, and Hamilton had doled out periodic payments to him.
Hamilton explained to the Investigating Committee (Representative Abraham Venable, Speaker Frederick Muhlenberg, and Senator James Monroe) that he had an on-going affair with Mrs. Reynolds, and was paying hush money to her husband. Hamilton's Confession of Adultery
is in the current (November 1998) issue of Harper's Magazine.
The Investigating Committee concluded that the matter was private, not public, and should best be kept secret. President Washington, Vice President Adams and Secretary of State Jefferson agreed.
Some five years later James Callender, a muckraking journalist, got wind of the affair, and wrote that Hamilton's story was a lie, meant to cover up a darker entanglement. Hamilton responded with the "Reynolds Pamphlet" wherein he emphasized that there was "no darker entanglement," that the entire episode concerned only his illicit sexual affair.
There was no talk of impeachment, and his subsequent appointment to a high command post in the United States Army was speedily confirmed by the Senate.
Thomas Jefferson was the next notable target of James Callender. In 1802 Callender wrote in the Richmond, Virginia Recorder that the President has kept, as his concubine one of his own slaves" and "by this wench Sally (Hemings) our president has had several children."
There was no impeachment, and Jefferson was re-elected overwhelmingly in 1804. William Safire, Spinning Jefferson in His Grave, Raleigh (N.C.) News and Observer, Nov. 3, 1998 p. 13.
The subsequent Walker Affair outdid the Sally Hemings story in the way of a public scandal. John Walker and Thomas Jefferson were school mates, college chums, and best of friends, at least early on. But Jefferson made eyes at Mrs. Walker. She told her husband, who wrote a number of people that while he was away helping to negotiate a treaty with some Indians, Jefferson's conduct toward his wife was "entirely improper." "Jefferson," wrote Walker, tried to convince his wife "of the innocense of promiscuous love"; and on one occasion stole into her bedroom "where my wife was undressing or in bed." On another occasion Jefferson lay in wait in the passage way outside her bedroom "ready to seize her on her way from her chamber indecent in manner."
The Walker correspondence fell into the hands of James Callender who, in 1802, gave the story wide currency. Jefferson admitted "that when young and single I offered love to a handsome lady. I acknowledge its incorrectness."
That Jefferson made improper advance to his best friend's wife did not stand in his way to re-election. See Dumas Malone, Jefferson and His Time (Little Brown and Co., 1948, pp. 447 ff.).
Some early Vice Presidents shocked Washington society with their illicit affairs.
Richard Mento Johnson (1837-41) of Kentucky was a "war hawk" during the war of 1812. He left his seat in Congress to lead a regiment of Kentucky back-woodsmen to battle the British and their Indian allies. He personally killed the famed Indian chief Tecumseh at the Battle of Detroit. This won him the admiration of the nation, and Andrew Jackson picked him as the running mate for Martin Van Buren in 1833.
But there was a dark side.
Johnson took a slave woman named Julia Chinn as his common-law wife. When she died, he took another slave as his next wife. She ran away. Johnson tracked her down, and sold her at auction on the slave block. He then took her sister at his next wife.
This did not sit well with Washington society, or with the electorate. Van Buren won the election hands down, but his running mate Johnson failed to garner a majority. Even his home state Kentucky failed to support him. For the only time in history the election of the vice president was decided in the Senate.
Johnson won the election, but barely. Shunned by Washington society, he spent most of the next four years in Kentucky operating a spa and hotel. The Democrats dropped him from the ticket in 1840, leaving the spot blank. They chose not to nominate anyone. See Steve Tally, Bland Ambition. (Harcourt Brace Javanovich 1992, pp. 71 ff.).
There is William Rufus De Vane King, the only bachelor Vice President. The Democrats in 1852 nominated Frankling Pierce of New Hampshire. They balanced the ticket with a southern slave holder. They hit upon King, the Senator from Alabama.
He was an unlikely choice; an alcoholic dying of tuberculosis, and thought to be a homosexual. There was continued rumors of sexual liaisons with male slaves on his plantation, and for years he shared quarters with future president James Buchanan. Andrew Jackson called him "Miss Nancy," his follow senators "Aunt Fancy."
He died after six weeks in office. No one thought to fill the vacancy. See Bland Ambition, p. 101.
There is no need to continue through the decades.
Those we elect to office are not gods or saints, but flesh-and-blood humans. We do not think in terms of impeachment when they err; in their private sex lives for they are more to be pitied then censured.
WAS IT PERJURY?
The constant refrain from Clinton baiters is perjury, perjury, perjury. Why? Because history demands it. To cheat on one's spouse is not an impeachable offense (a high crime and misdemeanor). Not since 1804 has the Senate upheld an impeachment charge absent violation of the criminal law, and a serious violation to boot. For example, the Nixon Impeachment Committee, under Chairman Rodino, was satisfied that Nixon had cheated on his income tax (by backdating a return to take advantage of an expired loophole), but concluded that criminal misconduct of a personal nature was not grounds for impeachment.
Impeachment must be predicated on conduct totally incompatible with the constitutional obligations of the Presidential Office; and it is doubtful that perjury in a civil suit reaches the onerous requirements of an impeachable offense. Moreover, there even is doubt that Clinton is guilty of perjury.
Detractors accuse President Clinton of hunkering down behind legalisms. Perhaps so. But if America is to comprehend the Presidential impeachment investigation (the third in our history), it is necessary to have a complete understanding of the commonly used legal terminology. The word "perjury" is at the top of this list.
Perjury law has roots going back to the Perjury Statute of 1503, United States v. Dunnigan, 507 U.S. 87, 94 (1993).and, as the Supreme Court noted, "has thrown a fence around a witness" to protect from "hasty and spiteful retaliation." Bronston v. United States, 409 U.S. 352, 359 (1973).
Let's examine some of the parameters and contours of the law in the Clinton situation.
Did he commit perjury on January 17, 1998 in the Paula Jones case when he answered "No" to the question, "Did you ever have sexual relations with Monica Lewinsky?" This negative response was not perjury for several overlapping reasons.
First, the question asked must be unambiguous. Witnesses simply cannot be left to guess at what the questioner has in mind. Thus, Owen Lattimore could not be convicted of perjury when he denied to the Senate Internal Security Committee that he had not been "a promoter of Communist interests," "a follower of the Communist line." These questions, like the questions asked Clinton, failed the first requirement that "precise questioning is imperative as a predicate for the offense of perjury."
Second, the testimony must not only be false, it must be wilfully false. There can be no perjury, wrote the Supreme Court, when the witness "spoke his true belief." Bronston v. United States, 409 U.S. 352, 355 Clinton asserts that in his mind, to have a "sexual relationship," a "sexual affair," one must have sexual intercourse, which was absent in the Clinton-Lewinsky relationship. With this understanding, Clinton "spoke his true belief" when he denied a "sexual affair."
Third, the falsehood must concern a "material" matter. Bronston v. United States, 409 U.S. 352, 357 In the Paula Jones case, Judge Wright ruled that the President's testimony regarding affairs with Ms. Lewinsky (or any other than Paula Jones) was "inadmissible." It simply was not "material," she wrote, to the core issues "whether plaintiff herself was the victim of alleged quid pro quo or hostile work environment sexual harassment, or whether she suffered emotional distress so severe that no reasonable person could be expected to endure it."
Did the President, later, on January 27 commit perjury when he assured a nation-wide T.V. audience that he never had "sexual relations with that woman, Ms. Lewinsky." Again, we must return to the President's "true belief, that a "sexual affair" includes sexual intercourse. Moreover, perjury requires a false statement under oath, and the President was not under oath when he spoke to the nation.
Finally, was there perjury when the President testified to the grand jury on August 17, and was asked a number of questions.
First, the President was asked if he had committed perjury in his deposition in the Paula Jones case, and replied he had not. But if there was no perjury in the Jones case, as shown above, there was no perjury on this ground before the grand jury.
Second, the President was asked "whether Monica Lewinsky had performed oral sex on him." He replied: "I did have a relationship with Ms. Lewinsky that was not appropriate. In fact, it was wrong."
The perjury statute does not reach an answer that is literally true "even if it might be considered "unresponsive" and even if it might be "false by negative implication." Bronston v. United States, 409 U.S. 352, 360 (1973) Here, of course, the President's answer was "literally true." It also could well be considered "responsive," and certainly it was not "false by implication."
Third and Fourth, the Special Counsel thinks the president should be impeached from office because (1) Lewinsky said the President touched her breasts and the President said he didn't; and (2) Lewinsky said the affair began in November of 1995 and the President said it did not begin until 1996.
Were the President's answers "designed to substantially affect the outcome," as required by perjury law? See United States v. Dunnigan, 507 U.S. 87, at 95 (1993) One would not think so. In any event, the Special Counsel purports to forget the two witness rule, "deeply rooted in past centuries," that a conviction for perjury ought not to rest entirely upon an "oath against an oath." This special rule, which bars conviction for perjury solely upon the evidence of a single witness, rests on the fear that innocent witnesses might be "harassed or convicted" if a less stringent rule were adopted. Weiler v. United States, 323 U.S. 606, 609 (1945)
Special Counsel Kenneth Starr seems to agree. Nowhere does he use the word "perjury" when he lists the "acts that may constitute grounds for impeachment." He contents himself with the allegation that President Clinton "lied under oath."
Why this lollygagging? Why not come straight out and first hand accuse the President of "perjury?" One probable answer: Starr knows there was no perjury and hopes that a non-felonious "lie under oath" will suffice to unseat a president. This would create a novel "impeachable Offense" and hopefully will not win the day.
Clinton betrayed his wife, betrayed his friends, misled us all. But he did not commit perjury, did not violate the law, and above all, did not betray the Constitution.
The Twenty-Fifth Amendment
Professor Black, in his book on impeachment, suggests that impeachable acts need not be criminal acts, so long as they are public acts having public consequences. He gives as an illustration a situation where the President moves to Saudi Arabia "so he could have four wives," proposing "to conduct the Presidency by mail."
Others ask: suppose the President murders his wife; should he not be impeachable for this?
The complicated process of impeachment is not necessary to cope with such unlikely situations. There is a simpler and more direct constitutional route to handle such unlikely hypothetical. The Twenty-Fifth Amendment provides in pertinent part:
"Section 4. Whenever the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may be law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representative their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President."