Written Statement of Forrest McDonald
Statement of Akil Amar
Statement of Cass R. Sunstein
Prepared Statement of Laurence H. Tribe

Let me begin with 1776. Americans were so dismayed by what they considered as betrayal by King George III that, in forming their new governments, they established almost no executive branches at all. The Congress of the Confederation had no executive arm, and though most of the state constitutions provided for a governor or a president, none except New York vested him with substantive power, and most provided for impeachment for "misconduct or mal-administration" (Massachusetts 1780, New Hampshire 1784) or "mal- and corrupt conduct" (New York 1777, South Carolina 1778) or "maladministration or corruption" (Virginia and North Carolina, 1776), or simply "any misdemeanor" (Pennsylvania, 1790).

By the time the Federal Convention gathered in Philadelphia in 1787, most thinking men had come to realize that government without an executive branch is no government at all, but their mistrust lingered, as is attested by the fact that a quarter to a third of the delegates supported a plural executive. The most formidable obstacles to creating a viable executive were two: how to elect the president and how to get rid of him if he turned out badly. The two were closely related, as will become evident. From our perspective, the question of how to choose the president might seem obvious: simply have popular elections. Given the size of the country and the difficulties of transportation and communication, however, that would have been impracticable. Indeed common Americans would have been hard-pressed even to name someone from another state, apart from Washington, Franklin, and possibly John Adams and Thomas Jefferson. For other reasons, election by the state legislatures or the governors, both of which were proposed, was generally regarded as unsatisfactory.

But that left some kind of centralized election, which came down to a choice by Congress, which in turn was fraught with problems. If Congress elected the president, the executive would be dependent upon the legislative, and thus a system of check and balances would be impossible-unless he was made ineligible for reelection, but if he could not stand for reelection, he would have to be chosen for a long tern, say six or seven years, which delegates thought would be dangerous. The greatest danger of all posed by congressional election, however, was suggested by a recent horrible example from Europe of which the delegates were acutely aware. The only elective monarchy in Europe was that of Poland, where the nobles chose the king, and the centralized electoral system there had made it possible for the crowned heads of Prussia, Russia, and Austria to use their wealth to buy a king of their choice. Thereafter, they partitioned the country-divided its territory among themselves-in 1773. The prospect that that could happen to America was chilling, to put it mildly.

So unsatisfactory were the options that the delegates were loath to invest the executive with genuine powers. As late as the first week in September-two weeks before the Convention adjourned-what had been agreed to was a government that would be entirely dominated by Congress. The Senate, whose members would be elected by the state legislatures, would have most of what were called the federative powers-the conduct of foreign relations-including the sending of ambassadors and the negotiation of treaties. The other great federative power, the waging of war, was to be shared with the lower house, as were other traditional executive powers. The president was to be elected by the Congress in joint session, serving a seven-year term unless removed on impeachment by the House and conviction by the Supreme Court. He was to be ineligible for reelection and had virtually no power of appointment and none of removal. He was commander-in-chief , had a conditional veto of legislation, and had power to grant pardons and reprieves. Otherwise, he was to be little more than a figurehead.

The limited nature of presidential authority at that stage of the proceedings had a direct bearing on the impeachment process at that stage of the proceedings. It had been agreed at the outset that the executive-and only the executive-was to be removable upon impeachment and conviction. It was agreed early on that the grounds were to be two: treason and bribery. Providing for impeachment on the ground of treason was pretty much a reflex action, for treason had been involved in almost all the impeachments by the English, from whom Americans had derived the idea; though the Americans guarded against abuse by carefully and narrowly defining what constituted treason. Providing for impeachment on the ground of bribery was another matter of the delegates' having in mind a horrible example from history: as they were well aware, King Charles II of England had been bribed by Louis XIV of France, among the fruits of which was France's acquisition of Dunkirk, long an English possession.

As indicated, that was the way things stood at the beginning of September; but then, on Tuesday, September 4, a catch-all committee proposed a resolution, the brainchild of Pierce Butler of South Carolina, to establish the electoral college system. The scheme was cumbersome, even cockamamie, and it was greeted as such; but as the idea soaked in, the delegates came to realize that it overcame every objection that had been raised to every other proposed method of election, and with modification it was soon adopted.

Now, having devised a decentralized method of electing a president that they believed would make it difficult if not impossible for foreign governments to sway American presidential elections by influence or money, the delegates were willing to endow the office with considerably more power than before. In the next few days they did so.

Increasing the duties, responsibilities, and powers of the presidency necessitated an enlargement of the grounds for impeachment, for treason and bribery no longer covered all the president's constitutional activities. It is a fundamental principle of the Constitution, as articulated in Federalist 51, that to ensure balance and counterbalance, the greater the power given, the greater the mechanism needed for enforcing accountability. Accordingly, on September 8 George Mason of Virginia moved to add after "bribery" the words "or maladministration." Madison objected that the term was too vague, so Mason withdrew his motion and substituted "other crimes & misdemeanors against the state." The words "against the state" were subsequently changed to "against the United States," but in the final draft of the Constitution as drawn by the Committee of Style, those words were dropped entirely. That was a significant deletion, for had those qualifiers been retained, all impeachable offenses would have been limited to actions taken in the performance of public duties.

That left the grounds for impeachment as "Treason, Bribery, or other high Crimes and Misdemeanors." The phrase "high crimes and misdemeanors" had been the standard wording of English impeachments since the first such proceeding took place against the Earl of Suffolk in 1386, and that is doubtless why it readily came to Mason's mind on September 8, without thinking through precisely what it meant. As for the word misdemeanor, Raoul Berger had pointed out that at the time it was first used and for nearly a century thereafter, it was not a legal term: as the Oxford English Dictionary makes clear, it simply signified evil conduct or misbehavior.

It is sometimes said that "high crimes and misdemeanors" was a term of art, but that is not so. A term of art is a phrase that, whatever it may mean to laymen, has a precise and well understood meaning to practitioners of a particular art. By contrast, high crimes and misdemeanors had, according to the leading commentators, at least three different meanings. One was suggested by Sir William Blackstone's successor to the Viner lecturer at Oxford, Sir Richard Wooddeson, in his lengthy analysis of impeachment, namely that "high" meant crimes or misdemeanors of whatever seriousness committed by persons of a high station. The other readings turn upon whether the adjective "high" is meant to refer to both crimes and misdemeanors, or whether "high crimes" is one thing and "misdemeanors" is another. If the latter is to be understood, then the sense of the clause is that the president is impeachable for Treason, Bribery, or other high crimes, as well as for misdemeanors. In Federalist 69, indeed, that is Hamilton's reading -- he says high crimes or misdemeanors. That is also the reading I would give it, and my view seems to have been that of Americans in general at the time, as is attested by the fact that Delaware, which adopted a new constitution shortly after the United States Constitution was ratified, used the phrase high crimes or misdemeanors, and the new states that were soon admitted to the Union provided for impeachments for "any misdemeanor." Moreover, in the very first instance of impeachment, conviction, and removal from office of a federal official under the Constitution of the United States, that of District Judge John Pickering of New Hampshire in 1803, the high crimes and/or misdemeanors of which he as found guilty consisted of drunkenness in the courtroom.

But let us consider the matter more closely. The term High Misdemeanors did exist, and was in fact a term of art with a specific meaning. For enlightenment we must turn to Blackstone's Commentaries on the Laws of England, a work which as Madison said was "in every man's hand" and the one the Framers turned to when determining just what legal phrases meant. (Next to the Bible and Montesquieu, Blackstone was the most frequently quoted source in American political writing from 1760 to 1800.) Blackstone considers High Misdemeanor in Book IV, Chapter 9, "Of Misprisons and contempts." The word misprison derives from the Old French word mespris, meaning neglect or contempt; a misprison, Blackstone tells us, was a neglect or contempt against the state; a high misdemeanor was a positive misprison. He rings the changes on what these were, such as displays of violence in a courtroom, and he closes his chapter by describing a high misdemeanor as an "endeavor to dissuade a witness from giving evidence . . . or, to advise a prisoner to stand mute." At one point during the Convention in a different connection, it had been proposed to use the phrase high misdemeanor, but according to Madison's notes the words were struck out, "it being doubtful whether 'high misdemeanor' had not a technical meaning too limited."

Except in that restricted sense, to speak of a "high misdemeanor" is to speak nonsense: it is an oxymoron, for the definition of a misdemeanor is concerned with its minor quality. Again we may consult Blackstone. In Chapter 1 of Book IV he tells us that, "properly speaking," crimes and misdemeanors are "mere synonymous terms," but he goes on to say that "in common usage, the word 'crimes' is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprized under the gentler names of 'misdemeanors' only." The annotator of my 1793 edition of Blackstone, Edward Christian, adds the following note: "In the English law misdemeanour is generally used in contradistinction to felony, and misdemeanours comprehend all indictable offences, which do not amount to felony"; the first example he gives is perjury.

James Wilson, one of the Framers and a learned jurist, echoed Blackstone's definition. "A crime," he wrote in his Lectures on Law, 1790-1791, "is an injury, so atrocious in nature, or so dangerous in its example, that, besides the loss which it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the publick. Offences and misdemeanors denote inferiour crimes."

The eminent Supreme Court Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), went a step further, saying that impeachment "has a more enlarged operation" than merely high crimes and misdemeanors, "and reaches, what are aptly termed, political offences, growing out of personal misconduct."

Let me conclude with references to the observations of James Madison and Alexander Hamilton on the subject. Madison did not, of course, write of impeachment in the Federalist Papers; he left that to Hamilton. But Madison did speak to the subject in the First Congress, and his reading tends to bear out my own that high crimes was one thing and misdemeanors quite another. The context was a debate concerning the question, whether the approval of the Senate would be necessary for presidential removal of his appointees, as it was for their confirmation. Madison said on May 19, 1789, that "it was absolutely necessary that the President should have the power of removing from office: it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or [notice: or, not and] misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses." This also seems to broaden the grounds for impeachment to include misdeeds of one's subordinates.

As for Hamilton, his comments especially in Federalist 65 have been widely cited in the media and I shall not presume to recapitulate them here. But I would call your attention to one passage. Impeachment, he wrote, was a political affair which "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt."

Hamilton's words were prophetic, but in reviewing the impeachments that have actually occurred, I have been struck by how often large numbers of congressmen have been able to rise above partisanship and follow the dictates of reason and conscience. I pray that this committee and the House as a whole will follow that noble example.

FORREST MCDONALD, born Orange, Texas, January 7, 1927; married, five children, eleven grandchildren; served U.S. Navy, 1945-46; BA, 1949, MA, 1949, Ph.D., 1955, University of Texas, Austin. Professional employment: Historical Society, Wisc., 1953-58; Brown University, 1959-67; Wayne State University, 1967-76; University of Alabama, 1976 -. Current title, Distinguished University Research Professor.

National Honors: Guggenheim Fellow, 1962-63; Fraunces Tavern Book Award for Alexander Hamilton, 1980; Board of Foreign Scholarships (Presidential Appointment), 1985-87; Finalist, Pulitzer Prize, for Novus Ordo Seclorum, 1986; American Revolution Round Table Book Award, 1986; The Sixteenth Jefferson Lecturer in the Humanities, National Endowment for the Humanities, 1987; Ingersoll Prize, 1990; Henry J. Salvatori Award for The American Presidency, 1994; Mount Vernon Society with the Organization of American Historians named The Presidency of George Washington one of the "Ten Great Books on George Washington."

Publications: Nineteen books, including We The People: The Economic Origins of the Constitution, 1958; E Pluribus Unum: The Formation of the American Republic, 1965; The Presidency of George Washington, 1974; The Presidency of Thomas Jefferson, 1976; Alexander Hamilton: A Biography, 1979; Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985; The American Presidency: An Intellectual History, 1994; fifteen chapters in published volumes; articles in nine different encyclopedias and dictionaries including "United States History, 1763-1816," Encyclopedia Britannica, 1974; sixty-three journal and magazine articles; more than one hundred fifty book reviews.

Dr. McDonald is testifying as a professional historian, not as a representative of the University of Alabama. He has no participation at this time or in the past ten years in any federal grant, contract or subcontract, either privately or as a university employee.
 

Thank you very much. How to construe the phrase high crimes and misdemeanors? Our legal tradition gives us simple but powerful tools to extract meaning from the Constitution. With these tools in hand, we can test whether the Starr Report justifies ousting a duly elected President.

Let's begin with a legal realist claim that the Article 2, Section 4 phrase means whatever Congress wants it to mean. It's all politics. But it isn't. The Constitution does not say that a President may be ousted whenever half the House and two-thirds of the Senate want him out. The supreme law of the land prescribes a substantive standard, high criminality, as well as a procedural voting rule. And conscientious legislators can't ignore this standard.

But there's a kernel of truth in the legal realist claim. The House and Senate will be the last word on impeachment. No Article 3 court, or state court, will review their interpretation of that key phrase. Impeachment is technically what judges call a political question that ordinary courts will not touch. This is not an exception to the basic constitutional principle of judicial review, but a special case of it. There is indeed judicial review of the impeachment issues, but this review occurs in the Senate itself, which sits as a high court of impeachment. Its impeachment verdict conclusively binds other courts because this special tribunal has exclusive jurisdiction. Its findings of fact and law are what lawyers call res judicata C a final judgment.

If the Senate must act as a court with a duty to properly construe high crimes and misdemeanors, how should it go about this task? Ordinary courts often look first to judicial precedent, but this interpretive tool is of little help here. The Supreme Court has never defined high crimes. Even if it had, the Senate should feel free to ignore such inappropriate intermeddling. And, the precedents in the Senate itself cast little light.

There are about a dozen cases over the last two centuries where the Senate has tried impeachments of judges and cabinet officers. How much, if any, weight should these precedents carry in a presidential impeachment? The only set of precedents that could properly clarify the standards for a presidential impeachment would themselves be presidential impeachments. But we only have one of these on the books. And to make matters worse, that impeachment of Andrew Johnson in 1868 resulted in an acquittal, leaving us precisely zero square senatorial precedence telling us what misconduct is enough to oust a President.

Some scholars have suggested that we look to history for answers. But which history? Those of you who know me know that I believe in an historical approach. But here, I'm a little uneasy.

The phrase took root in 14th Century England. Surely that is not the right time and place to search for answers. Practices that may have made sense in a monarchy or a parliamentary government have no place in a modern constitutional democracy committed to separation of powers.

The history of the 1787 Philadelphia Convention helps clarify what was in the minds of the Drafters when they inserted the high crimes phraseology and rejected the looser idea that Presidents could be impeached merely for maladministration. But these Convention conversations occurred behind closed doors. The American people were asked to ratify a public text C not secret intentions.

What's more, our constitutional system for selecting Presidents differs from the system in place in 1787. Aided by a formal constitutional amendment, the 12th Amendment, which paved the way for presidential parties to emerge, modern America has committed itself to a kind of nationalist, populist Presidency that differs from what the Philadelphia Draftsmen had in mind.

What then is the best way to make sense of our Constitution on the key question of the day? I suggest that we carefully examine the Constitution's text and attend to its overarching structure. Begin with the obvious tool of textual analysis.

The key phrase in its entirety says that the President may be impeached for "Treason, Bribery or other high Crimes and Misdemeanors." Presumably, the word "high" here means something, suggesting that not all crimes justify impeachment.

If we seek to discover how high a crime must be, the text itself gives us two specific examples to anchor the inquiry C treason and bribery. Both are high crimes indeed. Treason involves waging war against America, betraying one's country to an enemy power. Bribery, secretly bending laws to favor the rich and power, involves official corruption of a highly malignant sort that threatens the very soul of a democracy's committed to equality under law. In the case of a President who does not take bribes but gives them, paying people to vote for him, the bribery undermines the very legitimacy of the election that brought him to office. Few crimes are as deadly to a democratic republic as are treason and bribery.

Those who argue that any presidential failure to obey the law constitutes a failure to "take Care that the Laws be faithfully executed" and that all such failures are impeachable have simply read the word "high" out of the Constitution. On their theory, any crime high or low would be impeachable. So I'm not quite sure that that's the right place to look.

The take care crowd, though, is on to something, and the something is this. We must look beyond the words of the Impeachment Clause itself to make full sense of it. The places to start looking are the Article 1, Section 6 Arrest Clause and the Article 4, Section 2 Extradition Clause. Like the Impeachment Clause, these clauses also speak of treason and other crimes, but they do so in markedly different language. "Treason, Felony and Breach of the Peace" in the Arrest Clause and "Treason, Felony or other Crime" in the Extradition Clause. These clauses do encompass virtually all crimes high and low, and they prove conclusively that the word "high" in the impeachment clause must be taken seriously. When the Framers meant all crimes high and low, they knew the words, and the words are markedly different from those in the Impeachment Clause. So much for the text.

Consider next how the text must be read in light of larger structural constitutional principles defining the Constitution's overall architecture C its structure. The Constitution's text does not use the words federalism or separation of powers or judicial review, but these principles can be discerned from the document's structural blueprint.

The first insight generated by structural analysis is that the meaning of a single constitutional phrase sometimes varies as that phrase interacts with other parts of the document. Consider the Article 2, Section 2 phrase "Advice and Consent," which empowers the Senate to review both cabinet nominees and Supreme Court nominees. A blinkered textualist might claim that the phrase must mean the same thing for all nominees, but the Senate has never construed the words this way and for good structural reasons. Cabinet officers are underlings of the President, a unitary President, who work for him and who will leave when he leaves. Senators rightly give the President broad deference in picking his own executive branch teammates. But Senators rightly give a President much less deference when he nominates Supreme Court justices who are not part of his team, who need to be independent of the executive branch and who will not leave when he leaves.

Now apply this structural insight to impeachment. Though blinkered textualists might say that presidential and judicial impeachments must be treated identically, this makes no structural sense. When Senators remove one of a thousand federal judges or even one of nine Justices, they are not transforming an entire branch of government. That's exactly what they're doing when they oust our one and only President in whom all executive power is vested.

In the case of the judge, the impeachment trial in the Senate inflicts no great trauma on the country and the world or the bond market, for that matter. But in the case of a President, this is very different. More important, when Senators oust a judge, they undo their own prior vote to advise and consent to a judicial nominee. When they remove a President, they undo the votes of millions of ordinary Americans on election day. This is not something that Congress should do lightly less we slide toward a kind of parliamentary government that our entire structure of government was designed to repudiate.

Although the Philadelphia Framers may not have anticipated the rise of a populist Presidency, later generations of Americans restructured the Philadelphians Electoral College via the Twelfth Amendment and other election reforms precisely to facilitate such a Presidency, a populist Presidency. Narrow arguments from the original intent to Philadelphia or the original Impeachment Clause in isolation fail to see our constitutional structure holistically taking into account later constitutional developments.

If we absolutely insist on textual evidence supporting a distinction between presidential and judicial impeachments, we can find it in Article 1, Section 3, which tells us that the Chief Justice presides only in presidential impeachments. There are several good reasons for this rule. One of them is to hammer home the constitutional uniqueness of presidential impeachments.

With these lessons of text and structure in mind, we can now profitably revisit precedent and history. Those who point to a trio of judicial impeachments in the late 1980's as support for a low impeachment threshold have precisely missed the point. We must look to presidential

history and precedent for guidance.

Consider the history of Andrew Jackson, who killed a man in a duel before becoming President. Technically, this was a crime, although rarely prosecuted. Should Congress have impeached and removed Jackson even if the people who elected him knew about his crime and elected him anyway? The duel Jackson fought actually was one of about a dozen that he fought. In fact, they all end the same.

The duel that Jackson fought concerned his wife's honor and chastity as did all the other duels. Suppose Jackson had lied under oath to protect his wife's honor. Suppose that people knew all this when they voted for him. Should Congress have undone the people's vote on a theory that all crime is high crime, that all perjury is the same?

Next, consider Andrew Johnson. Given our structural analysis, it seems relevant that Johnson was never elected President in his own right. In fact, he was trying to undo the politics of the man the people had elected, Abe Lincoln. If ever our structural argument cautioning restraint in ousting a duly elected President were weak, it would be here since Johnson lacked a genuine electoral mandate. His policies toward the defeated rebels could have been seen as akin to treason, giving considerable aid and comfort to those rebels who were, not to mince words, traitors. And yet, even here, in the case of an unelected President cozying up to actual traitors, the Senate acquitted.

Finally, consider President Nixon whose gross abuses of official power did pose a threat to our basic constitutional system, a threat as high as treason and bribery. Although Nixon was elected by the people, his own unprecedented use of political espionage and sabotage tainted his mandate in the same way that bribing electors would have.

So here's my last and final thought. Using standard tools of constitutional analysis, then, here are the questions that conscientious Congressmen and Congresswomen should ask themselves as they ponder the Starr Report. They're just questions.

I am grateful to have the opportunity to appear before you today to discuss some constitutional issues in connection with impeachment. The basic question I will be examining is the appropriate understanding of the constitutional phrase, "high Crimes and Misdemeanors." U.S. Const., Art. 1, section 4.

I suggest that with respect to the President, the principal goal of the impeachment clause is to allow impeachment for a narrow category of large-scale abuses of authority that come from the exercise of distinctly presidential powers. Outside of that category of cases, impeachment is generally foreign to our traditions and prohibited by the Constitution. Outside of that category of cases, the appropriate course for any crimes is not impeachment, but a prosecutorial judgment, after the President has left office, whether indictment is appropriate. The original understanding of impeachment strongly this view; equally important, this view is strongly supported by the longstanding historical practice in America.

While it is not my purpose here to defend President Clinton in any way, it is entirely clear that thus far, the charges made by Judge Kenneth Starr and Mr. David Schippers do not make out an appropriate or legitimate case for impeachment under the Constitution. In addition, impeachment of a president, on the basis of these sorts of charges, would greatly unsettle the system of separation of powers. It would threaten to convert impeachment into a legislative weapon to be used any occasion in which a future President is involved, or said to be involved, in unlawful or scandalous conduct. From the constitutional point of view, this would be an extremely unfortunate development.

My statement comes in six parts. Part I deals with the text. Part II explores the founding period. Part III deals briefly with English practice; Part IV briefly explores American practice. Part V examines how we might think about the constitutional question today. Part VI is a brief conclusion.

I. Text

Constitutional interpretation of course begins with the Constitution's text. The text strongly supports the view that in order to support impeachment of the President, the underlying offense must usually involve the abusive exercise of a distinctly presidential power.

More particularly, the text's opening reference to treason and bribery, together with the word "other," seems to justify a clear and important inference: high crimes and misdemeanors should be understood to be of the same general "kind" as treason and bribery, as in the Latin canon of construction, ejusdem generis. Thus it would be reasonable to think that "other high crimes and misdemeanors" must be in the nature of large-scale abusse of public office - large-scale in the sense of "high" and similar, in kind as well as degree, to treason and bribery. It is entirely sensible, textually speaking, to understand "other high crimes and misdemeanors" in such a way as to conform to "treason" and bribery," and to take the relevant "misdemeanors" to have to meet a certain threshold of "highness" as well.

The text thus supports the view that I will be defending here: impeachment is designed for large-scale abuses of public authority. But reasonable people could disagree about the meaning of the bare text, and it is certainly appropriate to look at other sources.

II. The Framing

A. The Convention

I now turn to the Constitutional Convention. The extensive debates in the convention strongly suggest a sharply limited conception of impeachment, one that sees the process as a targeted response to the President's abuse of public power through manipulation of distinctly presidential authority, or through procurement of his office by corrupt means.

The initial draft of the Constitution took the form of resolutions presented before the members meeting in Philadelphia on June 13, 1787. One of the key resolutions, found in the Convention's official Journal, said that the President could be impeached for "malpractice, or neglect of duty." On July 20, this provision provoked an extended debate. Three positions dominated the day's discussion. One extreme view, represented by Roger Sherman and attracting very little support, was that the legislature should have the power to remove the Executive at its pleasure. Charles Pinckney, Rufus King and Gouvernor Morris represented the opposing extreme view, that in the new republic, the president "ought not to be impeachable whilst in office." 2 Max Farrand, Records of the Constitutional Convention of 1787, at 64 (1937). This view, which did receive considerable support, was defended partly by reference to the system of separation of powers, which would be compromised by impeachment, and partly by reference to the fact that the President, unlike a monarch, would be subject to periodic elections, a point that seemed to make impeachment less necessary. The third position, which ultimately carried the day, was that the President should be impeachable, but only for a narrow category of abuses of the public trust, by, for example, procuring office by unlawful means, or using distinctly presidential authority for ends that are treasonous.

George Mason took a lead role in promoting the compromise course. Against Pinckney, he argued that it was necessary to counter the risk that the President might obtain his office by corrupting his electors. "Shall that man be above" justice, he asked, "who can commit the most extensive injustice?" Id. at 65. This question identified the risk, to which the convention was quite sensitive, that the President might turn into a near-monarch; and it led the crucial votes -- above all, Morris --- to agree that impeachment might be permitted for (in Morris's words) "corruption & some few other offences." Id. James Madison promptly concurred with Morris, pointing to a case in which a president "might betray his trust to foreign powers." Id. Capturing the emerging consensus of the convention, Edmund Randolph favored impeachment on the ground that the executive "will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands." Id. at 67. The clear trend of the discussion was toward allowing a narrow impeachment power by which the President could be removed only for gross abuses of public authority.

But Pinckney, concerned about the separation of powers, continued to insist that a power of impeachment would eliminate the President's "independence." Id. at 66; see also id. at 68. Morris once again offered the decisive response, urging that he was convinced of the necessity of impeachments, because the president "may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him." Id. at 68. At the same time, Morris insisted, "we should take care to provide some mode that will not make him dependent on the Legislature." Id. at 69. Led by Morris, the convention thus moved toward a compromise position, one that would continue the separation between the President and the Congress, but permit the President to be removed in the most extreme cases. But the discussion ended without agreement on any particular set of terms.

The new draft of the Constitution's impeachment clause emerged two weeks later, on August 6. It would have permitted the president to be impeached, but only for treason, bribery and corruption (apparently exemplified by the President's securing his office by unlawful means). With little additional debate, and for no clear reason, this provision was narrowed on September 4, to "treason and bribery." But in early September, the delegates took up the impeachment clause anew. Here they slightly broadened the grounds for removing the President, but in a way that stayed close to the compromise position that had appeared to carry the day in July.

The opening argument was offered by Mason, who complained that the provision was too narrow to capture his earlier concerns, and that "maladministration" should be added, so as to include "attempts to subvert the Constitution" that would not count as treason or bribery. Id. at 550. Mason's strongest point was that the President should be removable if he attempted to undo the constitutional plan. But Madison insisted that the term "maladministration" was "so vague" that it would "be equivalent to a tenure during pleasure of the Senate," id, which is something that what the framers had been attempting to avoid all along. Hence Mason withdrew "maladministration" and added the new, more precise terms "other high crimes and misdemeanors against the State." Id. at 550. The term "high crimes and misdemeanors" was borrowed from English law, as we shall see; but it received no independent debate in the convention. During the debates, the only subsequent development - and it is not trivial -- was that "against the State" was changed to "against the United States," in order to remove ambiguity. Id. at 551.

There is one further wrinkle. The resulting draft was submitted to the Committee on Arrangement and Style, which deleted the words "against the United States." Hence there is an interpretive puzzle. Was the deletion designed to broaden the legitimate grounds for impeachment? This is extremely unlikely. As its name suggests, the Committee on Style and Arrangment lacked substantive authority (which is not to deny that it made some substantive changes), and it is far more likely that the particular change was made on grounds of redundancy. Hence the impeachment clause, in its final as well as penultimate incarnation, was targeted at high crimes and misdemeanors against the United States.

The clear lesson of these debates is that in designing the provision governing impeachment, the founders were thinking, exclusively or principally, of large-scale abuses of distinctly public authority. The unanimous rejection of "maladministration" suggests that the framers sought to create an authority that was both confined and well-defined. The alleged grounds for impeachment all involved abuses of public trust through the exercise of distinctly presidential powers (or corruption in procuring those powers); there were no references to private crimes, such as murder and assault. Now we cannot overread silence on that point. But the debates strongly suggest that the model for impeachment was the large-scale abuse of public office.

B. Ratification

The same view is supported by discussion at the time of ratification and in the early period. The basic point is that impeachment was explained and defended as a way of removing the President when he used his public authority for treasonous or corrupt purposes. I offer a few brief notations here.

Alexander Hamilton explained that the "subjects" of impeachment involve "the abuse of 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 society itself." The Federalist No. 65. One of the most sustained discussions came from the highly respected (and later Supreme Court Justice) James Iredell, speaking in the North Carolina ratifying convention: "I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other." By way of explanation, Iredell referred to a situation in which "the President has received a bribe . . . from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty." 2 Philip Kurland and Ralph Lerner, The Founders' Constitution 165 (1987).

James Wilson wrote similarly in his great 1791 Lectures on Law: "In the United States and in Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments." Id. at 166. Another early commentator went so far as to say that "The legitimate causes of impeachment . . . can have reference only to public character, and official duty. . . . In general, those offenses, which may be committed equally by a private person, as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offenses not immediately connected with office, are left to the ordinary course of judicial proceedings . . . ." Id. at 179. This was a contested view; but there was general agreement that that the great office of impeachment was to remove from office those who had abused distinctly public power.

III. High Crimes and Misdemeanors in England

Because the term "high crimes and misdemeanors" comes from English law, it is possible to contend that it should be interpreted in accordance with English understandings. See Raoul Berger, Impeachment (1974), which turns largely on this claim. There is considerable sense in this view - the term certainly does come from English law - but a serious question might be raised about the analysis. The most important point is that it is not at all clear that the American understanding was or has been the same as the English one. Recall that in the framing period, participants were aware of two exceedingly important differences between America and England: (1) the election of the President and (2) the separation of powers. As we have seen, these differences led many to suggest a far narrower power to impeach the President than to impeach high officials under English law. Thus it is hazardous to suggest, as some have, that the American understanding essentially incorporates the English understanding. See Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (1984), at 266-70.(1)

With that qualification, let me briefly investigate the English practice. As it turns out, that practice strongly supports the basic argument I am making here.

The English idea of "impeachment" arose largely because its objects were, for various reasons, not subject to the reach of conventional criminal law. Thus ministers and functionaries of the King were subject to impeachment for public offenses. Under English law, the term "misdemeanor" was not a reference to what we would now call misdemeanor (as opposed to felony); it referred instead to distinctly public misconduct. Thus the term "high crimes and misdemeanors" represented "a category of political crimes against the state." Raoul Berger, Impeachment 61 (1973).

In English law, there was some ambiguity in the use of the word "high": did the term refer to the seriousness of the offense, or to the nature of the office against which the proceeding was aimed? Probably the better view, based on the actual practice, was that the term referred to both. In any case a "high crime and misdemeanor" could be a serious crime, but it could also be a serious offense that was not a technical violation of the criminal law. Serious misconduct, as in the form of committjng the nation to "an ignominious treaty," was said by some to be a just basis for impeachment in England. See id. at 63. Whatever one thinks of the particular example, it is clear that there was no consensus in England that a "high crime and misdemeanor" had to be a violation of the criminal law; and indeed the better view is that an impeachable offense, to qualify as such, need not be a crime in the United States.

For present purposes, the more important point is this: The great cases involving charges of impeachable conduct in England reveal a far readier resort to the practice than has been the case in America, probably for reasons mentioned above. But those cases involved either criminal or extremely inappropriate conduct in the form of abuse of the authority granted by public office, or, in other terms, the kind of misconduct that someone could engage in only by virtue of holding public office. Thus a prominent listing of the key cases refers to the following: unlawful use of publicly appropriated funds; thwarting Parliament's order to store arms and ammunition in storehouses; preventing a political enemy from standing for election and causing his unlawful arrest and detention; arbitrarily granting general black search warrants; and stopping writs of appeal. See id. at 67-68. In addition, a general list suggests no case in which an impeachment proceeding was brought for something other than the use of the distinctive authority vested in public officers. Id. at 69-73.

We may summarize the discussion with two simple points. First: The English practice shows a far readier resort to impeachment than the American practice. This difference makes sense in light of the fact that the President is subject to electoral checks and the American commitment to separation of powers. Second: The English practice was concentrated, exclusively or nearly so, on the abusive exercise of distinctly public authorities.

IV. Historical Practice in America

What about the American practice? The question is exceptionally important, for our constitutional tradition is not one that relies entirely on the original understanding of constitutional terms. Historical practices, built up over decades or even centuries, play a significant role in determining constitutional meaning.

This is not the occasion for a detailed analysis of the historical practice in the United States. I restrict myself to several points here. The most important is that the exceptional infrequency of serious impeachment proceedings against the President - even in circumstances in which such proceedings might have appeared legitimate - suggests a historical understanding that impeachment is appropriate only in the most extraordinary cases of abuse of distinctly presidential authority. With respect to President Clinton, nothing of this kind has been alleged thus far.

First: We should notice at the outset that there have been sixteen impeachments in the nation's entire history, that only one President, in that entire history, has been impeached, and that only one other President, in that history, has been subject to serious impeachment inquiry. President Nixon was of course subject to an impeachment inquiry because of a series of alleged abuses of the public trust. Thus Article 1, of the articles of impeachment against President Nixon, referred to the an unlawful entry into the headquarters of the Democratic National Committee "for the purpose of securing official intelligence" and then conspired to cover it up; Article 2 referred to the allegation that he "repeatedly engaged in conduct violating the constitutional rights of citizens," including the use of the Internal Revenue Service, the Federal Bureau of Investigation, and the Secret Service; Article 3 referred to repeated refusals to produce papers and things under subpoenas specifically signed "to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President." In retrospect, a remarkable feature of these Articles is their relative restraint - fastening on large-scale abuses of distinctly public authority.

President Andrew Johnson was impeached because of a series of allegedly unlawful acts as President, above all the unlawful discharge of officials who had, under law, been given immunity from presidential discharge. Posterity has judged the impeachment of Johnson to have been a highly partisan and indeed illegitimate affair, one in which political opponents seized on the President's violation of a law that he believed unconstitutional (rightly, as it turned out). But even in the Johnson case, when partisan fervor was at its height, the allegations involved the allegedly large-scale abuse of presidential authority, through the lawless exercise of presidential power. With respect to the President, at least, impeachment has been considered as a weapon of rare and last resort, in a way that vindicates the framers' emphasis on the safeguards of the electoral process.

Second: By far the largest majority of impeachments in American history have involved federal judges. Even here, the number is extremely low: In all of American history, there have been just twelve cases. Of those cases, by far the largest number - and arguably all - involved at least some allegation of abuse of distinctly judicial office. It is possible to argue that one or two, or perhaps more, of those cases also involved egregious private behavior. But this interpretation is itself questionable, and the most extreme cases involving impeachment of federal judges should not be understood to set a precedent for impeachment of presidents, a point to which I will return.

Third: To have a sense of American history, it is as important to have a sense of the cases in which impeachment did not occur as of cases in which it did occur. This topic has received far too little emphasis during discussion of the impeachment question. An examination of American history shows that even when impeachment might well have been contemplated, cooler heads prevailed, and both the nation and Congress insisted on an extremely high standard. Consider here simply a few cases (they could easily be multiplied) from twentieth century history; in all of these the House has acted with great restraint. The House was correct to do so, both as a matter of constitutional law and as a matter of prudence. I list the cases not to complain about the failure to pursue the impeachment route, but on the contrary to suggest the solidity of the American presumption against impeachment.

Is The President Unique for Impeachment Purposes?

The Constitution allows impeachment of all civil officers - not only the President, but also the Vice President, cabinet heads, and judges - for high crimes and misdemeanors. Does this mean that the same standard applies to all such officers? Are there differences between the legitimate grounds for impeaching a President and the legitimate grounds for impeaching a federal judge? The question is extremely important for current purposes. If the same standards apply, it would make sense to say that the relatively more lenient standards applied to the impeachment of federal judges apply as well to the impeachment of presidents. My basic conclusion is that the standard for impeaching the President has been much higher, and properly so.

We can distinguish three possible positions here. First: It might be thought that the legitimate grounds for impeachment are the same for all officers. Second: It might be thought that to impeach the President, Congress must meet a higher standard; what counts as a high crime or misdemeanor is context-specific. Third: it might be thought that the constitutional standard is the same, but that the House legitimately exercises prosecutorial discretion so as to match offense to office. On this view, for example, perjury may be a clear basis for impeaching a judge (who is charged with operating the system of justice), but not impeaching for the President. For constitutional purposes, we might collapse the first and third positions, since no one disagrees that the House, in its exercise of prosecutorial discretion, might legitimately choose not to proceed against someone who has committed technically impeachable offenses, and that the nature of the office is relevant to the exercise of discretion.

At first glance, the constitutional text seems to support the view that the constitutional standards are identical. As noted, the text is the same. But there are several problems with this apparently simple position. The first is based on the history recited above. The framers' particular concerns involved protection of the President from the discretionary authority of Congress; they sought to insulate the President in particular from a high degree of dependence. They expressed no such concern about judges.

Judicial independence is of course important, but the fact that judges have life tenure might well be thought to justify a somewhat more expansive impeachment power. If judges can be impeached only for gross abuses, then the nation will be stuck with judges for their whole lives; this practical concern argues in favor of a lower standard for impeaching judges. Indeed, this practical concern might reasonably be labelled a structural one. The Constitution's structure -- life tenure for judges, four year terms for presidents - argues in favor of a narrower impeachment power for the President.

The second argument is that judges have tenure "during good behavior," a provision that does not, of course, apply to the President. The President may not be removed for "bad behavior." Thus it might be suggested that with respect to judges, the "good behavior" provision qualifies or works hand in hand with the impeachment clause. It does so as by allowing impeachment of judges on somewhat broader grounds - bad behavior, not simply high crimes and misdemeanors, or perhaps high crimes and misdemeanors, understood, in the context of judges, to include bad behavior.

But I do not believe that this argument is convincing. Judges may not be removed from office for bad behavior; they may be removed only for high crimes and misdemeanors. The function of the "good behavior" clause is not to give Congress broader power to remove judges from office; it is simply to make clear that judges ordinarily have life tenure. Thus there is no authority in Congress to remove judges who have not engaged in "good behavior."

On the other hand, historical practice suggests a broader congressional power to impeach judges than Presidents, and indeed it suggests a special congressional reluctance to proceed against the President. We might say that our history has converged on the judgment that there is a lower threshold for judges than for presidents. Perhaps the theory is that judges cannot otherwise be removed from office; perhaps the theory is that it is uniquely destabilizing if Presidents are too freely subject to removal from office. The existence of a wide range of political checks on presidential misconduct has apparently been thought to provide a kind of surrogate safeguard, one that makes impeachment a remedy of rare resort.

V. How Should We Understand Impeachment Today?

Thus far I have suggested that both the original understanding and historical practice converge on a simple principle. The basic point of the impeachment provision is to allow the House of Representatives to impeach the President of the United States for egregious misconduct that amounts to the abusive misuse of the authority of his office. This principle does not exclude the possibility that a president would be impeachable for an extremely heinous "private" crime, such as murder or rape. But it suggests that outside of such extraordinary (and unprecedented and most unlikely) cases, impeachment is unacceptable. The clear implication is that the charges made thus far by Judge Kenneth Starr and David Schippers do not, if proved, make out any legitimately impeachable offenses under the Constitution.

In the present context, it would be possible to respond to this suggestion in two different ways. First, it might be urged that actual or possible counts against President Clinton - frequent lies to the American public, false statements under oath, conspiracy to ensure that such false statements are made, perhaps perjury, interactions with his advisers designed to promote further falsehoods under oath, and so forth - are very serious indeed and that if these very serious charges are deemed a legitimate basis for impeachment, little or nothing will be done to alter the traditional conception of impeachment. Perhaps some of these possible counts, involving interactions with his advisers designed to promote lies or continued procedural objections to the underlying inquiry, even amount to abuse of power. Second, it might be said that whatever history and past practice show, we should understand the Constitution's text to allow the President to be impeached, via the democratic channels, whenever a serious charge, of one sort or another, is both made and proved. I take up these two responses in sequence.

If the first claim is that certain kinds of falsehoods under oath, perjury, conspiracy to lie, and so forth, could be a legitimate basis for impeachment, there can be no objection. A false statement under oath about a practice of using the IRS to punish political opponents would almost certainly be an impeachable offense; so too about a false statement about the acceptance of a bribe to veto legislation. Thus false statements under oath might well be a legitimate basis for impeachment. Indeed, lying to the American people may itself be an impeachable offense if, for example, the President says that a treaty should be signed because it is in the best interest of the United States when in fact he supports the treaty because its signatories have agreed to give him a lot of money. But it does not diminish the universal importance of telling the truth under oath to say that whether perjury or a false statement is an impeachable offense depends on what it is a false statement about. The same is true for "obstruction of justice" or interactions with advisers designed to promote the underlying falsehood.

Anyone can be prosecuted for violating the criminal law, and if the President has violated the criminal law, he is properly subject to criminal prosecution after his term ends. But it does not make sense to say, for example, that an American President could be impeached for false statements under oath(2) in connection with a traffic accident in which he was involved, or that a false statement under oath, designed to protect a friend in a negligence action, is a legitimate basis for impeachment. Probably the best general statement is that a false statement under oath is an appropriate basis for impeachment if and only if the false statement involved conduct that by itself raises serious questions about abuse of office. A false statement about an illicit consensual sexual relationship, and a "conspiracy" to cover up that relationship, is not excusable or acceptable; but it is not a high crime or misdemeanor under the Constitution. The same is true for the other allegations made thus far. It trivializes the criminal law to say that some violations of the criminal law do not matter, or matter much. But it trivializes the Constitution to say that any false statement under oath, regardless of its subject matter, provides a proper basis for impeachment.

Of course people of good faith could say that the President has a special obligation to the truth, especially in a court of law, and that it is therefore reasonable to consider impeachment whenever the President has violated that obligation. It is certainly true that as the nation's chief law enforcement officer, the President as a special obligation to the truth. Perhaps such people also believe that false statements under oath, and associated misconduct, are genuinely unique and that impeachment for such statements and such misconduct would therefore fail to do damage to our historical practice of resorting to impeachment only in the most extreme cases. But this position has serious problems of its own. Even if it would be possible, in principle, for reasonable people to confine the current alleged basis for impeachment, it is extremely doubtful that the line could be held in practice. Thus a judgment that the current grounds are constitutionally appropriate would set an exceedingly dangerous precedent for the future, a precedent that could threaten to turn impeachment into a political weapon, in a way that would produce considerable instability in the constitutional order.

Consider, for example, the fact that reasonable people can and do find tax evasion more serious than false statements about a consensual sexual activity, and that reasonable people can and do find an alleged unlawful arms deal more serious, from the constitutional standpoint, than either. Here is the underlying problem. Whenever serious charges are made, participants in politics may well be pushed in particular directions by predictable partisan pressures. The serious risk is therefore that contrary to the constitutional plan, impeachment will become a partisan tool, to be used by reference to legitimate arguments by people who have a great deal to gain.

A special risk of a ready resort to the impeachment instrument is that it would interact, in destructive ways, with existing trends in American democracy. Those trends - toward an emphasis on scandals and toward sensationalistic charges - have characterized the conduct of members of both parties in the last decades. For those who love this country and its institutions, the use of impeachment, in such cases, is quite ominous -- not least because of the demonstrable good faith of many of those who are recommending it.

From the standpoint of the constitutional structure, it is far better to try a kind of line in the sand, one that has been characteristic of our constitutional practice for all of our history: A practice of invoking impeachment only for the largest cases of abuse of distinctly presidential authority.

Conclusion

Text, history, and longstanding practice suggest that the notion of "high crimes and misdemeanors" should generally be understood to refer to large-scale abuses that involve the authority that comes from occupying a particular public office. Thus a President who accepted a bribe from a foreign nation - or who failed to attend to the public business during a war - would be legitimately subject to impeachment. Perjury, or false statements under oath, could certainly qualify as impeachable offenses if they involved (for example) lies about using the Internal Revenue Service to punish one's political opponents or about giving arms, unlawfully, to another nation. But the most ordinary predicate for impeachment is an act, by the President, that amounts to a large-scale abuse of distinctly presidential authority.

If there is ever to be impeachment outside of that category of cases, it should be exceedingly rare. The current allegations against President Clinton do not justify a departure from our traditional practices. Such a departure would be not trivially but profoundly destabilizing; it would be far wiser to adhere to our traditions and to leave the hardest constitutional problems for another, and better, occasion.

I am honored to have been invited to appear before this Subcommittee of the House Judiciary Committee to shed whatever light I can on the vitally important topic of "The Background and History of Impeachment." Although I will of course be willing to address whatever questions members may have regarding the application of my testimony to the particular case of President Clinton, I have understood my assignment to be a broader and antecedent one: to analyze how the Constitution requires Congress to approach the threshold issue of deciding what constitutes an "impeachable" offense. Because so much has been written, and so much more has been said, about this topic, I have chosen to focus my comments on the basic principles that I believe should guide us in this endeavor, rather than to essay yet another detailed compilation of excerpts from the records of the 1787 Constitutional Convention, from accounts of the state ratification debates, from The Federalist Papers, from the commentaries of Blackstone and Story, from the 1974 Staff Report of the House Judiciary Committee on "Constitutional Grounds for Presidential Impeachment," and the like.

I begin with this historical note: Nearly a quarter of a century ago, the work of the House Judiciary Committee under the leadership of Representative Peter Rodino, in seeking to define impeachable offenses when dealing with a Republican President, set the stage on which the House Judiciary Committee under the leadership of Representative Henry Hyde plays out today's sober drama in dealing with a Democratic President. So too, what the Judiciary Committee does today in attempting to define impeachable offenses will set the stage on which future struggles over the possible impeachment of presidents to come, including presidents yet unborn, will be waged. Indeed, how this Subcommittee and ultimately the House of Representatives (and possibly the Senate) define impeachable offenses in this proceeding will play an important role not only on those occasions, hopefully rare, when the nation again focuses its energies and its attention on the possible impeachment and removal of a sitting president, but in the day-to-day life of the republic, shaped as it is by the strength or weakness of the presidential office, by the relationship between the executive and legislative branches, and by the kinds of people who feel called to public service and are willing to endure its rigors in whatever atmosphere of oversight -- from the most positive to the most poisonous -- awaits our public servants, including our presidents.

For this reason, it would be short-sighted indeed for any witness before this body, or for any member of Congress, to approach the task of defining "high crimes and misdemeanors" from a narrowly result-oriented perspective. To put it bluntly, anyone who would raise the bar on what constitutes an impeachable offense simply in an effort to save President Clinton, whether for partisan reasons or in a spirit of genuine patriotism, may live to regret the abuses by future presidents that might be unleashed were we to establish a precedent making it too difficult -- more difficult than the Constitution, rightly understood, contemplated -- to remove a president whose misuse of the awesome powers of that office endangers the republic. And, conversely, anyone who lowers the bar on what constitutes an impeachable offense simply in an effort to "get" President Clinton, whether for partisan reasons or in a spirit of equally genuine patriotism, may live to regret the abuses by future congresses, and the resulting incapacity of future presidents, that might just as easily be unleashed were we to establish a precedent making it too easy -- easier than the Constitution contemplated -- to remove a president simply because, as in a parliamentary system, the legislature has come to disagree profoundly with his or her public policies or personal proclivities and has thus lost confidence in the President's leadership.

For these reasons, and because I -- like many others who have expressed grave doubts about the propriety of using the impeachment device to deal with what President Clinton is alleged to have done -- hold no brief for the President's behavior and regard it as both inexcusable and worthy of condemnation, I believe the situation in which we find ourselves contains powerful, built-in safeguards -- safeguards that ought to function well to prevent all people of good will from artificially making the category of impeachable offenses too narrow or too broad. Not knowing whose ox might be gored in the long run by an error in either direction, anyone who takes the task ahead with the seriousness its nature demands will necessarily proceed under what the philosopher John Rawls famously described as a veil of ignorance(2) that can help us all go forward in a manner sufficiently focused on the long run and insulated against the temptations of short-term rewards and punishments.

With that preface, I turn to the principles that I believe ought to guide the search for the appropriate definition of impeachable offenses.

Because Congress has the last word in defining what constitutes an impeachable offense, it is more important, not less, that Congress get it right. It appears to be common ground that judicial review would be unavailable to check the House or the Senate in their definitions of high crimes and misdemeanors under Article II, Section 4 of the Constitution. The Supreme Court held in Nixon v. United States, 506 U.S. 224 (1993) -- in a case involving former federal judge Walter Nixon -- that Article I, Section 3, clause 6, which says "[t]he Senate shall have the sole Power to try all Impeachments," precludes Supreme Court review of whether the Senate, rather than sitting as a jury of 100, may instead delegate the task of hearing and reporting evidence to a committee. It would almost surely follow that Article I, Section 2, clause 5, which says "[t]he House of Representatives . . . shall have the sole Power of Impeachment," precludes Supreme Court review of whether the House has proceeded on a definition of impeachable offenses that is too lax or too strict. Nor is it at all plausible that the Chief Justice, who under Article I, Section 3, clause 6, "shall preside" when the "President of the United States is tried," would control the Senate's definition of an impeachable offense.

Thus, Congress is essentially on its own in this vital realm. But that is not to say that the deliberately political process of impeachment that the framers left unpoliced by judicial overseers is not bound by the Constitution -- by what it says as to impeachable offenses, and by what it means by what it says. Article VI provides that all Senators and Representatives "shall be bound by Oath or Affirmation, to support this Constitution." That duty is not relaxed whenever the judiciary is not on guard; it is heightened. Any solace that members of either the House or the Senate may sometimes take, in voting for a measure of contested constitutionality, that the Supreme Court will step in and save them from constitutional error if they are wrong -- solace that I have elsewhere argued is inappropriate even when judicial review is in fact available to conduct just such a rescue mission(3) -- is manifestly unavailable here. Err here, and live forever with the consequences, for no judge will appear as a deus ex machina to set the constitutional system straight. Thus, the statements sometimes heard to the effect that an impeachable offense is whatever the House and Senate say it is(4) are true only in the most cynical and constitutionally faithless sense. If those statements mean that Congress can "get away with murder" in this sphere, they are literally correct. But there are consequences to be suffered from defying the Constitution, even if those consequences do not include being reversed by judges. And if those statements about impeachable offenses being a content-less category, a mere mirror for the preferences of members of the House and Senate, mean that Congress simply is not constrained by the Constitution in this matter, then those statements are flatly false. Congress is indeed constrained, even if the only enforcer of that constraint is its own conscience.

This first principle has one significant corollary. When we say it is important that Congress get it right, and even more important because no court stands guard to keep the balance true, we should realize that we are speaking not simply of the Senate, whose task it is to try impeachments brought to it by this body, but of the House as well. Some have suggested that, because it will fall to the Senate, in any case where this body returns a bill of impeachment, to make a final judgment as to whether something the House deems impeachable is in fact impeachable, the House is somehow relieved of the full burden of having to decide the issue for itself. Passing the buck to the Senate -- impeaching because one thinks what the accused official did might well be deemed impeachable -- would be a profoundly irresponsible breach of the duty laid upon this body by Article I.

The prospect of a trial in the United States Senate, regardless of which federal officer is in the dock, cannot be equated with the prospect of an ordinary trial, civil or criminal, in the courts of law. When the Senate is enlisted to perform this unique task, not even delegating part of its work to a committee can obscure the inevitable distraction from the Senate's normal and proper functions in the lawmaking process. And when the Senate is asked to perform this task in the special case of a sitting president, both the distractions from its legislative role and the consequences for the nation as a whole, internationally as well as domestically, are monumental. The one occasion on which the Senate sat in judgment on a president, in the trial of Andrew Johnson,(5) provided just a foretaste of the far greater distractions and divisions that such a trial in the modern era would entail, whatever its outcome.

This is not to say that the House should shrink from impeaching a president where impeachment is called for; it is to say, however, that the consequences of passing the matter off to the Senate in order to send a message of disapproval or otherwise to avoid seeming to condone presidential misbehavior are far too grave to make that an acceptable option. If members of this body believe the President should be censured, mechanisms to achieve that end are available. If members believe the President should be criminally prosecuted, that remains an option after he leaves office. But allowing uncertainty over whether these other modes of accountability will be brought to bear in a timely and effective way to tempt one into voting to impeach where there has been no high crime or misdemeanor, taking refuge in the confidence that the Senate will not muster the requisite two-thirds vote to convict, would set a horrific precedent -- and would punish the entire nation in order to administer punishment to the President. I would urge every member to focus not on what we should do to Bill Clinton but on what impeaching Bill Clinton would do to the country -- and to the Constitution. To that end, it is vital that the House get it right, and not rely on the Senate to come to the rescue.

Getting it right means taking seriously exactly what the Constitution says on the subject, as well as the context in which the Constitution says it. When we look at the words of Article II, Section 4, telling us that the offenses for which presidents or any other civil officers of the United States may be impeached and, on conviction, removed from office, we encounter the curious phrase -- familiar today only because we have all been steeped in this business for some time -- "high Crimes and Misdemeanors." To take those words and their context seriously, it is essential that we not stop with the easy observation that they are theoretically capable of various definitions, that they have fuzzy boundaries, that not everybody agrees exactly on what they mean, and that they might indeed mean big crimes and little ones. Neither writing a constitution nor reading and applying one is a merely theoretical exercise. Yes, those words could mean any of a number of things, but the fact that this is the case with many, perhaps all, constitutional provisions does not give us license simply to fill in the meanings we find most pleasing.

We deal in the Impeachment Clause with one of the Constitution's architectural cornerstones. It identifies a key feature of the Constitution's structure, and of the form of government the Constitution created. As I, and many others, have argued in other settings, constitutional provisions of this structural sort are the least likely candidates for translation into open-textured, highly fluid, norms and ideals.(6) Unlike the Constitution's command that no state deprive anyone of "liberty" without "due process of law," for example -- a command that is famously flexible and whose content has evolved, many of us think quite properly, with the changing times -- the provision stating the circumstances in which federal officials, including presidents, may be impeached, convicted, and removed from office ought to be given as fixed and firm a reading as the logic of the situation permits. The basic criteria for what makes something a "high crime" or "misdemeanor" in the impeachment context should not be permitted to "morph" with the ebb and flow of attitude and opinion -- although, of course, as times change the set of acts that might represent abuses of power or assaults upon the state might change as well.

Some, though not I, think that at least the criteria for what makes something fit into a given constitutional category should be constant over time for every part of the Constitution, properly construed;(7) for them, it should be true a fortiori for the Impeachment Clause. For the rest of us, the important point is that the clause defines not simply the rights of individuals but the very design of the government on which we must, in the end, rely to defend those rights. To raise or to lower the impeachment bar as time goes on is to move the nation closer to an imperial presidency or to a parliamentary system, depending entirely on which way the impeachment winds are blowing. But those are not changes we should make casually or as the accidental byproducts of steps taken for entirely different reasons. If it is a parliamentary system people want, or something closer to such a system than we have had for two centuries, then amending the Constitution to achieve such a system or an approximation thereto is the only constitutionally proper course. Weakening the presidency through watering down the basic meaning of "high Crimes and Misdemeanors" seems a singularly ill-conceived, even a somnambulistic, way of backing into a new -- and, for us at least, untested -- form of government.

What, then, did "high Crimes and Misdemeanors" mean when those words were inserted into the Constitution? The surrounding text gives us more than a slight clue, for the words are embedded in the larger phrase, "Treason, Bribery, or other high Crimes and Misdemeanors." The word "other" is a dead giveaway: high crimes and misdemeanors are offenses that bear some strong resemblance to the flagship offenses listed by the framers -- treason and bribery. That the framers' choice of words here was entirely deliberate is most clearly shown by the fact that, when it came to the very different question of which offenses would be subject to interstate extradition, the framers began with the categories "treason, felony, or high misdemeanor,"(8) but ended by replacing the phrase "high misdemeanor" with the phrase "other crime,"(9) which evidently seemed more appropriate in a constitutional provision -- Article IV, Section 2, clause 2 -- dealing not with abuse of power or subversion of the constitutional order but with ordinary common-law or statutory crime. That alone should tell us that reading Article II's reference to "high Crimes and Misdemeanors" as some sort of shorthand for major and minor criminal offenses, or even as shorthand for felonies -- that is, for the most serious crimes -- would be a mistake. When the Constitution's authors meant to identify a particularly serious category of crime, they knew just how to do it. Thus, not only does the Interstate Extradition Clause speak of persons "charged in any State with Treason, Felony, or other Crime," but the Privilege from Arrest Clause speaks of congressional immunity from arrest during attendance of a congressional session "in all Cases, except Treason, Felony and Breach of the Peace." Article I, Section 6, clause 1. And the Grand Jury Clause of Amendment V guarantees "a presentment or indictment of a Grand Jury," with certain military exceptions, whenever a person is "held to answer for a capital, or otherwise infamous crime."

It follows that "high Crimes and Misdemeanors" cannot be equated with mere crimes, however serious. Indeed, it appears to be all but universally agreed that an offense need not be a violation of criminal law at all in order for it to be impeachable as a high crime or misdemeanor. A president who completely neglects his duties by showing up at work intoxicated every day, or by lounging on the beach rather than signing bills or delivering a State of the Union address, would be guilty of no crime but would certainly have committed an impeachable offense. Similarly, a president who had oral sex with his or her spouse in the Lincoln Bedroom prior to May 23, 1995 (the date on which D.C. Code Ann. '22-3502 was repealed),(10) or in a hotel room in Georgia,(11) Louisiana,(12) or Virginia(13) at any time, would be guilty of a felony but surely would have committed no impeachable offense.

And that brings us back to the word "other." What distinguishes certain offenses as "high Crimes and Misdemeanors" must be not the fact that serious crimes are involved but the fact that those offenses are similar, in ways relevant to what the devices of impeachment and removal are for, to treason and bribery. But that in turn means that, like treason and bribery, high crimes and misdemeanors, as terms of art, must refer to major offenses against our very system of government, or serious abuses of the governmental power with which a public official has been entrusted (as in the case of a public official who accepts a bribe in order to turn his official powers to personal or otherwise corrupt ends), or grave wrongs in pursuit of governmental power (as in the case of someone who subverts democracy by using bribery or other nefarious means in order to secure government office and its powers, or in order to hold onto such office once attained). And, sure enough, even a cursory examination of the precise history of the phrase "high Crimes and Misdemeanors," and of the path that phrase took as it found its way from 14th century England into the Constitution of the United States in the summer of 1787, confirms that understanding of what the words meant.

Getting it right requires paying close attention to the historic evolution of the Impeachment Clause. The story is a lengthy one, but its relevant elements can be set forth briefly. The Constitutional Convention wrestled with various formulations of the grounds for impeaching and removing federal officials, starting out with phrases that focused on the abuse or non-use of official power -- phrases like "malpractice and neglect of duty"(14) and oscillating between variants that would have precluded impeachment and removal altogether in the case of the president, (15) and variants that leading delegates such as James Madison feared would reduce the president to a creature of the legislature.(16)

By late July 1787, the Committee of Detail had settled on "treason, bribery, or corruption" instead of "malpractice and neglect of duty,"(17) and shortly thereafter the reference to "corruption" was dropped.(18) On September 8, George Mason of Virginia objected that "treason and bribery" was too narrow.(19) That pair of words nicely captured the possibility that sufficiently grave assaults on the state, like high treason, might be carried out by a public official not through misuse of his official powers but in a traitorous sort of moonlighting -- shades of Aaron Burr come to mind, and of Jonathan Fassett, the Vermont assemblyman impeached by a state legislature in the colonial period for leading a mob that attempted to shut down a county court.(20) What, then, was missing? Not, apparently, room to multiply the examples of conduct injurious to the state but not involving abuse of official power. For Mason's proposed remedy for the narrowness he perceived was the addition of the term "maladministration,"(21) a term clearly limited to conduct involving improper use of the powers entrusted to a public official. Mason's argument for adding maladministration to treason and bribery was straightforward: There might be "attempts to subvert the Constitution" that would not fit the definitions of treason or of bribery but would nonetheless imperil the republic.(22)

James Madison did not disagree with Mason's reason for going beyond treason and bribery; he objected only to Mason's proposed solution in the notion of maladministration. And he objected not because he thought that notion too narrow, believing that conduct other than abuse of power should be impeachable, but because he feared that the breadth and vagueness of Mason's proposed addition would reduce the Executive to serving "during the pleasure of the Senate."(23) Mason then countered with an alternative borrowed directly from 14th century England: "other high crimes and misdemeanors against the State," which passed without debate (at least without debate recorded by Madison) by a vote of 8-3.(24) Immediately thereafter, "State" was replaced by "United States,"(25) which was in turn dropped without explanation by the Committee of Style when, on September 12, it reported the final language of the Impeachment Clause: "Treason, Bribery, or other high Crimes and Misdemeanors."(26)

There is no evidence that the deletion of the phrase "against the United States" was meant to do anything but eliminate a redundancy; the deletion appears to have been not substantive but stylistic, inasmuch as the very concept of "high Crimes and Misdemeanors," which when first used as early as 1386(27) denoted political crimes against the state, contained within its four corners the requirement that the system of government itself be the target of the wrong. Blackstone notes that the use of the word "high" in the context of treason implied not simply a more significant offense -- as in the notion of a major rather than a minor crime -- but, rather, an injury to the crown, distinguishing it from "petit treason," which involved betrayal of a private person.(28) For sufficiently grave abuses of official power -- abuses entailing encroachment on the prerogatives of another branch of government or usurpations of the power of popular consent and representation -- serious injury to the state seems implicit in the abuses themselves. But such injury to the state or, what amounts to the same thing, to the constitutional structure, may in exceptional cases be brought about by means other than an abuse of power entrusted to a public official. The judge or private citizen who lends support to an enemy engaged in an attack on the nation, or who leads a private mob in an attempted coup, does not abuse official power but threatens grave injury to the state, either in an act of treason or in what is surely "[an]other high Crime[] and Misdemeanor[]."

Although in the English practice impeachment was not even restricted to officeholders, much less to official misdeeds, and although the English practice did not limit penalties to removal from office and disqualification from further officeholding,(29) the American colonies, and later states, reacted against the enormous concentration of power in the legislature that borrowing these features of parliament's impeachment authority would entail. Influenced by the writings of John Adams and others, American states transformed impeachment by restricting it to officeholders, limiting it essentially to official misdeeds, and confining the punishment to removal and disqualification.(30)

Against this background, it apparently did not occur to the framers or ratifiers that some sufficiently monstrous but purely private crimes against individuals might require impeachment and removal of the criminal in order to safeguard the government and the people it serves. The ratification debates, like the debates at the Constitutional Convention, focused solely on high offenses against the state and on grave abuses of -- or gravely culpable failures to use -- official power. Thus, when Vice President Aaron Burr killed Alexander Hamilton in a duel in July 1804, leading to Burr's indictment for murder in New York and New Jersey,(31) Burr served out his term, which ended in early 1805, without any inquiry in the House of Representatives as to whether his murder of Hamilton might be an impeachable offense! Indeed, rather than urging their colleagues in the House to consider returning a bill of impeachment, eleven U.S. Senators wrote to the governor of New Jersey asking him to end the prosecution of the flamboyant Vice President, so as "to facilitate the public business by relieving the President of the Senate from the peculiar embarrassments of his present situation, and the Senate from the distressing imputation thrown on it, by holding up its President to the world as a common murderer."(32)

Today, I would suppose, the specter of being governed by "a common murderer" -- and of the United States being held up to the world as a nation so governed -- would lead at least some students of the English and colonial history to question whether the remedy of impeachment and removal must be withheld even from the most heinous of crimes, at least when committed by a sitting president, simply because the crime in question involved no abuse of presidential power and did not in itself endanger the nation as a polity. There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable omission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense.(33)

Exceptions to the general rule that an impeachable offense must itself severely threaten the system of government or constitute a grievous abuse of official power or both must not be permitted to swallow that rule. Both the text and the context we have examined, and the history of the phrase the framers used, preclude any casual movement from something like the example of murder committed by a sitting president to any broad notion that all serious crimes -- say, felonies involving the administration of justice -- are impeachable even if they are not committed through an abuse of the official powers entrusted to the alleged criminal, and even if their commission does not genuinely threaten the nation and its system of government.

It is always possible to argue, when confronted by a serious crime, that the system would crumble if everyone followed the wrongdoer's example. If everyone took President Richard Nixon's allegedly false filing of tax returns under oath, including backdating of documents, as a model to emulate, the nation's tax system, and thus its defenses, would crumble. Yet there was no realistic basis to suppose that the Nixon example would start any such stampede, and the simple proposition that, if all did as Nixon had done, the consequences would be catastrophic did not mislead the House Judiciary Committee into treating the President's alleged tax evasion as an impeachable offense: By a vote of 26-12, the Committee soundly declined to treat it as such.(34) Similarly, it is important to see the fallacy in the alluring argument that every instance of perjury, or of witness tampering, or of conspiracy to suppress evidence relevant to a civil proceeding or to a grand jury, significantly injures the legal system itself and thus the nation because, if everyone did it, the system obviously could not function. It is no doubt true that, if perjury and witness tampering became the order of the day, our government would be severely hurt. But if that were the test -- if an offense became impeachable even when it entailed no abuse of the offender's official position and caused no grave injury to the nation provided one could argue that such injury would ultimately occur if the offense became not exceptional but universal -- then the carefully crafted safeguards against legislative hegemony and presidential weakness hammered out at the Constitutional Convention would amount to nothing. Find a sitting president guilty of some offense that, if universalized, would bring down the system -- or maneuver the president into committing some such offense -- and one would, under the hypothesized test, have a solid basis for removing that president from office. These "sky is falling" arguments disrespect not only the Constitution's text and history; they disrespect common sense.

The Take Care Clause and the Presidential Oath of Office cannot properly be invoked so as to make the President of the United States more vulnerable to impeachment, conviction, and removal from office than other federal officials. We have already seen that the commission of a crime, whether state or federal, is neither a sufficient nor a necessary element of an impeachable offense. Indeed, the words "high Crimes and Misdemeanors" had little or nothing to do with the criminal law at the time they were incorporated into Article II of our Constitution; the term "misdemeanor" was not even employed in the criminal context, where it now connotes a minor offense, until centuries after the English period from which the framers borrowed it.(35)

All of that is true, some say, but the presidency is unique. The President alone takes a special oath whose every word is prescribed by the Constitution, an oath "faithfully to execute the Office of President of the United States and ... to the best of [his or her] Ability, preserve, protect and defend the Constitution of the United States." Article II, Section 1, clause 8. Beyond that oath, the President is enjoined by Article II, Section 3, clause 1 to "take Care that the Laws be faithfully executed." Thus, if the President should commit a federal crime -- not, it might be noted, a crime like murder, which typically violates only state law -- he or she will have failed to carry out the duty imposed by the Take Care Clause and, in a sense, will have violated his or her oath "faithfully to execute" the office.

Candor requires the concession that, for anyone who has not thought carefully about the Impeachment Clause and the consequences of this way of reading it, this line of argument has a beguiling simplicity and a down-to-earth appeal. But if this argument were to carry the day, it would follow that President Nixon should indeed have been impeached for filing a false tax return, and that presidents generally are in the unique position of being subject to impeachment and removal whenever it becomes possible to pin a federal offense -- any federal offense -- on them. Yet it simply cannot be the case under our Constitution that removing a sitting president should be easier, not harder, than removing a vice president, a cabinet officer, or a sitting federal judge. After all, the Constitution itself expressly recognizes the special gravity of what we do when we even try, much less remove, a president: It puts the Chief Justice of the United States in the chair to preside over the trial, something it does not do when any other federal officer, including the Vice President, is impeached and put on trial in the Senate. And, beyond this express recognition of how much is at stake, there is the brute fact that only when we put the President on trial are we placing one federal branch in a position to sit in judgment on another, empowering the Congress essentially to decapitate the Executive Branch in a single stroke -- and without the safeguards of judicial review. Neither of the other two branches of the national government is embodied in a single individual, so the application of the Impeachment Clause to the President of the United States involves the uniquely solemn act of having one branch essentially overthrow another. Moreover, in doing so, the legislative branch essentially cancels the results of the most solemn collective act of which we as a constitutional democracy are capable: the national election of a president. To suggest that, having deliberately rejected parliamentary supremacy at the founding of our republic, we should now embrace a theory that would make the President the most vulnerable of all federal officials to the drastic remedy of impeachment and removal -- truly the political equivalent of capital punishment -- is preposterous.

None of this is to say that the Take Care Clause is unimportant, or that presidential abuse that rises to an impeachable level might not take the form of a violation of that clause. Of course it might. Certainly, a president who ordered the IRS to stop collecting federal income taxes for six months as part of his reelection campaign, or the FDA to stop enforcing the laws against marijuana use because he was philosophically opposed to the regulation of marijuana or because he was widely known to have used it as a youth and feared accusations of hypocrisy, would have committed an impeachable high crime or misdemeanor of the most dramatic sort by shredding his obligation to execute the laws of the country. But that is a far cry from what occurs if a president personally violates several related federal criminal laws in the course of trying to cover up an embarrassing sexual affair, without turning any executive agency into an instrument of the president's wrongful conduct or otherwise abusing the powers of the presidency or working grave injury to the nation and its government.

It may be useful to contrast the conclusion that presidential misconduct even involving such offenses as perjury may, depending upon the circumstances, involve no abuse of official power and no serious harm to the system of government and hence no impeachable offense, with the potentially impeachable offenses that might have been uncovered -- and might yet be uncovered -- in the areas of inquiry with which the Office of Independent Counsel began its investigations of President Clinton more than four years ago. Thus, it remains theoretically possible that the President might be found to have committed impeachable offenses if there were convincing proof that he was personally connected to the allegations involved in "Filegate," where it is said that the White House procured some 400 FBI files on members of the Reagan and Bush administrations.(36) Clearly, a president who deliberately uses an executive agency to seek "dirt" on political opponents is abusing presidential power to undermine the political processes established by the Constitution and thereby cause the most serious injury to our constitutional system. There might even be circumstances in which a president, by deliberately looking the other way with a wink and a nod while lower executive officials performed such nefarious work while maintaining maximum plausible deniability for their chief, would have committed an impeachable violation of the Take Care Clause.

Similarly, if President Clinton were responsible for the abuses alleged in Travelgate, in which seven members of the White House travel office were fired in 1993 apparently to make room for a distant cousin of the President,(37) one might at least make a forceful argument that, despite the absence of serious harm to the nation as a whole, such corrupt misuse of presidential power would be so close to bribery that it too should qualify as a high crime and misdemeanor. So too if President Clinton had induced the Pentagon or The White House to break the ordinary hiring rules for that agency in order to find a sinecure for a young intern in exchange for her willingness to file a false affidavit.

But none of these things, and nothing truly comparable, has been alleged against President Clinton. Even if, for example, he arranged a job for the young woman in question at a private firm in the expectation that she would then be less likely to contradict his denial of any improper sexual affair, neither an abuse of presidential power as such, nor conduct demonstrably injurious to the nation, would have occurred, and impeachment would accordingly be improper.

The strongest case for identifying an impeachable offense in the allegations currently pending against the President is probably to be found in the claim that he committed perjury before the grand jury or obstructed its work not simply to avoid personal embarrassment and indictment for a private wrong (in the form of prior false statements under oath in a civil deposition into which the President felt he had been trapped), but to avoid a constitutional check by staving off impeachment -- even if the impeachment he sought to avoid would in fact have been unwarranted. If it could be shown that President Clinton deliberately sought to usurp the impeachment power of Congress -- part of which had been delegated through the Independent Counsel Act to the grand jury in this matter -- by preventing the referral called for in that Act from containing a full account of his own prior conduct, then at least the outlines of a high crime or misdemeanor might be visible.(38) But attributing to the President such a constitution-subverting program, rather than the more straightforward effort to minimize embarrassment and reduce the risk of criminal indictment, seems implausible and indeed unfair.(39) And, even assuming such an impeachment-triggering scheme, the threat of substantial harm to the nation that would be required to establish a high crime or misdemeanor is nowhere to be found.

Applying the principles set forth in this statement, therefore, I would be hard pressed to find in anything that has been alleged against President Clinton thus far a defensible basis to impeach and remove a president from office. What other options might be available to Congress in these circumstances, where the President himself has conceded that he behaved indefensibly, is beyond the scope of this statement. So too is the question whether, if indeed the public is tired of this whole matter and believes that the President has been made to suffer enough for his sins, Congress has some sort of obligation to let the matter rest.

One thing is clear in the latter regard: Anyone who insists that Congress has the converse obligation -- an obligation, having taken up the impeachment cudgels and begun to wield them in a setting that might on reflection prove ill-suited to such drastic remedies, to pursue this course to the bitter end -- is mistaken. Just as ordinary prosecutors have discretion not to push their power to the outer limits, and not to take to trial someone they believe it would serve no useful purpose to pursue further, so too the House of Representatives, entrusted by Article I, Section 2, clause 5, with the "sole Power of Impeachment," has discretion -- even more clearly than does the average prosecutor -- to cease and desist rather than pressing on. Article II, Section 4 contains only one mandatory provision: It mandates that the President or any other federal officer "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." If the Senate convicts, there is no room for clemency; the convicted offender must be removed. But that is the only "must" in the picture.

Some argue that, at least if something that might technically fit the definition of a high crime or misdemeanor is believed to have been committed by the President, the House has a "duty" under the Constitution to impeach the president and hand him over to the Senate for trial. But there is no more in the Constitution to support that argument than there is to support the argument that, having begun a formal impeachment inquiry, the House must see the matter through. The Constitution, in this matter as in many others, leaves ample room for judgment, even for wisdom, in the deployment of power. What it leaves no room for is the impeachment of a president who has not committed "Treason, Bribery, or other high Crimes and Misdemeanors."

1. For identification purposes only.

2. See John Rawls, A Theory of Justice 12 (1971).

3. See, e.g., Laurence H. Tribe, American Constitutional Law 16 (2d ed. 1988).

4. See, e.g., 116 Cong. Rec. H11913 (daily ed. Apr. 15, 1970) (statement of Rep. Gerald Ford). But four years later, Gerald Ford, as Vice President, said he could find no valid grounds to impeach President Richard Nixon. See Philip Shabecoff, N.Y. Times, at 1 (Jan. 16, 1974).

5. See generally William H. Rehnquist, Grand Inquests 143-274 (1992).

6. See Laurence H. Tribe, Taking Text And Structure Seriously: Reflections On Free-Form Method In Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1245-1248 (1995).

7. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38-47, 133-43 (1997)(dialogue with L. Tribe).

8. 2 Max Farrand, The Records of the Constitutional Convention of 1787 174 (1911).

9. See id. at 2:443.

10. See D.C. Law 10-257, § 501(b), 42 DCR 53.

11. See Ga. Code Ann. § 16-6-2 (criminalizing oral sex and expressly excluding marriage as a defense).

12. See La. Rev. Stat. Ann. § 14:89 (criminalizing "unnatural carnal copulation" and making no exception for married couples); State v. Phillips, 365, So.2d 1304, 1308 (La. 1978) (holding that the statute includes oral sex).

13. See Va. Code Ann. § 18.2-361 (criminalizing oral sex and making no exception for married couples).

14. 1 Max Farrand, The Records of the Constitutional Convention of 1787 78 (1911).

15. Although no surviving draft would have eliminated presidential impeachment altogether, that option was favored by Charles Pinckney of South Carolina, among other delegates. See id. at 2:64-69.

16. See id. at 2:550.

17. See id. at 2:172.

18. See id. at 2:495.

19. See id. at 2:550.

20. See Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 84-85 (1984).

21. See 2 Max Farrand, The Records of the Constitutional Convention of 1787 550 (1911).

22. Id.

23. Id.

24. Id.

25. See id. at 2:545.

26. Id. at 2:600.

27. See 1 Cobbett's Complete Collection of State Trials 89-91 (1809).

28. See 4 Sir William Blackstone, Commentaries on the Laws of England 75 (15th ed. 1809).

29. See Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 67 (1984).

30. See id. at 64-67.

31. See 1 Milton Lomask, Aaron Burr: The Years from Princeton to Vice President, 1756-1805 353-361 (1979). The New York murder indictment was quickly replaced, for want of jurisdiction, with the misdemeanor of uttering and sending a challenge. See id. at 357-58.

32. Charles Biddle, Autobiography of Charles Biddle 308 (1883) (quoting the letter).

33. See Charles L. Black, Impeachment: A Handbook 39 (1974) (advancing a similar argument).

34. See Sam J. Ervin, Jr., The Whole Truth: The Watergate Conspiracy 282 (1980).

35. See 2 Sir William Holdsworth, A History of English Law 357, 365 (4th ed. 1982).

36. See John F. Harris & George Lardner, Jr., Key White House Figure in FBI Files Case on Leave, Wash. Post, at A1 (June 16, 1996).

37. See Ann Devroy & Micheal Isikoff, Clinton Staff Went Past Reno to FBI, Wash. Post, at A1 (May 25, 1993).

38. See Report of the House Judiciary Committee, Impeachment of Richard M. Nixon, President of the United States, Report No. 93-1305, at 188 (Aug. 20, 1974) (third article of impeachment) (alleging that Nixon had assumed "to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives").

39. President Nixon's conduct in thwarting the work of the House Judiciary Committee involved efforts to conceal his own involvement in "actions demonstrated by other evidence to be substantial grounds for impeachment of the President," id., something that could not be said of any possible thwarting of the grand jury's inquiry by President Clinton, and something for which no explanation extrinsic to the Executive-Legislative clash could be offered.