The Federalist Society

Remedies for Presidential Misconduct

Criminal Law & Procedure Practice Group Newsletter - Volume 3, Issue 1, Spring 1999

May 1, 1999

Thomas B. Griffith, Paul Gigot, Jim Hamilton, Peter J. Wallison

A Panel Presented on November 13, 1998 at the Federalist Society's 1998 National Lawyers Convention by the Federalism & Separation of Powers Practice Group.

TOM GRIFFITH: Let us begin with a review of first principles. When the Framers began their work in Philadelphia in 1787, there was at least one principle upon which there was consensus: Congress was to be the primary political force in the Federal Government. The Framers' expression of that view is found throughout the Constitution, including their description of Congress' powers in the first article of the Constitution.

The role of the executive, by contrast, was hotly debated, reflecting in part the Framers' commitment to republican government, but also the historical yearning for monarchy. Thanks in large measure to the success in New York of an independently elected executive, and the force of the arguments by James Wilson of Pennsylvania in favor of a unitary executive, what emerged from the Philadelphia convention was the foundation for the creation of a powerful executive.

The Antifederalist fears were ameliorated in part by the realization that the first occupant of the office of the President and thus the chief architect of its traditions and practices was very likely to be George Washington, the very epitome of civic virtue. Nevertheless, the Constitution, drafted by men whose view of a fallen human nature made them deeply suspicious about any concentration of governmental power, let alone concentration of power in a single person, created multiple checks intended to prevent the President from overreaching his powers.

First, the President was placed under oath, an outward pledge made under an immediate sense of responsibility to God. That oath was to faithfully execute his office and to preserve and defend the Constitution. The President's term was also fixed at four years, meaning the electorate could remove him from office by the ballot.

Second, Congress was given the power to appropriate, to legislate, to ratify treaties, to play a role in the appointment of executive and judicial officers, and by virtue of the impeachment clauses, to remove from office those guilty of treason, bribery, and other high crimes and misdemeanors.

With those express powers came the inherent power of Congress to investigate the conduct of the executive branch. Furthermore, over time we have agreed as a people that the President is subject to judicial compulsion in at least the civil arena, and to some extent within the criminal area as well.

Given this scheme, what are the appropriate remedies that should be directed at Presidential misconduct? The impeachment clauses create a remedy only twice pursued in earnest in the history of our Republic. Historically, Congress has on occasion formally reproved the President in today's parlance, a censure. The creation of an independent counsel revived the debate raised but not resolved by the Framers over whether a sitting President is properly subject to indictment by the judicial branch. But are there other remedies?

PAUL GIGOT: Rather than join the debate over legal remedies, what I want to do for a few minutes this morning is talk about what I think we've learned from the Clinton years about the best way to hold the President accountable for wrongdoing. And in particular I want to make what is perhaps an unconventional argument that I hope some of you might take issue with. I want to argue that the cause of presidential accountability in the real political world would have been much better served had we never heard of Independent Counsel Kenneth Starr.

First, Mr. Starr's appointment in 1994 had the ironic effect of giving Mr. Clinton an all-purpose political shield on questions of ethics during the last two years of his first term. Whitewater questions would come up in the press, and the President could and did say publicly that the independent counsel is investigating that, even if quietly his lawyers were resisting and resisting and resisting. But the public heard him say I'm cooperating, and plausibly he was. FBI files? I'm cooperating fully with the independent counsel. Travelgate? I'm cooperating. We're doing all we can. Mr. Starr is looking into that.

Far from being Mr. Clinton's enemy, by bringing no significant action against the Clinton White House before the election, Mr. Starr became Mr. Clinton's political shield up through the months before 1996 and the election of 1996.

Now this White House line changed after the election, of course, which leads to my second point. I think the Starr example shows that the very independence of the independent counsel statute makes him an ideal political foil. Because Ken Starr was appointed not by Janet Reno, but by Judge David Sentelle and the three-judge panel, who knows Lauch Faircloth, Judge Starr was immediately accused of being a political prosecutor. It's fair to say that Ken Starr's political mistakes sometimes played into this argument, but I would argue that the White House would have found some reason to demonize him in any event.

The fact that those of us who know Judge Starr realize that this is especially absurd in his case. As a political matter, from now on every White House will spend months conditioning a public that is already cynical about politics, cynical about political motives, that every special counsel is a mere political partisan.

Third, the Clinton and Starr experience shows that an independent counsel lets the regular institutions of accountability in our system off the hook. Those of us in the press who play an important role of oversight, probing, and digging, will instead stop when an independent counsel is appointed and basically sit and wait for leaks from lawyers or witnesses before the grand jury. It's a hell of a lot easier. We start to report on events, not as a case of Presidential accountability, but as a political fight between the White House and the independent counsel's office. We play into that very spin the White House tends to make. Meanwhile Congress uses the independent counsel as an excuse to avoid the truly hard work of executive oversight.

Now it's safe to say that no one in the current Republican Congress reminds me of John Dingell when it comes to oversight. But even short of John Dingell, I think it's safe to say that this is in part because oversight is hard. It's difficult work. It sometimes requires that you pay a political price; you invest political capital, and frankly many Republicans are only too happy to pass the buck to Ken Starr.

Worst of all, Mr. Starr's appointment gave Janet Reno a free pass. The Attorney General was able to toss every new scandal , from FBI files, to Travelgate, right into the lap of Mr. Starr and wash her own hands of it. I think most incredible was the fact that she paid no political price for siding with the White House on privilege claims to resist testimony against an independent counsel's office, that is, according to the Supreme Court argument in Morrison v. Olson, technically under her jurisdiction. That is after all why the Court said the Independent Counsel statute was constitutional.

It may be true to argue that without Mr. Starr we would never have learned about Monica Lewinsky. On the other hand, given the Paula Jones case, we very well might have found out. And the fact is that it is Mr. Starr who filed the Lewinsky case with Congress. This prosecutor, who's been so demonized all these months, has now made it easier for Democrats to justify resisting the President's impeachment. They've been able to change the subject from the President's lying to the conduct of Ken Starr's investigation, as you will see when Mr. Starr goes up next week, I suspect.

Now again I'm not saying that Ken Starr should not have proceeded as he has. The independent counsel statute is the law of the land and should be followed as long as it is the law of the land. Mr. Starr has had a very difficult job, a job not many of us would want to do, I dare say. But in hindsight I think we can argue that the cause of Presidential responsibility would have been better served had no independent counsel statute existed and had we stuck with the checks and balances the Founders of our Constitution envisioned.

In the case of Whitewater, Janet Reno had already appointed a special counsel under her own auspices, and I suspect that she would have been obliged to do the same thing about the FBI files case as well, and perhaps even been more likely to appoint one in the campaign finance scandal case if Starr hadn't already existed out there as an example that the public said they would just as soon avoid.

The special counsel within the jurisdiction of the Justice Department is what existed in both the Watergate and the Teapot Dome cases, after all, and those cases worked out pretty well. I think it's safe to say the White House would not have been able to demonize someone appointed under the Attorney General's auspices, and if Janet Reno had appointed someone who didn't do the job or attempted to cover up, that would in turn have become a political issue.

No matter how the impeachment debate ends up in the next few weeks or months, the conclusion I draw is that we're much better off going back to the Constitution. When the Independent Counsel law comes up for renewal this year, I hope Congress kills it. Then those of us, the rest of us who are supposed to hold Presidents accountable—the Congress, the press, the judiciary—can go back to doing our jobs and not pass the buck.

JIM HAMILTON: Some think, including many Republicans, I believe, that the steam has gone out of the impeachment proceedings after the election. I think this remains to be seen. Certainly the Republicans on the House Judiciary Committee are pushing ahead. It is not clear to me why they have chosen Ken Starr to be the only witness for the majority. It's also not clear to me why the Democrats at one time had contemplated calling him.

Starr will make out a forceful case against the President, despite the criticism he has received that Paul talked about. He is a man of ability. He is going to appear mildmannered when he testifies before the committee. He will be agreeable. You remember when he was the chief appellate lawyer of the United States he was referred to as the Solicitous General. And I suspect that will come across next week.

But Mr. Starr of course is also vulnerable, for example, for pursuing the Lewinsky matter without court approval, for interrogating her for an entire day without her lawyer being present, for his prior contacts with the Jones camp, and for the alleged leaks of grand jury information that certainly have drawn the attention of Chief Judge Norma Johnson. I can assure you that all of these issues will be explored in some detail by the Democrats on the Judiciary Committee.

But my bottom line is that both sides — both sides — should be leery of Mr. Starr's testimony, and next Wednesday will be an interesting day.

Now as we all know, the Constitution allows impeachment only for high crimes and misdemeanors such as treason or bribery. If you read what the Framers had to say, I think it's clear that the Constitution is basically talking about crimes against the state. George Mason, who proposed this language, "high crimes and misdemeanors," said it referred to great and dangerous offenses, that is, to attempts to subvert the Constitution, and Alexander Hamilton spoke of abuse of some public trust and of political offenses that relate chiefly to injuries done to the society itself.

Now I certainly would concede that if the President engaged in some heinous crime like murder, a crime where it would be dangerous to have a perpetrator of an act of this sort at liberty, that would be an impeachable offense. But I think short of that what the Founders were talking about were crimes against the state. And it's important that the impeachment bar be kept rather high. We don't want to change our system to a parliamentary system where a President can be forced out by a no-confidence vote and the result of a Federal election negated.

Now I realize that people of good will can disagree about whether what the President has done is an impeachable offense. I agree that his conduct is reprehensible and should be punished. But I would argue that lying about essentially a private affair is not a grave offense against the state. It is more of a low crime than a high crime. Lying about treason, bribery, matters of national security, might be a high crime, but not this. Hundreds of historians and law professors agree with this assessment and apparently so also do the voters.

In my view a more fitting and proportional punishment than impeachment would be a censure resolution by the Congress combined with a fine of some bite. Now some argue that a censure resolution is not constitutional, that the remedy is impeachment or nothing. But I submit to you that that notion is wrong. When Thomas Jefferson was the Vice President, and of course then the President of the Senate, he wrote a manual for his own use that is now referred to as Jefferson's Manual, and this manual has been long relied on, particularly by the House, and it is still reprinted in part in the manual of the House Rules that is in use today. In it Jefferson observed that a House could use the form of resolution to express its principles, opinions, and purposes, and indeed the House manual, the current House manual, says that in modem practice concurrent resolutions have been developed as a means of expressing the principles, opinions, and purposes of the two Houses.

The eminent law professor, Charles Black, in his book on impeachment, specifically argues that a concurrent resolution of censure might be used to condemn the actions of a President when the impeachment remedy is just too severe.

Moreover, according to the Congressional Research Service, President Jackson was effectively censured by the Senate, and Presidents Buchanan and Tyler were effectively censured by the House.

I frankly don't see why the Republicans resist the notion that they may in some form, like a resolution, rebuke the President. I mean, goodness gracious, they rebuke the President every day. Turn on C-SPAN. Read the Senate Whitewater and campaign finance reports. There's plenty of rebuke being delivered.

I think a censure resolution would not be, as some have contended, an unconstitutional bill of attainder. The last time I looked, a bill of attainder is legislation. It requires the signature of the President. A concurrent resolution of course is not legislation, and requires no Presidential signature.

I agree that the President could not be forced, as President Ford has suggested, to take his censure in the well of the House, and I also agree that the President could not be forced to pay a fine. But in my judgment the President would be well advised to accept some form of censure plus as punishment. And of course if the President agrees to some form of censure plus to put the matter at rest, I think there would be no constitutional problem.

Now I'd like to conclude with a personal thought. With the Republicans somewhat dispirited and in disarray, some have suggested, some commentators have suggested that no impeachment or sanction of any kind may result. I am a long-time friend and supporter of President Clinton, but I personally would not advocate a result where there is no sanction. The President has acted badly, and he's lied about it, and in my view some punishment is appropriate. And I say this not only as a citizen, but as the father of three teenagers who know the President. I think the young people of this Nation need to know that no matter how accomplished one is, how brilliant, affable, powerful, that people who do wrong will be punished. This is important, an important message to leave.

Thus I hope that the Congress, Democrats and Republicans working together in some bipartisan manner, if that is still possible, will find an appropriate way to express their condemnation of the President's conduct through some type of censure resolution. And I hope that the President will have the grace and the good judgment to accept a congressional sanction as a continuing part of his atonement. I hope this can be done quickly, and thus that the Nation can be saved from a prolonged, unseemly, and degrading proceeding. Quite frankly, I think we've all heard enough about Monica Lewinsky.

PETER WALLISON: Jim Hamilton suggested that although high crimes and misdemeanors probably were intended to be offenses against the nation in some way, he had to admit that there were circumstances under which a particular kind of crime which is not an offense against the nation—and he mentioned murder, but there could be many others—would be impeachable. And that's obviously true. There are some crimes that are not offenses directly against the nation which would have to be impeachable, because impeachment is the only way to remove an offending President from office.

But, once you admit that some crimes can be impeachable, even though not offenses against the Nation, then the testimony of people like Arthur Schlesinger that lying under oath or obstruction of justice does not rise to the level of an impeachable offense becomes simply an opinion. There is obviously no historical basis for this view. Nor is this strictly a legal question.

The fundamental question I think is not whether lying under oath is an impeachable offense. The fundamental question is whether the impeachment process itself is a political process or a judicial process.

The evidence is very strong, I think, that the Framers intended it to be a political process. They had the opportunity to bring the Supreme Court into the process in some way when they were developing the constitutional provisions here, and they chose not to do so. They left it entirely in the hands of the political organs, and House and the Senate.

Now the implications of this for our current situation are I think quite significant. There are fundamental differences between a judicial and a political process. In a judicial process the offense is defined, the facts are compared to the offense, and if there is a congruence between the facts and the offense, the punishment is prescribed. Generally speaking, the objective of the judicial process is justice.

In a political process, however, a number of competing considerations and objectives are weighed. Generally speaking, the objective is an outcome that will be in the interests of the Nation as a whole. To be sure, it is still necessary to find an impeachable offense. Even though it is not possible at this juncture to determine precisely what the Framers meant by the term "high crimes and misdemeanors" — and I would suggest it is a fruitless effort, almost a delaying tactic, to insist that it be defined before Congress acts on this matter — we know that they meant something more than maladministration. They rejected that in the course of their debates, and, therefore, they had something in mind that was fairly serious. Indeed, to maintain the integrity of our constitutional system, we have to continue to insist that serious offenses are the standard by which an impeachment might be maintained.

However, once it is determined that the President has committed an impeachable offense, the matter does not necessarily end there if we are talking about a political process. I suggest that if it is a political question, then after it is determined that the President has committed an impeachable offense, the next question is whether he should be impeached, convicted, and removed from office.

I happen to believe that lying under oath to a grand jury is an impeachable offense, but I still believe that the House Judiciary Committee could make such a finding and not necessarily vote to recommend impeachment to the whole House. This would be because in their judgment impeachment and removal from office would not be in the best interests of the Nation.

Let me give an illustration. Assume that a President does exactly what Richard Nixon did in the Watergate matter. And let's assume that shortly after the discovery of the so-called "smoking gun" tape which precipitated his downfall and what would ultimately probably have been his impeachment, the United States faces a serious crisis—let's say an earthquake on the west coast, or a biological or nuclear attack by terrorists. Would it be reasonable for Congress at this juncture to impeach and remove a sitting President? I don't think so. This might be the outcome in a judicial proceeding where the wheels of justice more or less grind on, but in a political context Congress would be expected to make a somewhat nuanced choice about whether it makes sense to remove the President when the Nation is facing a crisis. And I suggest that if we think about it in those terms, we begin to see that it must be a political decision that Congress is making here, and not necessarily a judicial decision.

Seen in this light, then, it is not necessary for Congress to impeach the President in order to—in Henry Hyde's words—vindicate the rule of law. The rule of law will be vindicated if and when the President is indicted and tried and either convicted or acquitted after he leaves office, and we are assuming here that a sitting President cannot be indicted while he is in office. That's a question, but it seems to be accepted by the current independent counsel and a number of other legal scholars.

By the same token, impeachment should not be seen as a punishment. It is a process to remove from office a person who has shown by his acts that he is not fit to hold the office, that it would be inimical to the interests of the Nation as a whole. Instead, Congress should consider what is in the best interests of the Nation at this point.

With this background, we might consider today's situation. What is in the best interest of the Nation at this point? I'm obviously not going to suggest what Congress should do. If I were a Congressman, I would recommend that, if the evidence so shows, make a finding, that the President lied under oath, and obstructed justice, and declare its view that these are impeachable offenses. That vindicates for the future the fact that serious crimes, things such as perjury and obstruction of justice, can be impeachable. Then Congress should declare that after the President leaves office, he should face the punishment for this if in the course of the appropriate criminal trial it is determined that he is in fact guilty. He should be tried and ultimately face whatever penalties an ordinary person under the law would face.

However, Congress can still state at that point, for a number of supervening reasons—even though the President has committed an impeachable offense—he should not be removed. Maybe one of those reasons would be that he only has two more years to serve, or that there is not a sufficient consensus in Congress that the President be removed from office.

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