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    Clinton & the Constitution
    Impeaching this president is constitutionally unsound

    September 18, 1998
    The Iranian

    In deciding whether President Clinton should be impeached for offenses alleged in the Independent Counsel Kenneth Starr's report to the U.S. House of Representatives in connection with the Jones-Lewinsky affair, the members must bear in mind that the House is under no constitutional or other legal compulsion to institute impeachment proceedings. For whatever reason, should the majority of members resolve to impeach Clinton, then the matter will transcend his personal circumstance and inveigh the Constitution's delicate balance itself.

    The Constitution is a fragile document; the violence done to its intents and purposes on this occasion will visit the generations until such time as the Supreme Court or a constitutional amendment would halt future abuses of the impeachment process.

    Under article 2, section 4 of the Constitution, impeachable offenses consist of "Treason, Bribery, or other High Crimes and Misdemeanors." The Constitution itself is silent on the definition of "high crimes and misdemeanors." In deciding whether to impeach the president, therefore, each House member should ask whether each offense alleged by Mr. Starr rises to the level of a high crime or misdemeanor, as intended by the framers of the Constitution.

    One may take the term contemplated offenses as grave as treason, bribery, and corruption, about which the framers agonized at length during the 1787 Constitutional Convention. The legislative history of the "impeachment clause" itself may be instructive in that the framers did not intend for the "National Inquest," as Hamilton described it in Federalist No. 65, to apply to garden variety offenses.

    On Saturday, September 8, 1787, Col. Mason of Virginia proposed that "maladministration" be added to treason and bribery as ground for impeachment of the president. James Madison criticized the term as being too vague which would make the president's term in office "equivalent to a tenure during the pleasure of the Senate." Mason withdrew "maladministration" and proposed instead "other high crimes and misdemeanors against the State," which was then amended in part to read "against the United States." The language was adopted, while Madison worried still that the Senate could try the president for "any act which might be called a misdemeanor." Inexplicably, the phrase "against the United States" did not make it out of the drafting committee and in the final draft of the Constitution.

    The notion that the impeachment clause apply to high offenses against the state is supported by Hamilton in Federalist No. 65. Impeachment, he wrote, deals with "those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may, with peculiar propriety, be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." Ominously, in the same writing, Hamilton predicted that impeachment proceedings would "agitate passions of the whole community," become a partisan matter, and be influenced by "more by the comparative strength of parties than by the real demonstration of innocence or guilt."

    Take, for example, the charge of perjury as leveled at Clinton in the context of the Paula Jones deposition. Experts claim, the fact of perjury in a civil suit is hardly ever prosecuted. Although still an offense, it hardly rises to the level of high crime or misdemeanor, so as to warrant or merit impeachment proceedings. If not impeachment, then how is the president to answer for the alleged offenses? Under article 1, section 3 of the Constitution is clear on this point: Whether impeached, convicted and removed, or not, the president "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." If the perjury alleged is a garden variety offense, then, as Hamilton wrote in Federalist No.69, the president should be prosecuted and punished "in the ordinary course of law" or, as Hamilton wrote in Federalist No.75, the president still will be liable "to the forfeiture of life and estate by subsequent prosecution in the common course of law."

    Inevitably, for precedent's sake, the House may look to its practice in the case of President Nixon, against whom it enumerated the impeachable offenses of obstruction of justice and, curiously, lying to the American public. To elevate "lying" to the level of an impeachable offense was wrong then and it will be wrong in the case of Clinton, because it would be tantamount to legislating an offense that does not exist as a crime or misdemeanor, high or not. Obstruction of justice in the case of Nixon was to cover up activities against the state and that it threatened to subvert the political process. One may argue that in the case of Mr. Clinton, the so-called "obstruction of justice" is what in ordinary course of law would be deemed vigorous defense.

    The Constitution does not give the House the right to legislate offenses without the benefit of the Senate's concurrence and, normally, the presidential signature. Therefore, if the House draws up articles of impeachment against Clinton, he ought to appeal to the Supreme Court to pass judgment on the constitutionality of the articles in light of the factual circumstances. Not to do so, would leave the Congressional power of impeachment without any real limits other than the sound, may be not, discretion of partisan politics and capricious ad-hocism.

    In the final analysis, Clinton's legacy may well turn out to be his turning of a personal predicament into a legitimate effort to help define the constitutional limits of the impeachment clause. He should do so by sticking it out, but also know full well, if impeached and ultimately convicted, under article 2, section 2 of the Constitution he will not be eligible for a presidential pardon.

    About the author

    Guive Mirfendereski is a corporate and international lawyer in private practice in Newton, Massachusetts. (Back to top)


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