The Clinton Impeachments
SECTION 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
President Clinton was impeached by the House, but acquitted by vote of the Senate. The House approved two articles of impeachment against the President stemming from the President’s response to a sexual harassment civil lawsuit and to a subsequent grand jury investigation instigated by an Independent Counsel. The first article charged the President with committing perjury in testifying before the grand jury about his sexual relationship with a White House intern and his efforts to cover it up;891 the second article charged the President with obstruction of justice relating both to the civil lawsuit and to the grand jury proceedings.892 Two additional articles of impeachment had been approved by the House Judiciary Committee but were rejected by the full House.893 The Senate trial resulted in acquittal on both articles.894
A number of legal issues surfaced during congressional consideration of the Clinton impeachment.895 Although the congressional votes on the different impeachment articles were not neatly divided between legal and factual matters and therefore cannot be said to have resolved the legal issues,896 several aspects of the proceedings merit consideration for possible precedential significance. The House’s acceptance of the grand jury perjury charge and its rejection of the civil deposition perjury charge may reﬂect a belief among some members that perjury in the criminal context is more serious than perjury in the civil context. Acceptance of the obstruction of justice charge may also have been based in part on an assessment of the seriousness of the charge. On the other hand, the House’s rejection of the article relating to President Clinton’s alleged non-cooperation with the Judiciary Committee’s interrogatories can be contrasted with the House’s 1974 “acceptance” of the Judiciary Committee’s report recommending897 a similar type of charge against President Nixon, and raises the issue of whether the different circumstances (e. g., the relative importance of the information sought, and the nature and extent of the responses) may account for the different approaches. So too, the acquittal of President Clinton on the perjury charge can be contrasted with convictions of Judges Hastings and Nixon on perjury charges, and presents the issue of whether different standards should govern Presidents and judges. The role of the Independent Counsel in complying with a statutory mandate to refer to the House “any substantial and credible information . . . that may constitute grounds for an impeachment” occasioned commentary.898 The relationship of censure to impeachment was another issue that arose. Some members advocated censure of President Clinton as an alternative to impeachment, as an alternative to trial, or as a post-trial means for those Senators who voted to acquit to register their disapproval of the President’s conduct, but there was no vote on censure.899
Finally, the Clinton impeachment raised the issue of what the threshold is for “high crimes and misdemeanors.” While the Nixon charges were premised on the assumption that an abuse of power need not be a criminal offense to be an impeachable offense,900 the Clinton proceedings—or at least the perjury charge—raised the issue of whether criminal offenses that do not rise to the level of an abuse of power may nonetheless be impeachable offenses.901 The House’s vote to impeach President Clinton arguably amounted to an affirmative answer,902 but the Senate’s acquittal leaves the matter somewhat unsettled.903 There appeared to be broad consensus in the Senate that some private crimes not involving an abuse of power (e. g., murder for personal reasons) are so outrageous as to constitute grounds for removal,904 but there was no consensus on where the threshold for outrageousness lies, and there was no consensus that the perjury and obstruction of justice with which President Clinton was charged were so outrageous as to impair his ability to govern, and hence to justify removal.905 Similarly, the almost evenly divided Senate vote to acquit meant that there was no consensus that removal was justified on the alternative theory that the alleged perjury and obstruction of justice so damaged the judiciary as to constitute an impeachable “offense against the state.”906
891 Approved by a vote of 228–206. 144 Cong. Rec. H12,040 (daily ed. Dec. 19, 1998).
892 Approved by a vote of 221–212. 144 Cong. Rec. H12,041 (daily ed. Dec. 19, 1998).
893 An article charging the President with perjury in the civil sexual harassment suit brought against him was defeated by a vote of 229–205; another article charging him with abuse of office by false responses to the House Judiciary Committee’s written request for factual admissions was defeated by vote of 285 to 148. 144 Cong. Rec. H12,042 (daily ed. Dec. 19, 1998).
894 The vote for acquittal was 55 to 45 on the grand jury perjury charge, and 50 to 50 on the obstruction of justice charge. 145 Cong. Rec. S1458–59 (daily ed. Feb. 12, 1999).
895 For analysis and different perspectives on the Clinton impeachment, see Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. (1998); and Staff of the House Comm. on the Judiciary, 105th Cong., Impeachment: Selected Materials (Comm. Print 1998). See also Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional And Historical Analysis (2d ed. 2000); Richard A. Posner, Anaffair Of State: The Investigation, Impeachment,and Trial Of President Clinton (1999); Laurence H. Tribe, 1 American Constitutional Law 181–202 (3d ed. 2000); and Michael Stokes Paulsen, Impeachment (Update), 3 Encyclopedia Of The American Constitution 1340–43 (2d ed. 2000). Much of the documentation can be found in Impeachment of William Jefferson Clinton, President of the United States, H.R. Rep. No. 105–380 (1998); Staff of the House Comm. on the Judiciary, 105th Cong., 2d Sess., Impeachment Inquiry: William Jefferson Clinton, President of the United States; Consideration of Articles of Impeachment (Comm. Print 1998); and Impeachment of President William Jefferson Clinton: The Evidentiary Record Pursuant to S. Res. 16, S. Doc. No. 106–3 (1999) (21-volume set).
896 Following the trial, a number of Senators placed statements in the record explaining their votes. See 145 Cong. Rec. S1462–1637 (daily ed. Feb. 12, 1999).
897 Note that the Judiciary Committee deleted from the article a charge based on President Clinton’s allegedly frivolous assertions of executive privilege in response to subpoenas from the Office of Independent Counsel. Similarly, the Committee in 1974 distinguished between President Nixon’s refusal to respond to congressional subpoenas and his refusal to respond to those of the special prosecutor; only the refusal to provide information to the impeachment inquiry was cited as an impeachable abuse of power.
898 The requirement was contained in the Ethics in Government Act, since lapsed, and codified at 28 U.S.C. § 595(c). For commentary, see Ken Gormley, Impeachment and the Independent Counsel: A Dysfunctional Union, 51 Stan. L. Rev. 309 (1999).
899 For analysis of the issue, see Jack Maskell, Censure of the President by Congress, CRS Report for Congress 98–843.
900 According to one scholar, the three articles of impeachment against President Nixon epitomized the “paradigm” for presidential impeachment—abuse of power in which there is “not only serious injury to the constitutional order but also a nexus between the misconduct of an impeachable official and the official’s formal duties.” Michael J. Gerhardt, The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 617 (1999).
901 Although committing perjury in a judicial proceeding—regardless of purpose or subject matter—impedes the proper functioning of the judiciary both by frustrating the search for truth and by breeding disrespect for courts, and consequently may be viewed as an (impeachable) “offense against the state” (see 145 Cong. Rec. S1556 (daily ed. Feb. 12, 1999) (statement of Sen. Thompson)), such perjury arguably constitutes an abuse of power only if the purpose or subject matter of the perjury relates to official duties or to aggrandizement of power. Note that one of the charges against President Clinton recommended by the House Judiciary Committee but rejected by the full House—providing false responses to the Committee’s interrogatories— was squarely premised on an abuse of power.
902 The House vote can be viewed as rejecting the views of a number of law professors, presented in a letter to the Speaker entered into the Congressional Record, arguing that high crimes and misdemeanors must involve “grossly derelict exercise of official power.” 144 Cong. Rec. H9649 (daily ed. Oct. 6, 1998).
903 Some Senators who explained their acquittal votes rejected the idea that the particular crimes that President Clinton was alleged to have committed amounted to impeachable offenses (see,e.g., 145 Cong. Rec. S1560 (daily ed. Feb. 12, 1999) (statement of Sen. Moynihan); id. at 1601 (statement of Sen. Lieberman)), some alleged failure of proof (see,e.g., id. at 1539 (statement of Sen. Specter); id. at 1581 (statement of Sen. Akaka)), and some cited both grounds (see,e.g., id. at S1578–91 (statement of Sen. Leahy), and id. at S1627 (statement of Sen. Hollings)).
904 See, e.g., 145 Cong. Rec. S1525 (daily ed. Feb. 12, 1999) (statement of Sen. Cleland) (accepting the proposition that murder and other crimes would qualify for impeachment and removal, but contending that “the current case does not reach the necessary high standard”); id. at S1533 (statement of Sen. Kyl) (impeachment cannot be limited to wrongful official conduct, but must include murder); and id. at S1592 (statement of Sen. Leahy) (acknowledging that “heinous” crimes such as murder would warrant removal). This idea, incidentally, was not new; one Senator in the First Congress apparently assumed that impeachment would be the first recourse if a President were to commit a murder. Ix Documentary History Of The First Federal Congress, 1789–1790, The Diary Of William Maclay And Other Notes On Senate Debates 168 (Kenneth R. Bowling and Helen E. Veit, eds. 1988).
905 One commentator, analogizing to the impeachment and conviction of Judge Claiborne for income tax evasion, viewed the basic issue in the Clinton case as whether his alleged misconduct was so outrageous as to “effectively rob[ ] him of the requisite moral authority to continue to function as President.” Gerhardt, supra n.817, at 619. Under this view, the Claiborne conviction established that income tax evasion by a judge, although unrelated to official duties, reveals the judge as lacking the unquestioned integrity and moral authority necessary to preside over criminal trials, especially those involving tax evasion.
906 Senator Thompson propounded this theory in arguing that “abuse of power” is too narrow a category to encompass all forms of subversion of government that should be grounds for removal. 145 Cong. Rec. S1556 (daily ed. Feb. 12, 1999).