| January 7, 1999 As previously promised, posted below are my thoughts on "High Crimes and Misdemeanors." Before we get to those penetrating thoughts, because the Senate formally commenced the impeachment trial today, I want to get my prediction of what is going to happen on the record: Opening arguments will be held very shortly, will take a few days, and then the President will make a motion to dismiss the trial because the alleged conduct is not a High Crime or Misdemeanor. Chief Judge Rehnquist will deny the motion and the President will appeal to the entire Senate. The motion will receive approximately 40 votes and, therefore, be denied and the trial will proceed. The President's lap dogs will take to the airwaves, denounce Rehnquist and the Republicans for partisianship, and demand an end to the trial because there are not 67 votes to remove. The trial will proceed, the House will call a few witnesses, including Monica, but will not discuss sex. The President will not call any witnesses. The Senate will hold an impeachment vote and approximately 60 Senators will vote to remove. There is a reall chance this will all be accomplished before the State of the Union speech. The President will then make a speech saying it is time for us all to work together. He will then bomb Iraq. You can quote me. WHY PRESIDENT CLINTON'S CONDUCT IS A HIGH CRIME OR MISDEMEANOR The Senate commenced a trial today to determine whether or not the President should be removed from office. Because President Clinton has already confessed to an "improper relationship" and there is overwhelming evidence that he perjured himself and obstructed justice, the President and his defenders will be relying heavily on the defense that the President's conduct is not a "High Crime or Misdemeanor." According to the President, the standard for impeachment is a static bright-line test: No matter how reprehensible the conduct, no matter the consequences of the conduct, if the conduct is "private" as opposed to performed in the President's official duties or a threat to the continuation of the Republic, the conduct is not the necessary High Crime or Misdemeanor and cannot justify an impeachment. There are many problems with this argument that the Senate will struggle with, most notably that in 1986, the Senate overwhelmingly voted to remove Judge Harry Clairborne for tax evasion -- an offense that had nothing to do with his official judicial duties. Those Senators who do not want the President impeached will search for a thread to distinguish the prior cases of impeachment, consistency be damned. Ultimately, however, the argument is a straw man because it avoids the fundamental issue of whether the President should be removed from office. In drafting the Constitution, the Framers were faced with the question of whether or not the President should serve at the will of the Congress. The Framers thought not and attempted to strike a balance between a weak executive and a monarchy by permitting the Congress to remove the President for cause. The standard chosen was High Crimes and Misdemeanors. Without going into a detailed history of the term High Crimes and Misdemeanors (if you are really interested, check out www.claremont.org/impeachment_resources.cfm), the term has nothing specific to do with crimes at all, but more generally refers to a breach of the public trust committed by an officeholder. Alexander Hamilton, writing in The Federalist, stated that impeachment is for "the misconduct of public men, . . . from the abuse or violation of some public trust." Whether a specific act or a series of acts is a breach of the public trust obviously depends on changing mores, context, and a myriad of other factors, all to be considered by the Congress in good faith. What High Crimes and Misdemeanors is plainly not, contrary to the arguments of the President, is a static bright-line rule that would somehow prohibit the impeachment of a President who thoughtful citizens would agree should be removed from office. For instance, imagine if the President publicly announced he was divorcing Hillary, moving Monica Lewinsky into the White House, and will be filming porn movies of himself and Monica in the Oval Office for internet distribution. Would such conduct, private conduct and all perfectly legal may I add, be cause for removal? According to the President's lap dogs, no it would not. The reason the President's lap dogs are wrong is the phrase "Misdemeanor." "Misdemeanor" has two different meanings. First, as all of us lawyers know, a misdemeanor is a crime that is less than a felony. However, that cannot be the intended meaning in the Constitution, because the Constitution does not say "High Felonies and Misdemeanors," it says "High Crimes and Misdemeanors," which means that "High" criminal misdemeanors are already included in the first half of the phrase. The second definition of misdemeanor, however, fits like a glove: bad behavior, dishonest conduct. These misdemeanors are not crimes, but acts that reflect extremely badly on the officeholder, that disgrace the office. Would, for instance, being continually drunk be a "High Crime or Misdemeanor?" Actually, Judge John Pickering was impeached in 1803 for intoxication on the bench and for "being a man of loose morals and intemperate habits." Of even more interest, the aforementioned Judge Clairborne, convicted of tax evasion, was removed because he "betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary, thereby bringing disrepute on the Federal courts and the administration of justice by the courts. . ." If that is not a description of Bill Clinton, I do not know what is. Undoubtedly, standards of public conduct change over time and what may have disgraced the office in 1803 may not necessarily disgrace the office in 1999. However, it is nonsensical for the President to take the position that even if every American agreed that he had disgraced the office, impeachment for such disgraceful conduct would be in violation of the Constitution and we are stuck with him, like it or not. The President has turned his Presidency into an episode of the Jerry Springer show. If you think that is acceptable for a President, you should be against impeachment. If you think it is not acceptable, there is no bar in the Constitution that prohibits impeachment. It is a question of judgment and discretion, not bright line rules. If a Senator believes that the President should not be removed because he is popular, he should say so. If a Senator believes that the President should not be removed because he is for abortion rights, he should say so. What a Senator should not do, however, is make a speech about how reprehensible the President's conduct is, but, unfortunately, the conduct is technically not a High Crime or Misdemeanor. Such a speech would be a misrepresentation of the Constitution and should be recognized as a political copout. Hopefully, the upcoming trial in the Senate will force each Senator to let us know whether he or she finds the President's conduct acceptable or not. Thank you for listening. DS |