PRELIMINARY MEMORANDUM CONCERNING
REFERRAL OF OFFICE OF INDEPENDENT COUNSEL
This document is intended to be a preliminary response to the Referral submitted by the Office of Independent Counsel to The Congress. Because we were denied the opportunity to review the content, nature or specifics of the allegations made against the President by the Office of Independent Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a comprehensive defense of the President.
We commend the House of Representatives for the extraordinary steps it has taken to safeguard the secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself -- who saw fit to leak elements of the allegations to the news media.
Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this document as a summary outline of his side of the case. We will provide you with a specific rebuttal as soon as we have had a chance to review the materials that the OIC has already transmitted to you.
The simple reality of this situation is that the House is being confronted with evidence of a man's efforts to keep an inappropriate relationship private. A personal failure that the President has acknowledged was wrong, for which he apologized, and for which he accepts complete responsibility. A personal failure for which the President has sought forgiveness from members of his family, members of the Cabinet, Members of Congress, and the American people. Such a personal failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would justify the impeachment of the President of the United States.
The President himself has described his conduct as wrong. But no amount of gratuitous details about the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that:
1) The President did not commit perjury:
2) The President did not obstruct justice;
3) The President did not tamper with witnesses; and
4) The President did not abuse the power of his office.
Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that the power should be exercised only in the event of such grave harms to the state as "serious assaults on the integrity of the processes of government," or "such crimes as would so stain a president as to make his continuance in office dangerous to public order." Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has dangerously overreached to describe in the most dramatic of terms conduct that not only is not criminal but is actually proper and lawful.
The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate personal behavior into one of public misconduct justifying reversal of the judgment of the electorate of this country.
I. STANDARDS FOR IMPEACHMENT
The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, Sec. 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the question confronting the House of Representatives is whether the President has committed a "high Crime or Misdemeanor." The House has an obligation to consider the evidence in view of that very high Constitutional threshold. It should pursue the impeachment process only if there is evidence implicating that high standard.
The House must approach the question with solemnity and with care, for history teaches that an "impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions for impeachment in the Constitution itself because they understood that the most severe political remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.
Presidential impeachment is thus a matter of incomparable gravity. As Professor Charles Black stated,
[t]he presidency is a prime symbol of our national unity. The election of the president (with his alternate, the vice-president) is the only political act that we perform together as a nation; voting in the presidential election is certainly the political choice most significant to the American people, and the most closely attended to by them. No matter, then, can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone, and the chosen president dismissed from office in disgrace. Everyone must shrink from this most drastic of measures.
Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an "awful step." Ibid. The Framers knew this. For that reason they framed the constitutional procedure with precision and specified grounds for impeachment with great care.
The Framers deliberately chose to make "high Crimes and Misdemeanors" the standard of an impeachable offense. They were familiar with English common law and parliamentary history and they borrowed the expression directly from the English law of impeachment. They did so knowing that the expression was a term of art and they made the choice after deliberate rejection of alternative formulations of the impeachment standard.
The Framers intended the standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate."/ The Framers plainly did not intend to permit Congress to debilitate the executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt phrase, impeachment was thought necessary to remedy "[a]ttempts to subvert the Constitution."
In English practice, the term "high crimes and misdemeanors" had been applied to various offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state./ The English cases included misappropriation of public funds, interfering in elections, accepting bribes, neglect of duty, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state."/
That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men." The Federalist No. 65 at 331 (Gary Wills ed. 1982). This "inquest" is perhaps the gravest process known to our Constitution. No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him.
For these reasons, the impeachment process must be painstaking and deliberate. It must focus only on such harms as the Framers intended to be redressed by the incomparably severe act of impeachment. And most importantly, it must be understood for what it is -- a process of inquiry. That process is itself the exercise of a public trust "of delicacy and magnitude."/ Accordingly, if the process is begun it is only just that the members engaged in this solemn task withhold judgment until the process is complete and all the facts are known. Our Constitution's most basic values and the requirements of simple justice together demand no less.
The President is sole head of one branch of our government -- indeed, in a certain sense the President is the Executive Branch. The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." U.S. Const. art. II, Sec. 1. The President is the only government official to have been popularly elected by all the American people. When the people elect a President, the popular will is expressed in its most important, most visible and most unmistakable form./ The impeachment process, by definition, threatens to undo the popular will. Impeachment presents the prospect of reversing the electoral mandate that brought the executive to office. Conviction upon articles of impeachment actually does so.
For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms. Again, in Hamilton's words:
the subjects of [the Senate's impeachment] jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from 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 to the society itself.
Federalist 65 at 330-31.
The Framers and early commentators on the Constitution are in accord on the question of impeachment's intended consequence. In Justice James Wilson's words, impeachments are "proceedings of a political nature . . . confined to political characters" charging only "political crimes and misdemeanors" and culminating only in "political punishments." J. Wilson, Works 426 (R. McCloskey, ed. 1967) And as Justice Story put the matter, "the [impeachment] power partakes of a political character, as it respects injuries to the society in its political character." Joseph Story, Commentaries on the Constitution ' 744 (1st Ed. 1833)./ That understanding of the Framers and early commentators reflected the historical understanding of impeachable offenses in England. "High crimes and misdemeanors' were a category of political crimes against the state." Berger, Impeachment, at 61 (emphasis in original). Therefore, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution."/ Impeachment therefore addresses public wrongdoing, whether denominated a "political crime against the state,"/ or "an act of malfeasance or abuse of office,"/ or a "great offense[s] against the federal government."/ In short, impeachment is a necessary Constitutional check by a coordinate branch of government upon serious and aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.
Holders of public office are therefore not to be impeached for private conduct, however wrongful. To the contrary, only "serious assaults on the integrity of the processes of government,"/ and "such crimes as would so stain a president as to make his continuance in office dangerous to public order"/ should constitute impeachable offenses. Conduct which is not an "offense against the government,"/ or "malfeasance or abuse of office,"/ and which bears no "functional relationship"/ to public office, does not constitute grounds for impeachment. Allegations concerning private conduct--private sexual conduct in particular--simply do not implicate high crimes or misdemeanors.
Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story's words, addresses "offences which are committed by public men in violation of their public trust and duties." Story, Commentaries ' 744 (emphasis added). Impeachment is a political act in the sense that its aims are public; it attempts to rein in abuses of the public trust committed by public officeholders in connection with conduct in public office. As one scholar has put it, "[t]he nature of [impeachment] proceedings is dictated by the harms sought to be redressed - "the misconduct of public men" relating to the conduct of their public office - and the ultimate issue to be resolved - whether they have forfeited through that conduct their right to continued public trust."/
Impeachment's public character is further evidenced by the fact that, as Justice Story expressed it, the process is conducted "by the representatives of the nation, in their public capacity," and "in the face of the nation." Story, Commentaries ' 686. Constitutionally, impeachment's public function demands public accountability. Elected officials are no more qualified than ordinary voters to assess the private wrongs of public officeholders. The Constitution's impeachment mechanism does not exist to punish such wrongs.
The public character of impeachable wrongs is also reflected in the fact that the remedy imposed for commission of impeachable acts is a wholly public one. Impeachment results in removal from office and possible disqualification from further office. U.S. Const. art.I, ' 3, cl. 7.
To say that impeachment is fundamentally a "political" process, however, is not to say that it is "partisan" in nature. Indeed, the Framers warned against the spirit of partisanship in impeachment proceedings. In Federalist 65, Hamilton wrote that the impeachment process threatened to "agitate the passions of the whole community . . .to divide it into parties . . . [to] connect itself with pre-existing factions [and] to enlist their animosities, partialities, influence and interest." Id. at 331. Justice Story warned of the danger that "the decision [to impeach] will be regulated more by the comparative strength of the parties, than by the strength of the proofs." Commentaries ' 744. Only substantial evidence of presidential wrongdoing that threatened the processes of government or the public order can justify this grave and ideally bipartisan process.
What is ultimately intended by impeachment's truly "political" nature is the manner of limitation the Constitution allows one elected (political) branch to place on the other elected (political) branch, the Presidency. Impeachment is necessarily a public act conducted by public bodies (the Houses of Congress exercising their constitutionally allotted portion of impeachment power) against a public officeholder (here, the President). Exercise of that limiting function is justified only when the people's representatives conclude that the people themselves must be protected from their own elected executive.
Impeachment must therefore be approached with the utmost solemnity. The process must focus on public acts, performed in the President's public capacity, and affecting the public interest. Cognizant of the enormous harm that must follow the bare suggestion of formal impeachment processes, the House should pursue an impeachment inquiry if and only if there is credible evidence of actions constituting fundamental injuries to the governmental process. Indeed, the Committee should consider and approve articles of impeachment only for such acts as have, in its judgment, so seriously threatened the integrity of governmental processes as to have made the President's continuation in office a threat to the public order.
Impropriety falling short of that high standard does not meet the constitutional measure. It must be left to the court of public opinion and the judgment of history.