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Analysis By Senator Patrick Leahy Ranking Member, Senate Judiciary Committee - ContinuedVI. PRIOR JUDICIAL IMPEACHMENTS FOR PERJURY Just ten years ago, the Senate voted to convict two Federal judges on charges of perjury. The Managers read those precedents to mean that perjury, if proved, is always an impeachable offense -- that Presidents ought not be held to a lower standard of impeachability than judges. While the failure of proof in this case obviates the need to resolve the precedential effect, if any, that judicial impeachments may have on the impeachment of a President, the Managers’ simplistic, "one-size-fits-all" approach is unsound. Perjury is not included in the impeachment section of Article II of the Constitution, even though, as Manager Buyer noted, the Framers were familiar with the crime. Treason is the defining crime in the Constitution -- it is a crime against and undermining the very existence of the Government. Bribery is also expressly included -- no officer of the United States can continue if he is corrupted by accepting a bribe to do something other than faithfully execute his public duties. Perjury may, if proved, provide a basis for impeachment, but only if it is determined to be within "other high Crimes or Misdemeanors." In the recent judicial impeachments, the lies at issue were aimed at concealing gross abuses of official power. Judge Alcee Hastings lied to conceal his participation in a conspiracy to fix cases in his own court. Judge Walter Nixon lied to conceal his corrupt efforts to influence a state prosecutor to drop a case. Significantly, Judge Nixon had been convicted by a Federal jury and was serving a 5-year prison sentence at the time he was impeached and removed; he simply could not continue to function as a Federal judge and perform his duties. House Managers have also referred to the impeachment of a third judge, Judge Harry Claiborne, but he was impeached for filing a false tax return and not perjury per se. In any event, as with Judge Nixon, Judge Claiborne had been convicted after a jury trial and was serving a federal prison term when he was impeached. By contrast, President Clinton is not accused of lying to conceal public misconduct. He is accused of lying to conceal the "nature and details" of an extramarital affair -- an affair that he admitted had occurred. Beyond this, there are very basic differences in terms and functions between Federal judges and the President. Judges are appointed for life. Presidents are elected for fixed terms and accountable in political terms. A President can be subject to review by the people if he runs for reelection. Moreover, removing an appointed Federal judge, while extremely serious, implicates none of the momentous, anti-democratic consequences of removing an elected President. Another difference between Federal judges and the President is that, under the Constitution, only the former "hold their Offices during good Behaviour." The proposition, however, that this clause creates a different constitutional standard for removal of judges than for removal of the President or other civil officers is dangerous. Such an interpretation would invite attacks on the independence of the federal judiciary and undermine the balance among the three co-equal branches of our federal government. Indeed, Alexander Hamilton opined in Federalist No. 79 that impeachment was the only provision for removal "which we find in our own Constitution in respect to our own judges." The past few years have seen unprecedented attacks on controversial decisions by Federal judges. Should such decisions be deemed malfeasance by the party in control of Congress, then impeachment proceedings against judges who render unpopular decisions could provide a platform for endless political posturing. More importantly, this would chill the independent operation of our Federal judiciary. As Professor Michael Gerhardt has explained, the good behavior clause does not mean that Federal judges may be impeached on the basis of a lower standard than the President, but it does suggest that they may be impeached "on a basis that takes account of their special duties or functions." A judge who lies under oath is uniquely unfit to continue in an office that requires him to administer oaths and sit in judgment. It is perfectly appropriate for the Senate when sitting as a court of impeachment to take into account the type of duties that the impeached official is called upon to perform and whether the charges, if proved, clearly impair the official’s ability to perform those duties. The outcome of this analysis may very well differ depending on the job of the impeached official. VII. "FINDINGS OF FACT" FALLACIES As the impeachment trial wore on, without any prospect of a conviction and removal, a popular Republican exit strategy was to force a preliminary vote on so-called "findings of fact" that the President committed perjury and obstructed justice, to be followed by a second vote on removal. I opposed this initiative because, in my view, it reflected a basic misunderstanding of the Senate’s constitutional function when sitting as a court of impeachment. The Senate’s constitutional role is to determine whether to convict the President of an impeachable offense and remove him from office. This is a unitary question, requiring a unitary answer. In recognition thereof, the Senate has rules prohibiting dividing articles of impeachment. A presidential impeachment trial is not an appropriate forum for "finding" that a public official has committed a crime. Crime and punishment are issues expressly reserved by the Constitution to our criminal courts, where an accused is entitled to due process rights far in excess of the minimal procedural protections being accorded the President in the Senate trial. In the current case there are also additional complicating factors since the Senate made up its procedures as it went along and the specific charges against the President have constantly shifted. Impeachment is not about punishing the officeholder but about protecting the public. Senator George Edmunds of Vermont explained in 1868 that "[p]unishment by impeachment does not exist under our Constitution. . . . [The accused] can only be removed from the office he fills and prevented from holding office, not as punishment, but as a means merely of protection to the community . . . ." Our focus must be on whether the conduct with which the House has charged President Clinton has been proven and warrants his removal from office to protect the public. Branding the President is not the function of impeachment. On the contrary, a congressional finding of guilt for criminal conduct would be an illegitimate exercise in shaming the President and an abuse of the impeachment process in support of a future criminal prosecution, which recent leaks from prosecutor Starr’s office confirm he is considering. A preliminary vote on guilt in the form of "findings of fact" would set the dangerous precedent that a Senate impeachment trial could be used for the purpose of criticizing conduct that the constitutionally-required number of Senators did not believe was impeachable. The last protection against impeachment by an opposing party with majority control of Congress would be eviscerated. This would trivialize the constitutional impeachment process and invite future illegitimate impeachments. "Findings of fact" that the President committed the acts charged in the Articles would be tantamount to conviction on the impeachment Articles themselves and more accurately described as "findings of guilt" without the remedy prescribed by the Constitution. As a matter of constitutional law and Senate practice, such "findings" cannot and should not be separated from the vote on removal. Article II, section 4 of the Constitution provides that, upon conviction by the Senate, the President "shall be removed from Office." By making removal mandatory upon conviction, the Constitution precludes the Senate from taking the politically-expedient, oxymoronic route of convicting without removing. Proponents of the Republican proposals pointed to eighteenth century precedents long ago repudiated. In the first three judicial impeachment trials that ended in conviction, the Senate, having voted to convict, took a separate vote on removal from office. But in each case, the first vote required a two-thirds supermajority, as specified by the Constitution, not a simple majority as is now proposed. Moreover, the Senate rejected this early precedent in 1936; since then, it has been the understanding of the Senate that removal follows automatically from conviction. The lack of solid precedent for "findings of fact" speaks volumes. This unprecedented exit strategy was opposed by Republicans and Democrats who did not want to circumvent the Constitution merely to find a convenient end to this impeachment trial. Former Judge Robert Bork termed these proposals "preposterous readings of the Constitution as well as utterly impractical." Former Reagan Attorney General Edwin Meese cautioned that the Senate "should not flirt with unconstitutional action, especially where conviction and removal of the President are at stake." Robert Frost said that the best way out is always through. In the end, the Senate’s best way out was to fulfill its proper role in the impeachment process by voting on the Articles. VIII. EFFECT ON CHILDREN AND NATIONAL SECURITY My consideration of the Articles would be incomplete without addressing one final point raised by the House Managers about the effect of our decision. They have cautioned that should this President be acquitted, the consequences would be dire for our children, military morale, and the functioning of our judicial system. I reject these doomsday scenarios and believe that the precedent set by conviction without proof and removal without constitutional justification would be far more dangerous for our Republic. For example, when he was asked whether acquitting the President would endanger the stability of our government, Manager Hyde responded that it would, because it would set a bad example for our children. I was surprised by this answer. This is hardly the sort of danger that the Framers of the Constitution were concerned with when they met in Philadelphia in 1787. They had just paid a great price to liberate themselves from a tyrant. They wanted to ensure that their new Chief Executive could not become a tyrant. They wanted to ensure that he could be removed if he posed a threat to the democratic system of government that they had fought so hard to establish. They were not trying to ensure that the President would be a good role model for the nation’s children. More importantly, as a father and grandfather, I work hard to be a role model for my children and grandchild. They do not need the President to serve that role. They do not have to look to the Congress to impeach and remove this President to know the difference between right and wrong. I trust the parents of America to raise their children, to explain what the President did was wrong, and to point out the humiliation and other consequences he has brought on himself and his presidency for an entire year and for as long as history books are written. I do not believe that the Constitution calls upon us to remove a duly elected President for symbolic purposes. The Managers have also struggled to raise the specter that a vote of acquittal on the Articles would risk our national security by undermining the morale of our military, who would appear to be held to a double standard. I have more faith in our military. If the Managers’ position were correct then we would have seen ill-effects from President Bush’s pardon of former Defense Secretary Caspar Weinberger, who had been indicted on several counts, including for lying before a grand jury. But we did not. In fact, at that time, Manager Hyde applauded the decision to pardon Mr. Weinberger, saying, "I'm glad the president had the chutzpah to do it." Far from censuring this accused perjurer or deploring the bad example he had set, Mr. Hyde denounced the Independent Counsel who had brought this "political" prosecution and stated: "I just wish [us] out of this mess, this six years and this $30-40 million that has been spent [by independent counsel Lawrence E. Walsh]. It's endless and it is a bottomless pit for money, with no accountability." The fact that the Constitution sets a high standard for removal of a President has no bearing on the standard of conduct applicable to military service. In addition, it does not place the President above the law. Indeed, all of us in Congress have special immunity under the speech and debate clause. That has never been argued to place us above the law nor undermine military morale. IX. DELIBERATIONS ON DISPOSITIVE TRIAL MOTIONS SHOULD BE OPEN Accustomed as we and the American people are to having our proceedings in the Senate open to the public and subject to press coverage, the most striking prescription in the "Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials" has been the closed deliberations required on any preliminary question or motion, and now on the final question whether the Articles of Impeachment should be sustained or rejected. The requirement of closed deliberation, more than any other rule, reflects the age in which the rules were originally adopted in 1868. Even in 1868, not everyone favored secrecy. During the trial of President Johnson, the senior Senator from Vermont, George F. Edmunds, moved to have the closed deliberations on the Articles transcribed and officially reported "in order that the world might know, without diminution or exaggeration, the reasons and views upon which we proceed to our judgment." The motion was tabled. In the 130 years that have passed since that time, the Senate has seen the advent of television in the Senate Chamber, instant communication, distribution of Senate documents over the Internet, the addition of 46 Senators representing 23 additional States, and the direct election of Senators by the people in our States. Opening deliberations would help further the dual purposes of our rules to promote fairness and political accountability in the impeachment process. I supported the motion by Senators Harkin, Wellstone and others to suspend this rule requiring closed deliberations and to open our deliberations on Senator Byrd’s motion to dismiss and at other points earlier in this trial. We were unsuccessful. Now that the Senate has approached final deliberations on the Articles of Impeachment, I had hoped that this secrecy rule would be suspended so that the Senate’s deliberations would be open and the American people could see them. In a matter of this historic importance, the American people should be able to witness their Senators’ deliberations. Some have indicated objection to opening the Senate’s final deliberations because petit juries in courts of law conduct their deliberations in secret. Analogies to juries in courts of law are misplaced. I was privileged to serve as a prosecutor for eight years before I was elected to the Senate. As a prosecutor, I represented the people of Vermont in court and before juries on numerous occasions. I fully appreciate the traditions and importance of allowing jurors to deliberate and make their decisions privately, without intrusion or pressure from the parties, the judge or the public. The sanctity of the jury deliberation room ensures the integrity and fairness of our judicial system. The Senate sitting as an impeachment court is unlike any jury in any civil or criminal case. A jury in a court of law is chosen specifically because the jurors have no connection or relation to the parties or their lawyers and no familiarity with the allegations. Keeping the deliberations of regular juries secret ensures that as they reach their final decision, they are free from outside influences or pressure. As the Chief Justice made clear on the third day of the impeachment trial, the Senate is more than a jury; it is a court. Courts are called upon to explain the reasons for decisions. Furthermore, to the extent the Senate is called upon to evaluate the evidence as is a jury, we stand in different shoes than any juror in a court of law. We all know many of the people who have been witnesses in this matter; we all know the Managers -- indeed, one Senator is a brother of one of the Managers -- and we were familiar with the underlying allegations in this case before the Managers ever began their presentation. Because we are a different sort of jury, we shoulder a heavier burden in explaining the reasons for the decisions we make here. I appreciate why Senators would want to have some aspects of our deliberations in closed session: to avoid embarrassment to and protect the privacy of persons who may be discussed. Yet, on the critical decisions we are now being called upon to make on our votes on the Articles themselves, allowing our deliberations to be open to the public helps assure the American people that the decisions we make are for the right reasons. In 1974, when the Senate was preparing itself for the anticipated impeachment trial of former President Richard Nixon, the Committee on Rules and Administration discussed the issue of allowing television coverage of the Senate trial. Such coverage did not become routine in the Senate until later in 1986. In urging such coverage of the possible impeachment trial of President Nixon, Senator Metcalf (D-MT), explained: "Given the fact that the party not in control of the White House is the majority party in the Senate, the need for broadcast media access is even more compelling. Charges of a ‘kangaroo court,’ or a ‘lynch mob proceeding’ must not be given an opportunity to gain any credence whatsoever. Americans must be able to see for themselves what is occurring. An impeachment trial must not be perceived by the public as a mysterious process, filtered through the perceptions of third parties. The procedure whereby the individual elected to the most powerful office in the world can be lawfully removed must command the highest possible level of acceptance from the electorate." Opening deliberation would ensure complete and accurate public understanding of the proceedings and the reasons for the decisions we make here. Opening our deliberations on our votes on the Articles would tell the American people why each of us voted the way we did. The last time this issue was actually taken up and voted on by the Senate was more than a century ago in 1876, during the impeachment trial of Secretary of War William Belknap. Without debate or deliberation, the Senate refused then to open the deliberations of the Senate to the public. That was before Senators were elected directly by the people of their State, that was before the Freedom of Information Act confirmed the right of the people to see how government decisions are made. Keeping closed our deliberations is wholly inconsistent with the progress we have made over the last century to make our government more accountable to the people. Constitutional scholar Michael Gerhardt noted that "the Senate is ideally suited for balancing the tasks of making policy and finding facts (as required in impeachment trials) with political accountability." Public access to the reasons each Senator gives for his vote on the Articles is vital for the political accountability that is the hallmark of our role. I likewise have urged the Senate to adjust these 130-year-old rules to allow the Senate’s votes on the Articles of Impeachment to be recorded for history by news photographers. This is a momentous official and public event in the annals of the Senate and in the history of the nation. This is a moment of history that should be documented for both its contemporary and its lasting significance. Open deliberation ensures complete accountability to the American people. Charles Black wrote that presidential impeachment "unseats the person the people have deliberately chosen for the office." The American people must be able to judge if their elected representatives have chosen for or against conviction for reasons they understand, even if they disagree. To bar the American people from observing the deliberations that result in these important decisions is unfair and undemocratic. The Senate should have suspended the rules so that the Senate’s deliberations on the final question of whether to convict the President of these Article of Impeachment were held in open session. After this impeachment trial is over, I urge the Senate to re-examine the rule on closed deliberations in impeachment trials and revise the rule to reflect the open and accountable government that is now the pride and hallmark of our democracy. The House Managers have warned that should the President be acquitted we will set a dangerous precedent and damage the "rule of law." I strongly disagree. Instead, we will have set the following important precedent for the future: that partisan impeachment drives are doomed to failure. It is up to the Senate, now, to restore sanity to this process, exercise judgment, do justice and act in the interests of the nation. We all knew before the trial began that history will judge us on whether this case was resolved in a way that serves the good of the country, not the political ends of any party. I commend my colleagues in the Senate and in particular Majority Leader Lott and Minority Leader Daschle for working hard to maintain bipartisanship and fairness in our proceedings. In all the references to the first presidential impeachment trial, a little-known historical fact has been overlooked. After the unsuccessful effort to remove him from office, former President Johnson returned to serve this country as a United States Senator. I look forward to the day when the Senate has concluded the impeachment of President Clinton and the Senate can close its work as an impeachment court and turn to the other important work we face as Senators.
Endnotes
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