I am grateful to the Miami Lawyers Division of the Federalist Society for the opportunity to be here this evening. In May of last year I had an opportunity to address the Federalist Society in Tampa on the same subject which is my topic for this evening.
No one could have predicted the events that have unfolded in the months since August 1998 when President Clinton gave testimony before the grand jury. And no one could have predicted the vast volume of talk devoted to this subject.
Tonight my purpose is not fully to survey this sad episode. I have no doubt that everyone here knows the outline of this matter very well. I suspect that you have heard enough of the details of this case. Instead of more of that, I will respond to a particular argument attacking the constitutional legitimacy of the impeachment proceedings against President Clinton. This argument — which I will outline in a moment — is just one of the many arguments made against the impeachment of the President.
To put this particular argument in context, it is important to understand that the lines of attack on the impeachment proceedings can be divided into three broad categories: substantive, procedural, and ad hominem.
In the first category — arguments that focus on the substance of the case for impeachment — there were three major arguments. First, that the President was not guilty of the offenses charged against him; second, that those offenses — even if proven true — were not sufficiently serious to constitute “high crimes and misdemeanors” under Article II, Section 4 of the Constitution, and third, that given all the circumstances, impeachment and removal of the President would undermine the institution of the Presidency.
The second category of arguments — those based on appeal to procedural fairness — focused primarily on the supposed need for greater specificity in the charges against the President and on the supposed need for live witnesses in the proceedings before the Judiciary Committee.
The final category of arguments I mention last, but by no means because it is of least importance. Indeed, the ad hominem arguments advanced against the impeachment proceedings were used by the President’s defenders to frame the whole debate about impeachment. The First Lady herself set the stage for the use of this line of argument when she spoke more than a year ago of a “vast right-wing conspiracy.” First, the motives of Judge Starr, the Independent Counsel, were attacked, and then it was the turn of the supporters of impeachment in the House. An ongoing effort was made to discredit the impeachment proceedings on the ground that they were motivated by hatred of the President and partisan political objectives.
Tonight it is my purpose to consider a variant of the claim that the impeachment of President Clinton was a partisan undertaking. The argument to which I will respond does not, however, attack the motives of those who supported impeachment of the President. On the contrary, it concedes or assumes the rectitude of their intentions. It is therefore not an ad hominem argument, but a substantive argument concerning the appropriate political conditions justifying exercise of the impeachment and removal of power.
I focus on this argument not because I believe it is ultimately persuasive — which I obviously do not — but because it constitutes something more than the tendentious special pleading represented by the other arguments. Unlike so many of the other claims made by the President’s defenders, this argument is anchored in principle and is worthy of serious discussion.
One of my law professors, a distinguished constitutional scholar, elegantly stated this argument in a letter to me in January 1998, which I will quote at some length. He wrote:
I believe the President’s forced removal from office would work more harm on the institution of the Presidency than his disgraced continuation in it, because that removal has the appearance of a partisan enterprise carried out virtually exclusively by the President’s political opponents. In saying this, I don’t mean to cast any doubt on the integrity of your motives, or those of your Republican colleagues. It is, however, a fact that you acted with virtually no Democratic votes in the House proceedings and none at all in the Judiciary Committee. This fact has indelibly stamped the impeachment enterprise as a partisan effort, no matter how honorable your motives are. The dispositive constitutional principle for me, in this circumstance, is the old maxim that justice must not simply be impartially administered, but must also appear to be impartial — and that appearance has been dashed by the absence of virtually any support from the President’s own party in the House. This is the central difference, for me, between the Nixon impeachment effort and the current enterprise. I know that this effectively gives the minority party a veto in derogation of the principle of majority rule. But in this matter of high constitutional significance, I believe that this kind of veto is best for the protection of democratic principle; and this requires forbearance — visible forbearance — by the majority to defer to minority views and thereby to protect democratic principle.
The core of this argument is what the professor describes as the “old maxim that justice must not simply be impartially administered, but must also appear to be impartial.” The appearance of impartiality — so the argument goes — is essential to the legitimacy of an impeachment. And unless there is a significant bipartisan support for the impeachment, the appearance of impartiality will necessarily be lacking. Thus an impeachment cannot be legitimate and proper in the absence of bipartisan support.
While I acknowledge that this is a serious and principled argument, in my view it is ultimately unsuccessful because it does not fit well in the structure of the constitutional provisions relating to impeachment. Moreover, it evidences a view of the impeachment process that is at odds with what the framers of the Constitution themselves envisioned.
Before I address those specific constitutional issues, I’d like to make a brief point about the maxim that justice must appear impartial as well as be impartial. It is no doubt true that in the administration of justice — whatever the context — the appearance of impartiality as well as its reality should always be our goal. Public confidence in the administration of justice necessarily depends on public understanding. All of this should virtually go without saying. Actions that create a perception of unfairness are to be avoided. But those who administer justice cannot be required to be the guarantor of the public perception of their work. Sometimes that perception is shaped largely by extraneous forces and circumstances that are beyond the control of those who administer justice. And I would suggest that it is a dangerous policy indeed to prohibit actions which the fair administration of justice in fact requires simply because some segment — however large — of the public judges those actions to be other than just. Adopting such a policy promises to reward those who seek to undermine the faithful administration of justice by false charges of unfairness.
Having made that general point, I will acknowledge that in the impeachment proceedings we made one significant error that may have unnecessarily undermined public confidence in the proceedings. It was, I think, a serious mistake to adopt the impeachment inquiry resolution with no restriction on the scope of the inquiry.
It is true that the resolution adopted was modeled closely on the resolution adopted for the inquiry concerning President Nixon, and thus had the support of precedent. But in the face of strong Democratic opposition to the open-ended scope, it would have been wise to limit the inquiry to the matters within the scope of the referral from the independent counsel. Ultimately, each of the articles of impeachment adopted by the House Judiciary Committee related to matters within the scope of the referral. So, the broad scope of the inquiry resolution proved to be entirely unnecessary.
An inquiry resolution of limited scope would have been likely to command broad bipartisan support. As it was, the broader resolution was opposed by the overwhelming majority of Democrats, and the impeachment proceedings were instituted in a manner that unnecessarily heightened and highlighted partisan divisions and thereby undermined public confidence in the process. Although it most likely did not affect the outcome of the impeachment proceedings, it was nonetheless a serious mistake. It was a mistake which gave additional force to the efforts of those who had set out to do everything in their power to discredit the proceedings against President Clinton.
Now to the central question: Did the Framers of the Constitution contemplate the use of the impeachment power against the united opposition of a minority faction or party? Or did they intend that the impeachment and removal of a President could be accomplished only with the support of the those within the party or faction with which the President was aligned?
In the often cited Federalist No. 65, Alexander Hamilton discusses the potential impact of partisan considerations on impeachment proceedings. This is a statement that was repeated many times in recent months. After observing that impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society,” Hamilton goes on to state:
The prosecutions of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly, or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt.
Hamilton was quite perceptive and prescient. He was certainly right to expect that the process in the House and Senate for dealing with the “misconduct of public men” would be open to political influences — influences which would have potential for thwarting a decision “regulated . . . by the real demonstration of innocence or guilt.
But Hamilton in no way suggests that partisan political divisions should render the impeachment process inoperative. Such divisions in the view of Hamilton are a potential impediment to the rendering of a just judgment, but they are not a reason for putting aside the responsibility of coming to a decision “regulated . . . by the real demonstration of innocence or guilt.”
From the perspective of Hamilton and the other Framers, I would suggest that giving “the minority party a veto in derogation of the principle of majority rule” is not the real problem. After all, there is much in the Constitution in derogation of the principle of majority rule. Indeed, establishing a constitutional government is itself in derogation of majority rule. The real problem with giving a united partisan minority such a veto is that it would be in derogation of the goal of rendering a just judgment against those public officers guilty of the “abuse or violation of some public trust.” Granting such a partisan veto would undermine the constitutional scheme for maintain the integrity of office.
But, I will quickly add, the Constitution does effectively establish something very similar to such a minority veto in the requirement of Article I, Section 3, that in impeachment trials before the Senate “no Person shall be convicted without Concurrence of two thirds of the Members present.” Under that prrovision, there is clearly the opportunity for a united minority — on a partisan basis — to prevent the conviction of a President with which that minority is aligned. Of course, that provision serves the fundamental — and worthy — purpose of protecting the separation of powers and ensuring that the Chief Executive would not serve at the pleasure of the House and Senate.
But the Framers did not establish an analogous mechanism for the initial stage of the constitutional process. Impeachment by the House is accomplished by a simple majority vote.
Some have argued that the House should impeach only if it is convinced both that an impeachable offense has been committed and that there is at least a reasonable prospect of conviction in the Senate. This argument essentially puts the House in the role of predicting the judgment that the Senate would render. It thus severely reduces the constitutional function of the House in the impeachment process.
The structure of the constitutional provisions relating to impeachment makes plain that the Framers contemplated circumstances where the House would impeach and the Senate would not convict. Action by simple majority in the House and by two-thirds in the Senate virtually assured that.
The Framers struck a balance in the Constitution between preserving a separate power of the Presidency, and providing a check on the misconduct of the president. The independent significance of impeachment by the House in that constitutional balance should not be overlooked or underestimated. The act of impeachment itself has constitutional significance and serves a constitutional function.
In the constitutional scheme, the ultimate sanction for the misconduct of public officers is removal from office. The sanction of removal establishes a higher standard of integrity in office in the most direct and authoritative manner. That ultimate sanction is, of course, within the exclusive province of the Senate.
But the action of the House in impeaching a President or other civil officer also serves to establish a standard of integrity in office. When the House impeaches it renders its judgment that the conduct giving rise to the impeachment is harmful to our system of government. When the House impeaches it issues a warning that such misconduct will not slip by unnoticed, but that the offender will pay at least some price for his misdeeds. When the House impeaches it marks an offender in a way that is not necessarily effaced by the subsequent failure of the Senate to convict. The absence of a two-thirds majority for conviction does not vitiate the decision of the House to impeach. The legitimacy of the action of the House ultimately must depend not on the vagaries of politics, but on the “real demonstration of innocence or guilt.”
In light of these factors, the positive constitutional function of the proceedings against President Clinton can be understood. By its action in this case the House of Representatives established that the President who violates his constitutional duty and oath of office by committing crimes against the system of justice will be called to account for his misconduct. Over the long term, that action by the House can only serve to strengthen the institution of the Presidency and the system of justice.
*Charles T. Canady is a Member of the United States House of Representatives from Florida, and served on the House Committee on the Judiciary during the proceedings concerning the impeachment of President William J. Clinton. This lecture was presented to the Miami Division in Spring 1999. The text of the lecture has been revised and edited to fit this format.