Impeachable Offenses: A Documentary History From 1787 To the Present [Hardcover]

Van Tassel E (Author), Finkelman P (Author)

Book Description

ISBN-10: 1568024797 | ISBN-13: 978-1568024790 | Publication Date: December 15, 2000 | Edition: 1

This title is the only book on the topic that includes the major primary sources for evaluation of what has and has not constituted an impeachable offence, including the documents on the investigation of President Clinton as they bear on impeachment. "Impeachable Offenses" presents the historical proceedings and precedents for impeachment in the U.S., leading up to the current investigation of President Clinton. Focusing on providing a clear understanding of what the Constitution says about impeachment and how its terms have been applied throughout our history, "Impeachable Offenses" gives readers the perspective they need to make informed decisions. In an easy-to-read style packed with fascinating detail, "Impeachable Offenses" explores the frequency and reasons impeachment articles have and have not emerged from House investigations in the past 200 years, allowing readers to form their own conclusions on the current case based on the historical record. "Impeachable Offenses" includes the historical detail and documents on each of the 16 times articles of impeachment have been drawn up, plus the outcome of those investigations that did not lead to impeachment. "Impeachable Offenses" also includes the entire catalog of potentially impeachable offenses in the "Starr Report", the impeachment-related clauses from the Constitution, and a discussion of the Senate's trial procedures.

Editorial Reviews

Review

In 1998, impeachment of the President has grown from a preoccupation entertained by a small segment of the political spectrum to the central issue of American public life. Without going into the details of the case, we can generalize that those supporting impeachment of President William Jefferson Clinton have pounded what they claim are the facts, while those opposing Clinton's impeachment have pounded what they argue is the law -- specifically the argument that, assuming all the facts alleged against President Clinton to be true, the charges on the table do not amount to impeachable offenses within the meaning of Article II, section 4 of the Constitution. "Impeachable Offenses: A Documentary History from 1787 to the Present" provides a valuable foundation on which this argument over constitutional law can proceed.

Because of its excellence of presentation and its filling of a notable gap in the literature of impeachment, _Impeachable Offenses_ should join the shelf of books of first resort not only for future scholars of theimpeachment process -- but also for those politicians, elected officials, attorneys, and jurists who will have to cope with future impeachments, as well as the one threatening to overwhelm us. -- H-NET BOOK REVIEW, Published by H-Law [December, 1998]. Reviewed for H-Law by R. B. Bernstein, New York Law School. --This text refers to the Paperback edition.

Excerpt. © Reprinted by permission. All rights reserved.

Introduction: High Crimes and Misdemeanors

In virtually every federal impeachment proceeding in U.S. history, the impeached officer has defended by claiming that the behavior charged has not amounted to an impeachable offense. Thus in many impeachment investigations and in most of the sixteen impeachments in U.S. history, an initial debate has occurred over what sorts of behavior should subject an official to removal from office. For instance, late in 1973 matters had come to a head for investigations of wrongdoing by President Richard Nixon. More than twenty impeachment resolutions had been introduced in the House. These were referred to the Democratic-controlled House Judiciary Committee, which was put under pressure by the Republican members to decide what constituted an impeachable offense before undertaking the investigation of the president. In response to the concerns for definition, the impeachment inquiry staff (which included twenty-six-year-old Hillary Rodham, future first lady and wife of Bill Clinton, who as president would also be a target of impeachment) submitted a memo concluding that because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.

President Nixon's lawyers sought a more restrictive definition, contending that "the words 'Treason, Bribery, and other high Crimes and Misdemeanors' are limited solely to indictable crimes and cannot extend to misbehavior." Addressing the contention that the word "misdemeanor" has historically meant general misbehavior rather than criminal misbehavior, the president's lawyers argued that "high Crimes and Misdemeanors" was a unitary phrase meaning crimes against the State as opposed to those against individuals....It is as ridiculous to say that "misdemeanor" must mean something beyond "crime" as it is to suggest that in the phrase "bread and butter issues" butter issues must be different from bread issues.

This disagreement highlights only one of several recurring questions throughout the history of impeachment in America. To be impeachable, must behavior be criminally indictable? Must the behavior be done in an official capacity, or is purely private behavior impeachable? Are there different standards of behavior expected for different kinds of officers? If misbehavior does not rise to the level of impeachability, either legally or politically, is there some other action Congress may take to express disapproval, or even to punish the offending official? Can Congress arbitrarily determine what constitutes impeachable behavior? Can the courts review Congress's interpretation of what constitutes impeachable offenses?

What Is Impeachable Conduct?

Must behavior be criminally indictable to be impeachable?

It has often been contended that the phrase "high Crimes and Misdemeanors" means that impeachable behavior is only that which would subject an ordinary person to criminal indictment and prosecution. The history of impeachment suggests that Congress interprets the impeachment clause to include abuses of office that are not criminal.

For instance, District Judge Halsted L. Ritter was removed in the 1930s for misbehavior that included such things as showing favoritism in the appointment of bankruptcy receivers (see Document 20, p. 157). It may be that Congress is more comfortable removing an officer for a criminal offense, since it is easier to point to, identify, and agree on misbehavior if it has already been defined in a statute, but criminality is not a necessary component of "high Crimes and Misdemeanors."

The investigation of President Clinton presents the flip side of this question: Will any behavior that represents an ordinary crime be impeachable? What if a president committed perjury in a dismissed civil lawsuit involving an incident that occurred before he became president? Yale law professor Charles Black, in his impeachment handbook written during the investigation of Nixon in 1974, gives some possible insight. "Suppose," he asks, "a president transported a woman across a state line...for what is quaintly called an 'immoral purpose'" (a federal crime under the Mann Act)? "Or," he continues, "suppose the president actively assisted a young White House intern in concealing the latter's possession of three ounces of marijuana-thus himself becoming guilty of 'obstruction of justice.'"? Black concludes that it would be "preposterous" to think that this sort of behavior was what the framers contemplated when they crafted the impeachment clause to guide in the removal of high public officials. The history of impeachment suggests a mixed answer to this question, however.

Must the behavior be done in an official capacity, or is purely private behavior impeachable?

Prior to the impeachment and removal of District Judge Harry E. Claiborne in 1986 (see Document 21, p. 168), no officer had been removed for behavior that was wholly unconnected to the exercise of his or her office. Claiborne was convicted of and imprisoned for making false statements on two income tax returns. However, his removal seems clearly to have resulted from the disrepute his imprisonment brought on the office of judge, rather than from the underlying income tax issue. It is arguable, however, that unofficial behavior will be impeachable, if it is persistent enough and visible enough to bring the offender's public functions into disrepute.

If misbehavior does not rise to the level of impeachability, either legally or politically, is there some other action Congress may take to express disapproval, or even to punish the offending official?

Another issue that has yet to be resolved is whether Congress may constitutionally punish or reprimand an officer of the United States using any method short of removal from office. Although the Constitution makes no mention of censuring or reprimanding a public official, there are precedents for such actions. In 1834 the Senate passed a resolution of censure against President Andrew Jackson (see Document 26, p. 204). Jackson argued that the resolution was unconstitutional and that if Congress disliked his behavior the only remedy was impeachment (see Document 27, p. 205). Congress later censured or condemned Presidents John Tyler and James Polk. The House Judiciary Committee has recommended censure rather than impeachment on several occasions (see p. 185). Sometimes these recommendations elicited protests similar to President Jackson's that censure of anyone outside of Congress is not a constitutional process, and denies the target of censure the opportunity to respond. Because Congress's intent in censuring federal officials has been far less clear and more ambiguous than its intent in impeachment cases, assessing the validity and utility of this alternative is difficult.

Can the courts review Congress's interpretation of what constitutes impeachable offenses?

What constitutes an impeachable offense is, to be sure, a political question, to be answered by Congress, not the courts. The Supreme Court in Nixon v. U.S. has so determined (see Document 35, p. 309). If the courts cannot review congressional action in impeachments, then what is to keep Congress from acting in an arbitrary fashion if it chooses to?

Conclusion

As Ritter v. U.S. (see Document 34, p. 304) and Nixon v. U.S. (see Document 35, p. 309) suggest, impeachment is a political process rife with "political questions" that the courts are reluctant to address. Unlike most constitutional questions, which are for the courts to decide, constitutional issues surrounding the impeachment process are ones the Constitution has assigned Congress to resolve. Hamilton explained why in Federalist No. 65 (see Document 3, p. 30). Removal by impeachment, argued Hamilton, is designed to remedy an "abuse or violation of some public trust." Who better than the public, through its representatives, to determine if the public trust has been abused or violated? Unlike most constitutional questions, then, where it is desirable for an independent judge to make an impartial decision, in the impeachment process, it is desirable for the decision makers to take the public's opinion into account.

Consistent with the sentiments reflected in the convention debates, Congress has declined to interpret its impeachment power as an unrestricted license to define "high Crimes and Misdemeanors" however it chooses. Instead, Congress has looked to the text of the Constitution, the intent of the framers, and the precedents it has developed over the course of previous impeachment proceedings to elucidate and limit the scope of impeachable offenses. The significance of the materials in this volume, then, goes beyond simply providing an historical context in which to better understand the impeachment process. Rather, these and related materials constitute the precedent upon which Congress can be expected to rely in defining the scope of impeachable conduct in future impeachment proceedings. In every formal impeachment process, the House of Representatives has struggled with how to proceed against the backdrop of history and its own precedents. This volume provides a substantial portion of the documentary precedents. History cannot dictate to us how to solve our problems, but it can surely help us better understand our circumstances and our options.

Whatever the ultimate outcome of the investigation of President Clinton, the question of what constitutes impeachable behavior will remain an important, although thankfully rare, issue for the American people. The documents published here are intended to inform discussion of that issue. --This text refers to the Paperback edition.

Product Details

• Hardcover: 326 pages
• Publisher: CQ Press; 1 edition (December 15, 2000)
• Language: English
• ISBN-10: 1568024797
• ISBN-13: 978-1568024790
• Product Dimensions: 9.4 x 6.3 x 0.9 inches
• Shipping Weight: 1.3 pounds (View shipping rates and policies)
• Average Customer Review: 1.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #3,364,201 in Books (See Top 100 in Books)

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