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Authors: Ann Coulter
High Crimes and Misdemeanors: The Case Against Bill Clinton (35 page)
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As James Wilson—the framer often called the “father of the presidency—said, “Impeachments… come not… within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects; for this reason the trial and punishment of an offense on impeachment, is not bar to a trial of the same offense at common law.”
21
IMPEACHMENT IS THE MOTHER OF ACCOUNTABILITY21
The “objects” to which
impeachment would be directed in a constitutional Republic would be different from those under a monarchy. The president would have to be a virtuous man, for example, because he was not king. Having just fought the revolutionary war to throw off a monarchy, the framers of the Constitution were rather clear about the president not being a king. In fact, it was precisely to avoid such claims as are being made today—that the president is above the law or somehow special in any way because he is the sole repository of the entire executive branch authority—that the framers toyed with the idea of creating a committee of presidents. That idea was, obviously, rejected.
impeachment would be directed in a constitutional Republic would be different from those under a monarchy. The president would have to be a virtuous man, for example, because he was not king. Having just fought the revolutionary war to throw off a monarchy, the framers of the Constitution were rather clear about the president not being a king. In fact, it was precisely to avoid such claims as are being made today—that the president is above the law or somehow special in any way because he is the sole repository of the entire executive branch authority—that the framers toyed with the idea of creating a committee of presidents. That idea was, obviously, rejected.
But the reason it was rejected was not to make the president more powerful, but to make him more accountable.
The idea was not even to have a series of kings with limited, four-year terms. Indeed, throughout the constitutional conventions and later ratifying conventions, the framers obsessively discussed the checks on the power of the president, so averse were they to recreating a monarchy. At the Pennsylvania ratifying convention, for example, James Wilson extolled the citizen stature of the president: “[N]ot a
single privilege
is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by
impeachment
.”
22
single privilege
is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by
impeachment
.”
22
Still and all, the creation of a president was one of the most contentious points in the proposed Constitution. The anti-Federalists argued that the presidency would soon replicate the very thing the Revolutionary War had been fought to end. Caricaturing the anti-Federalists’ portrayal of what the president would become—“[c]alculating upon the aversion of the people to monarchy”—Hamilton writes:
He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates in all the supercilious pomp of majesty.
23
If he had been really prescient, Hamilton might have added,
He has been shown surrounded by interns, providing him with oral sex.
This was not the president envisioned by the framers, but a “counterfeit resemblance.”
He has been shown surrounded by interns, providing him with oral sex.
This was not the president envisioned by the framers, but a “counterfeit resemblance.”
Methodically disputing this portrait, Hamilton compares the relative powers of the president, the king of England, and the governor of New York, concluding it “would be difficult to determine” whether the president or the governor of New York possessed more power.
24
It was certainly clear that the man filling the office of the presidency would have nothing resembling the king of England’s powers. In any event, James Wilson pointed out that the president would have no proprietary claim on the office, but could be impeached for acting “improperly.”
25
24
It was certainly clear that the man filling the office of the presidency would have nothing resembling the king of England’s powers. In any event, James Wilson pointed out that the president would have no proprietary claim on the office, but could be impeached for acting “improperly.”
25
And not only for acting improperly himself, but for suffering his subordinates to act improperly. This is why there is only one president, rather than a board of presidents.
One of the “weightiest objections” to vesting all the executive power in a committee rather than a single man, Hamilton said, was that a single executive would not be able “to conceal faults and destroy responsibility.” The legislature’s power to impeach the man in charge of the entire executive branch would make him responsible for the misconduct of his subordinates:
It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.
26
Placing all the executive power in a single man would lodge all the responsibility in a single man. The president would not be able to hide behind the decisions of others. All the blame for any wrongdoing within the executive branch would necessarily fall on the president.
Consequently, and as it turns out wholly theoretically, the unitary president would thereby be inhibited from engaging in bad acts. He would not be able to pass off his bad acts as the work of his subordinates because he would be held accountable for their misdeeds. And if the president did not orchestrate their misconduct, but merely failed to root out corrupt subordinates, he would still be held accountable for their actions. The people would not have to search for the wrongdoer, but rather would have, in Hamilton’s words, “the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”
27
27
The principal architect of Article II of the Constitution, James Wilson, exulted that the president would not be able to “act improperly, and hide either his negligence or inattention,” and thus would have no “screen.” The Rodino Report provides a series of quotes from founding luminaries showing that one important purpose of a unitary executive was to more easily—as the report puts it—“fix the blame.”
James Iredell, who played a leading role in the North Carolina ratifying convention and later became a justice of the Supreme Court, said that under the proposed Constitution, the President “is of a very different nature from a monarch. He is to be… personally responsible for any abuse of the great trust reposed in him.”… William Davie, who had been a delegate in Philadelphia, explained that the “predominant principle on which the Convention had provided for a single executive was “the more obvious responsibility of one person.”
28
The framers’ particular enthusiasm
for impeaching presidents lacking the requisite virtue is reflected in the Constitution. For openers, the impeachment clauses in the Constitution specifically cite the president and vice president as subject to impeachment:
for impeaching presidents lacking the requisite virtue is reflected in the Constitution. For openers, the impeachment clauses in the Constitution specifically cite the president and vice president as subject to impeachment:
The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
29
Despite the fact that “all civil officers”—as distinct from military officers—are subject to impeachment, the president and vice president are the only impeachable officials specifically identified in the impeachment clause. Senators, congressmen, judges, and random government bureaucrats are all liable to being impeached. But the framers’ simply assumed that presidents would be the focus of most impeachments—as they were during the debates at the Constitutional Convention on the impeachment clauses. There is even a special procedural twist for the impeachment of a president: the chief justice of the United States presides at the Senate trial.
Congressmen and senators are referred to in the impeachment clauses only indirectly as composing the bodies that are to conduct impeachment trials. While Article II—which defines the powers and duties of the president—sets forth the characters subject to impeachment, Article I—creating the legislative branch—mentions impeachment only to describe the procedures.
The procedure provided is this:
The House of Representatives… shall have the sole Power of Impeachment.The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
30
Though the language is of trials and convictions, a conviction of impeachment by the Senate is completely different from a criminal conviction in a court of law. Unlike the English practice, no criminal penalty attaches to an impeachment conviction, and therefore no double jeopardy problem arises. This the Constitution makes explicit:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
31
The penalty for personal crimes is punishment—execution or imprisonment; the penalty for committing high crimes and misdemeanors is simply removal from office, and may include disqualification from holding in the future any position of “honor” or “Trust” with the United States.
Some have interpreted the statement that “the Party
convicted
shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment,” to mean an impeachment “conviction”
must
precede a criminal indictment. That obviously is absurd. Since every civil officer of the United States is subject to impeachment, that would mean that thousands upon thousands of civil officers would have carte blanche to commit rape, murder, mayhem—without the possibility of facing a criminal prosecution, until after the House had impeached and the Senate removed the officer from his federal job.
convicted
shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment,” to mean an impeachment “conviction”
must
precede a criminal indictment. That obviously is absurd. Since every civil officer of the United States is subject to impeachment, that would mean that thousands upon thousands of civil officers would have carte blanche to commit rape, murder, mayhem—without the possibility of facing a criminal prosecution, until after the House had impeached and the Senate removed the officer from his federal job.
The reference to “the Party convicted” reflects the framers’ natural assumption that Congress would impeach and remove long before a “civil officer” might become vulnerable to a criminal indictment. The threshold for being merely unfit for office is substantially below the threshold for a criminal indictment. As Hamilton put it, “Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment.”
32
32
Just because removal from office ought logically to precede a criminal indictment doesn’t mean the Constitution requires it. In fact, the only three impeachment convictions in the last half century were preceded by criminal trials.
Whatever the order, an impeachment trial in the Senate is no substitute for a judicial proceeding in a court of law: the Constitution expressly separates the two procedures. At the end of an impeachment there is no other punishment but removal from office and the possibility of being disenfranchised from holding any other federal office.
It didn’t have to be this way: the English system, from which the framers borrowed, attached criminal penalties to impeachment convictions. The framers simply took for granted that impeachment and removal from office would come first but would not necessarily be the end of it. Consequently, to avoid a double jeopardy problem, the Constitution explicitly states that an impeachment conviction does not bar a subsequent criminal proceeding. The purposes and consequences of impeachment and criminal punishment are completely different. It is absurd to treat impeachment as a sort of dress rehearsal for the criminal prosecution, with all the same formalities and burdens of proof.
Impeachment is not a frivolous matter, but it will not lead to an execution or jail term, as it might have in fourteenth-century England. (Instead of Americans becoming more like the French, as Clinton’s flacks constantly recommend, so we can start warmly embracing those who violate their oaths to God and man, how about being more like the English?) Impeachment is nothing more than a constitutional process for removing rogues from office. Criminal punishment, if the impeachable act also happens to be a criminal act, comes by a different route.
It is often said that the impeachment of a president poses a “constitutional crisis.” One may call whatever one likes a “constitutional crisis,” but it can at least be said that this particular crisis is not unconstitutional. The Constitution specifically provides for impeachment, mentioning it six times. When other constitutional procedures are employed—elections, no naturalized citizens running for president, presidential vetoes, Senate confirmations, revenue bills originating in the House—no one speaks of a “crisis.” Impeachment is serious business, but so are elections. Both are part of constitutional government.
BOOK: High Crimes and Misdemeanors: The Case Against Bill Clinton
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