Impeach or Indict?
York, Byron
"Impeach or Indict?" All across Capitol Hill, a sense of frustration and resignation has set in among those who have spent the past three years investigating Clinton administration scandals. What do they have to show...
...It is very unlikely that he would jump outside of both to indict Clinton...
...After reaching his decision not to indict, he went one crucial step further: he sent the evidence he had gathered—organized into what his staff called the The American Spectator • December 1996 "road map"—to the House committee...
...Just look at how energetically—and so far successfully—he has argued that he should not be the target of the Paula Jones civil suit as long as he remains in office...
...Agnew argued that the Constitution required that he be impeached before he could be indicted, gambling on the possibility that Congress wouldn't go forward with impeachment and he could thus escape punishment...
...That provoked a protest from Madison, who argued that "maladministration" was so vague that it would mean that the president served "a tenure during pleasure of the Senate...
...Consider the following excerpt from the Records of the Federal Convention of1787, in which several delegates attempted to convince two holdouts that an impeachment clause should be included in the new Constitution: Mr...
...Bork argued that it would create a massive conflict for the president to face his own law enforcement institutions...
...I haven't heard of anything yet," says another committee official...
...Bork's argument had the convenient effect of protecting Nixon while cutting Agnew loose...
...the money was part of the illegal $300,000 Small Business Administration loan that went to Susan McDougal...
...The framers of the Constitution believed that the citizenry should have the right to remove the chief executive not only in the normal course of elections but also in cases of wrongdoing...
...There is good reason to argue that prosecution is possible only after impeachment...
...We know from the McDougal trial, for example, that $50,000 that was obtained by defrauding the United States government was channeled into Clinton's company...
...Treason as defined in the Constitution will not reach many great and dangerous offences...
...All but the most zealous defenders of Bill Clinton would be hard-pressed to deny that the list is strikingly similar to present-day accusations against the president...
...Above all, shall that man be above it, who can commit the most extensive injustice...
...Starr would do the same thing: by handing the issue to Congress, where it could be properly dealt with by elected representatives...
...And they clearly foresaw that the question would arise from time to time...
...Article II, Section 4 says only that "The President...shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors...
...but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law...
...But Bork also addressed the Nixon question by declaring that the president was so important that he could not be indicted while in office...
...It was a fairly popular position...
...He considered this as an essential security for the good behaviour of the Executive...
...The Constitution does not specifically address the question...
...Failing] without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives...
...20 December 1996 • The American Spectator 0 • The Constitution gives the president the power to enforce the law, to grant pardons, and to appoint judges...
...Starr can point the way, but the lo5th Congress will have to decide...
...THE UNINDICTABLE MAN Can Clinton be indicted while he is president...
...Morris [said...
...No longer would the president's critics be able simply to accuse the White House of corruption...
...it could happen, and could happen rather quickly...
...And should it succeed, of course, the burden would then shift to the Senate for trial...
...Davie [William Richardson Davie of North Carolina] said if he not be impeacheable whilst in office, he will spare no efforts or means whatever to get himself reelected...
...65, again by Hamilton: After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of the law...
...Even though they chose not to specifically enumerate it in the Constitution, the founders apparently believed that a president would have to face political judgment before facing criminal justice...
...But Jaworski had "grave doubts that a sitting president was indictable for the offense of obstruction of justice," especially when the House Judiciary Committee was considering the same issue...
...He is amenable to the criminal laws," Bork wrote, "but only after he has been impeached and convicted, and thus stripped of his critical constitutional functions...
...But clear and convincing evidence from Starr that the president is guilty of perjury, obstruction of justice, or a variety of other offenses would certainly fit the bill...
...And if he did, it is a sure thing that Clinton would mount a ferocious defense along Nixon/Bork lines...
...The Whitewater hearings destroyed the credibility of several top White House aides, but most remain in their jobs, and several have been generously reimbursed—with taxpayer dollars—for their legal expenses...
...69, Alexander Hamilton wrote: The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office...
...In the more than 200 years since the document was ratified, no one has come up with a specific definition of "high crimes and misdemeanors...
...it could happen, and rather quickly...
...In Federalist No...
...There are indications the framers of the Constitution would have agreed with Jaworski's decision not to indict...
...P. observed [the president ought not] be impeacheable whilst in office...
...But by late August 1787, those in favor of limiting impeachments had changed the draft to specify that the president could be removed for just two reasons: treason and bribery...
...A11 across Capitol Hill, a sense of frustration and resignation has set in among those who have spent the past three years investigating Clinton administration scandals...
...That set off an impassioned debate...
...Several months earlier, during the constitution. al convention, the delegates argued over which part of government would be best suited to try impeachments...
...But his brief offered little ultimate protection for Nixon...
...But Jaworski did not stop there...
...The limitation of the period of his service was not a sufficient security...
...First of all, it means he won't indict Bill Clinton while Clinton is president...
...Docr...
...Filegate, so promising last summer, bogged down by fall, when Republicans were unable to discover which higher-ups were behind the administration's widespread abuse of the FBI...
...Gouverneur Morris of Pennsylvania urged that the Senate, rather than the Supreme Court, should sit in judgment of the president, because the high court would likely "try the President after the trial of the impeachment...
...I had no doubt but that the grand jury wanted to indict him," Jaworski wrote in his memoir, The Right and the Power...
...Some of the framers believed Congress should be empowered to get rid of the president for almost any reason...
...Bork's reasoning was that the vice president's job just wasn't important enough for him to be immune from prosecution...
...THE FIGHT AHEAD If Starr forwards evidence of possible Clinton crimes to Congress, the beginning of an impeachment inquiry would put enormous demands on the leadership of the House of Representatives...
...A later draft added the word "corruption" to the list of impeachable offenses...
...IF YOU THINK KENNETH STARR IS GOING TO INDICT BILL CLINTON, YOU'LL BE SORELY DISAPPOINTED...
...His argument carried the day...
...But so far, almost no one in Congress will even admit to thinking about the issue...
...But more serious disagreements arose concerning the seriousness of wrongdoing that would be necessary to trigIf Kenneth Starr tries to indict the president, it's a sure thing that Bill Clinton would mount a ferocious defense along Nixon/Bork lines from 1974...
...Im or Indict...
...Pinckney [Charles Pinckney of South Carolina] & Mr...
...For those who believe that no man is above the law, the answer would seem an easy yes...
...Section 595 (c) of the independent counsel law instructs the independent counsel to "advise the House of Representatives of any substantial and credible information which such independent counsel receives...that may constitute grounds for an impeachment...
...The discussion changed Morris's mind, and he later voted in favor of an impeachment clause...
...IMPEACH: YES OR NO...
...BY BYRON YORK Clinton's adversaries hope Starr will indict the president...
...Since the president's powers include control over all federal prosecutions," Bork explained, "it is hardly reasonable or sensible to consider the president subject to such prosecution...
...Morris [Gouverneur Morris of Pennsylvania] moved to strike out this part of the Resolution...
...They should, and soon, because Starr's years of investigation might result in action against the president at any time...
...an early draft of the Constitution stipulated that the president could be removed for "malpractices or neglect of duty," which would have given Congress enormous leeway in choosing to get rid of a president...
...The measure carried, ten to two...
...The president testified under oath and on videotape that he knew nothing about the fraudulent loan...
...Once it has possession of Starr's evidence, how would members of Congress decide whether or not to impeach...
...In an impeachment they would have to go on record with a vote that might ultimately come back to haunt them should the impeachment attempt fail...
...Article I, Section 3 says that "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 it is not as simple as that...
...In several public statements, Starr has made clear that he has great respect for precedent and the accepted practices of the judicial system...
...The Travelgate investigation uncovered wrongdoing and stonewalling throughout the White House, but the administration seems to have suffered no lasting political damage...
...At the same time, Spiro Agnew, facing problems of his own, claimed that he couldn't be indicted as long as he was vice president...
...Clearly Richard Nixon was very lucky that Alexander HamilLt ton did not succeed him in office...
...But so far, almost no one in Congress will even admit to thinking about it...
...Shall any man be above Justice...
...But they are likely to be disappointed, because a look at the law and history shows that it is a virtual certainty that Starr will not indict Bill Clinton—at least not while he is in the White House...
...it is the only branch of government headed by a single person...
...despite enormous pressure from his own staff to charge Nixon, Jaworski decided against indictment (although he did name the president an unindicted co-conspirator...
...In short, political oversight didn't work...
...Therefore, Bork wrote, "if the president were indictable while in office, any prosecutor and grand jury would have within their power the ability to cripple an entire branch of the national government...
...The Constitution prescribes impeachment as the only way to punish a sitting president for criminal misconduct...
...What do they have to show for their work...
...Now the energy that once drove the congressional investigations has been replaced by a quiet—and perhaps desperate—faith in Kenneth Starr, the independent counsel who is investigating Whitewater, Travelgate, and Filegate...
...Agnew's strategy was a failure...
...Is the impeachment to suspend his functions...
...22 December 19 9 6 • The American Spectator ger an impeachment proceeding...
...And there's one more reason Starr will go to Congress: unlike Jaworski in 1974, Starr is required by law to do so...
...A good magistrate will not fear them...
...We deal with facts rather than speculation," says one Judiciary Committee staffer, adding that there have been no discussions on the issue...
...Solicitor General Robert Bork, representing the Justice Department, argued that the vice president, like other public officials, could indeed be indicted while in office...
...Jaworski's "road map" provides the answer...
...A bad one ought to be kept in fear of them...
...The sad thing around here is that no one really has prepared," says a Republican who is not on Judiciary...
...At that point, the matter was in the domain of the political system...
...If Starr were to discover clear and convincing evidence that the president committed perjury, he would face the question of how to advance the case against a sitting president without resorting to a possibly unconstitutional indictment...
...and would afterwards be liable to prosecution and punishment in the ordinary course of the law...
...For example, according to the Records, Roger Sherman of Connecticut contended "that the National Legislature should have power to remove the Executive at pleasure...
...Nixon hoped for much the same thing...
...If it is, the impeachment will be nearly equivalent to displacement, and will render the Executive dependent on those who are to impeach...
...He based his argument on three points: • The Constitution gives the president exclusive control of the executive branch...
...Madison [James Madison of Virginia] thought it indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate...
...But which comes first...
...No one here has talked about it...
...He concluded that "the proper constitutional process...would be for the Committee to proceed first with its impeachment inquiry...
...This is not an abstract scenario...
...I' Subscribe to The 11,1cl-hull Spccia tor ...call i-S00-3z4-3469 23 This is not an abstract scenario...
...Bork clearly stated that Nixon or any other chief executive could be prosecuted after leaving the presidency, whether by impeachment, resignation, or simply serving out his term...
...Mason moved that "maladministration" be added to the list of impeachable offenses...
...By refusing to indict the president and instead giving his evidence to the House Judiciary Committee, Jaworski limited his role as prosecutor to that of evidence-gatherer...
...Why is the provision restrained to treason and bribery only...
...When the independent counsel follows the intentions of the framers—plus his own statutory mandate—and passes the evidence on to Congress, it will be time for lawmakers to put up or shut up...
...In fact, it might result in articles of impeachment similar to those drawn up by the House Judiciary Committee against Richard Nixon in 1974...
...Some of the committee's charges against Nixon included: • [M]aking false or misleading statements to lawfully authorized investigative employees of the United States...
...21 STARR'S BIG MOVE What does this mean for Kenneth Starr...
...STARR CAN INVESTIGATE, BUT IT WILL BE UP TO CONGRESS TO ACT...
...The phrase was approved by a vote of eight to three and became the final wording of the Constitution...
...BYRON YORK is an investigative writer for TAS...
...The issue was at the heart of Watergate when Richard Nixon contended that he could not be indicted as long as he was president...
...In case he should be re-elected, that will be sufficient proof of his innocence...
...Watergate special prosecutor Leon Jaworski apparently found the argument persuasive...
...George Mason asked the convention...
...And if the independent counsel does find presidential crimes, the issue will go not to the courts but back to Capitol Hill, where members of Congress from both parties will be forced to abandon the easy soundbites of oversight hearings and instead face a difficult vote on the question of impeachment...
...M]aking or causing to be made false or misleading public The American Spectator • December 19 9 6 statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States...and that there was no involvement of such personnel in such misconduct...
...Besides, who is to impeach...
...Mason eventually surrendered, abandoning "maladministration" and proposing "high crimes and misdemeanors" instead...
...Taken together, the clauses mean the president can be both impeached and prosecuted...
...Col...
...If it is not, the mischief will go on...
...They would likely return to what the founders had to say about the issue...
...Bill Clinton and his staff proved sharper, slicker, and more determined to obstruct Congress than even some of their opponents had imagined...
...Gerry [Elbridge Gerry of Massachusetts] urged the necessity of impeachments...
...Mason [George Mason of Virginia] said no point is of more importance than that the right of impeachment should be continued...
...But Hamilton was not the only framer in favor of impeachment first, prosecution later...
...W]ithholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States...
...Franklin [Benjamin Franklin] said...it would be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused...
...And in Federalist No...
...But if Starr has strong evidence that Clinton has committed crimes, what does he do with it...
Vol. 29 • December 1996 • No. 12
