Salon Newsreal | Dear Henry:

A L S O+T O D A Y

We interrupt this impeachment ...
By Joshua Micah Marshall
Two years in a row, Clinton's State of the Union address proves he won't follow the Presidential Tragedy script

Reactions to the president's speech
Experts discuss Clinton's performance and what effects his proposals would have on the actual problems he identified as priorities

What might have been
By Joan Walsh
It's hard to watch this president perform so well, knowing that he has already undermined his -- and our -- hopes for any real legislative success

Diamond in the Ruff
By Harry Jaffe
The president's lawyer, a lone figure in his wheelchair in the well of the Senate, could not have been a more effective defender

The State of the Union
Prepared text of President Clinton's State of the Union address

T A B L E+T A L K
Ignore the talking heads! Discuss your thoughts on Clinton's State of the Union address in the Politics area of Table Talk
___________________
Visit barnesandnoble.com for politics books on both sides of the aisle
___________________

Portrait of a political "pit bull"
By Russ Baker
Rep. Dan Burton, who called President Clinton a "scumbag," has a few questions to answer about his own behavior
(12/22/98)

R E C E N T L Y
Clinton's Star Wars sequel
By Christopher Hitchens
The president pays off the military by funding a notorious boondoggle
(01/19/98)
Impeachment diary III
By Anonymous
In the absence of real action, Senate insiders give the House Boyz low grades, rue the end of bipartisan cooperation and spread a whole lotta rumors about Trent Lott
(01/15/98)
American gerontocracy
By Christopher Shea
Is the mental capacity of the aged leaders judging President Clinton a fit subject for commentary?
(01/15/98)
Counting the dead children
By Jeff Stein
Critics blast U.S. sanctions that kill Iraqi babies, but leave Saddam fat and happy
(01/15/98)
Cracks in the bipartisan façade
By Joshua Micah Marshall
As House Republicans tried to depict their impeachment vendetta as a brave civil rights struggle, the important action was all taking place off-camera
(01/15/98)
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DEAR HENRY: | PAGE 1, 2,
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II. Impeachment and Murder
What, though, should be done about a president who committed some monstrous crime, like murder or rape, in his personal capacity? What if a president shot a man who had cuckolded him, or a political rival who had insulted him? Shouldn't that president be impeached and removed from office?
The Framers, alas, were silent on this. And, incredibly, the one historical example we have, concerning Aaron Burr, points toward the idea that such offense might not be impeachable.
In 1804 --a mere seventeen years after the Constitution had been framed, and with many of the Framers still alive -- Burr, then vice-president, shot and killed Alexander Hamilton in a duel. Although the code duel was respected in some parts of the country, it was not respected in New Jersey (where the killing occurred), and a Bergen County court indicted Burr for murder. Burr fled south until the clamor against him subsided, then returned his official duties, knowing that if he entered New Jersey he would be arrested on the murder charge.
Although many in Washington were deeply upset by what Burr had done, there was no hint that he should be impeached, even though the standards of impeachable offenses for the president and vice president are identical and even though an American court had indicted Burr for murder. On the contrary, Burr took up his official duties as presiding officer in the Senate, oversaw the impeachment trial of Supreme Court Justice Samuel Chase, and served out his term hobnobbing with president Thomas Jefferson, Secretary of State James Madison, and other Founding Fathers. The murder charges were eventually dropped, but not until after Burr had left office.
To say the least, this is an uncomfortable precedent. As Charles Black and other constitutional experts have noted, there is a good reason to believe that certain private acts committed by a president would so stain the office that they demand impeachment and removal. And as one of the historians who helped write and circulate the October 28 statement testified before the Judiciary Committee:
"This is not to say that all instances of private misconduct by presidents may not rise to the constitutional level. If a president were to engage in murder, in rape, in child molestation, that would, as Professor Black suggests, "so stain a president as to make his continuance in office dangerous to public order." Monstrous crimes acquire public significance. But lying about one's sex life is not a monstrous crime. " (Arthur Schlesinger, Jr., written testimony, Nov. 9, 1998.)
Another of us told the Judiciary Committee:
"Without question, an occasion could arise when it would be necessary to expand on the Framers' language, to cover circumstances they may never have contemplated, including truly monstrous private crimes. I would hope, for example that any president accused of murder, even in the most private of circumstances, would be impeached and removed from office. " (Sean Wilentz, written testimony, Dec. 8, 1998.)
So much for the House Managers' claim that the historians' position disallows impeachment in cases of murder and rape. The real question of pertinence to this proceeding is whether President Clinton's confessed and alleged misdeeds meet this somewhat expanded standard, as explained by Professor Black, other constitutional experts, and the historians. The answer is clearly no - for no one, even among President Clinton's harshest critics, has claimed that his confessed and alleged misdeeds are on a par with murder. In short, to say, as the House Managers have, that the historians do not believe that murder or rape is an impeachable offense under the Constitution, amounts to a gross misrepresentation of the record. To bring up the examples of murder and rape with regards to this specific impeachment proceeding amounts to, at best, an irrelevant academic exercise and, at worst, a deliberate attempt to find some specious extra-constitutional grounds for impeaching President Clinton where no constitutional grounds exist.
III. How the House Republicans misrepresent the framers.
In his statement of Jan. 16, 1999, House Republican Manager Charles Canady quoted in full the following crucial passage from the 65th Federalist. He then provided his interpretation of what the passage meant. The contrast is striking. Hamilton clearly placed the focus of the impeachment process on political matters that directly damaged the social order. But through clever selective quoting, Canady turned Hamilton's meaning upside down.
The Federalist Papers: Alexander Hamilton's original writing:
"The subjects of [the Senate's] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."
Alexander Hamilton, "The Federalist: Number 65," in Clinton Rossiter, ed., The Federalist Papers (1788; New York, Mentor, 1961), p. 396.
The Federalist Papers: The House Republican Impeachment Managers' Version
"Hamilton recognized that the focus of the impeachment process is on the 'misconduct of public men' or 'the abuse or violation of some public trust.' Impeachment is a remedy against officials 'for injuries done ... to the society itself.'"
"Statement before the Senate by Congressman Charles T. Canady in the Matter of the Impeachment of president William Jefferson Clinton" (1999).
Note how Canady's version completely omits what Hamilton truly thought was the focus of the impeachment power, its political character, a word so important to Hamilton that he put it entirely in capital letters. Note, too, how Canady's version by-passes the crucial word "immediately," by which Hamilton tried to distinguish between direct assaults on our government and merely symbolic or supposed or indirect assaults.
Just as tellingly, perhaps, Canady made no reference whatsoever to the very next sentence in the 65th Federalist, in which Hamilton foresaw precisely the sort of partisan impeachment drive that afflicts us now:
"The prosecution of [impeachments]," Hamilton wrote, "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 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 parties than by the real demonstrations of innocence or guilt." (Alexander Hamilton, "The Federalist: Number 65," in Clinton Rossiter, ed., The Federalist Papers (1788; New York, Mentor, 1961), pp. 396-7.
Is it any wonder why the House Republican Impeachment Managers, spearheads of an almost purely partisan impeachment and removal drive, omitted this passage?
Let us emphasize once again, as we have done often before, that our concern is not to defend President Clinton. Our concern is to defend the constitutional principles that in the future as in the past will protect Republican as well as Democratic presidents.
Arthur M. Schlesinger, Jr.
Sean Wilentz
C. Vann Woodward

Historians in Defense of the Constitution
2000 M. Street, N.W.
Suite 400
Washington, DC

SALON | Jan. 20, 1999

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A L S O+T O D A Y We interrupt this impeachment ... By Joshua Micah Marshall Two years in a row, Clinton's State of the Union address proves he won't follow the Presidential Tragedy script Reactions to the president's speech Experts discuss Clinton's performance and what effects his proposals would have on the actual problems he identified as priorities What might have been By Joan Walsh It's hard to watch this president perform so well, knowing that he has already undermined his -- and our -- hopes for any real legislative success Diamond in the Ruff By Harry Jaffe The president's lawyer, a lone figure in his wheelchair in the well of the Senate, could not have been a more effective defender The State of the Union Prepared text of President Clinton's State of the Union address T A B L E+T A L K Ignore the talking heads! Discuss your thoughts on Clinton's State of the Union address in the Politics area of Table Talk ___________________ Visit barnesandnoble.com for politics books on both sides of the aisle ___________________ Portrait of a political "pit bull" By Russ Baker Rep. Dan Burton, who called President Clinton a "scumbag," has a few questions to answer about his own behavior (12/22/98) R E C E N T L Y Clinton's Star Wars sequel By Christopher Hitchens The president pays off the military by funding a notorious boondoggle (01/19/98) Impeachment diary III By Anonymous In the absence of real action, Senate insiders give the House Boyz low grades, rue the end of bipartisan cooperation and spread a whole lotta rumors about Trent Lott (01/15/98) American gerontocracy By Christopher Shea Is the mental capacity of the aged leaders judging President Clinton a fit subject for commentary? (01/15/98) Counting the dead children By Jeff Stein Critics blast U.S. sanctions that kill Iraqi babies, but leave Saddam fat and happy (01/15/98) Cracks in the bipartisan façade By Joshua Micah Marshall As House Republicans tried to depict their impeachment vendetta as a brave civil rights struggle, the important action was all taking place off-camera (01/15/98) - - - - - - - - - - - - - - - - Browse the Newsreal Archives - - - - - - - - - - - - - - - -
		DEAR HENRY: \| PAGE 1, 2, - - - - - - - - - - II. Impeachment and Murder What, though, should be done about a president who committed some monstrous crime, like murder or rape, in his personal capacity? What if a president shot a man who had cuckolded him, or a political rival who had insulted him? Shouldn't that president be impeached and removed from office? The Framers, alas, were silent on this. And, incredibly, the one historical example we have, concerning Aaron Burr, points toward the idea that such offense might not be impeachable. In 1804 --a mere seventeen years after the Constitution had been framed, and with many of the Framers still alive -- Burr, then vice-president, shot and killed Alexander Hamilton in a duel. Although the code duel was respected in some parts of the country, it was not respected in New Jersey (where the killing occurred), and a Bergen County court indicted Burr for murder. Burr fled south until the clamor against him subsided, then returned his official duties, knowing that if he entered New Jersey he would be arrested on the murder charge. Although many in Washington were deeply upset by what Burr had done, there was no hint that he should be impeached, even though the standards of impeachable offenses for the president and vice president are identical and even though an American court had indicted Burr for murder. On the contrary, Burr took up his official duties as presiding officer in the Senate, oversaw the impeachment trial of Supreme Court Justice Samuel Chase, and served out his term hobnobbing with president Thomas Jefferson, Secretary of State James Madison, and other Founding Fathers. The murder charges were eventually dropped, but not until after Burr had left office. To say the least, this is an uncomfortable precedent. As Charles Black and other constitutional experts have noted, there is a good reason to believe that certain private acts committed by a president would so stain the office that they demand impeachment and removal. And as one of the historians who helped write and circulate the October 28 statement testified before the Judiciary Committee: "This is not to say that all instances of private misconduct by presidents may not rise to the constitutional level. If a president were to engage in murder, in rape, in child molestation, that would, as Professor Black suggests, "so stain a president as to make his continuance in office dangerous to public order." Monstrous crimes acquire public significance. But lying about one's sex life is not a monstrous crime. " (Arthur Schlesinger, Jr., written testimony, Nov. 9, 1998.) Another of us told the Judiciary Committee: "Without question, an occasion could arise when it would be necessary to expand on the Framers' language, to cover circumstances they may never have contemplated, including truly monstrous private crimes. I would hope, for example that any president accused of murder, even in the most private of circumstances, would be impeached and removed from office. " (Sean Wilentz, written testimony, Dec. 8, 1998.) So much for the House Managers' claim that the historians' position disallows impeachment in cases of murder and rape. The real question of pertinence to this proceeding is whether President Clinton's confessed and alleged misdeeds meet this somewhat expanded standard, as explained by Professor Black, other constitutional experts, and the historians. The answer is clearly no - for no one, even among President Clinton's harshest critics, has claimed that his confessed and alleged misdeeds are on a par with murder. In short, to say, as the House Managers have, that the historians do not believe that murder or rape is an impeachable offense under the Constitution, amounts to a gross misrepresentation of the record. To bring up the examples of murder and rape with regards to this specific impeachment proceeding amounts to, at best, an irrelevant academic exercise and, at worst, a deliberate attempt to find some specious extra-constitutional grounds for impeaching President Clinton where no constitutional grounds exist. III. How the House Republicans misrepresent the framers. In his statement of Jan. 16, 1999, House Republican Manager Charles Canady quoted in full the following crucial passage from the 65th Federalist. He then provided his interpretation of what the passage meant. The contrast is striking. Hamilton clearly placed the focus of the impeachment process on political matters that directly damaged the social order. But through clever selective quoting, Canady turned Hamilton's meaning upside down. The Federalist Papers: Alexander Hamilton's original writing: "The subjects of [the Senate's] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." Alexander Hamilton, "The Federalist: Number 65," in Clinton Rossiter, ed., The Federalist Papers (1788; New York, Mentor, 1961), p. 396. The Federalist Papers: The House Republican Impeachment Managers' Version "Hamilton recognized that the focus of the impeachment process is on the 'misconduct of public men' or 'the abuse or violation of some public trust.' Impeachment is a remedy against officials 'for injuries done ... to the society itself.'" "Statement before the Senate by Congressman Charles T. Canady in the Matter of the Impeachment of president William Jefferson Clinton" (1999). Note how Canady's version completely omits what Hamilton truly thought was the focus of the impeachment power, its political character, a word so important to Hamilton that he put it entirely in capital letters. Note, too, how Canady's version by-passes the crucial word "immediately," by which Hamilton tried to distinguish between direct assaults on our government and merely symbolic or supposed or indirect assaults. Just as tellingly, perhaps, Canady made no reference whatsoever to the very next sentence in the 65th Federalist, in which Hamilton foresaw precisely the sort of partisan impeachment drive that afflicts us now: "The prosecution of [impeachments]," Hamilton wrote, "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 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 parties than by the real demonstrations of innocence or guilt." (Alexander Hamilton, "The Federalist: Number 65," in Clinton Rossiter, ed., The Federalist Papers (1788; New York, Mentor, 1961), pp. 396-7. Is it any wonder why the House Republican Impeachment Managers, spearheads of an almost purely partisan impeachment and removal drive, omitted this passage? Let us emphasize once again, as we have done often before, that our concern is not to defend President Clinton. Our concern is to defend the constitutional principles that in the future as in the past will protect Republican as well as Democratic presidents. Arthur M. Schlesinger, Jr. Sean Wilentz C. Vann Woodward Historians in Defense of the Constitution 2000 M. Street, N.W. Suite 400 Washington, DC SALON \| Jan. 20, 1999 - - - - - - - - - - - - - - - - - Become a Salon member. Click here.