Law professors tell Congress that impeachment is unwarranted

Over 430 legal scholars protest the impeachment process in a letter to Congress, fearing it will "dangerously weaken" the presidency

By Salon Staff
Published November 6, 1998 10:11AM (EST)

In a statement delivered to Congress today, a group of over 430 law professors declared that Kenneth Starr's charges against President Clinton "do not cross the threshold" of high crimes and misdemeanors warranting impeachment. The group of professors, which described itself as non-partisan, includes legal scholars from law schools across the country, including Harvard, Yale, Georgetown, University of Chicago, Stanford and UCLA. "Our conclusion," wrote Yale Law School's Jed Rubenfeld, a leading constitutional scholar, in an accompanying letter, "is that impeachment, to be constitutionally justified, demands either grossly heinous criminality or grossly derelict misuse of official power. And in our judgment, the Starr Report just doesn't contain evidence of this sort." Another signatory, Susan Low Bloch of the Georgetown University Law Center, said the disparate group of professors took the unusual step of jointly drafting the letter because they were concerned that the impeachment process would damage the office of the presidency: "We fear that if the House decides to impeach President Clinton for the conduct alleged in the Starr Referral, it will lower the bar for what warrants impeachment, will make future presidents too beholden to the Congress, will move us precariously, and unconstitutionally, toward a parliamentary system, and will dangerously weaken the office of the presidency for the foreseeable future."

The law professors' statement follows a similar declaration that was signed by over 400 distinguished American historians.

The text of the law professors' statement follows:

The Honorable Newt Gingrich, Richard Gephardt, Henry Hyde and John Conyers; Speaker of the House, Minority Leader, Chair of the Judiciary Committee, Ranking Member of the House Judiciary Committee United States House of Representatives
Washington, D.C.

Dear Mr. Speaker, Mr. Gephardt, Mr. Hyde and Mr. Conyers:

Did President Clinton commit "high Crimes and Misdemeanors" warranting impeachment under the Constitution? We, the undersigned professors of law, believe that the misconduct alleged in the report of the Independent Counsel, and in the statement of Investigative Counsel David Schippers, does not cross that threshold.

We write neither as Democrats nor as Republicans. Some of us believe that the President has acted disgracefully, some that the Independent Counsel has. This letter has nothing to do with any such judgments. Rather, it expresses the one judgment on which we all agree: that the allegations detailed in the Independent Counsel's referral and summarized in Counsel Schipper's statement do not justify presidential impeachment under the Constitution.

No existing judicial precedents bind Congress's determination of the meaning of "high Crimes and Misdemeanors." But it is clear that Members of Congress would violate their constitutional responsibilities if they sought to impeach and remove the President for misconduct, even criminal misconduct, that fell short of the high constitutional standard required for impeachment.

The President's independence from Congress is fundamental to the American structure of government. It is essential to the separation of powers. It is essential to the President's ability to discharge such constitutional duties as vetoing legislation that he considers contrary to the nation's interests. And it is essential to governance whenever the White House belongs to a party different from that which controls the Capitol. The lower the threshold for impeachment, the weaker the President. If the President could be removed for any conduct of which Congress disapproved, this fundamental element of our democracy -- the President's independence from Congress -- would be destroyed. It is not enough, therefore, that Congress strongly disapprove of the President's conduct. Under the Constitution, the President cannot be impeached unless he has committed "Treason, Bribery, or other high Crimes and Misdemeanors."

Some of the charges raised against the President fall so far short of this high standard that they strain good sense: for example, the charge that the President repeatedly declined to testify voluntarily or pressed a debatable privilege claim that was later judicially rejected. Such litigation "offenses" are not remotely impeachable. With respect, however, to other allegations, careful consideration must be given to the kind of misconduct that renders a President constitutionally unfit to remain in office.

Neither history nor legal definitions provide a precise list of high crimes and misdemeanors. Reasonable people have differed in interpreting these words. We believe that the proper interpretation of the Impeachment Clause must begin by recognizing treason and bribery as core or paradigmatic instances, from which the meaning of "other high Crimes and Misdemeanors" is to be extrapolated. The constitutional standard for impeachment would be very different if different offenses had been specified. The clause does not read, "Treason, Felony and other Crime" (as does Article IV, Section 2 of the Constitution), so that any violation of a criminal statute would be impeachable. Nor does it read, "Adultery, Fornication or other high Crimes and Misdemeanors," implying that any conduct deemed to reveal serious moral lapses might be an impeachable offense.

When a President commits treason, he exercises his executive powers, or uses information obtained by virtue of his executive powers, deliberately to aid an enemy. When a President is bribed, he exercises or offers to exercise his executive powers in exchange for corrupt gain. Both acts involve the criminal exercise of presidential powers, converting those awful powers into an instrument either of enemy interests or of purely personal gain. We believe that the critical, distinctive feature of treason and bribery is grossly derelict exercise of official power (or, in the case of bribery to obtain or retain office, gross criminality in the pursuit of official power). Non-indictable conduct might rise to this level. For example, a President might be properly impeached if, as a result of drunkenness, he recklessly and repeatedly misused executive authority.

Much of the misconduct of which the President is accused does not involve the exercise of executive powers at all. If the President committed perjury regarding his sexual conduct, this perjury involved no exercise of presidential power as such. If he concealed evidence, this misdeed too involved no exercise of executive authority. By contrast, if he sought wrongfully to place someone in a job at the Pentagon, or lied to subordinates hoping they would repeat his false statements, these acts could have involved a wrongful use of presidential influence, but we cannot believe that the President's alleged conduct of this nature amounts to the grossly derelict exercise of executive power sufficient for impeachment.

Perjury and obstruction of justice can without doubt be impeachable offenses. A President who corruptly used the Federal Bureau of Investigation to obstruct an investigation would have criminally exercised his presidential powers. Moreover, covering up a crime furthers or aids the underlying crime. Thus a President who committed perjury to cover up his subordinates' criminal exercise of executive authority would also have committed an impeachable offense. But making false statements about sexual improprieties is not a sufficient constitutional basis to justify the trial and removal from office of the President of the United States.

It goes without saying that lying under oath is a very serious offense. But even if the House of Representatives had the constitutional authority to impeach for any instance of perjury or obstruction of justice, a responsible House would not exercise this awesome power on the facts alleged in this case. The House's power to impeach, like the prosecutor's power to indict, is discretionary. This power must be exercised not for partisan advantage, but only when circumstances genuinely justify the enormous price the nation will pay in governance and stature if its President is put through a long, public, voyeuristic trial. The American people understand this price. They demonstrate the political wisdom that has held the Constitution in place for two centuries when, even after the publication of Mr. Starr's report, with all its extraordinary revelations, they oppose impeachment for the offenses alleged therein.

We do not say that a "private" crime could never be so heinous as to warrant impeachment. Congress might responsibly take the position that an individual who by the law of the land cannot be permitted to remain at large, need not be permitted to remain President. But if certain crimes such as murder warrant removal of a President from office because of their unspeakable heinousness, the offenses alleged in the Independent Counsel's report or the Investigative Counsel's statement are not among them. Short of heinous criminality, impeachment demands convincing evidence of grossly derelict exercise of official authority. In our judgment, Mr. Starr's report contains no such evidence.

Salon Staff

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