Congress as grand jury: The role of the house of representatives in the impeachment of an American president

George Washington Law Review

Volumn 67, Issue 3, 1999, Pages 735-790

  Turley, Jonathan ^a  

^a NONE

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EID: 0033469201     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (428)

1. See PETER CHARLES HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635-1805, at 113-14 (1984). For a discussion of this case and other English impeachment cases, see Jonathan Turley, Senate Trials and Factional Disputes: Impeachment As a Madisonian Device, 48 DUKE L.J. 1 (forthcoming 1999).
2. See PETER CHARLES HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635-1805, at 113-14 (1984). For a discussion of this case and other English impeachment cases, see Jonathan Turley, Senate Trials and Factional Disputes: Impeachment As a Madisonian Device, 48 DUKE L.J. 1 (forthcoming 1999).
3. See HOFFER & HULL, supra note 1, at 113-14.
4. See id. at 114 (quoting Letter from Edmund Burke to Philip Francis (Dec. 10, 1785), in 5 THE CORRESPONDENCE OF EDMUND BURKE 241 (Holden Furber ed., 1958)).
5. 7 THE WORKS OF EDMUND BURKE 14 (1939), quoted in Raoul Berger, The President, Congress, and the Courts, 83 YALE L.J. 1111, 1137 (1974).
6. 7 THE WORKS OF EDMUND BURKE 14 (1939), quoted in Raoul Berger, The President, Congress, and the Courts, 83 YALE L.J. 1111, 1137 (1974).
7. See HOFFER & HULL, supra note 1, at 115. This fight came at a price for Burke. Ultimately, Burke would be censured for his advocacy of the impeachment. See ISAAC KRAMNICK, THE RAGE OF EDMUND BURKE: PORTRAIT OF AN AMBIVALENT CONSERVATIVE 127 (1977).
8. See HOFFER & HULL, supra note 1, at 115. This fight came at a price for Burke. Ultimately, Burke would be censured for his advocacy of the impeachment. See ISAAC KRAMNICK, THE RAGE OF EDMUND BURKE: PORTRAIT OF AN AMBIVALENT CONSERVATIVE 127 (1977).
9. 7 THE WORKS OF EDMUND BURKE, supra note 4, at 14.
10. Burke was appalled by the rapes and tortures carried out by Hastings and his East India Company and saw the trial of Hastings as an almost purgative act for the political system. See generally KRAMNICK, supra note 5, at 126-42 (discussing Burke's concern for and actions regarding India from 1783 to 1795).
11. See U.S. CONST. art. I, § 2, cl. 5 ("The House . . . shall have the sole Power of Impeachment.").
12. See infra notes 248, 251 and accompanying text.
13. See Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. (1998) [hereinafter House Hearing].
14. See Statement of Historians in Defense of the Constitution, in House Hearing, supra note 10, app. at 334-39 [hereinafter Statement of Historians].
15. See Letter from Over 400 Law Professors, in House Hearing, supra note 10, app. at 374-83 [hereinafter Letter from Law Professors].
16. See Statement of Historians, supra note 11, at 334; Letter from Law Professors, supra note 12, at 375-76.
17. See Statement of Historians, supra note 11, at 334; Letter from Law Professors, supra note 12, at 375-76.
18. The executive function theory, for lack of a better term, is the general argument in favor of limiting the impeachment standard to criminal violations or misconduct related to executive functions, excluding private matters.
19. House Hearing, supra note 10, at 62 (prepared statement of Professor Holden) (emphasis omitted).
20. This danger was repeatedly described as a conversion into a parliamentary system. See infra notes 60, 79.
21. See infra notes 28-40 and accompanying text.
22. See infra notes 42-59 and accompanying text.
23. See infra Part I.B.
24. See infra Part I.C.
25. See infra Part II.A.
26. See infra Part II.B.
27. See infra Part III.A.
28. See infra Part III.B.
29. See infra notes 237-245 and accompanying text.
30. See supra note 4 and accompanying text.
31. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
32. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
33. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
34. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
35. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
36. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
37. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
38. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
39. See Jonathan Turley, High Crimes and Misdemeanors, According to the Framers, WALL ST. J., Nov. 9, 1998, at 23 [hereinafter Turley, High Crimes and Misdemeanors]; Jonathan Turley, The New Originalists: Spinning Specificity Out of the Drafters' General Standards for Impeachment, LEGAL TIMES, Oct. 19, 1998, at 23 [hereinafter Turley, The New Originalists]. As Professor Paul Brest noted, most of us are "moderate originalis[ts]" to the extent that we value the Framers' intent. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204-05 (1980). The originalist arguments in the Clinton impeachment, however, often took on an uncharacteristic and determinative emphasis for many academics. See infra notes 109-111 and accompanying text; cf. Paul Horowitz, The Past, Tense: The History of Crisis - and the Crisis of History - in Constitutional Theory, 61 ALB. L. REV. 459, 500 (1997) ("[A] nonoriginalist who invokes a heroic Framer in support of his or her views may find that a mere historical reference has opened Pandora's box."). Professor Lawrence Lessig has described some originalist arguments as "mindless," see Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 GEO. L.J. 1837, 1837 (1997), or "one-step originalism." See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1368 (1997). Such use of originalist methodology is particularly attractive in a non-academic forum like Congress. It is in that forum that the danger is greatest from "the simple-minded search for historical precedent, which becomes increasingly present-minded about the issues of the past and thereby presents a unsubtle, uncomplex, and partial picture of the past." Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148 (Paul & Stephen E. Gottlieb eds., 1991).
40. For an excellent treatment of the history behind the separation of powers doctrine, see Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393 (1996).
41. JOHN LOCKE, Two TREATISES OF GOVERNMENT 364 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
42. See BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 152 (Franz Neumann ed. & Thomas Nugent trans., 1949) (1748) ("There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.").
43. Id. at 150.
44. Id. at 150-52.
45. 1 WILLIAM BLACKSTONE, COMMENTARIES *155.
46. Madison described the separation of powers as central to the view of good government, stating that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961). In some of his most fundamental views of republican government, however, Madison was less influenced by Montesquieu than he was by David Hume. See Jack Rakove, The Madisonian Moment, 55 U. CHI. L. REV. 473, 477 (1988) (noting that Madison "developed and deployed the insights of David Hume . . . to counter the axioms about republican government" associated with Montesquieu). This conceptual difference, however, primarily concerned the stability of large versus small republics and not the core concept of separation of powers. See DOUGLASS ADAIR, THE TENTH FEDERALIST REVISITED (1951) & "THAT POLITICS MAY BE REDUCED TO SCIENCE": DAVID HUME, JAMES MADISON, AND THE TENTH FEDERALIST (1957), reprinted in FAME AND THE FOUNDING FATHERS: ESSAYS BY DOUGLASS ADAIR 75-106 (Trevor Colburn ed., 1974).
47. Madison described the separation of powers as central to the view of good government, stating that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961). In some of his most fundamental views of republican government, however, Madison was less influenced by Montesquieu than he was by David Hume. See Jack Rakove, The Madisonian Moment, 55 U. CHI. L. REV. 473, 477 (1988) (noting that Madison "developed and deployed the insights of David Hume . . . to counter the axioms about republican government" associated with Montesquieu). This conceptual difference, however, primarily concerned the stability of large versus small republics and not the core concept of separation of powers. See DOUGLASS ADAIR, THE TENTH FEDERALIST REVISITED (1951) & "THAT POLITICS MAY BE REDUCED TO SCIENCE": DAVID HUME, JAMES MADISON, AND THE TENTH FEDERALIST (1957), reprinted in FAME AND THE FOUNDING FATHERS: ESSAYS BY DOUGLASS ADAIR 75-106 (Trevor Colburn ed., 1974).
48. Madison described the separation of powers as central to the view of good government, stating that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961). In some of his most fundamental views of republican government, however, Madison was less influenced by Montesquieu than he was by David Hume. See Jack Rakove, The Madisonian Moment, 55 U. CHI. L. REV. 473, 477 (1988) (noting that Madison "developed and deployed the insights of David Hume . . . to counter the axioms about republican government" associated with Montesquieu). This conceptual difference, however, primarily concerned the stability of large versus small republics and not the core concept of separation of powers. See DOUGLASS ADAIR, THE TENTH FEDERALIST REVISITED (1951) & "THAT POLITICS MAY BE REDUCED TO SCIENCE": DAVID HUME, JAMES MADISON, AND THE TENTH FEDERALIST (1957), reprinted in FAME AND THE FOUNDING FATHERS: ESSAYS BY DOUGLASS ADAIR 75-106 (Trevor Colburn ed., 1974).
49. See Pushaw, supra note 28, at 412 & n.93.
50. Amendments to the Constitution (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 202 (Charles F. Hobson et al. eds., 1979).
51. See THE FEDERALIST No. 81, at 483 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (discussing the importance of separating the judiciary from the legislature).
52. THE FEDERALIST No. 47, supra note 34, at 301; see also THE FEDERALIST No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961) ("[U]nless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.").
53. THE FEDERALIST No. 47, supra note 34, at 301; see also THE FEDERALIST No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961) ("[U]nless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.").
54. THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).
55. Id. at 321-22.
56. See U.S CONST. art. I, § 7, cl. 3.
57. Other such evolutionary standards include the prohibition on unreasonable searches and seizures in the Fourth Amendment and the prohibition on cruel or unusual punishment in the Eighth Amendment.
58. U.S. CONST. art. I, § 2, cl. 5.
59. Id. § 3, cl. 6.
60. Id. cl. 7.
61. Id. art. II, § 2, cl. 1.
62. Id. § 4.
63. See id. § 2, cl. 2.
64. See id. art. I, § 3, cl. 6 (requiring a two-thirds vote in the Senate).
65. See id. § 5, cl. 1.
66. See id. § 3, cls. 6 & 7.
67. As Part II of this Article shows, this view is consistent with a view of impeachment as a check on presidential power.
68. See infra notes 60-130 and accompanying text (discussing the letters from historians and law professors opposing the impeachment of President Clinton).
69. House Hearing, supra note 10, at 224 (prepared statement of Professor Tribe).
70. See, e.g., BellSouth v. FCC, 162 F.3d 678, 683 (D.C. Cir. 1998) (stating that the meaning of the Bill of Attainder Clause has continued to evolve). Both Professor Tribe and I have litigated bill of attainder claims and have argued for such an evolutionary definition of the critical component of "punishment."
71. See id. at 683-91 (rejecting bill of attainder claim); Foretich v. United States, Civ. No. 97-0929 (D.D.C. forthcoming decision in 1999).
72. House Hearing, supra note 10, at 224 (prepared statement of Professor Tribe).
73. See infra notes 109-130 and accompanying text (discussing the Letter from Law Professors, to which Tribe was a signatory).
74. Justice Story noted the difficulty of defining "high Crimes and Misdemeanors," given the comprehensive and changing view of such conduct: [High Crimes and Misdemeanors] reaches what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard for the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 764 (photo. reprint 1994) (Melville M. Bigelow ed., 1891).
75. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
76. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
77. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
78. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
79. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
80. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
81. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
82. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
83. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
84. See House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe); see also Letter from Law Professors, supra note 12, at 375 (accepting a "heinous" standard). Although Professor Tribe reaffirmed the exception for heinous private conduct in the joint letter in his testimony before Congress, his explanation for why a President could be impeached for murder (and refusing to resign) raises obvious questions of subjectivity: There may well be room to argue that the very continuation in office of a president who has committed a crime as heinous as murder, and who under widely accepted practice is deemed immune to criminal prosecution and incarceration as long as he holds that office, would itself so gravely injure the nation and its government that such a president's decision not to resign under the circumstances amounts to a culpable commission and thus an abuse of power and that, in any event, the fact that such a president's continuation in office was itself gravely injurious to the nation would transform his remaining in office, if not the murder he committed, into an impeachable offense. House Hearing, supra note 10, at 227 (prepared statement of Professor Tribe). If a "president's decision not to resign . . . amounts to a culpable omission" and "an abuse of power," it is difficult to grasp the narrow rule advocated by Professor Tribe. If a refusal to resign is an "abuse of power," a hundred different such circumstances could be imagined. Moreover, if the alternative test is whether a President's remaining in office is "itself gravely injurious to the nation," there are many scholars that would view a presumed perjurer and obstructer of justice to meet such a test. See id. at 28-45 (testimony and prepared statement of Professor McDowell); id. at 103-11 (testimony and prepared statement of Professor McGinnis); id. at 116-28 (testimony and prepared statement of Professor Presser); id. at 180-94 (testimony and prepared statement of Mr. Cooper); id. at 194-203 (testimony and prepared statement of Judge Bell); id. at 211-18 (testimony and prepared statement of Professor McDonald) ; id. at 250-76 (testimony and prepared statement of Professor Turley).
85. One may distinguish presidential impeachment from judicial impeachment by stressing the existence of only one President, whose impeachment magnifies the loss of independence. This point has some resonance, but it also ignores that the executive branch itself will not lose independence. If a President is removed, the government does not fall, but rather the Vice President moves into the gap and appoints another individual to fill his vacancy. The policies of the executive branch continue under the succession rules. Opponents to the impeachment of President Clinton often omitted this critical fact in their misplaced analogies to a parliamentary system. See, e.g., House Hearing, supra note 10, at 224 (prepared statement of Professor Tribe) ("If it is a parliamentary system people want, or something closer to such a system than we have had for two centuries, then amending the Constitution to achieve such a system or an approximation thereto is the only constitutionally proper course."). Rejecting the executive function theory would hardly mutate our system into a parliamentary model any more than the adoption of such a theory would mutate the system into an imperil model. Such mutations are avoided through the static structural guarantees in the first three articles.
86. Alternatively, advocates of the executive function theory would simply compel a determination that certain "non-official" conduct was sufficiently "heinous." See infra notes 112-114 and accompanying text.
87. Criminal acts constitute the most likely basis for impeachment, though not the exclusive basis. See infra Part I.C.
88. Cf. James Wilson, Legislative Department, Lectures on Law (1791), in 2 PHILIP KURLAND & RALPH LERNER, THE FOUNDERS' CONSTITUTION 166 (1987) ("No one should be secure while he violates the constitution and the laws: everyone should be secure while he observes them.").
89. 493 F.2d 1124 (7th Cir. 1974).
90. Id. at 1144.
91. Such a danger obviously is inherent in any definition of high crimes and misdemeanors. The executive function theory, however, simply demands an alleged nexus between "non-official" conduct and the Office of the President in the use of personnel and resources. Given the role of the White House Counsel's office in presidential controversies, such a nexus can be easily claimed in many cases. Ultimately, the executive function theory demands a judgment of the degree of involvement by official offices or the alternative judgment as to the "heinousness" of completely non-official acts. The intended point is quite limited: the executive function theory inherently is no more resistant to legislative manipulation than are rivaling theories. See infra notes 125-130 and accompanying text.
92. See Statement of Historians, supra note 11.
93. See Letter from Law Professors, supra note 12.
94. See Statement of Historians, supra note 11, at 334-35.
95. The suggestion of an executive function theory in the Clinton impeachment was not the first time such a theory has been advanced as a defense. This defense was raised in the first impeachment case of Senator William Blount. For a discussion of this case and other impeachment cases, see Turley, supra note 1. Blount's impeachment counsel argued that any impeachable conduct must "regard" his office. See HOFFER & HULL, supra note 1, at 157.
96. One House manager argued that "there is not a syllable in the Constitution which confines impeachment to official acts, and . . . it is against the plain dictates of common sense, that such restraint should be imposed on it." Id.
97. This theory failed to garner support in the Senate, although a separate jurisdictional claim based on the exclusion of legislative officials from impeachment was generally accepted. See Turley, supra note 1.
98. Similarly, Judge Harry Claiborne's impeachment raised this issue when he was removed for criminal conduct unrelated to his judicial office. See id.
99. 70 Statement of Historians, supra note 11, at 334 (emphasis added).
100. Id. at 334-35.
101. It is noteworthy that giving false information to the Senate was one of the offenses cited in the ratification debates as clearly impeachable. See 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 127 (photo. reprint 1937) (Jonathan Elliot ed., 1836) [hereinafter ELLIOT'S DEBATES] (statement of James Iredell).
102. See infra notes 95-99 and accompanying text.
103. Alexander Hamilton, Plan for the Election of the President (June 18, 1787), in WILLIAM M. GOLDSMITH, THE GROWTH OF PRESIDENTIAL POWER: A DOCUMENTED HISTORY 99 (1974).
104. Alexander Hamilton, Plan for the Election of the President (June 18, 1787), in WILLIAM M. GOLDSMITH, THE GROWTH OF PRESIDENTIAL POWER: A DOCUMENTED HISTORY 99 (1974).
105. See Statement of Historians, supra note 11, at 334.
106. See U.S. CONST. art. II, § 3.
107. Cf. United States v. Mandujano, 425 U.S. 564, 576 (1976) (plurality opinion) ("Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. . . . Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.").
108. 1 ANNALS OF CONG. 572 (Joseph Gales ed., 1789).
109. A recurring theme among academics who opposed impeachment was the danger of weakening the presidency by imposing a parliamentary system through the power of impeachment. Professor Schlesinger particularly stressed this point and argued that the Johnson impeachment brought about weak presidents until Theodore Roosevelt in 1901. See House Hearing, supra note 10, at 99 (testimony of Professor Schlesinger). Schlesinger noted the danger of a parliamentary system or, what Woodrow Wilson called "[c]ongressional [g]overnment." See id. Schlesinger's suggested relationship between the Johnson impeachment and weak presidents, however, is rather illusory. Schlesinger's own presidential survey ranked many of these presidents as above average while ranking many of the pre-Johnson presidents as below average. See Arthur M. Schlesinger Jr., The Ultimate Approval Rating, N.Y. TIMES, Dec. 15, 1996, § 6 (Magazine), at 46; see also Turley, supra note 1 (discussing the Schlesinger survey and an alternative survey of historians contradicting Schlesinger's "cause and effect" argument tying weak presidents to the Johnson impeachment) . Moreover, Woodrow Wilson is a curious choice for support because his work was generally viewed as a call for a parliamentary system. See Turley, supra note 1.
110. A recurring theme among academics who opposed impeachment was the danger of weakening the presidency by imposing a parliamentary system through the power of impeachment. Professor Schlesinger particularly stressed this point and argued that the Johnson impeachment brought about weak presidents until Theodore Roosevelt in 1901. See House Hearing, supra note 10, at 99 (testimony of Professor Schlesinger). Schlesinger noted the danger of a parliamentary system or, what Woodrow Wilson called "[c]ongressional [g]overnment." See id. Schlesinger's suggested relationship between the Johnson impeachment and weak presidents, however, is rather illusory. Schlesinger's own presidential survey ranked many of these presidents as above average while ranking many of the pre-Johnson presidents as below average. See Arthur M. Schlesinger Jr., The Ultimate Approval Rating, N.Y. TIMES, Dec. 15, 1996, § 6 (Magazine), at 46; see also Turley, supra note 1 (discussing the Schlesinger survey and an alternative survey of historians contradicting Schlesinger's "cause and effect" argument tying weak presidents to the Johnson impeachment) . Moreover, Woodrow Wilson is a curious choice for support because his work was generally viewed as a call for a parliamentary system. See Turley, supra note 1.
111. A recurring theme among academics who opposed impeachment was the danger of weakening the presidency by imposing a parliamentary system through the power of impeachment. Professor Schlesinger particularly stressed this point and argued that the Johnson impeachment brought about weak presidents until Theodore Roosevelt in 1901. See House Hearing, supra note 10, at 99 (testimony of Professor Schlesinger). Schlesinger noted the danger of a parliamentary system or, what Woodrow Wilson called "[c]ongressional [g]overnment." See id. Schlesinger's suggested relationship between the Johnson impeachment and weak presidents, however, is rather illusory. Schlesinger's own presidential survey ranked many of these presidents as above average while ranking many of the pre-Johnson presidents as below average. See Arthur M. Schlesinger Jr., The Ultimate Approval Rating, N.Y. TIMES, Dec. 15, 1996, § 6 (Magazine), at 46; see also Turley, supra note 1 (discussing the Schlesinger survey and an alternative survey of historians contradicting Schlesinger's "cause and effect" argument tying weak presidents to the Johnson impeachment) . Moreover, Woodrow Wilson is a curious choice for support because his work was generally viewed as a call for a parliamentary system. See Turley, supra note 1.
112. A recurring theme among academics who opposed impeachment was the danger of weakening the presidency by imposing a parliamentary system through the power of impeachment. Professor Schlesinger particularly stressed this point and argued that the Johnson impeachment brought about weak presidents until Theodore Roosevelt in 1901. See House Hearing, supra note 10, at 99 (testimony of Professor Schlesinger). Schlesinger noted the danger of a parliamentary system or, what Woodrow Wilson called "[c]ongressional [g]overnment." See id. Schlesinger's suggested relationship between the Johnson impeachment and weak presidents, however, is rather illusory. Schlesinger's own presidential survey ranked many of these presidents as above average while ranking many of the pre-Johnson presidents as below average. See Arthur M. Schlesinger Jr., The Ultimate Approval Rating, N.Y. TIMES, Dec. 15, 1996, § 6 (Magazine), at 46; see also Turley, supra note 1 (discussing the Schlesinger survey and an alternative survey of historians contradicting Schlesinger's "cause and effect" argument tying weak presidents to the Johnson impeachment) . Moreover, Woodrow Wilson is a curious choice for support because his work was generally viewed as a call for a parliamentary system. See Turley, supra note 1.
113. A recurring theme among academics who opposed impeachment was the danger of weakening the presidency by imposing a parliamentary system through the power of impeachment. Professor Schlesinger particularly stressed this point and argued that the Johnson impeachment brought about weak presidents until Theodore Roosevelt in 1901. See House Hearing, supra note 10, at 99 (testimony of Professor Schlesinger). Schlesinger noted the danger of a parliamentary system or, what Woodrow Wilson called "[c]ongressional [g]overnment." See id. Schlesinger's suggested relationship between the Johnson impeachment and weak presidents, however, is rather illusory. Schlesinger's own presidential survey ranked many of these presidents as above average while ranking many of the pre-Johnson presidents as below average. See Arthur M. Schlesinger Jr., The Ultimate Approval Rating, N.Y. TIMES, Dec. 15, 1996, § 6 (Magazine), at 46; see also Turley, supra note 1 (discussing the Schlesinger survey and an alternative survey of historians contradicting Schlesinger's "cause and effect" argument tying weak presidents to the Johnson impeachment) . Moreover, Woodrow Wilson is a curious choice for support because his work was generally viewed as a call for a parliamentary system. See Turley, supra note 1.
114. See House Hearing, supra note 10, at 101 (prepared statement of Professor Schlesinger).
115. See id. ("Monstrous crimes acquire public significance.").
116. See id.
117. See id.
118. See id. at 100.
119. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 500 (Max Farrand ed., rev. ed. 1937) [hereinafter FARRAND].
120. See Jonathan Turley, The Executive Function Theory, the Hamilton Affair, and Other Constitutional Mythologies, 77 N.C. L. REV. (forthcoming 1999).
121. See House Hearing, supra note 10, at 101 (prepared statement of Professor Schlesinger).
122. See 2 FARRAND, supra note 85, at 550. It is also interesting that the Framers did not use the term "high misdemeanors," which was both a well-known legal standard and a standard suggested for the extradition provision. See id. at 174.
123. See 2 FARRAND, supra note 85, at 550. It is also interesting that the Framers did not use the term "high misdemeanors," which was both a well-known legal standard and a standard suggested for the extradition provision. See id. at 174.
124. Instead, the Framers accepted the lower standard of "misdemeanors." This is noteworthy because Blackstone defined high misdemeanors under English law as "maladministration of such high officers, as are in public trust and employment." 4 BLACKSTONE, supra note 33, at *121.
125. 2 FARRAND, supra note 85, at 65.
126. HOFFER & HULL, supra note 69, at 118.
127. See id.
128. See 1 ANNALS OF CONG. 498 (Joseph Gales ed., 1789) ("In the first place, [the President] will be impeachable by this House, before the Senate[,] for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust."); Removal Power of the President (June 17, 1789), in 12 THE PAPERS OF JAMES MADISON, supra note 36, at 235 (same).
129. See 1 ANNALS OF CONG. 498 (Joseph Gales ed., 1789) ("In the first place, [the President] will be impeachable by this House, before the Senate[,] for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust."); Removal Power of the President (June 17, 1789), in 12 THE PAPERS OF JAMES MADISON, supra note 36, at 235 (same).
130. See House Hearing, supra note 10, at 101 (prepared statement of Professor Schlesinger).
131. In his 1791 Lecture on Law, Wilson stated that "[i]n the United States and in Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments." Wilson, supra note 63, at 166.
132. Id.
133. Id.
134. The "great crime" standard is equally difficult to discern from the statements of James Iredell, who described impeachment as a necessary response to a President "willfully abus[ing] his trust" and committing such offenses as "giving false information to the Senate." 4 ELLIOT'S DEBATES, supra note 72, at 126-27.
135. 2 id. at 480.
136. See supra note 74.
137. In his 1829 commentary on the Constitution, Rawle stated: The legitimate causes of impeachment . . . can only have reference to public character and official duty. . . . In general those offences which may be committed equally by a private person as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with office, . . . are left to the ordinary course of judicial proceeding . . . . WILLIAM RAWLE, A VIEW OF THE CONSTITUTION 215 (2d ed. 1829), quoted in 1 STORY, supra note 58, § 801.
138. See id.
139. See House Hearing, supra note 10, at 101 (prepared statement of Professor Schlesinger) (arguing that Pinckney "questioned the proposal of the Senate as the court of impeachment, warning that Congress might 'under the influence of heat and faction throw him [the President] our of office'").
140. See infra note 166 and accompanying text.
141. In addition to his legal and historical analysis, Schlesinger offers political analysis on the November 1998 election as a basis for adopting a narrower definition of high crimes and misdemeanors. Alluding to the loss by Republicans of five seats in the House, Schlesinger concludes that this result was a "rebuff to impeachment" and therefore, impeachment was completely unwarranted in the Clinton case. See House Hearing, supra note 10, at 101-02 (prepared statement of Professor Schlesinger). What is curious about this point is not simply its lack of academic basis but also its lack of relevance to the House vote. The question should not be whether impeachment of a President is a popular decision, but whether it is a principled decision. See Jonathan Turley, Is He Too Popular to Impeach?, L.A. TIMES, Dec. 9, 1998, at B7.
142. In addition to his legal and historical analysis, Schlesinger offers political analysis on the November 1998 election as a basis for adopting a narrower definition of high crimes and misdemeanors. Alluding to the loss by Republicans of five seats in the House, Schlesinger concludes that this result was a "rebuff to impeachment" and therefore, impeachment was completely unwarranted in the Clinton case. See House Hearing, supra note 10, at 101-02 (prepared statement of Professor Schlesinger). What is curious about this point is not simply its lack of academic basis but also its lack of relevance to the House vote. The question should not be whether impeachment of a President is a popular decision, but whether it is a principled decision. See Jonathan Turley, Is He Too Popular to Impeach?, L.A. TIMES, Dec. 9, 1998, at B7.
143. In his famous commentaries on the Constitution, Justice Story confirmed that there was no consensus on this point among the earliest commentators. Discussing the arguments advanced regarding Blount's impeachment, Story also pointed out that: [I]t was pressed with great earnestness that there is not a syllable in the Constitution which confines impeachments to official acts, and it is the plainest dictates of common-sense that such restraint should be imposed upon it. Suppose a judge should countenance or aid insurgents in a meditated conspiracy or insurrection against the government. This is not a judicial act, and yet it ought certainly to be impeachable. . . . Suppose a judge or other officer to receive a bribe not connected with his judicial office, could he be entitled to any public confidence? Would not these reasons for removal be just as strong as if it were a case of an official bribe? 1 STORY, supra note 58, § 804. Story expressly does not reach a conclusion on the merits of this debate, but rather leaves "the final decision . . . to the high tribunal constituting the court of impeachment when the occasion shall arise." Id. § 805.
144. See supra notes 76-78 and accompanying text. Notably, many academics embracing the executive function theory also insist that a President could never be indicted before impeachment. See Impeachment or Indictment: Is a Sitting President Subject to the Compulsory Criminal Process?: Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate Comm. on the Judiciary, 105th Cong. (1998), available in LEXIS, Legis Library, Hearng File (testimony of Professors Akhil Amar and Susan Bloch against the concept of indicting a sitting President). But see id. (testimony of Professors Eric Freedman and Jonathan Turley in favor of the concept of indicting a sitting President). Under this theory, a President could openly commit a crime like child molestation and remain in office through two terms. In fact, according to this interpretation, the Framers accepted that a President could have remained immune from prosecution through multiple terms, because the Constitution did not have limitations on terms in office. There is little basis in the historical record to support such a result.
145. See infra notes 162-182 and accompanying text.
146. Professor Schlesinger once saw this as a central issue of impeachment when President Nixon faced the judgment of Congress. In his famous treatment of the "Imperial Presidency," Schlesinger warned that "[t]he continuation of a lawbreaker as chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity before the world." ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 412 (1973).
147. See Turley, High Crimes and Misdemeanors, supra note 27 (discussing originalist views offered by scholars in the Clinton crisis); Turley, The New Originalists, supra note 27 (same).
148. See Turley, High Crimes and Misdemeanors, supra note 27 (discussing originalist views offered by scholars in the Clinton crisis); Turley, The New Originalists, supra note 27 (same).
149. Letter from Law Professors, supra note 12, at 375. Some of the academics at the impeachment hearings, including Professors Susan Bloch, Robert Drinan, Daniel Pollitt, Cass Sunstein, and Laurence Tribe, signed this letter. See id. at 376-83.
150. Letter from Law Professors, supra note 12, at 375. Some of the academics at the impeachment hearings, including Professors Susan Bloch, Robert Drinan, Daniel Pollitt, Cass Sunstein, and Laurence Tribe, signed this letter. See id. at 376-83.
151. See Statement of Historians, supra note 11, at 334. Individual signatories to the law professors' letter like Cass Sunstein simply have stated that "the founders were thinking, exclusively or principally, of large-scale abuses of distinctly public authority." House Hearing, supra note 10, at 85 (prepared statement of Professor Sunstein) (emphasis omitted). Even if the Framers were thinking principally of such abuses, however, there remains the question of whether they intended for the standard to refer exclusively to executive functions.
152. See Statement of Historians, supra note 11, at 334. Individual signatories to the law professors' letter like Cass Sunstein simply have stated that "the founders were thinking, exclusively or principally, of large-scale abuses of distinctly public authority." House Hearing, supra note 10, at 85 (prepared statement of Professor Sunstein) (emphasis omitted). Even if the Framers were thinking principally of such abuses, however, there remains the question of whether they intended for the standard to refer exclusively to executive functions.
153. See Letter from Law Professors, supra note 12.
154. See id. at 375.
155. See id.
156. See id. (citing murder as sufficiently "heinous"). Rape was added as an example of heinous conduct by law professors testifying at the House Hearing and advocating the executive function theory in public. See, e.g., House Hearing, supra note 10, at 89 (prepared statement of Professor Sunstein citing rape as a sufficiently "heinous" offense).
157. See id. (citing murder as sufficiently "heinous"). Rape was added as an example of heinous conduct by law professors testifying at the House Hearing and advocating the executive function theory in public. See, e.g., House Hearing, supra note 10, at 89 (prepared statement of Professor Sunstein citing rape as a sufficiently "heinous" offense).
158. See Letter from Law Professors, supra note 12, at 375. For example, "a President who committed perjury to cover up his subordinates' criminal exercise of authority would . . . have committed an impeachable offense." Id.
159. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
160. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
161. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
162. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
163. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
164. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
165. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
166. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
167. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
168. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
169. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
170. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
171. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
172. On April 12, 1999, President Clinton was found guilty of contempt for lying under oath in the Paula Jones case. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. Apr. 12, 1999); see also Jonathan Turley, What's Wrong With Wright, WALL ST. J., Apr. 19, 1999, at A23 (discussing Judge Wright's opinion and criticizing her for intentionally withholding her ruling until after the acquittal of the President). The district court specifically refrained from imposing criminal as opposed to civil contempt to avoid a double jeopardy claim if the President is later indicted by the independent counsel. See Jones, 1999 U.S. Dist. LEXIS 4515, at &51-52. The executive function theory produces inevitable discontinuities in the criminal context where the President is believed to have committed offenses for which his administration has jailed average citizens. In 1997, federal courts sentenced 182 people for perjury. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Thousands of other citizens were prosecuted for perjury in the various states, including 4318 such prosecutions in 1997 in California alone. See id. At the time of President Clinton's Senate trial, 115 individuals were serving prison terms in the federal system for perjury. See id.; see also Jonathan Turley, Witness for the Prosecution, CHI. TRIB., Aug. 30, 1998, at 19 (pointing out that in 1997, President Clinton's Justice Department prosecuted nearly 100 people for perjury). In fact, the Justice Department prosecuted individuals like Bob Stephan, the former Republican Attorney General of Kansas. See Turley, supra. Stephan was charged with perjury for lying in a breach-of-contract case that was based on a sexual harassment claim. See id. Stephan's alleged perjury occurred in a civil case, but he still was prosecuted for criminal perjury. See id. Likewise, in United States v. Storey, 2 F.3d 1037 (10th Cir. 1993), the defendant was indicted for perjury arising from testimony in a civil case. See id. at 1038. Similarly, the Justice Department prosecuted Millard McAfee for perjury committed during a deposition in a civil case. See United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993). This was a civil dispute over cattle hides that never went to court. See Turley, supra. The most damaging cases for President Clinton were those of citizens convicted for lying about consensual sexual relations. These cases included the Clinton Administration's prosecution of and eventual plea bargain with Dr. Barbara Battalino, who lied about a single act of consensual oral sex with a patient on Veterans Affairs property. See The Consequences of Perjury and Related Crimes: Hearing Before the House Comm. on the Judiciary, 105th Cong. 10 (1998) [hereinafter Perjury Hearing] (prepared statement of Dr. Barbara Battalino).
173. Supra note 116.
174. It is precisely the status as President that makes such false testimony so damaging to a case. A President's appearance in a court room will often have a considerable and potentially determinative impact for a jury. One can see an example of the effect of such testimony in President Ulysses S. Grant's testimony in the so-called "St. Louis Whiskey Ring" case. Grant's close aide General Orville E. Babcock was tied to a kick-back scheme involving whiskey distillers in the Missouri District. See Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 GEO. L.J. 2307, 2311-12 (1998). When the special prosecutor closed in on his aide, Grant fired the special prosecutor
175. It is precisely the status as President that makes such false testimony so damaging to a case. A President's appearance in a court room will often have a considerable and potentially determinative impact for a jury. One can see an example of the effect of such testimony in President Ulysses S. Grant's testimony in the so-called "St. Louis Whiskey Ring" case. Grant's close aide General Orville E. Babcock was tied to a kick-back scheme involving whiskey distillers in the Missouri District. See Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 GEO. L.J. 2307, 2311-12 (1998). When the special prosecutor closed in on his aide, Grant fired the special prosecutor and then placed restrictions on his successors in the prosecution of Babcock. See id. at 2312.
176. This was not, however, the most vital action taken by Grant. The crowning blow was that, at Babcock's trial, a deposition from President Grant was read to the jury in which Grant stated that if Babcock had been guilty of misconduct, Grant would have been the first to know about it because of their close association and that, of course, Grant did not believe Babcock guilty of anything. The result was a quick not-guilty verdict for Babcock. Id. at 2312-13.
177. The knowing violation of the provisions of many environmental laws, such as the need to secure a permit under the Resource Conservation and Recovery Act (RCRA), is a criminal violation. See 42 U.S.C. § 6928(d)(2) (1994); see also United States v. Dee, 912 F.2d 741, 743, 745 (4th Cir. 1990) (discussing the defendants' claim that they did not knowingly violate the RCRA provision prohibiting the handling of hazardous waste without a permit).
178. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
179. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
180. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
181. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
182. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
183. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
184. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
185. In 1997, federal courts sentenced 144 people for obstruction and witness tampering. See 145 CONG. REC. S284 (daily ed. Jan. 16, 1999) (statement of House Manager Buyer). Ex-Congressman Mario Biaggi was convicted of obstruction in 1988 for using a similar type of affirmative statement that President Clinton allegedly suggested on two occasions to his personal secretary, Betty Currie. In the Biaggi case, the ex-congressman anticipated that an associate might be asked about questionable trips to Florida. See United States v. Biaggi, 853 F.2d 89, 105 (2d Cir. 1988). Biaggi helpfully suggested that "[y]ou didn't give it to me because I'm a member, member of Congress." Id. The Justice Department convicted Biaggi on obstruction based on the suggestion of this false statement and the Second Circuit upheld the conviction. See id. at 92, 107. Likewise, as noted earlier, the Justice Department has prosecuted individuals like Dr. Barbara Battalino, who was accused of having oral sex with a patient during her employment at the Veterans Administration. See supra note 117. Battalino denied the relationship when investigators questioned her. See Perjury Hearing, supra note 117, at 10 (prepared statement of Barbara Battalino). Although the civil action was later dismissed, the Justice Department prosecuted Battalino for obstruction of justice, resulting in a six-month sentence and a large fine. See id. at 8, 55; 145 CONG. REC. S1303 (daily ed. Feb. 6, 1999) (statement of House Manager Rogan) (discussing Battalino's prosecution by the Clinton Justice Department, which resulted in a fine of $3500, a sentence of six months of imprisonment under electronic monitoring, and the loss of her job, medical license, and law license).
186. In the second of the two articles of impeachment presented to the Senate, President Clinton was accused of acts of obstruction that included the use of false hypotheticals with his personal secretary, Betty Currie, on two separate occasions. See 145 CONG. REC. S40 (daily ed. Jan. 7, 1999) (statement of House Manager Hyde presenting the articles of impeachment). During these two meetings with Currie, the President asked Currie if she agreed with the false accounts, including the following statements: (1) "'You were always there when she was there, right? We were never really alone.'"; (2) "'You could see and hear everything.'"; (3) "'Monica came on to me, and I never touched her, right?'"; and (4) "'She wanted to have sex with me and I can't do that.'" 145 CONG. REC. S1354 (daily ed. Feb. 8,1999) (statement of House Manager McCollum) (quoting President Clinton's statements to Betty Currie). At the time of these alleged acts of obstruction, Currie was a prospective witness in the Jones case; she was added to the witness list a few days later.
187. In the second of the two articles of impeachment presented to the Senate, President Clinton was accused of acts of obstruction that included the use of false hypotheticals with his personal secretary, Betty Currie, on two separate occasions. See 145 CONG. REC. S40 (daily ed. Jan. 7, 1999) (statement of House Manager Hyde presenting the articles of impeachment). During these two meetings with Currie, the President asked Currie if she agreed with the false accounts, including the following statements: (1) "'You were always there when she was there, right? We were never really alone.'"; (2) "'You could see and hear everything.'"; (3) "'Monica came on to me, and I never touched her, right?'"; and (4) "'She wanted to have sex with me and I can't do that.'" 145 CONG. REC. S1354 (daily ed. Feb. 8,1999) (statement of House Manager McCollum) (quoting President Clinton's statements to Betty Currie). At the time of these alleged acts of obstruction, Currie was a prospective witness in the Jones case; she was added to the witness list a few days later.
188. If a President is a presumed perjurer, the disabling condition extends beyond mere enforcement issues. A President often is called upon to give personal statements attesting to facts or binding statements to the two other branches of government. See, e.g., Kasza v. Browner, 932 F. Supp. 254, 256 (D. Nev. 1996), rev'd, 133 F.3d 1159 (9th Cir.), and cert. denied, 119 S. Ct. 414 (1998). This creates a rather obvious concern. If there is little question that a President has lied under oath, the only remaining question is whether he would choose to lie again. A President hardly can delegate the responsibility to attest to facts to a subordinate who is free of an alleged perjurious past. In the same fashion, when a President communicates with Congress, does it matter that he clearly lied to another branch of government? These are questions of legitimacy that go directly to a President's ability to function as chief executive. The presumed status as a perjurer is hardly a matter that is confined to a President's private status.
189. The military has discharged large numbers of enlisted personnel and officers for lying about "inappropriate relationships." In 1996 alone, President Clinton's administration court-martialed 67 Air Force personnel for simple adultery (without the added offense of lying). See House Hearing, supra note 10, at 274 n.35 (prepared statement of Jonathan Turley); Military Double Standard? No, But a Lot of Confusion, USA TODAY, June 10, 1997, at 12A. Likewise, the military has punished numerous individuals for failing to tell the entire truth when questioned by superiors or investigators. In the case of Lieutenant Kelly Flinn, the Air Force discharged a female pilot for adultery and for lying about her relationship in a subsequent investigation. See Military Double Standard, supra. When Lieutenant Flinn was removed from her position as a B-52 pilot for making false statements and for acts of adultery, President Clinton's Air Force Chief of Staff, General Ronald R. Fogleman, explained that her removal from the service was the only option in such a case, because it would be dangerous to entrust nuclear weapons to a person with such issues of character and veracity. See Nancy Gibbs, Wings of Desire: The Air Force's Star Female Pilot Finds Herself Enmeshed in a Tale Full of Passion and Lies, TIME, June 2, 1997, at 28, 31 (quoting Fogleman's testimony before a Senate committee that "'[t]his is not an issue of adultery . . . . This is an issue about an officer, entrusted to fly nuclear weapons, who lied'").
190. The military has discharged large numbers of enlisted personnel and officers for lying about "inappropriate relationships." In 1996 alone, President Clinton's administration court-martialed 67 Air Force personnel for simple adultery (without the added offense of lying). See House Hearing, supra note 10, at 274 n.35 (prepared statement of Jonathan Turley); Military Double Standard? No, But a Lot of Confusion, USA TODAY, June 10, 1997, at 12A. Likewise, the military has punished numerous individuals for failing to tell the entire truth when questioned by superiors or investigators. In the case of Lieutenant Kelly Flinn, the Air Force discharged a female pilot for adultery and for lying about her relationship in a subsequent investigation. See Military Double Standard, supra. When Lieutenant Flinn was removed from her position as a B-52 pilot for making false statements and for acts of adultery, President Clinton's Air Force Chief of Staff, General Ronald R. Fogleman, explained that her removal from the service was the only option in such a case, because it would be dangerous to entrust nuclear weapons to a person with such issues of character and veracity. See Nancy Gibbs, Wings of Desire: The Air Force's Star Female Pilot Finds Herself Enmeshed in a Tale Full of Passion and Lies, TIME, June 2, 1997, at 28, 31 (quoting Fogleman's testimony before a Senate committee that "'[t]his is not an issue of adultery . . . . This is an issue about an officer, entrusted to fly nuclear weapons, who lied'").
191. The military has discharged large numbers of enlisted personnel and officers for lying about "inappropriate relationships." In 1996 alone, President Clinton's administration court-martialed 67 Air Force personnel for simple adultery (without the added offense of lying). See House Hearing, supra note 10, at 274 n.35 (prepared statement of Jonathan Turley); Military Double Standard? No, But a Lot of Confusion, USA TODAY, June 10, 1997, at 12A. Likewise, the military has punished numerous individuals for failing to tell the entire truth when questioned by superiors or investigators. In the case of Lieutenant Kelly Flinn, the Air Force discharged a female pilot for adultery and for lying about her relationship in a subsequent investigation. See Military Double Standard, supra. When Lieutenant Flinn was removed from her position as a B-52 pilot for making false statements and for acts of adultery, President Clinton's Air Force Chief of Staff, General Ronald R. Fogleman, explained that her removal from the service was the only option in such a case, because it would be dangerous to entrust nuclear weapons to a person with such issues of character and veracity. See Nancy Gibbs, Wings of Desire: The Air Force's Star Female Pilot Finds Herself Enmeshed in a Tale Full of Passion and Lies, TIME, June 2, 1997, at 28, 31 (quoting Fogleman's testimony before a Senate committee that "'[t]his is not an issue of adultery . . . . This is an issue about an officer, entrusted to fly nuclear weapons, who lied'").
192. The military has discharged large numbers of enlisted personnel and officers for lying about "inappropriate relationships." In 1996 alone, President Clinton's administration court-martialed 67 Air Force personnel for simple adultery (without the added offense of lying). See House Hearing, supra note 10, at 274 n.35 (prepared statement of Jonathan Turley); Military Double Standard? No, But a Lot of Confusion, USA TODAY, June 10, 1997, at 12A. Likewise, the military has punished numerous individuals for failing to tell the entire truth when questioned by superiors or investigators. In the case of Lieutenant Kelly Flinn, the Air Force discharged a female pilot for adultery and for lying about her relationship in a subsequent investigation. See Military Double Standard, supra. When Lieutenant Flinn was removed from her position as a B-52 pilot for making false statements and for acts of adultery, President Clinton's Air Force Chief of Staff, General Ronald R. Fogleman, explained that her removal from the service was the only option in such a case, because it would be dangerous to entrust nuclear weapons to a person with such issues of character and veracity. See Nancy Gibbs, Wings of Desire: The Air Force's Star Female Pilot Finds Herself Enmeshed in a Tale Full of Passion and Lies, TIME, June 2, 1997, at 28, 31 (quoting Fogleman's testimony before a Senate committee that "'[t]his is not an issue of adultery . . . . This is an issue about an officer, entrusted to fly nuclear weapons, who lied'").
193. See Letter from Law Professors, supra note 12, at 374.
194. House Hearing, supra note 10, at 235 (prepared statement of Professor Bloch) (including murder within the heinous exception).
195. Moreover, if actual societal danger is the basis for such removal, one may argue that a murderer (removed from the streets to protect society) presents less of a danger than a perjurer remaining in the highest office. Given his high visibility, it is unlikely that a President will have as many opportunities to engage in private murderous conduct as he would to engage in perjurious conduct to the injury of average citizens. Additionally, like murder, the heinousness of perjury will often turn on its context. At sentencing, courts will necessarily consider the position of authority of the perjurer in determining the heinousness of the act. See U.S. SENTENCING GUIDELINES MANUAL, §§ 2C1.1-.7 (1998) (mandating higher severity factors for criminal acts by public officials); id. § 3B1.3 ("If the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase [punishment] by 2 levels."). Murderers and some perjurers and obstructers of justice are removed from society under such judgments. Professor Bloch should be credited for attempting to offer a structuring principle for the heinous exception, but this justification would seem to favor a criminal/noncriminal distinction, such as the alternative offered below. See infra Part I.C.
196. Moreover, if actual societal danger is the basis for such removal, one may argue that a murderer (removed from the streets to protect society) presents less of a danger than a perjurer remaining in the highest office. Given his high visibility, it is unlikely that a President will have as many opportunities to engage in private murderous conduct as he would to engage in perjurious conduct to the injury of average citizens. Additionally, like murder, the heinousness of perjury will often turn on its context. At sentencing, courts will necessarily consider the position of authority of the perjurer in determining the heinousness of the act. See U.S. SENTENCING GUIDELINES MANUAL, §§ 2C1.1-.7 (1998) (mandating higher severity factors for criminal acts by public officials); id. § 3B1.3 ("If the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase [punishment] by 2 levels."). Murderers and some perjurers and obstructers of justice are removed from society under such judgments. Professor Bloch should be credited for attempting to offer a structuring principle for the heinous exception, but this justification would seem to favor a criminal/noncriminal distinction, such as the alternative offered below. See infra Part I.C.
197. Moreover, if actual societal danger is the basis for such removal, one may argue that a murderer (removed from the streets to protect society) presents less of a danger than a perjurer remaining in the highest office. Given his high visibility, it is unlikely that a President will have as many opportunities to engage in private murderous conduct as he would to engage in perjurious conduct to the injury of average citizens. Additionally, like murder, the heinousness of perjury will often turn on its context. At sentencing, courts will necessarily consider the position of authority of the perjurer in determining the heinousness of the act. See U.S. SENTENCING GUIDELINES MANUAL, §§ 2C1.1-.7 (1998) (mandating higher severity factors for criminal acts by public officials); id. § 3B1.3 ("If the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase [punishment] by 2 levels."). Murderers and some perjurers and obstructers of justice are removed from society under such judgments. Professor Bloch should be credited for attempting to offer a structuring principle for the heinous exception, but this justification would seem to favor a criminal/noncriminal distinction, such as the alternative offered below. See infra Part I.C.
198. House Hearing, supra note 10, at 83 (testimony of Professor Sunstein).
199. See supra note 59.
200. Even regarding the core category of misuse of executive authority, however, the law professors' letter raises more questions than it answers. For example, the law professors note that some "non-indictable" conduct may be impeachable. See Letter from Law Professors, supra note 12, at 375. Their example is that "a President might be properly impeached if, as a result of drunkenness, he recklessly and repeatedly misused executive authority." Id. This example leaves unclear whether the President would be impeached as a drunkard or for his "reckless[ ] and repeated[ ] misuse[ ]" of executive power. Id. If it is the former, it may be an incapacity issue. If it is the latter, it should not matter if the President is acting due to premeditation or to inebriation.
201. Even regarding the core category of misuse of executive authority, however, the law professors' letter raises more questions than it answers. For example, the law professors note that some "non-indictable" conduct may be impeachable. See Letter from Law Professors, supra note 12, at 375. Their example is that "a President might be properly impeached if, as a result of drunkenness, he recklessly and repeatedly misused executive authority." Id. This example leaves unclear whether the President would be impeached as a drunkard or for his "reckless[ ] and repeated[ ] misuse[ ]" of executive power. Id. If it is the former, it may be an incapacity issue. If it is the latter, it should not matter if the President is acting due to premeditation or to inebriation.
202. Even regarding the core category of misuse of executive authority, however, the law professors' letter raises more questions than it answers. For example, the law professors note that some "non-indictable" conduct may be impeachable. See Letter from Law Professors, supra note 12, at 375. Their example is that "a President might be properly impeached if, as a result of drunkenness, he recklessly and repeatedly misused executive authority." Id. This example leaves unclear whether the President would be impeached as a drunkard or for his "reckless[ ] and repeated[ ] misuse[ ]" of executive power. Id. If it is the former, it may be an incapacity issue. If it is the latter, it should not matter if the President is acting due to premeditation or to inebriation.
203. Not long after his acquittal in the Senate, President Clinton was found in contempt of court for lying under oath and obstructing the court's proceedings. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. April 12, 1999); see also Turley, What's Wrong With Wright, supra note 117 (discussing the similarities between the court's findings and the allegations made by the House managers).
204. Not long after his acquittal in the Senate, President Clinton was found in contempt of court for lying under oath and obstructing the court's proceedings. See Jones v. Clinton, No. LR-C-94-290, 1999 U.S. Dist. LEXIS 4515 (E.D. Ark. April 12, 1999); see also Turley, What's Wrong With Wright, supra note 117 (discussing the similarities between the court's findings and the allegations made by the House managers).
205. 1 STORY, supra note 58, § 804; supra note 105.
206. The burden on such a question obviously rests with the House members advocating impeachment. Yet, this is an example that might meet with approval of executive function theorists because the subsequent cover-up might be viewed as a form of official abuse.
207. For a discussion of the Johnson case, see Turley, supra note 1.
208. The Constitution does not require the Nation to become paralyzed or traumatized by the noncriminal conduct of a President. If conduct is severe and produces dysfunctional effects, impeachment allows for a midterm change in the national interest.
209. The Twenty-fifth Amendment states: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. U.S. CONST. amend. XXV, § 4.
210. One of the intriguing disconnects is the language of the Constitution and the reference of Framers like Madison to the notion of "incapacity" as grounds for impeachment. See 2 FARRAND, supra note 85, at 65 (Madison referring to impeachable offenses as "incapacity, negligence or perfidy"). But see 5 ELLIOT'S DEBATES, supra note 72, at 143 (statement of Mr. Bedford of Delaware) ("An impeachment . . . would be no cure for [incompetence], as an impeachment would reach malfeasance only, not incapacity."); cf. House Hearing, supra 10, at 67 n.44 (prepared statement of Professor Holden) (noting that the "question of incapacity came up several times [in the debates], but it was not dealt with, in fact"). The suggested basis of incapacity for impeachment runs contrary to any "great crimes" theory of impeachable offenses, see Turley, supra note 86.
211. One of the intriguing disconnects is the language of the Constitution and the reference of Framers like Madison to the notion of "incapacity" as grounds for impeachment. See 2 FARRAND, supra note 85, at 65 (Madison referring to impeachable offenses as "incapacity, negligence or perfidy"). But see 5 ELLIOT'S DEBATES, supra note 72, at 143 (statement of Mr. Bedford of Delaware) ("An impeachment . . . would be no cure for [incompetence], as an impeachment would reach malfeasance only, not incapacity."); cf. House Hearing, supra 10, at 67 n.44 (prepared statement of Professor Holden) (noting that the "question of incapacity came up several times [in the debates], but it was not dealt with, in fact"). The suggested basis of incapacity for impeachment runs contrary to any "great crimes" theory of impeachable offenses, see Turley, supra note 86.
212. One of the intriguing disconnects is the language of the Constitution and the reference of Framers like Madison to the notion of "incapacity" as grounds for impeachment. See 2 FARRAND, supra note 85, at 65 (Madison referring to impeachable offenses as "incapacity, negligence or perfidy"). But see 5 ELLIOT'S DEBATES, supra note 72, at 143 (statement of Mr. Bedford of Delaware) ("An impeachment . . . would be no cure for [incompetence], as an impeachment would reach malfeasance only, not incapacity."); cf. House Hearing, supra 10, at 67 n.44 (prepared statement of Professor Holden) (noting that the "question of incapacity came up several times [in the debates], but it was not dealt with, in fact"). The suggested basis of incapacity for impeachment runs contrary to any "great crimes" theory of impeachable offenses, see Turley, supra note 86.
213. One of the intriguing disconnects is the language of the Constitution and the reference of Framers like Madison to the notion of "incapacity" as grounds for impeachment. See 2 FARRAND, supra note 85, at 65 (Madison referring to impeachable offenses as "incapacity, negligence or perfidy"). But see 5 ELLIOT'S DEBATES, supra note 72, at 143 (statement of Mr. Bedford of Delaware) ("An impeachment . . . would be no cure for [incompetence], as an impeachment would reach malfeasance only, not incapacity."); cf. House Hearing, supra 10, at 67 n.44 (prepared statement of Professor Holden) (noting that the "question of incapacity came up several times [in the debates], but it was not dealt with, in fact"). The suggested basis of incapacity for impeachment runs contrary to any "great crimes" theory of impeachable offenses, see Turley, supra note 86.
214. It is noteworthy that the Twenty-fifth Amendment requires the approval of not only the Vice President and majority of principal executive officers, but also, if contested by the President, a two-thirds vote of both houses. See U.S. CONST. amend. XXV, § 4.
215. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283, 1293 (1993) (noting that "the [Supreme] Court often views separation-of-powers theory in relation to the doctrine of checks and balances, . . . suggest[ing] that the separation-of-powers doctrine complements the notion of checks and balances by institutionalizing a 'self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another'" (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)); Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 462 (1991) (noting that "the Framers blended the seemingly conflicting theories of separation of powers and checks and balances - a blending that Madison was forced to explain and defend"); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 574-78 (1984) (noting the failure of the Supreme Court in choosing between the separation-of-powers and check- and-balance models). Professor Strauss has noted that: Like separation of powers, [the system of checks and balances] seeks to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle . . . . Unlike separation of powers, however, the checks- and-balances idea does not suppose a radical discussion of government into three parts, with particular functions neatly parceled out among them. Rather, the focus is on relationships and interconnections, on maintaining the conditions in which the intended struggle at the apex may continue. Strauss, supra, at 578.
216. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283, 1293 (1993) (noting that "the [Supreme] Court often views separation-of-powers theory in relation to the doctrine of checks and balances, . . . suggest[ing] that the separation-of-powers doctrine complements the notion of checks and balances by institutionalizing a 'self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another'" (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)); Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 462 (1991) (noting that "the Framers blended the seemingly conflicting theories of separation of powers and checks and balances - a blending that Madison was forced to explain and defend"); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 574-78 (1984) (noting the failure of the Supreme Court in choosing between the separation-of-powers and check-and-balance models). Professor Strauss has noted that: Like separation of powers, [the system of checks and balances] seeks to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle . . . . Unlike separation of powers, however, the checks-and-balances idea does not suppose a radical discussion of government into three parts, with particular functions neatly parceled out among them. Rather, the focus is on relationships and interconnections, on maintaining the conditions in which the intended struggle at the apex may continue. Strauss, supra, at 578.
217. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283, 1293 (1993) (noting that "the [Supreme] Court often views separation-of-powers theory in relation to the doctrine of checks and balances, . . . suggest[ing] that the separation-of-powers doctrine complements the notion of checks and balances by institutionalizing a 'self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another'" (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)); Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 462 (1991) (noting that "the Framers blended the seemingly conflicting theories of separation of powers and checks and balances - a blending that Madison was forced to explain and defend"); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 574-78 (1984) (noting the failure of the Supreme Court in choosing between the separation-of-powers and check-and-balance models). Professor Strauss has noted that: Like separation of powers, [the system of checks and balances] seeks to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle . . . . Unlike separation of powers, however, the checks-and-balances idea does not suppose a radical discussion of government into three parts, with particular functions neatly parceled out among them. Rather, the focus is on relationships and interconnections, on maintaining the conditions in which the intended struggle at the apex may continue. Strauss, supra, at 578.
218. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283, 1293 (1993) (noting that "the [Supreme] Court often views separation-of-powers theory in relation to the doctrine of checks and balances, . . . suggest[ing] that the separation-of-powers doctrine complements the notion of checks and balances by institutionalizing a 'self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another'" (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)); Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 462 (1991) (noting that "the Framers blended the seemingly conflicting theories of separation of powers and checks and balances - a blending that Madison was forced to explain and defend"); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 574-78 (1984) (noting the failure of the Supreme Court in choosing between the separation-of-powers and check-and-balance models). Professor Strauss has noted that: Like separation of powers, [the system of checks and balances] seeks to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle . . . . Unlike separation of powers, however, the checks-and-balances idea does not suppose a radical discussion of government into three parts, with particular functions neatly parceled out among them. Rather, the focus is on relationships and interconnections, on maintaining the conditions in which the intended struggle at the apex may continue. Strauss, supra, at 578.
219. For a discussion of English impeachment cases, see Turley, supra note 1.
220. Impeachments proved highly destabilizing because of the absence of vertical or horizontal political systems in England. See generally id. (discussing the unrepresentative conditions under the English system that magnified the importance of impeachment trials to express public dissatisfaction with Crown policies both vertically from the public to the king and horizontally from Parliament to the Crown government). When properly incorporated into a representative system, impeachment allows for a type of "institutional settlement" within the legislative branch. See id. (comparing the role of impeachment to the theories of Hart and Sacks). Absent such a dialogic role, impeachment is jurispathic and verdict-driven. As such, English impeachments (before the reforms in the early eighteenth century) tended to further aggregate political tensions. See id. This was most evident in the attempted impeachment of the Duke of Buckingham under Charles I. See id. The king dissolved parliament before Buckingham could be tried. Later, Buckingham was assassinated, the "Rump Parliament" revolted, and Charles I was executed in 1649. The impeachments leading up to the Protestant Revolution proved to be accurate barometers of the political breakdown of the system. See id.
221. Impeachments proved highly destabilizing because of the absence of vertical or horizontal political systems in England. See generally id. (discussing the unrepresentative conditions under the English system that magnified the importance of impeachment trials to express public dissatisfaction with Crown policies both vertically from the public to the king and horizontally from Parliament to the Crown government). When properly incorporated into a representative system, impeachment allows for a type of "institutional settlement" within the legislative branch. See id. (comparing the role of impeachment to the theories of Hart and Sacks). Absent such a dialogic role, impeachment is jurispathic and verdict-driven. As such, English impeachments (before the reforms in the early eighteenth century) tended to further aggregate political tensions. See id. This was most evident in the attempted impeachment of the Duke of Buckingham under Charles I. See id. The king dissolved parliament before Buckingham could be tried. Later, Buckingham was assassinated, the "Rump Parliament" revolted, and Charles I was executed in 1649. The impeachments leading up to the Protestant Revolution proved to be accurate barometers of the political breakdown of the system. See id.
222. Impeachments proved highly destabilizing because of the absence of vertical or horizontal political systems in England. See generally id. (discussing the unrepresentative conditions under the English system that magnified the importance of impeachment trials to express public dissatisfaction with Crown policies both vertically from the public to the king and horizontally from Parliament to the Crown government). When properly incorporated into a representative system, impeachment allows for a type of "institutional settlement" within the legislative branch. See id. (comparing the role of impeachment to the theories of Hart and Sacks). Absent such a dialogic role, impeachment is jurispathic and verdict-driven. As such, English impeachments (before the reforms in the early eighteenth century) tended to further aggregate political tensions. See id. This was most evident in the attempted impeachment of the Duke of Buckingham under Charles I. See id. The king dissolved parliament before Buckingham could be tried. Later, Buckingham was assassinated, the "Rump Parliament" revolted, and Charles I was executed in 1649. The impeachments leading up to the Protestant Revolution proved to be accurate barometers of the political breakdown of the system. See id.
223. Impeachments proved highly destabilizing because of the absence of vertical or horizontal political systems in England. See generally id. (discussing the unrepresentative conditions under the English system that magnified the importance of impeachment trials to express public dissatisfaction with Crown policies both vertically from the public to the king and horizontally from Parliament to the Crown government). When properly incorporated into a representative system, impeachment allows for a type of "institutional settlement" within the legislative branch. See id. (comparing the role of impeachment to the theories of Hart and Sacks). Absent such a dialogic role, impeachment is jurispathic and verdict-driven. As such, English impeachments (before the reforms in the early eighteenth century) tended to further aggregate political tensions. See id. This was most evident in the attempted impeachment of the Duke of Buckingham under Charles I. See id. The king dissolved parliament before Buckingham could be tried. Later, Buckingham was assassinated, the "Rump Parliament" revolted, and Charles I was executed in 1649. The impeachments leading up to the Protestant Revolution proved to be accurate barometers of the political breakdown of the system. See id.
224. Interestingly, impeachments would rise again after the Restoration in 1660 and the return of institutional conflicts with the Stuarts. See id. Ultimately, the reforms forced upon the Crown led to the diminished use of impeachment. See id.
225. Interestingly, impeachments would rise again after the Restoration in 1660 and the return of institutional conflicts with the Stuarts. See id. Ultimately, the reforms forced upon the Crown led to the diminished use of impeachment. See id.
226. HOFFER & HULL, supra note 1, at 8; cf. 1 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 384 (1931) ("[U]ntil the growth of the system of Cabinet government, impeachment was the only remedy open to [Parliament].").
227. HOFFER & HULL, supra note 1, at 8; cf. 1 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 384 (1931) ("[U]ntil the growth of the system of Cabinet government, impeachment was the only remedy open to [Parliament].").
228. For example, the Settlement Act of 1701 instituted critical judicial reforms that were not applicable to the colonies. See Turley, supra note 1. The conduct and control of judicial officers proved to be one of the most controversial issues for colonists in their relationship with the Crown.
229. See id. (discussing the effect of charter and proprietary grants on the factional use of colonial impeachment).
230. James Wilson noted that the use of impeachment in such a way was an ad hoc measure for political expression: We find the commons appearing as the grand inquest of the nation, about the latter end of the reign of Edward the third. They then began to exhibit accusations for crimes and misdemeanors, against offenders who were thought to be out of the reach of the ordinary power of the law. Wilson, supra note 94, at 166.
231. See Turley, supra note 1 (noting Adams's role in Massachusetts Chief Justice Oliver's impeachment in 1774 and Franklin's role in the impeachment of Justice of the Peace William Moore in 1757).
232. See HOFFER & HULL, supra note 1, at 14.
233. Id. at 28.
234. See id. at 28, 38.
235. See Turley, supra note 1.
236. See HOFFER & HULL, supra note 1, at 19.
237. Id. at 32-34.
238. The colonial use of impeachment evolved with the political development of the colonies: In light of the continuing power struggles between the Commons and the councilors of William and Mary, Anne, and George I, the colonists became increasingly aware of impeachment as a political weapon and they finally began to use it as such. While in the 1600s colonial assemblies aimed impeachments at individual wrongdoers in response to corruption or mismanagement, in the 1700s, they often did so in order to attack the power of other branches of government. BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE CONSTITUTION'S FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT 32-33 (1998). For a discussion of these early colonial cases, see Turley, supra note 1.
239. The colonial use of impeachment evolved with the political development of the colonies: In light of the continuing power struggles between the Commons and the councilors of William and Mary, Anne, and George I, the colonists became increasingly aware of impeachment as a political weapon and they finally began to use it as such. While in the 1600s colonial assemblies aimed impeachments at individual wrongdoers in response to corruption or mismanagement, in the 1700s, they often did so in order to attack the power of other branches of government. BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE CONSTITUTION'S FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT 32-33 (1998). For a discussion of these early colonial cases, see Turley, supra note 1.
240. See HOFFER & HULL, supra note 1, at 55.
241. See id. at 52.
242. See id. at 55; see also Turley, supra note 1 (discussing prior colonial impeachment cases in which the Crown rejected the concept of authority of impeachment outside the House of Commons).
243. See id. at 55; see also Turley, supra note 1 (discussing prior colonial impeachment cases in which the Crown rejected the concept of authority of impeachment outside the House of Commons).
244. See HOFFER & HULL, supra note 1, at 55.
245. 1 BLACKSTONE, supra note 33, at *154-55.
246. See, e.g., 2 FARRAND, supra note 85, at 64-69 (debate of July 20,1787). For a discussion of the Convention debates, see Turley, supra note 1.
247. See, e.g., 2 FARRAND, supra note 85, at 64-69 (debate of July 20,1787). For a discussion of the Convention debates, see Turley, supra note 1.
248. See 2 FARRAND, supra note 85, at 552 ("On motion 'The vice-President and other Civil officers of the U.S. shall be removed from office on impeachment and conviction as aforesaid' was added to the clause on the subject of impeachments.").
249. See Turley, supra note 86 (discussing different views of legal history and traditions regarding impeachment).
250. Notably, even Charles Pinckney referred to impeachment as a critical check during the South Carolina ratification debates. Pinckney noted that "[u]nder the new Constitution, the abuse of power was more effectually checked than under the old one." 4 ELLIOT'S DEBATES, supra note 72, at 231. Pinckney explained that under this new system, one body is to "impeach those who behave amiss, or betray the[ ] public trust [while] another body . . . [is] to try them." Id.
251. See 2 FARRAND, supra note 85, at 64-67.
252. See id. at 53. Morris favored a shorter term of office and impeachment of the "great officers of State" in the cabinet. See Alexander Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 656 (1916) (citing 2 FARRAND, supra note 85, at 53-54).
253. See id. at 53. Morris favored a shorter term of office and impeachment of the "great officers of State" in the cabinet. See Alexander Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 656 (1916) (citing 2 FARRAND, supra note 85, at 53-54).
254. See id. at 53. Morris favored a shorter term of office and impeachment of the "great officers of State" in the cabinet. See Alexander Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 656 (1916) (citing 2 FARRAND, supra note 85, at 53-54).
255. 1 FARRAND, supra note 85, at 85.
256. 2 id. at 64.
257. Such was the case with Pinckney, Morris, and King, who would vote for the
258. Such was the case with Pinckney, Morris, and King, who would vote for the formal language. Although the Pennsylvania delegation would ultimately vote against the impeachment standard, see id. at 550, Morris had been quickly won over to the notion of impeachment: Mr. Govr. Morris,'s [sic] opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. . . . The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature. Id. at 68-69. The position of Pinckney's South Carolina delegation on the final vote for the impeachment standard is in slight question (though Farrand notes a vote in favor). See id. at 550. Pinckney appeared, however, to break from his delegation by opposing the Senate as the trier of impeachment. See id. at 551. King's Massachusetts delegation supported both the impeachment standard and the Senate as trier. See id. at 550-51.
259. Such was the case with Pinckney, Morris, and King, who would vote for the formal language. Although the Pennsylvania delegation would ultimately vote against the impeachment standard, see id. at 550, Morris had been quickly won over to the notion of impeachment: Mr. Govr. Morris,'s [sic] opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. . . . The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature. Id. at 68-69. The position of Pinckney's South Carolina delegation on the final vote for the impeachment standard is in slight question (though Farrand notes a vote in favor). See id. at 550. Pinckney appeared, however, to break from his delegation by opposing the Senate as the trier of impeachment. See id. at 551. King's Massachusetts delegation supported both the impeachment standard and the Senate as trier. See id. at 550-51.
260. Such was the case with Pinckney, Morris, and King, who would vote for the formal language. Although the Pennsylvania delegation would ultimately vote against the impeachment standard, see id. at 550, Morris had been quickly won over to the notion of impeachment: Mr. Govr. Morris,'s [sic] opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. . . . The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature. Id. at 68-69. The position of Pinckney's South Carolina delegation on the final vote for the impeachment standard is in slight question (though Farrand notes a vote in favor). See id. at 550. Pinckney appeared, however, to break from his delegation by opposing the Senate as the trier of impeachment. See id. at 551. King's Massachusetts delegation supported both the impeachment standard and the Senate as trier. See id. at 550-51.
261. See, e.g., id. at 551.
262. Madison's opposition to the bicameral impeachment process is discussed at length in Turley, supra note 1.
263. See 1 FARRAND, supra note 85, at 20-24; 2 id. at 551.
264. See 1 id. at 242-44.
265. See id. at 292.
266. Before the Convention, Thomas Jefferson advocated an approach that would have had few features associated with a check and balance. In 1783, anticipating a revision of the Virginia Constitution, Jefferson proposed the following system for impeachment trials: There shall moreover be a court of IMPEACHMENTS to consist of three members of the Council of state, one of each of the Superior courts of Chancery, Common law, and Admiralty, two members of the House of Delegates and one of the Senate, to be chosen by the body respectively of which they are. Before this court any member of the three branches of government, that is to say, the Governor, any member of the Council, of the two houses of legislature or of the Superior courts may be impeached by the Governor the Council, or either of the said houses or courts for such misbehavior in office as would be sufficient to remove him therefrom: and the only sentence they shall have authority to pass shall be that of deprivation and future incapacity of office. Seven members shall be requisite to make a court and two thirds of those present must concur in the sentence. Jefferson's Proposed Revision of the Virginia Constitution, in 6 THE PAPERS OF THOMAS JEFFERSON 301 (Julian P. Boyd et al. eds., 1952). Jefferson's plan faintly resembles the federal constitutional process on such points as the two-thirds vote, but has little value as a conventional check and balance. Notably, under Jefferson's approach, the executive branch is part of the process.
267. See 2 FARRAND, supra note 85, at 551. Madison's opposition to the bicameral impeachment process is intriguing given the use of a bicameral system to deal with factional disputes in other areas. See Turley, supra note 1. Mr. Madison, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for many acts which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part. 2 FARRAND, supra note 85, at 551.
268. See 2 FARRAND, supra note 85, at 551. Madison's opposition to the bicameral impeachment process is intriguing given the use of a bicameral system to deal with factional disputes in other areas. See Turley, supra note 1. Mr. Madison, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for many acts which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part. 2 FARRAND, supra note 85, at 551.
269. See 2 FARRAND, supra note 85, at 551. Madison's opposition to the bicameral impeachment process is intriguing given the use of a bicameral system to deal with factional disputes in other areas. See Turley, supra note 1. Mr. Madison, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for many acts which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part. 2 FARRAND, supra note 85, at 551.
270. THE FEDERALIST No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
271. THE FEDERALIST No. 64, at 395-96 (John Jay) (Clinton Rossiter ed., 1961). This quote was a central part of Professor Stephen Presser's highly compelling testimony before the House Judiciary Committee. See House Hearing, supra note 10, at 116-128 (testimony and prepared statement of Stephen B. Presser).
272. See JOHN NORTON POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES 491-92 (1870) ("The importance of the impeaching power consists, not in its effects upon the subordinate ministerial officers, but in the check which it places upon the President and judges.").
273. There is no suggestion in the records of the Convention that the Framers intended to incorporate the English meaning of "high crimes and misdemeanors" when they adopted the English language. Under the English system, "high crimes and misdemeanors" extended to both noncriminal and unofficial acts and could be used against any citizen, including members of parliament. See Turley, supra note 1.
274. See generally id. (discussing the creation of alternative methods for contesting executive policies under the representative system, as well as the incorporation of impeachment as a controlled process of addressing legitimacy concerns regarding high officials).
275. American legislators have been cognizant of both the shared history and the different functions of impeachment under the English and American models. See, e.g., IRVING BRANT, IMPEACHMENT: TRIALS AND ERRORS 157 (1972) (quoting Senator Frederick T. Frelinghuysen in the Johnson impeachment trial as noting that "'impeachment was imported into our Constitution from the common parliamentary law of England, but it was placed there clipped and pruned of very many of its baneful incidents'").
276. See Turley, supra note 1.
277. See U.S. CONST. art. I, § 8.
278. See id. § 7, cl. 2.
279. Perhaps due to its static structure, impeachment is sometimes treated as a type of negative qualification provision as opposed to a constitutional check. Under this view, the impeachment standard resembles other static qualification requirements, including age and citizenship, that the Framers made part of Article II. Although there is an obvious fitness component to any impeachment decision, the impeachment provisions are structurally different from the qualification provisions. First, qualification provisions are static, not evolutionary. The Framers imposed few qualifications on a President, and those qualifications are objective and immutable. Second, qualification provisions are uniformly subject to judicial review. The impeachment provision was expressly given to the legislative branch, not the judicial branch, because of the absence of an objective standard for judicial review. Alexander Hamilton noted that the impeachment standard was insufficiently defined to be left to the judicial branch: "This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security." THE FEDERALIST No. 65, supra note 176, at 398. Consistent with this view and the language of the impeachment provisions, the Supreme Court has concluded that both the determination that "high Crimes and Misdemeanors" were committed and any subsequent decision to remove are nonjusticable. See Nixon v. United States, 506 U.S. 224, 230-31 (1993).
280. Perhaps due to its static structure, impeachment is sometimes treated as a type of negative qualification provision as opposed to a constitutional check. Under this view, the impeachment standard resembles other static qualification requirements, including age and citizenship, that the Framers made part of Article II. Although there is an obvious fitness component to any impeachment decision, the impeachment provisions are structurally different from the qualification provisions. First, qualification provisions are static, not evolutionary. The Framers imposed few qualifications on a President, and those qualifications are objective and immutable. Second, qualification provisions are uniformly subject to judicial review. The impeachment provision was expressly given to the legislative branch, not the judicial branch, because of the absence of an objective standard for judicial review. Alexander Hamilton noted that the impeachment standard was insufficiently defined to be left to the judicial branch: "This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security." THE FEDERALIST No. 65, supra note 176, at 398. Consistent with this view and the language of the impeachment provisions, the Supreme Court has concluded that both the determination that "high Crimes and Misdemeanors" were committed and any subsequent decision to remove are nonjusticable. See Nixon v. United States, 506 U.S. 224, 230-31 (1993).
281. Only the limited static requirements of impeachment, such as the need for a supermajority vote in the Senate, are subject to judicial review.
282. 5 U.S. (1 Cranch) 137 (1803) (establishing the right of the judicial branch to decide on the constitutionality of a congressional act).
283. 343 U.S. 579 (1952) (holding that the President's executive order directing the Secretary of Commerce to seize and operate U.S. steel mills was unconstitutional); cf. Bowsher v. Synar, 478 U.S. 714 (1986) (striking down the Balanced Budget and Emergency Deficit Control Act as an unconstitutional delegation of executive authority to Congress via the Comptroller General).
284. See supra note 155.
285. See THE FEDERALIST No. 65, supra note 176, at 402.
286. See Turley, supra note 1. This approach is similar to the division of procedural and political decisions in other constitutional provisions.
287. Such was the case in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), in which the Supreme Court struck down the use of legislative vetoes as violative of the bicameral requirements of Article I, as well as the doctrine of separation of powers.
288. The legitimacy function is more fully explored in a separate article, see Turley, supra note 1, and in this author's testimony before the House Judiciary Committee. See House Hearing, supra note 10, at 250-76 (testimony and prepared statement of Jonathan Turley).
289. The legitimacy function is more fully explored in a separate article, see Turley, supra note 1, and in this author's testimony before the House Judiciary Committee. See House Hearing, supra note 10, at 250-76 (testimony and prepared statement of Jonathan Turley).
290. As the Supreme Court noted in Nixon v. United States, 506 U.S. 224 (1993), "[the] split of authority [between the houses] . . . 'guards against the danger of persecution from the prevalency of a factious spirit in either of those branches.'" Id. at 236 (quoting THE FEDERALIST No. 66, at 402 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
291. The heavy reliance on Hamilton in discussions of impeachment is somewhat ironic, because Hamilton wanted a President to be elected for life and advocated a near royal status for the chief executive. See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS 16 (1996). Hamilton also advocated a different system for impeachment. See supra notes 170-171 and accompanying text. Yet, despite the fact that he played only a limited role on this issue at the Convention, Hamilton would become one of the most articulate and thoughtful defenders of the bicameral system.
292. The heavy reliance on Hamilton in discussions of impeachment is somewhat ironic, because Hamilton wanted a President to be elected for life and advocated a near royal status for the chief executive. See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS 16 (1996). Hamilton also advocated a different system for impeachment. See supra notes 170-171 and accompanying text. Yet, despite the fact that he played only a limited role on this issue at the Convention, Hamilton would become one of the most articulate and thoughtful defenders of the bicameral system.
293. THE FEDERALIST No. 65, supra note 176, at 396.
294. The use of political mechanisms also distinguished impeachment from legislative acts subject to judicial review. Cf. Peter M. Shane, Who May Discipline or Remove Federal Judges? A Constitutional Analysis, 142 U. PA. L. REV. 209, 211 (1993) ("By political mechanisms, I mean those removal methods that can be fully initiated and fully implemented by the elected (or "political") branches of the federal government without the involvement of the judiciary. . . . [I]mpeachment was to be the sole political mechanism for disciplinary of federal judges.").
295. See, e.g., THE FEDERALIST No. 65, supra note 176, at 397-98. In fact, there is no constitutional requirement that the House make a "high Crimes and Misdemeanor" determination. Rather, this phrase is used in reference to the Senate vote of removal and was discussed in debate with reference to the Senate's determination. See, e.g., 2 FARRAND, supra note 85, at 550 (Madison contesting the use of maladministration (and favoring "high crimes and misdemeanors") as nothing less than "tenure during pleasure of the Senate"). In practice, the House has made this determination, but the Framers never expressly required the determination as part of the House impeachment provision. The Framers clearly viewed the House as carrying out the popular sentiments of the majority in submitting such matters to the Senate for trial. It was the Senate's unique characteristics and the specific Senate rules that would moderate popular demands from the House. See THE FEDERALIST No. 65, supra note 176, at 398 (Alexander Hamilton). Justice Story noted the intended roles of the two Houses in his commentary: The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity and ability and independence, possessing the requisite knowledge and firmness to act with vigor and to decide with impartiality upon the charges. 1 STORY, supra note 58, § 812.
296. See, e.g., THE FEDERALIST No. 65, supra note 176, at 397-98. In fact, there is no constitutional requirement that the House make a "high Crimes and Misdemeanor" determination. Rather, this phrase is used in reference to the Senate vote of removal and was discussed in debate with reference to the Senate's determination. See, e.g., 2 FARRAND, supra note 85, at 550 (Madison contesting the use of maladministration (and favoring "high crimes and misdemeanors") as nothing less than "tenure during pleasure of the Senate"). In practice, the House has made this determination, but the Framers never expressly required the determination as part of the House impeachment provision. The Framers clearly viewed the House as carrying out the popular sentiments of the majority in submitting such matters to the Senate for trial. It was the Senate's unique characteristics and the specific Senate rules that would moderate popular demands from the House. See THE FEDERALIST No. 65, supra note 176, at 398 (Alexander Hamilton). Justice Story noted the intended roles of the two Houses in his commentary: The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity and ability and independence, possessing the requisite knowledge and firmness to act with vigor and to decide with impartiality upon the charges. 1 STORY, supra note 58, § 812.
297. See, e.g., THE FEDERALIST No. 65, supra note 176, at 397-98. In fact, there is no constitutional requirement that the House make a "high Crimes and Misdemeanor" determination. Rather, this phrase is used in reference to the Senate vote of removal and was discussed in debate with reference to the Senate's determination. See, e.g., 2 FARRAND, supra note 85, at 550 (Madison contesting the use of maladministration (and favoring "high crimes and misdemeanors") as nothing less than "tenure during pleasure of the Senate"). In practice, the House has made this determination, but the Framers never expressly required the determination as part of the House impeachment provision. The Framers clearly viewed the House as carrying out the popular sentiments of the majority in submitting such matters to the Senate for trial. It was the Senate's unique characteristics and the specific Senate rules that would moderate popular demands from the House. See THE FEDERALIST No. 65, supra note 176, at 398 (Alexander Hamilton). Justice Story noted the intended roles of the two Houses in his commentary: The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity and ability and independence, possessing the requisite knowledge and firmness to act with vigor and to decide with impartiality upon the charges. 1 STORY, supra note 58, § 812.
298. See, e.g., THE FEDERALIST No. 65, supra note 176, at 397-98. In fact, there is no constitutional requirement that the House make a "high Crimes and Misdemeanor" determination. Rather, this phrase is used in reference to the Senate vote of removal and was discussed in debate with reference to the Senate's determination. See, e.g., 2 FARRAND, supra note 85, at 550 (Madison contesting the use of maladministration (and favoring "high crimes and misdemeanors") as nothing less than "tenure during pleasure of the Senate"). In practice, the House has made this determination, but the Framers never expressly required the determination as part of the House impeachment provision. The Framers clearly viewed the House as carrying out the popular sentiments of the majority in submitting such matters to the Senate for trial. It was the Senate's unique characteristics and the specific Senate rules that would moderate popular demands from the House. See THE FEDERALIST No. 65, supra note 176, at 398 (Alexander Hamilton). Justice Story noted the intended roles of the two Houses in his commentary: The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity and ability and independence, possessing the requisite knowledge and firmness to act with vigor and to decide with impartiality upon the charges. 1 STORY, supra note 58, § 812.
299. For his part, Madison opposed the role of the Senate as trier in impeachment cases. See HOFFER & HULL, supra note 1, at 100; Turley, supra note 1.
300. For his part, Madison opposed the role of the Senate as trier in impeachment cases. See HOFFER & HULL, supra note 1, at 100; Turley, supra note 1.
301. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
302. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
303. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
304. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
305. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
306. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
307. There remained, however, lingering doubts about the Senate's ability to protect the rights of the accused. One influential non-delegate who had reservations about the process of impeachment was Thomas Jefferson. Jefferson reflected the view of the impeachment trial as a proceeding that is more judicial than legislative and more criminal than political. Cf. Turley, supra note 1 (discussing alternative views of Senate trials as better understood in legislative and political terms). His unease became apparent during the 1787-1798 impeachment trial of Senator William Blount, a former delegate to the Constitutional Convention, for secret dealings with England to take over a large portion of land in what is now Louisiana. See Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443-46 (1993). During the debate, Jefferson's close friend, Virginia Senator Henry Tazewell, argued that a jury, and not the Senate, should judge impeachments. See id. at 445-49. Jefferson clearly agreed. See Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), in 7 THE WRITINGS OF THOMAS JEFFERSON 194-95 (Paul Leicester Ford ed., 1896). After Tazewell's argument failed, Jefferson wrote to Madison on the issue, see Letter from Thomas Jefferson to James Madison (Feb. 22, 1798), in 3 MEMOIRS, CORRESPONDENCE, AND PRIVATE PAPERS OF THOMAS JEFFERSON 382-83 (Thomas Jefferson Randolph ed., 1829), but Madison responded that he was not persuaded that there was a need for the added procedural protection. Madison simply responded that "[m]y impression has always been that impeachments were somewhat sui generis, and excluded the use of Juries." Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), in 17 THE PAPERS OF JAMES MADISON 88 (David B. Mattern et al. eds., 1991). For further discussion of the Blount trial, see Melton, supra.
308. THE FEDERALIST NO. 65, supra note 176, at 398.
309. U.S. CONST. art. I, § 2.
310. Id. § 3, Cl. 6.
311. See id.
312. Id. Cl. 7.
313. THE FEDERALIST No. 66, at 402 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
314. In England, the House of Commons would regularly hold trials, unlike the majority of impeachments by the House of Representatives. In the English system, however, the House of Lords was viewed as the true adjudicatory body with a full panoply of rights given to the defendant in the presentation of witnesses and evidence. See generally, Turley, supra note 1 (discussing the different institutional roles of the House of Commons and the House of Lords in English impeachments).
315. During the Nixon hearings, the House and Senate functions appeared to conflate. This was evident in the statements of members, like Elizabeth Holtzman, from the Nixon hearings that congressional members voted as if they were voting on the Senate question. See infra note 248. In the Clinton case, the suggestion of a mandatory full trial-like hearing in the House with examination of fact witnesses was troubling, particularly given the existence of a comprehensive record by the independent counsel, an officer appointed to gather such information. The only constitutional expectation of the House in such circumstances are to confirm the accuracy of the submitted record and to determine that the allegations, if true, would constitute "high Crimes and Misdemeanors." Because the Senate has sole authority to try all impeachments, the balancing of individual testimony or facts is a matter historically for the Senate.
316. See generally Turley, supra note 86 (discussing the individual origins of past impeachment cases).
317. James Wilson noted that the separation of the right to accuse and the right to judge was a critical improvement in the English system, which was later imported into the American system: Upon the separation of the two houses, it became an obvious improvement, that the power of trying those high misdemeanors should belong to the house of lords, and that the power of conducting the prosecution should belong to the house of commons. In consequence of this improvement, the inconsistent characters of judge and accuser were no longer acted by the same body. Wilson, supra note 94, at 166.
318. See generally CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 5-6 (1974) (discussing the impeachment process in conventional criminal trial terms). Obviously, the comparison to the grand and petit jury models is not meant to suggest identical functions or, conversely, to ignore the obvious differences with the impeachment process. Impeachments are not criminal prosecutions, Senate trials are not trials under the rules of evidence or constitutional protections for criminal defendants, and there is no "punishment" in the technical sense. Nevertheless, the two-house process bears similarities to the accusatory/adjudicatory division of grand and petit juries. Such analogies are natural and may have been used by the Framers in their private discussions. During the Clinton crisis, White House advocates often denounced any analogy to grand juries or conventional prosecutions. See, e.g., HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - PRESENTATIONS BY INVESTIGATIVE COUNSEL 31 (Comm. Print 1998) [hereinafter PRESENTATIONS BY INVESTIGATIVE COUNSEL] (Dec. 10, 1998 testimony of Minority Chief Investigative Counsel Abbe Lowell) (denouncing the use of analogies to grand jury proceedings in the impeachment context); House Hearing, supra note 10, at 115 (prepared statement of Professor Drinan) ("Impeachment . . . should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury."). In the presentation on behalf of the President to the House Judiciary Committee, however, the democrats called witnesses to specifically draw analogies to grand juries and conventional prosecutions as part of the White House rebuttal. This testimony often stressed that a close grand jury vote (like a partisan committee vote) indicated a lack of basis for prosecution: In the prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be or might be a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party line vote or near party line vote is a signal that something is wrong or may be wrong with the case and that the case may not be worth pursuing. Impeachment Inquiry: William Jefferson Clinton, President of the United States - Presentation on Behalf of the President: Hearing Before the House Comm. on the Judiciary, 105th Cong. 321 (1998) [hereinafter Presentation on Behalf of the President] (Dec. 9, 1998 testimony of Professor Noble). This argument, of course, would allow any partisan minority to deprive the perceived legitimacy of an impeachment. See infra notes 249-252 and accompanying text. Nevertheless, the grand jury analogy was popular with democratic witnesses opposing impeachment. See, e.g., Presentation of Behalf of the President, supra at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman) ("No indictment would be sought by a prosecutor where there is no chance for conviction. And it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office."); Perjury Hearing, supra note 117, at 99-100 (prepared statement of Professor Rosen) ("Just as ordinary prosecutors and grand juries often decide not to indict crimes that are technically indictable, because they are unlikely to secure convictions, so you must ask yourself whether it is worth putting the country through the trauma of an impeachment trial when both the Senate and the people of the United States have strongly indicated that conviction, on the current facts, is highly unlikely.").
319. See generally CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 5-6 (1974) (discussing the impeachment process in conventional criminal trial terms). Obviously, the comparison to the grand and petit jury models is not meant to suggest identical functions or, conversely, to ignore the obvious differences with the impeachment process. Impeachments are not criminal prosecutions, Senate trials are not trials under the rules of evidence or constitutional protections for criminal defendants, and there is no "punishment" in the technical sense. Nevertheless, the two-house process bears similarities to the accusatory/adjudicatory division of grand and petit juries. Such analogies are natural and may have been used by the Framers in their private discussions. During the Clinton crisis, White House advocates often denounced any analogy to grand juries or conventional prosecutions. See, e.g., HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - PRESENTATIONS BY INVESTIGATIVE COUNSEL 31 (Comm. Print 1998) [hereinafter PRESENTATIONS BY INVESTIGATIVE COUNSEL] (Dec. 10, 1998 testimony of Minority Chief Investigative Counsel Abbe Lowell) (denouncing the use of analogies to grand jury proceedings in the impeachment context); House Hearing, supra note 10, at 115 (prepared statement of Professor Drinan) ("Impeachment . . . should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury."). In the presentation on behalf of the President to the House Judiciary Committee, however, the democrats called witnesses to specifically draw analogies to grand juries and conventional prosecutions as part of the White House rebuttal. This testimony often stressed that a close grand jury vote (like a partisan committee vote) indicated a lack of basis for prosecution: In the prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be or might be a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party line vote or near party line vote is a signal that something is wrong or may be wrong with the case and that the case may not be worth pursuing. Impeachment Inquiry: William Jefferson Clinton, President of the United States - Presentation on Behalf of the President: Hearing Before the House Comm. on the Judiciary, 105th Cong. 321 (1998) [hereinafter Presentation on Behalf of the President] (Dec. 9, 1998 testimony of Professor Noble). This argument, of course, would allow any partisan minority to deprive the perceived legitimacy of an impeachment. See infra notes 249-252 and accompanying text. Nevertheless, the grand jury analogy was popular with democratic witnesses opposing impeachment. See, e.g., Presentation of Behalf of the President, supra at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman) ("No indictment would be sought by a prosecutor where there is no chance for conviction. And it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office."); Perjury Hearing, supra note 117, at 99-100 (prepared statement of Professor Rosen) ("Just as ordinary prosecutors and grand juries often decide not to indict crimes that are technically indictable, because they are unlikely to secure convictions, so you must ask yourself whether it is worth putting the country through the trauma of an impeachment trial when both the Senate and the people of the United States have strongly indicated that conviction, on the current facts, is highly unlikely.").
320. See generally CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 5-6 (1974) (discussing the impeachment process in conventional criminal trial terms). Obviously, the comparison to the grand and petit jury models is not meant to suggest identical functions or, conversely, to ignore the obvious differences with the impeachment process. Impeachments are not criminal prosecutions, Senate trials are not trials under the rules of evidence or constitutional protections for criminal defendants, and there is no "punishment" in the technical sense. Nevertheless, the two-house process bears similarities to the accusatory/adjudicatory division of grand and petit juries. Such analogies are natural and may have been used by the Framers in their private discussions. During the Clinton crisis, White House advocates often denounced any analogy to grand juries or conventional prosecutions. See, e.g., HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - PRESENTATIONS BY INVESTIGATIVE COUNSEL 31 (Comm. Print 1998) [hereinafter PRESENTATIONS BY INVESTIGATIVE COUNSEL] (Dec. 10, 1998 testimony of Minority Chief Investigative Counsel Abbe Lowell) (denouncing the use of analogies to grand jury proceedings in the impeachment context); House Hearing, supra note 10, at 115 (prepared statement of Professor Drinan) ("Impeachment . . . should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury."). In the presentation on behalf of the President to the House Judiciary Committee, however, the democrats called witnesses to specifically draw analogies to grand juries and conventional prosecutions as part of the White House rebuttal. This testimony often stressed that a close grand jury vote (like a partisan committee vote) indicated a lack of basis for prosecution: In the prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be or might be a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party line vote or near party line vote is a signal that something is wrong or may be wrong with the case and that the case may not be worth pursuing. Impeachment Inquiry: William Jefferson Clinton, President of the United States - Presentation on Behalf of the President: Hearing Before the House Comm. on the Judiciary, 105th Cong. 321 (1998) [hereinafter Presentation on Behalf of the President] (Dec. 9, 1998 testimony of Professor Noble). This argument, of course, would allow any partisan minority to deprive the perceived legitimacy of an impeachment. See infra notes 249-252 and accompanying text. Nevertheless, the grand jury analogy was popular with democratic witnesses opposing impeachment. See, e.g., Presentation of Behalf of the President, supra at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman) ("No indictment would be sought by a prosecutor where there is no chance for conviction. And it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office."); Perjury Hearing, supra note 117, at 99-100 (prepared statement of Professor Rosen) ("Just as ordinary prosecutors and grand juries often decide not to indict crimes that are technically indictable, because they are unlikely to secure convictions, so you must ask yourself whether it is worth putting the country through the trauma of an impeachment trial when both the Senate and the people of the United States have strongly indicated that conviction, on the current facts, is highly unlikely.").
321. See generally CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 5-6 (1974) (discussing the impeachment process in conventional criminal trial terms). Obviously, the comparison to the grand and petit jury models is not meant to suggest identical functions or, conversely, to ignore the obvious differences with the impeachment process. Impeachments are not criminal prosecutions, Senate trials are not trials under the rules of evidence or constitutional protections for criminal defendants, and there is no "punishment" in the technical sense. Nevertheless, the two-house process bears similarities to the accusatory/adjudicatory division of grand and petit juries. Such analogies are natural and may have been used by the Framers in their private discussions. During the Clinton crisis, White House advocates often denounced any analogy to grand juries or conventional prosecutions. See, e.g., HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - PRESENTATIONS BY INVESTIGATIVE COUNSEL 31 (Comm. Print 1998) [hereinafter PRESENTATIONS BY INVESTIGATIVE COUNSEL] (Dec. 10, 1998 testimony of Minority Chief Investigative Counsel Abbe Lowell) (denouncing the use of analogies to grand jury proceedings in the impeachment context); House Hearing, supra note 10, at 115 (prepared statement of Professor Drinan) ("Impeachment . . . should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury."). In the presentation on behalf of the President to the House Judiciary Committee, however, the democrats called witnesses to specifically draw analogies to grand juries and conventional prosecutions as part of the White House rebuttal. This testimony often stressed that a close grand jury vote (like a partisan committee vote) indicated a lack of basis for prosecution: In the prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be or might be a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party line vote or near party line vote is a signal that something is wrong or may be wrong with the case and that the case may not be worth pursuing. Impeachment Inquiry: William Jefferson Clinton, President of the United States - Presentation on Behalf of the President: Hearing Before the House Comm. on the Judiciary, 105th Cong. 321 (1998) [hereinafter Presentation on Behalf of the President] (Dec. 9, 1998 testimony of Professor Noble). This argument, of course, would allow any partisan minority to deprive the perceived legitimacy of an impeachment. See infra notes 249-252 and accompanying text. Nevertheless, the grand jury analogy was popular with democratic witnesses opposing impeachment. See, e.g., Presentation of Behalf of the President, supra at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman) ("No indictment would be sought by a prosecutor where there is no chance for conviction. And it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office."); Perjury Hearing, supra note 117, at 99-100 (prepared statement of Professor Rosen) ("Just as ordinary prosecutors and grand juries often decide not to indict crimes that are technically indictable, because they are unlikely to secure convictions, so you must ask yourself whether it is worth putting the country through the trauma of an impeachment trial when both the Senate and the people of the United States have strongly indicated that conviction, on the current facts, is highly unlikely.").
322. See generally CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 5-6 (1974) (discussing the impeachment process in conventional criminal trial terms). Obviously, the comparison to the grand and petit jury models is not meant to suggest identical functions or, conversely, to ignore the obvious differences with the impeachment process. Impeachments are not criminal prosecutions, Senate trials are not trials under the rules of evidence or constitutional protections for criminal defendants, and there is no "punishment" in the technical sense. Nevertheless, the two-house process bears similarities to the accusatory/adjudicatory division of grand and petit juries. Such analogies are natural and may have been used by the Framers in their private discussions. During the Clinton crisis, White House advocates often denounced any analogy to grand juries or conventional prosecutions. See, e.g., HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - PRESENTATIONS BY INVESTIGATIVE COUNSEL 31 (Comm. Print 1998) [hereinafter PRESENTATIONS BY INVESTIGATIVE COUNSEL] (Dec. 10, 1998 testimony of Minority Chief Investigative Counsel Abbe Lowell) (denouncing the use of analogies to grand jury proceedings in the impeachment context); House Hearing, supra note 10, at 115 (prepared statement of Professor Drinan) ("Impeachment . . . should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury."). In the presentation on behalf of the President to the House Judiciary Committee, however, the democrats called witnesses to specifically draw analogies to grand juries and conventional prosecutions as part of the White House rebuttal. This testimony often stressed that a close grand jury vote (like a partisan committee vote) indicated a lack of basis for prosecution: In the prosecutorial context, a 13-to-10 vote by the grand jury
323. See generally CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 5-6 (1974) (discussing the impeachment process in conventional criminal trial terms). Obviously, the comparison to the grand and petit jury models is not meant to suggest identical functions or, conversely, to ignore the obvious differences with the impeachment process. Impeachments are not criminal prosecutions, Senate trials are not trials under the rules of evidence or constitutional protections for criminal defendants, and there is no "punishment" in the technical sense. Nevertheless, the two-house process bears similarities to the accusatory/adjudicatory division of grand and petit juries. Such analogies are natural and may have been used by the Framers in their private discussions. During the Clinton crisis, White House advocates often denounced any analogy to grand juries or conventional prosecutions. See, e.g., HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - PRESENTATIONS BY INVESTIGATIVE COUNSEL 31 (Comm. Print 1998) [hereinafter PRESENTATIONS BY INVESTIGATIVE COUNSEL] (Dec. 10, 1998 testimony of Minority Chief Investigative Counsel Abbe Lowell) (denouncing the use of analogies to grand jury proceedings in the impeachment context); House Hearing, supra note 10, at 115 (prepared statement of Professor Drinan) ("Impeachment . . . should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury."). In the presentation on behalf of the President to the House Judiciary Committee, however, the democrats called witnesses to specifically draw analogies to grand juries and conventional prosecutions as part of the White House rebuttal. This testimony often stressed that a close grand jury vote (like a partisan committee vote) indicated a lack of basis for prosecution: In the prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be or might be a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party line vote or near party line vote is a signal that something is wrong or may be wrong with the case and that the case may not be worth pursuing. Impeachment Inquiry: William Jefferson Clinton, President of the United States - Presentation on Behalf of the President: Hearing Before the House Comm. on the Judiciary, 105th Cong. 321 (1998) [hereinafter Presentation on Behalf of the President] (Dec. 9, 1998 testimony of Professor Noble). This argument, of course, would allow any partisan minority to deprive the perceived legitimacy of an impeachment. See infra notes 249-252 and accompanying text. Nevertheless, the grand jury analogy was popular with democratic witnesses opposing impeachment. See, e.g., Presentation of Behalf of the President, supra at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman) ("No indictment would be sought by a prosecutor where there is no chance for conviction. And it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office."); Perjury Hearing, supra note 117, at 99-100 (prepared statement of Professor Rosen) ("Just as ordinary prosecutors and grand juries often decide not to indict crimes that are technically indictable, because they are unlikely to secure convictions, so you must ask yourself whether it is worth putting the country through the trauma of an impeachment trial when both the Senate and the people of the United States have strongly indicated that conviction, on the current facts, is highly unlikely.").
324. See, e.g., 2 FARRAND, supra note 85, at 65 (statement of Benjamin Franklin).
325. See, e.g., 145 CONG. REC. S1008 (daily ed. Jan. 26, 1999) (statement of House Manager Rogan) (noting prior statements of House members emphasizing "the distinction between the House's function as the accusatory body versus the Senate's constitutional function of being the body where impeachment case is tried"); 145 CONG. REC. S273 (daily ed. Jan. 15, 1999) (statement of House Manager Barr) ("The House of Representatives, though it is not in every respect like a grand jury, operates much more like a grand jury than a petite jury."); 144 CONG. REC. H12,036 (daily ed. Dec, 19, 1998) (statement of Rep. Buyer) ("[T]he Constitution gave this body the express authority as the accusatory body . . . . That is why many of my colleagues have referred to the House as the grand jury function.").
326. See, e.g., 145 CONG. REC. S1008 (daily ed. Jan. 26, 1999) (statement of House Manager Rogan) (noting prior statements of House members emphasizing "the distinction between the House's function as the accusatory body versus the Senate's constitutional function of being the body where impeachment case is tried"); 145 CONG. REC. S273 (daily ed. Jan. 15, 1999) (statement of House Manager Barr) ("The House of Representatives, though it is not in every respect like a grand jury, operates much more like a grand jury than a petite jury."); 144 CONG. REC. H12,036 (daily ed. Dec, 19, 1998) (statement of Rep. Buyer) ("[T]he Constitution gave this body the express authority as the accusatory body . . . . That is why many of my colleagues have referred to the House as the grand jury function.").
327. See, e.g., 145 CONG. REC. S1008 (daily ed. Jan. 26, 1999) (statement of House Manager Rogan) (noting prior statements of House members emphasizing "the distinction between the House's function as the accusatory body versus the Senate's constitutional function of being the body where impeachment case is tried"); 145 CONG. REC. S273 (daily ed. Jan. 15, 1999) (statement of House Manager Barr) ("The House of Representatives, though it is not in every respect like a grand jury, operates much more like a grand jury than a petite jury."); 144 CONG. REC. H12,036 (daily ed. Dec, 19, 1998) (statement of Rep. Buyer) ("[T]he Constitution gave this body the express authority as the accusatory body . . . . That is why many of my colleagues have referred to the House as the grand jury function.").
328. This role was inherited from the English model "which assigned the role of prosecutor to the Commons while the Lords sat in judgment." RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 54 (1973).
329. See GERHARDT, supra note 195, at 26.
330. In his review of the American impeachment process, William Rawle noted the role of the House of Commons in articulating such charges in his discussion of the English impeachment model: In England, the practice of impeachments by the house of commons before the house of lords, has existed from very ancient times. Its foundation is, that a subject entrusted with the administration of public affairs, may sometimes infringe the rights of the people, and be guilty of such crimes as the ordinary magistrates either dare not or cannot punish. Of these, the representatives of the people or house of commons cannot judge, because they and their constituents are the persons injured, and can therefore only accuse. RAWLE, supra note 100, at 210, quoted in PHILIP KURLAND & RALPH LERNER, THE FOUNDERS' CONSTITUTION 167 (1987).
331. Professor Stern noted: "English grand juries in the late seventeenth and early eighteenth centuries used it to comment on matters of community concern and frequently complained that counties were not properly maintaining bridges and prisons. Significantly, reports began to question the conduct of public officials." Barry Jeffrey Stern, Revealing Misconduct by Public Officials Through Grand Jury Reports, 136 U. PA. L. REV. 73, 84 (1987).
332. In his influential work on early American grand juries, Professor Younger observed: "Grand juries acted in the nature of local assemblies: making known the wishes of the people, proposing new laws, protesting against abuses in government, performing administrative tasks, and looking after the welfare of their communities." RICHARD D. YOUNGER, THE PEOPLE'S PANEL: THE GRAND JURY IN THE UNITED STATES 1634-1941, at 2 (1963).
333. See Robert L. Misner, In Partial Praise of Boyd: The Grand Jury as Catalyst for Fourth Amendment Change, 29 ARIZ. ST. L.J. 805, 832 (1997) ("[T]he grand jury became part of the rush to independence, denouncing British conduct either through presentment or report, and protecting colonists form prosecutor.").
334. See LEROY D. CLARK, THE GRAND JURY: THE USE AND ABUSE OF POLITICAL POWER 14 (1975).
335. See YOUNGER, supra note 218, at 7-8.
336. See id. at 2.
337. See id. at 50. See generally CLARK, supra note 220, at 13-18 (discussing the political role of grand juries during the colonial and revolutionary periods).
338. See id. at 50. See generally CLARK, supra note 220, at 13-18 (discussing the political role of grand juries during the colonial and revolutionary periods).
339. This is significant because individuals like Jefferson had serious reservations about the Senate procedures (particularly the absence of a jury). See supra note 201. Jefferson would likely have had even greater reservations about the House reaching the merits of an impeachment, as was the case in the Nixon hearings.
340. See THE FEDERALIST No. 65, supra note 176, at 398.
341. See Turley, supra note 1.
342. The Constitution does not require the Senate to follow the rules of evidence or to allow for the Sixth or Seventh Amendment rights of a criminal defendant, such as confrontation or a jury. Nevertheless, it is required to proceed under oath or affirmation, to submit to the supervision of the Chief Justice, and to satisfy a two-third vote for conviction. See U.S. CONST. art. I, § 3, cls. 6 & 7. The required supervision of the Chief Justice suggests an expectation that the Chief Justice would rule on evidentiary or procedural issues to guarantee minimal standards of adjudication, as was the case in the Johnson trial. See Turley, supra note 1 (discussing the Johnson trial and procedures).
343. The Constitution does not require the Senate to follow the rules of evidence or to allow for the Sixth or Seventh Amendment rights of a criminal defendant, such as confrontation or a jury. Nevertheless, it is required to proceed under oath or affirmation, to submit to the supervision of the Chief Justice, and to satisfy a two-third vote for conviction. See U.S. CONST. art. I, § 3, cls. 6 & 7. The required supervision of the Chief Justice suggests an expectation that the Chief Justice would rule on evidentiary or procedural issues to guarantee minimal standards of adjudication, as was the case in the Johnson trial. See Turley, supra note 1 (discussing the Johnson trial and procedures).
344. 2 FARRAND, supra note 85, at 65-66. Madison supported placing the authority for removal of executive branch officers in the hands of the President, due to the guarantee of impeachment: I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct and subject him to impeachment himself, if he suffers them to perpetuate with impunity high crimes or misdemeanors against the United States, or neglects to super-intend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt. 1 ANNALS OF CONG. 372-73 (Joseph Gales ed., 1789). Pinckney expressed similar thoughts regarding the diplomatic power of the President. See 4 ELLIOT'S DEBATES, supra note 72, at 281 ("Under the new Constitution, the abuse of power was more effectually checked than under the old one. A proper body, immediately taken from the people, and returnable to the people every second year, are to impeach those who behave amiss, or betray their public trust . . . .").
345. 2 FARRAND, supra note 85, at 65-66. Madison supported placing the authority for removal of executive branch officers in the hands of the President, due to the guarantee of impeachment: I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct and subject him to impeachment himself, if he suffers them to perpetuate with impunity high crimes or misdemeanors against the United States, or neglects to super-intend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt. 1 ANNALS OF CONG. 372-73 (Joseph Gales ed., 1789). Pinckney expressed similar thoughts regarding the diplomatic power of the President. See 4 ELLIOT'S DEBATES, supra note 72, at 281 ("Under the new Constitution, the abuse of power was more effectually checked than under the old one. A proper body, immediately taken from the people, and returnable to the people every second year, are to impeach those who behave amiss, or betray their public trust . . . .").
346. 2 FARRAND, supra note 85, at 65-66. Madison supported placing the authority for removal of executive branch officers in the hands of the President, due to the guarantee of impeachment: I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct and subject him to impeachment himself, if he suffers them to perpetuate with impunity high crimes or misdemeanors against the United States, or neglects to super-intend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt. 1 ANNALS OF CONG. 372-73 (Joseph Gales ed., 1789). Pinckney expressed similar thoughts regarding the diplomatic power of the President. See 4 ELLIOT'S DEBATES, supra note 72, at 281 ("Under the new Constitution, the abuse of power was more effectually checked than under the old one. A proper body, immediately taken from the people, and returnable to the people every second year, are to impeach those who behave amiss, or betray their public trust . . . .").
347. This deterrent is evident in state impeachments from the early-nineteenth century. In some states, impeachment was used as a measure against any official acting in a fashion inconsistent with his office. For example, in 1823, the Kentucky Court of Appeals set out the principle that "an officer is liable to a forfeiture of his office . . . for doing a thing directly contrary to the design of it." Commonwealth v. Arnold, 13 Ky. (3 Litt.) 309, 312 (1823).
348. See supra notes 37-40 and accompanying text.
349. Cf. JOHN R. LABOVITZ, PRESIDENTIAL IMPEACHMENT 2 (1978) ("To avoid executive usurpation of power, the delegates sought to provide checks upon his conduct, including provision for his removal though impeachment.").
350. The earliest impeachment trials also referenced the deterrence function of the final verdict on impeachments. In the 1876 trial of Secretary of War William Belknap, Senator Maxey of Texas stressed that "this Supreme punishment is . . . inflicted not only to get rid of a bad man in office, . . . but chiefly, by fearful example, to teach all men that American institutions and the perpetuation of free government, of the people, by the people, and for the people, demand purity in office." Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability: The Case of the First Lady, 15 CONST. COMMENTARY 479, 489 n.52 (1998).
351. 2 FARRAND, supra note 85, at 66.
352. 4 ELLIOT'S DEBATES, supra note 72, at 32.
353. See generally Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1209-14 (1985) (discussing the determination of optimal criminal penalties). As Richard Posner has noted, this was most evident in pre-nineteenth century England, where many crimes were punishable by death, but detection was very low due to the lack of enforcement personnel. See id. at 1212.
354. See generally Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1209-14 (1985) (discussing the determination of optimal criminal penalties). As Richard Posner has noted, this was most evident in pre-nineteenth century England, where many crimes were punishable by death, but detection was very low due to the lack of enforcement personnel. See id. at 1212.
355. Setting too low a standard for "high Crimes and Misdemeanors" can actually have a perverse impact on presidents who may fail to see any difference in the consequences for small or large offenses in their calculus of risk. Cf. George J. Stigler, The Optimum Enforcement of Laws, 78 J. POL. ECON. 526, 527 (1970) ("If the thief has his hand cut off for taking five dollars, he had just as well take $5,000.").
356. John Jay raised an analogous point in The Federalist No. 64, noting that "so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article of the subject of impeachments." THE FEDERALIST No. 64, supra note 177, at 380.
357. See Jonathan Turley, The President Resorts to Jury Nullification, WALL ST. J., Dec. 16, 1998, at A22.
358. See, e.g., Presentation on Behalf of the President, supra note 211, at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman noting that impeachment is inappropriate given that "it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office"). As noted earlier, see supra note 211 and accompanying text, this argument was often tied to grand jury cases with low likelihoods of conviction. See Impeachment Vote/Public Opinion (National Public Talk Radio broadcast, Dec. 9, 1998) (Professor Jeffrey Rosen noting how prosecutors consider an effort to indict in the face of likely acquittal to be an abuse of duty).
359. See, e.g., Presentation on Behalf of the President, supra note 211, at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman noting that impeachment is inappropriate given that "it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office"). As noted earlier, see supra note 211 and accompanying text, this argument was often tied to grand jury cases with low likelihoods of conviction. See Impeachment Vote/Public Opinion (National Public Talk Radio broadcast, Dec. 9, 1998) (Professor Jeffrey Rosen noting how prosecutors consider an effort to indict in the face of likely acquittal to be an abuse of duty).
360. See, e.g., Presentation on Behalf of the President, supra note 211, at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman noting that impeachment is inappropriate given that "it is almost universally conceded that there are not enough votes in the Senate to convict President Clinton and remove him from office"). As noted earlier, see supra note 211 and accompanying text, this argument was often tied to grand jury cases with low likelihoods of conviction. See Impeachment Vote/Public Opinion (National Public Talk Radio broadcast, Dec. 9, 1998) (Professor Jeffrey Rosen noting how prosecutors consider an effort to indict in the face of likely acquittal to be an abuse of duty).
361. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
362. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
363. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
364. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
365. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
366. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
367. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
368. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
369. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
370. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
371. There have been two American impeachments in which removal was no longer an issue. In the first such impeachment, the House impeached former Senator William Blount. See HOFFER & HULL, supra note 1, at 153; Turley, supra note 1. The Senate had quickly expelled Blount for unethical conduct after discovering his conspiracy with England to invade the Southwest. See HOFFER & HULL, supra note 1, at 152. See generally MELTON, supra note 154 (discussing the origins and events of Blount's impeachment). Blount was ultimately spared conviction in the Senate by a jurisdictional decision that legislative officials are not "civil officers" for the purposes of impeachment. See HOFFER & HULL, supra note 1, at 155-61. Few senators appeared persuaded by the argument that once an officer was expelled or removed, there was no purpose to impeachment and trial. See id. The second impeachment case in which removal was no longer an option was that of Secretary of War William Belknap for allegations of bribery. Belknap resigned just before the House's impeachment vote. See GERHARDT, supra note 195, at 51. Nevertheless, he was impeached as "William W. Belknap, late Secretary of War." See HOUSE COMM. ON THE JUDICIARY, 93RD CONG., SELECTED MATERIALS ON IMPEACHMENT 143 (Comm. Print 1973). At his Senate trial, Belknap argued that due to his departure from office, he was no longer a civil officer subject to impeachment. See Broyde & Schapiro, supra note 232, at 490. Not only did this jurisdictional argument fail, but a majority voted for conviction. See id. For further discussion of the Belknap case, see Turley, supra note 1.
372. See 2 FARRAND, supra note 85, at 550.
373. See HOFFER & HULL, supra note 1, at 113-15.
374. See supra note 232.
375. See supra notes 211, 239.
376. It is also worth noting that impeachment raises the costs of impeachable activities. When executive branch officials are aware that crimes like lying before a grand jury constitute impeachable offenses, they may be less inclined to participate in such conduct. Likewise, by determining that some crimes clearly fall outside the impeachment standard, presidents may find it easier to engage in the conduct.
377. Professor Susan Bloch has advanced this argument. In her testimony before the subcommittee, Professor Bloch stated: "I can recommend that even if you believe that some of the allegations come close to being impeachable offenses or even are impeachable, that you exercise your discretion in this case to decide to terminate this proceeding without voting out any articles of impeachment." See House Hearing, supra note 10, at 233 (testimony of Susan Low Bloch). But cf. id. at 231 (testimony of Professor Bloch) ("I agree that a president who does commit treason, bribery or other high crimes and misdemeanors is unfit for office . . . .").
378. See, e.g., Perjury Hearing, supra note 117, at 99-100 (prepared statement of Professor Rosen) (arguing that, like a grand jury, the House may find a technically impeachable act but choose not to act due to a low likelihood of conviction).
379. PRESENTATIONS BY INVESTIGATIVE COUNSEL, supra note 211, at 32 (December 10, 1998 statement of Minority Chief Investigative Counsel Abbe Lowell) (relying on the testimony of former Representative Holtzman that "[House members in the Nixon case] voted as if we were the Senate.").
380. See supra notes 144-158 and accompanying text.
381. See HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - CONSIDERATION OF ARTICLES OF IMPEACHMENT 542 (Comm. Print 1998) (Dec. 12, 1998 statement of Rep. Rogan) (discussing this approach); Turley, supra note 86.
382. See HOUSE COMM. ON THE JUDICIARY, 105TH CONG., IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES - CONSIDERATION OF ARTICLES OF IMPEACHMENT 542 (Comm. Print 1998) (Dec. 12, 1998 statement of Rep. Rogan) (discussing this approach); Turley, supra note 86.
383. This point became a theme for witnesses testifying against impeachment. For example, Elizabeth Holtzman suggested that "[n]o indictment would be sought by a prosecutor where there is no chance of conviction." Presentation on Behalf of the President, supra note 211, at 120 (Dec. 8, 1998 testimony of Elizabeth Holtzman). Thus, it was suggested that a clear commitment of a determinative minority of senators should be grounds to forgo impeachment. This was perhaps the most troubling argument advanced in support of President Clinton.
384. It would be outrageous for a grand jury (which performs a role similar to the House) to refuse to indict a defendant based on the likely outcome of the case. This is precisely what occurred in the South during the segregation period, when prosecutors used a variation of this argument to justify not prosecuting cases involving black victims and white killers. Southern juries were notorious in acquitting white defendants in the murders of blacks or civil rights workers in the face of overwhelming evidence, and many such cases resulted in hung juries. See Michael R. Belknap, The Vindication of Burke Marshall: The Southern Legal System and the Anti-Civil Rights Violence of the 1960s, 33 EMORY L.J. 93, 102-03 (1984). During this period, prosecutors refused to even bring some cases. See id. Prosecutorial discretion in such circumstances can reflect not only the latent prejudices of jurors, but also prosecutors. Michael L. Radelet & Glenn L. Pierce, Race and Prosecutorial Discretion in Homicide Cases, 19 LAW & SOC'Y REV. 587, 616 (1985) (noting prosecutorial discretion can simply reflect a racist view that "white victims [are] more credible than black victims or their troubles are more worthy of full prosecution") (citation and emphasis omitted).
385. It would be outrageous for a grand jury (which performs a role similar to the House) to refuse to indict a defendant based on the likely outcome of the case. This is precisely what occurred in the South during the segregation period, when prosecutors used a variation of this argument to justify not prosecuting cases involving black victims and white killers. Southern juries were notorious in acquitting white defendants in the murders of blacks or civil rights workers in the face of overwhelming evidence, and many such cases resulted in hung juries. See Michael R. Belknap, The Vindication of Burke Marshall: The Southern Legal System and the Anti-Civil Rights Violence of the 1960s, 33 EMORY L.J. 93, 102-03 (1984). During this period, prosecutors refused to even bring some cases. See id. Prosecutorial discretion in such circumstances can reflect not only the latent prejudices of jurors, but also prosecutors. Michael L. Radelet & Glenn L. Pierce, Race and Prosecutorial Discretion in Homicide Cases, 19 LAW & SOC'Y REV. 587, 616 (1985) (noting prosecutorial discretion can simply reflect a racist view that "white victims [are] more credible than black victims or their troubles are more worthy of full prosecution") (citation and emphasis omitted).
386. House Hearing, supra note 10, at 89 (prepared statement of Cass R. Sunstein).
387. See, e.g., House Hearing, supra note 10, at 102-03 (prepared statement of Professor Schlesinger); id. at 218 (testimony of Professor Tribe). Although not cited by the academics advocating this approach, there is one case of precedent for such a decision - the 1930 case of Judge Henry B. Anderson of the District of Tennessee. After the House failed to impeach Judge Anderson, the House censured him. See Turley, supra note 1.
388. See, e.g., House Hearing, supra note 10, at 102-03 (prepared statement of Professor Schlesinger); id. at 218 (testimony of Professor Tribe). Although not cited by the academics advocating this approach, there is one case of precedent for such a decision - the 1930 case of Judge Henry B. Anderson of the District of Tennessee. After the House failed to impeach Judge Anderson, the House censured him. See Turley, supra note 1.
389. See, e.g., House Hearing, supra note 10, at 102-03 (prepared statement of Professor Schlesinger); id. at 218 (testimony of Professor Tribe). Although not cited by the academics advocating this approach, there is one case of precedent for such a decision - the 1930 case of Judge Henry B. Anderson of the District of Tennessee. After the House failed to impeach Judge Anderson, the House censured him. See Turley, supra note 1.
390. See supra note 246.
391. At one time, American colonists used stocks, pillories, brands, and other forms of shaming punishments. Although the Framers were familiar with these punishments, they never even mentioned censure as a penalty for a President or any other official. See Jonathan Turley, Checking the Executive Pulse, L.A. TIMES, Nov. 19, 1998, at B9.
392. This is not to say that the Framers did not view shame as a component of impeachment. In The Federalist No. 65, Hamilton noted: [T]he punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he wills till be liable to prosecution and punishment in the ordinary course of law. THE FEDERALIST No. 65, supra note 176, at 398-99.
393. This is not to say that the Framers did not view shame as a component of impeachment. In The Federalist No. 65, Hamilton noted: [T]he punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he wills till be liable to prosecution and punishment in the ordinary course of law. THE FEDERALIST No. 65, supra note 176, at 398-99.
394. Ironically, the use of shame and censure as an alternative to the constitutional process would have the greatest impact on future innocent presidents. The presidents most susceptible to shame are presidents who have avoided shameful conduct but have been targeted by abusive legislators. The danger of creating new options in the Madisonian democracy is that they open new opportunities for abuse outside the system of checks and balances.
395. Various democratic members of Congress called for censure as a form of punishment. See, e.g., 144 CONG. REC. H11,976 (daily ed. Dec. 19, 1998) (statement of Rep. Schumer) (calling for censure as the appropriate punishment for the President); 144 CONG. REC. H11,779 (daily ed. Dec. 18, 1998) (statement of Rep. Menendez) (calling censure an "appropriate punishment" that would "put an indelible scar upon the President's place in history, something we all know this President cares about deeply"). The House managers objected, however, to the use of an extraconstitutional device to punish a President. See, e.g., 144 CONG. REC. H11,789 (daily ed. Dec. 18, 1998) (statement of Rep. Buyer) ("[A] close examination of the wording of the censure resolution appears that the explicit and the implicit purpose would be to shame the President, to voice disdain for his actions, which undermine the integrity of the Office of the President, to reprove his dubious, if not criminal acts, i.e., to punish."). As House Manager and Judiciary Committee Chairman Henry Hyde noted on the Senate floor, the democratic censure resolution would have affirmatively accused the President of acts alleged in the articles of impeachment. See 145 CONG. REC. S1364-65 (daily ed. Feb. 8, 1999) (statement of House Manager Hyde) (noting that the censure resolution stated that the President acted in a "shameless, reckless and indefensible" manner; "deliberately misled and deceived the American people and officials in all branches of the U.S. government"; "gave false or misleading testimony and impeded discovery of evidence in judicial proceedings"; and "demean[ed] the Office of the President as well as the President himself and creat[ed] disrespect for the laws of the land").
396. Various democratic members of Congress called for censure as a form of punishment. See, e.g., 144 CONG. REC. H11,976 (daily ed. Dec. 19, 1998) (statement of Rep. Schumer) (calling for censure as the appropriate punishment for the President); 144 CONG. REC. H11,779 (daily ed. Dec. 18, 1998) (statement of Rep. Menendez) (calling censure an "appropriate punishment" that would "put an indelible scar upon the President's place in history, something we all know this President cares about deeply"). The House managers objected, however, to the use of an extraconstitutional device to punish a President. See, e.g., 144 CONG. REC. H11,789 (daily ed. Dec. 18, 1998) (statement of Rep. Buyer) ("[A] close examination of the wording of the censure resolution appears that the explicit and the implicit purpose would be to shame the President, to voice disdain for his actions, which undermine the integrity of the Office of the President, to reprove his dubious, if not criminal acts, i.e., to punish."). As House Manager and Judiciary Committee Chairman Henry Hyde noted on the Senate floor, the democratic censure resolution would have affirmatively accused the President of acts alleged in the articles of impeachment. See 145 CONG. REC. S1364-65 (daily ed. Feb. 8, 1999) (statement of House Manager Hyde) (noting that the censure resolution stated that the President acted in a "shameless, reckless and indefensible" manner; "deliberately misled and deceived the American people and officials in all branches of the U.S. government"; "gave false or misleading testimony and impeded discovery of evidence in judicial proceedings"; and "demean[ed] the Office of the President as well as the President himself and creat[ed] disrespect for the laws of the land").
397. Various democratic members of Congress called for censure as a form of punishment. See, e.g., 144 CONG. REC. H11,976 (daily ed. Dec. 19, 1998) (statement of Rep. Schumer) (calling for censure as the appropriate punishment for the President); 144 CONG. REC. H11,779 (daily ed. Dec. 18, 1998) (statement of Rep. Menendez) (calling censure an "appropriate punishment" that would "put an indelible scar upon the President's place in history, something we all know this President cares about deeply"). The House managers objected, however, to the use of an extraconstitutional device to punish a President. See, e.g., 144 CONG. REC. H11,789 (daily ed. Dec. 18, 1998) (statement of Rep. Buyer) ("[A] close examination of the wording of the censure resolution appears that the explicit and the implicit purpose would be to shame the President, to voice disdain for his actions, which undermine the
398. Various democratic members of Congress called for censure as a form of punishment. See, e.g., 144 CONG. REC. H11,976 (daily ed. Dec. 19, 1998) (statement of Rep. Schumer) (calling for censure as the appropriate punishment for the President); 144 CONG. REC. H11,779 (daily ed. Dec. 18, 1998) (statement of Rep. Menendez) (calling censure an "appropriate punishment" that would "put an indelible scar upon the President's place in history, something we all know this President cares about deeply"). The House managers objected, however, to the use of an extraconstitutional device to punish a President. See, e.g., 144 CONG. REC. H11,789 (daily ed. Dec. 18, 1998) (statement of Rep. Buyer) ("[A] close examination of the wording of the censure resolution appears that the explicit and the implicit purpose would be to shame the President, to voice disdain for his actions, which undermine the integrity of the Office of the President, to reprove his dubious, if not criminal acts, i.e., to punish."). As House Manager and Judiciary Committee Chairman Henry Hyde noted on the Senate floor, the democratic censure resolution would have affirmatively accused the President of acts alleged in the articles of impeachment. See 145 CONG. REC. S1364-65 (daily ed. Feb. 8, 1999) (statement of House Manager Hyde) (noting that the censure resolution stated that the President acted in a "shameless, reckless and indefensible" manner; "deliberately misled and deceived the American people and officials in all branches of the U.S. government"; "gave false or misleading testimony and impeded discovery of evidence in judicial proceedings"; and "demean[ed] the Office of the President as well as the President himself and creat[ed] disrespect for the laws of the land").
399. Stephen P. Garvey, Can Shaming Punishments Educate?, U. CHI. L. REV. 733, 741 (1998) (quoting JOEL FEINBERG, The Expressive Function of Punishment, in DOING & DESERVING 95, 98 (1970)).
400. Stephen P. Garvey, Can Shaming Punishments Educate?, U. CHI. L. REV. 733, 741 (1998) (quoting JOEL FEINBERG, The Expressive Function of Punishment, in DOING & DESERVING 95, 98 (1970)).
401. Id.
402. Id. at 742.
403. Id.
404. Shaming is also a penalty with meaningless historical value. Andrew Jackson was the only President ever censured. Jackson did not hide his contempt for the meaningless gesture; ultimately, a later Congress rescinded the act and placed Jackson on the twenty-dollar bill.
405. E.g., JOEL FEINBERG, The Expressive Function of Punishment, in DOING & DESERVING 95, 98 (1970).
406. A simple censure or condemnation offers little to a system of checks and balances, which may explain why the Framers did not rely on such penalties anywhere in the constitutional system. If a chief executive already has been the subject of a public controversy, a censure does little more than shame him twice for the same conduct. An impeachment carries the same repudiatory message as does a censure vote, but constitutes a more historical penalty for a President and formally identifies his conduct as incompatible with the status of chief executive. Moreover, the use of censure can produce troubling precedent protecting both a President and his jurors in the Senate from political accountability by avoiding the disclosures of criminal conduct in a public trial. See Jonathan Turley, Without Testimony and Trial, Censure Is Harmful Precedent, USA TODAY, Dec. 23, 1998, at 13A.
407. The Senate is expected to use its discretion to balance the various long-term needs of the country. Because a House vote would establish that some crimes in office are sufficient to expose a President to removal, a future chief executive could not be assured that a Senate vote would turn on the merits in his favor. The House defines improper conduct and the Senate establishes the penalty for that conduct.
408. See Philip B. Scott, Jury Nullification: An Historical Perspective on a Modern Debate, 91 W. VA. L. REV. 389, 397 (1989).
409. See generally Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995) (examining the appropriate role of race in black jurors' decisions to acquit criminal defendants); Nancy J. King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. CHI. L. REV. 433 (1998) (discussing the constitutionality of methods designed to prevent jury nullification); Robert F. Schopp, Verdicts of Conscience: Nullification and Necessity as Jury Responses to Crimes of Conscience, 69 S. CAL. L. REV. 2039 (1996) (discussing appropriate roles for jury nullification).
410. See generally Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995) (examining the appropriate role of race in black jurors' decisions to acquit criminal defendants); Nancy J. King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. CHI. L. REV. 433 (1998) (discussing the constitutionality of methods designed to prevent jury nullification); Robert F. Schopp, Verdicts of Conscience: Nullification and Necessity as Jury Responses to Crimes of Conscience, 69 S. CAL. L. REV. 2039 (1996) (discussing appropriate roles for jury nullification).
411. See generally Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995) (examining the appropriate role of race in black jurors' decisions to acquit criminal defendants); Nancy J. King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. CHI. L. REV. 433 (1998) (discussing the constitutionality of methods designed to prevent jury nullification); Robert F. Schopp, Verdicts of Conscience: Nullification and Necessity as Jury Responses to Crimes of Conscience, 69 S. CAL. L. REV. 2039 (1996) (discussing appropriate roles for jury nullification).
412. See Scott, supra note 268, at 398.
413. See id.
414. Id. at 402 (quoting T. GREEN, VERDICT ACCORDING TO CONSCIENCE 196-97 (1985)).
415. As if to complete the analogy to nullification cases like Lilburne's, defenders of President Clinton often stressed that impeachment was a "capital punishment" or "death penalty" for office holders. See, e.g., 144 CONG. REC. H11,976 (daily ed. Dec. 19, 1998) (statement of Rep. Schumer) (stressing that impeachment is the "political version of capital punishment"); 144 CONG. REC. H11,822 (daily ed. Dec. 18, 1998) (statement of Rep. Klink) (arguing that "just as every crime does not justify the death penalty, neither should impeachment, the political equivalent of the death penalty, be the punishment for every presidential misdeed").
416. As if to complete the analogy to nullification cases like Lilburne's, defenders of President Clinton often stressed that impeachment was a "capital punishment" or "death penalty" for office holders. See, e.g., 144 CONG. REC. H11,976 (daily ed. Dec. 19, 1998) (statement of Rep. Schumer) (stressing that impeachment is the "political version of capital punishment"); 144 CONG. REC. H11,822 (daily ed. Dec. 18, 1998) (statement of Rep. Klink) (arguing that "just as every crime does not justify the death penalty, neither should impeachment, the political equivalent of the death penalty, be the punishment for every presidential misdeed").
417. See supra note 246.
418. See, e.g., 144 CONG. REC. H11,847 (daily ed. Dec. 18, 1998) (statement of Rep. Farr) ("No one, anywhere in the world today, can explain why Congress would impeach the most popular elected president in the world at a time when that President is engaged in a conflict in Iraq."); see also Turley, supra note 104 (discussing the argument that the House should vote against impeachment because President Clinton remained popular and removal by the Senate was unlikely).
419. See, e.g., 144 CONG. REC. H11,847 (daily ed. Dec. 18, 1998) (statement of Rep. Farr) ("No one, anywhere in the world today, can explain why Congress would impeach the most popular elected president in the world at a time when that President is engaged in a conflict in Iraq."); see also Turley, supra note 104 (discussing the argument that the House should vote against impeachment because President Clinton remained popular and removal by the Senate was unlikely).
420. Some representatives viewed impeachment as serving a function beyond removal, because many endorsed the idea of impeachment after a President has left office. John Quincy Adams stated this view while serving as a House member following his presidential term: "I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office." CONG. GLOBE, 29th Cong., 1st Sess. 641 (1846), quoted in GERHARDT, supra note 195, at 80. Thus, impeachment contained a function distinct from removal.
421. Although this author has personal reservations about nullifying evidence of serious criminal acts in office, each senator must reach his or her own conclusion about the interests of the Nation when presented with such evidence. The Framers appear to have allowed for nullification of some allegations in the Senate. The House, however, is not the appropriate body to engage in such decisions. This is precisely why the use of censure can be so disabling for the system. Much of the contemporary debate has described the House function as if the members would be voting on the merits before any trial occurred before the Senate. See supra note 248. This view not only creates a redundancy in the roles of the two houses but also undermines the bicameral intentions of the Framers in giving distinct roles to each body. By articulating such allegations in articles of impeachment, the House facilitates an open and deliberative debate over the conduct of the President. This debate occurs in the Senate, which calls witnesses and reaches the merits of the issue. Applying exclusionary interpretations at the House stage short-circuits this process and deprives the Nation of a public resolution of legitimacy issues.
422. Although this Article focuses on the impeachment stage, the role of the House of Representatives in impeachment obviously extends to the Senate trial. See Turley, supra note 1 (discussing the role of the House in Senate trials). In allowing the House managers to "exhibit" their cases, the disclosure of facts against a President is left in the hands of the House, which has the greatest institutional incentive to present the strongest possible case. Although the Senate has the authority to curtail this function and to restrict the presentation of evidence or witnesses, it has historically given the House mangers deference in their presentation of an impeachment "case in chief." This notably changed with the Senate rules adopted in the Clinton trial. In that trial, the House managers were subject to unprecedented micro-management of their case, including a requirement that they prove their need for witnesses as opposed to proving their case against the President. See id. The Senate established narrow guidelines on the length and circumstances for depositions, restricted depositions to three witnesses, and denied House Managers the ability to call live witnesses. See id. This had a pronounced effect on the role of the House as part of the Senate trial. See id. (discussing Senate Resolution 16, limiting the right to call witnesses and requiring pre-approval of any depositions sought by House managers).
423. Although this Article focuses on the impeachment stage, the role of the House of Representatives in impeachment obviously extends to the Senate trial. See Turley, supra note 1 (discussing the role of the House in Senate trials). In allowing the House managers to "exhibit" their cases, the disclosure of facts against a President is left in the hands of the House, which has the greatest institutional incentive to present the strongest possible case. Although the Senate has the authority to curtail this function and to restrict the presentation of evidence or witnesses, it has historically given the House mangers deference in their presentation of an impeachment "case in chief." This notably changed with the Senate rules adopted in the Clinton trial. In that trial, the House managers were subject to unprecedented micro-management of their case, including a requirement that they prove their need for witnesses as opposed to proving their case against the President. See id. The Senate established narrow guidelines on the length and circumstances for depositions, restricted depositions to three witnesses, and denied House Managers the ability to call live witnesses. See id. This had a pronounced effect on the role of the House as part of the Senate trial. See id. (discussing Senate Resolution 16, limiting the right to call witnesses and requiring pre-approval of any depositions sought by House managers).
424. Although this Article focuses on the impeachment stage, the role of the House of Representatives in impeachment obviously extends to the Senate trial. See Turley, supra note 1 (discussing the role of the House in Senate trials). In allowing the House managers to "exhibit" their cases, the disclosure of facts against a President is left in the hands of the House, which has the greatest institutional incentive to present the strongest possible case. Although the Senate has the authority to curtail this function and to restrict the presentation of evidence or witnesses, it has historically given the House mangers deference in their presentation of an impeachment "case in chief." This notably changed with the Senate rules adopted in the Clinton trial. In that trial, the House managers were subject to unprecedented micro-management of their case, including a requirement that they prove their need for witnesses as opposed to proving their case against the President. See id. The Senate established narrow guidelines on the length and circumstances for depositions, restricted depositions to three witnesses, and denied House Managers the ability to call live witnesses. See id. This had a pronounced effect on the role of the House as part of the Senate trial. See id. (discussing Senate Resolution 16, limiting the right to call witnesses and requiring pre-approval of any depositions sought by House managers).
425. Although this Article focuses on the impeachment stage, the role of the House of Representatives in impeachment obviously extends to the Senate trial. See Turley, supra note 1 (discussing the role of the House in Senate trials). In allowing the House managers to "exhibit" their cases, the disclosure of facts against a President is left in the hands of the House, which has the greatest institutional incentive to present the strongest possible case. Although the Senate has the authority to curtail this function and to restrict the presentation of evidence or witnesses, it has historically given the House mangers deference in their presentation of an impeachment "case in chief." This notably changed with the Senate rules adopted in the Clinton trial. In that trial, the House managers were subject to unprecedented micro-management of their case, including a requirement that they prove their need for witnesses as opposed to proving their case against the President. See id. The Senate established narrow guidelines on the length and circumstances for depositions, restricted depositions to three witnesses, and denied House Managers the ability to call live witnesses. See id. This had a pronounced effect on the role of the House as part of the Senate trial. See id. (discussing Senate Resolution 16, limiting the right to call witnesses and requiring pre-approval of any depositions sought by House managers).
426. Justice Story noted the dual value of impeachment as both a check and a reaffirmation of the rule of law. "The [impeachment] provision in the Constitution of the United States . . . holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws." 1 STORY, supra note 58, § 813.
427. THE FEDERALIST No. 65, supra note 176, at 396 (Alexander Hamilton noting that impeachments "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").
428. Letter from Edmund Burke to Philip Francis, in 5 THE CORRESPONDENCE OF EDMUND BURKE 243 (Holden Furber ed., 1958), quoted in KRAMNICK, supra note 5, at 129.