The speaker of the House of Representatives last week expressed the
opinion that impeachment of President Clinton would require a pattern of
felonies — plural — and not just what he called a “single human
mistake.” This is simply not true. Impeachment does not require a
pattern of felonies, because it doesn’t require a felony at all. There
is no part of the understanding of high crimes and misdemeanors that
requires that those high crimes and misdemeanors include a felony.
History makes this clear. In the case of Andrew Johnson, the entire
impeachment itself was about something non-criminal. It was a dispute
over whether the president had exceeded the bounds of his constitutional
powers. And the case against Richard Nixon included accusations of not
faithfully executing the laws and not keeping his oath of office —
again, offenses that are not criminal.
In addition to the historical record, the principles of the American
regime make clear that it is deeply ignorant to suggest that only
felonies — one or many — should be considered grounds for
impeachment, because then the real purpose of impeachment as outlined by
in the Federalist Papers would not be served. One of the main purposes
of impeachment is to make sure that executive governmental power is not
abused. If felonies are required for impeachment then that purpose could
not be served.
For instance, Bill Clinton has used executive orders to usurp the
powers of Congress by legislating, as opposed to carrying out the laws.
This is unconstitutional, because the Constitution requires that all
legislative power be vested in the Congress, and the president does not
have the right to legislate by executive order — by fiat. When the
president dictates an executive order which then becomes law, his fiat
establishes a dictatorship in the literal sense.
But for a president thus to abuse executive power and derogate from
the power of Congress does not necessarily involve the violation of any
law. The president, in such a case, is attempting to add to the law by
creating for himself an authority which he does not have under the
Constitution and which does not respect the legislative process. Yet,
apart from the Constitution itself, there is no law against this, so the
president would not be committing a felony. He would “merely” be
establishing a dictatorship. And according to the interpretation that
requires that there be felonies for impeachment, the Congress would sit
on its hands and do nothing.
Does Mr. Gingrich realizes that his interpretation poses a serious
danger to the integrity of the Constitution? It poses a grave danger in
particular to the Constitutional role of the branch of government which
he is supposed to represent as speaker of the House. He should be
extremely careful of his prerogatives as speaker, and he is not showing
any such care in his remarks about impeachment.
But we must show that care, even if our current representatives do
not, because it is the legislative branch that rests on direct election.
It is therefore the legislative branch that will, in most instances and
over time, most closely reflect the will and feelings of the people.
Jealous care for legislative prerogatives insures that our
representatives will have the chief role in the business of
legislation, and that that role will not be abrogated, turning us into
serfs and slaves. This is an important reason, in fact, why we have a
Constitution and our form of government is called “free,” — because we
are guaranteed participation in lawmaking through our representatives.
If the legislative branch of government is pushed aside and the
president becomes a kind of dictator, then the representative form of
government is destroyed. In this case we would have moved in a
direction that has been common enough in the world, if we look at the
way other constitutions have functioned. It has happened in 19th century
France, and in 20th century Germany and Italy, among other places and
times. It is not unusual to move from representative government to
dictatorship. And looking at the history of the 20th century, when we
have gone to war several times, had hundreds of thousands of people
killed, and expended multi-billions of dollars in treasure, all to
defeat such despotic and dictatorial regimes, I would have thought that
we were firmly attached to the representative system of government.
But looking at the behavior of our present political leadership, with
honorable exceptions such as Tom De Lay, all this seems to have been
forgotten. Either through ignorance or through what one is tempted to
conclude is an informed and malicious intent, they appear willing to
handle our political affairs on the basis of an expedient and
calculating understanding that will destroy the integrity of our most
precious institutions. The issues involved in facing up to the need to
remove Bill Clinton from office go far beyond “liberalism” and
“conservatism.” If we get this question wrong it will be seriously
dangerous to the integrity and the future of the republic, because if we
misunderstand the real meaning of impeachment we will render Congress
ultimately defenseless against executive abuses of power. And this would
constitute the destruction of the constitutional system.
One defense of Mr. Gingrich has been that he only laid down the
requirement of multiple felonies because he is so confident that it can
be easily met in the case of Mr. Clinton. But this is to say that we
should excuse his inaccurate definition of the conditions for
impeachment on the grounds that he is establishing for the present
circumstance a test that he believes has already been met. This would
mean that Mr. Gingrich had adopted the tunnel-vision approach of looking
only at the present circumstances, and thus reading into the record of
history an understanding of impeachment that undermines its intended
nature and its usefulness in defense of the Constitution.
But this is to say that it is acceptable for Mr. Gingrich to think
like somebody who does not have institutional responsibility for the
Constitution of the United States, a responsibility not only to his
present political interests, not only to the present generation, but to
the future. We would be excusing him for acting like a petty politician
who does not have a statesman’s understanding of his role. And yet there
is no excuse for this in the highest offices in the land.
This is why we have to be careful about the people who ascend to
these positions, because there almost always come moments when they have
to think not only for themselves, not only for their party, not only
even for their generation, but rather for the whole country and —
possible — for those to whom we owe an obligation in the future. And
the question of Mr. Clinton’s impeachment and the criteria for it
involves all of this. So when Mr. Gingrich presents an understanding of
impeachment that is incorrect — in terms both of the Founders’ view
and of the actual application of impeachment in history — he is
suggesting a precedent that could wrench us away from a correct path and
take us down a road to further assaults on the Constitution. With the
“Gingrich Standard” of multiple felonies in place, it will be much
resist future assaults on liberty because of the precedent that we must
wait for felonies and cannot react simply to clear abuses of power.
One might argue that when future generations put Newt Gingrich’s
opinion side by side with Hamilton’s they will take Hamilton over
Gingrich and thus remember that the real role of impeachment is to
restrain executive abuses. But we cannot be confident of this, because
competent leadership at moments precisely like this, generation after
generation could become increasingly mired in such ignorance that
eventually Americans will cease even to hear the name of Hamilton. And
since it serves the interests of tyrants and despots who might continue
come to power on the basis of the precedents we are now setting, the
Gingrich understanding of impeachment would be all blown out of
proportion, just as his remarks are now being used by the Democrats to
defend their Mr. Clinton.
The Founders of our country tried to think through what would be
required to defend freedom from the possible assaults that would arise
against it. Mr. Gingrich and all of our leaders need to do this as
well. Leaders of the conservative movement in particular, if they are
to live up to the responsibilities that go along with their professed
conservatism, must show that they understand that what we are conserving
is the liberty of this republic and the integrity of the Constitution
which helps us to preserve that liberty.
We must insist on leaders who are like the Founders in avoiding the
historical tunnel vision of political expediency. Because we have to
take a broader view for the sake of the country, a proper handling of
Bill Clinton cannot be based on political calculation, expediency or
partisanship. Newt Gingrich and the others who will deal with this
question will act upon an historic stage, setting precedents for future
generations in an area of tremendous and critical importance to the
integrity of the Republic. They should strive to conduct themselves so
that the American people will not only be saved from an abusive
president today, but also be reminded of the reasons that this is a
fundamental Congressional duty. That should be what is on their mind. If
it isn’t, we may have to throw them out too.