High crimes and misdemeanors — fact and fiction

In recent months, we’ve read and heard a great deal of discussion about what constitutes impeachable conduct. Politicians, pundits, talk show hosts and “historians” have all weighed in on the issue. Many have quoted Alexander Hamilton, Justice Joseph Story, the Rodino Report, the Constitution itself and other authorities in their efforts to support their particular view of the phrase “high crimes and misdemeanors.”

If the factual case against Bill Clinton were less compelling, the arguments would be more focused on the evidence, rather than whether his misconduct rises to the level of impeachable offenses. But when the semen-stained dress emerged as a veritable smoking gun wresting from Bill Clinton his standard, but previously adequate, he-said she-said defense, his defenders were compelled to restructure their arguments from denial of misconduct to its trivialization. Just for the record, let us not forget that before the DNA, Clinton’s defenders uniformly conceded that obstruction of justice, if not perjury, would be sufficient to topple this presidency.

The president’s defenders have advanced various arguments in their efforts to convince the public that none of Clinton’s misconduct in connection with Monicagate amounts to constitutional high crimes and misdemeanors. Some of these arguments are very clever, but ultimately do not wash. First, they, along with Clinton’s accusers, cite Hamilton’s explication in Federalist 65: “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may, with peculiar propriety, be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” They also cite George Mason who wanted to expand the definition to encompass conduct that “attempted to subvert the Constitution.”

Democrats maintain that unless the president’s conduct occurred in his official (public) capacity or subverts the Constitution, it is not impeachable, no matter how venal. This conveniently construes the phrase “high crimes and misdemeanors” much more narrowly than the framers intended. Hamilton did not say, official misconduct of public men; merely misconduct of public men — that is violative of the public trust and injurious to society (the public) itself. So it isn’t the misconduct that has to be public or official, but the injury caused by the misconduct.

Similarly, the phrase definitely includes conduct that is subversive of the Constitution, but it is not limited to such conduct. Surely it would not be seriously contended that murder by the president would not be an impeachable offense. Yet, murder is not “subversive of constitutional government,” in the sense that Mason was describing that phrase. Even the Rodino Report implicitly concedes that not all high crimes and misdemeanors are subversive of constitutional government. Notwithstanding the recent propaganda missive by 400 liberal historians to the contrary, there has never been any question that serious felonies, such as perjury and obstruction of justice, are impeachable offenses. High crimes and misdemeanors includes conduct that is criminal, but need not necessarily be; it also includes conduct that is subversive of constitutional government, but need not necessarily be.

Another outrageous argument posited by some of the most brazen of Clinton’s defenders is that since bribery and treason were specifically listed as impeachable conduct, and perjury and obstruction were not, the framers thus evidenced their intention to exclude those crimes from the ambit of impeachable offenses. This assertion is so specious as barely to require refutation. It would render superfluous the phrase “high crimes and misdemeanors” and exclude all other criminal conduct, which is patently absurd.

Though presidential conduct in order to qualify as impeachable does not have to be subversive of constitutional government, nor does it have to occur in the context of the president’s official capacity, Bill Clinton’s conduct clearly falls within those parameters anyway. Perjury and obstruction of justice by the chief law enforcement officer of the nation are clearly subversive of the rule of law and thereby the Constitution. Moreover, as Ambassador Alan Keyes so eloquently states, the president of the United States, in his person is the executive branch of government. There is no time during his tenure in office that he is not president. There is no time, whether at Martha’s Vineyard on vacation, or on the golf course with Vernon Jordan, that he can escape his official capacity.

Two of the three authors of the Federalist papers, Jay and Hamilton, described future Presidents as men who would be distinguished for their ability and virtue. President Clinton, through his egregious misconduct, has demonstrated his lack of virtue and his unfitness for office. By his sordid behavior and lawlessness he has besmirched and degraded the sacred office of the presidency of the United States, to which rightful honor will not be restored until he is removed.