The future of the impeachment clause

March 4, 1999

In the present congressional debates on the independent counsel law
there are serious questions which are not being asked in public. What is
now more at stake than the life of that statute is the future viability
of the Constitution’s impeachment clause. With the Senate’s acquittal of
President Clinton as a new precedent, the more fundamental questions
are: How can, and how should, the House of Representatives ever again
impeach a politically corrupt president?

In my view, the House should strengthen and rely primarily on its own
truly “independent” investigative powers. Above all, it should also
reaffirm the constitutional principle that impeachment is not a criminal
proceeding that requires proof beyond a reasonable doubt.

There is no question that the House has the constitutional authority
to impeach the president for offenses that fall short of statutory
felonies — an authority that was relied on in the impeachment
proceedings against President Nixon.

In 1974 a bi-partisan majority of the House Judiciary Committee’s
voted “Aye” on three articles of impeachment that had not charged Nixon
personally with the commission of a felony. Instead, the core of the
articles was the charge that in attempting to cover-up Watergate, “in
violation of his constitutional duty to take care that the laws be
faithfully executed” he had disregarded the Rule of Law.

One of the Republicans who voted “Aye” was William Cohen — who years
later became President Clinton’s Secretary of Defense. In agreement with
the Democrats that President Nixon should be impeached for offenses that
fell short of statutory crimes, Cohen had explained his votes concisely:
“By acts or acquiescence [President Nixon] allowed the rule of law and
the Constitution to slip under the boot of indifference and arrogance
and abuse.”

In the case of President Clinton, Bill Cohen became one of his
defenders, as did several other Republicans. Clinton’s Democratic
defenders took the political offensive. In the mainstream media’s courts
of public opinion — where verdicts are determined by polls — they
successfully “demonized” Ken Starr.

Yet in the context of the Rodino Committee’s reliance on a
non-felonious impeachment standard, Ken Starr has been passive and
dilatory. He has given the president a “pass” on such matters as
Whitewater, Travelgate, and Filegate — presumably because he found no
probable cause that the president had committed a felony.

In contrast, Larry Klayman’s “Judicial Watch” and Mark Levin’s
“Landmark Legal Foundation” — both non-profit organizations with much
less funding than Starr — have been appropriately assertive in exposing
government corruption. In civil proceedings they have unflinchingly used
their subpoena power to investigate “acts or acquiescences” which are
impeachable because of their denigration of the Rule of Law.

During the recent impeachment proceedings, in taking the offensive
against the Republicans, Clinton’s partisan supporters also proclaimed
that Ken Starr and the House Managers (who were described by Newsweek
reporter and TV commentator Eleanor Clift as “wearing white sheets”)
were supported largely by racists, anti-abortionists, and right-wing
Christian extremists. In short, to win Clinton’s acquittal his defenders
waged what Judiciary Committee Chairman Henry Hyde recently described as
a “culture war” — in which the Democrats “won the first battle.”

Clinton’s most partisan defenders included the Hyde Committee’ s
ranking Democrat, John Conyers — who had earlier served on the Rodino
Committee. In 1974 Conyers had become exasperated by the committee’s
failure to conduct its own investigation of Nixon and to enforce even
one of its own subpoenas — and by its reliance instead on special
prosecutors Archibald Cox and Leon Jaworski.

Ironically, in a separate opinion (with which I agreed) in the
Committee’s 1974 impeachment Report Conyers wrote:

It would be gratifying to conclude that this House, acted on its own
initiative. However, this inquiry was forced on us. … [By taping his
conversations] The president himself did more than anyone or anything to
ensure his removal from office.

With our inquiry as a precedent, future Congresses may conclude that
impeachment can never again succeed unless another president
demonstrates the same, almost uncanny ability to impeach himself. If
this is our legacy, our future colleagues may well conclude that
impeachment will never again justify the agony we have endured.

Like Nixon, President Clinton also “did more than anyone or
anything … to impeach himself.” By personal conduct that even most
Democrats concede was “reprehensible,” “indefensible,” and “brought
dishonor on his presidency” he engaged in, and then attempted to
cover-up multiple illicit acts with Monica Lewinsky.

As the Starr report documented, there was more than mere “probable
cause” to find that Clinton had committed at least two statutory crimes:
Perjury and The Obstruction of Justice. Faced with substantial evidence
that he had committed felonies, the Hyde Committee then reported out
articles of impeachment — that created more agony in the full House and
Senate in 1999 than suffered the Rodino Committee prior to Nixon’s
resignation in 1974.

Thus the Senate’s acquittal of President Clinton has left a more
dangerous legacy than that feared by Conyers in 1974. Now more than
ever, future House members “may well conclude that impeachment will
never again justify the agony we have endured.” In addition, it may be
all but impossible, to find a future prosecutor with enough independent
integrity to run the risk of demonization by the president’s defenders.

Obviously, the reliance of Congress on criminal prosecutors to
investigate presidents has been a form of political “buck passing” that
originated at the time of Watergate. The independent counsel law later
enacted by Congress “passed the buck” even further. To avoid the “agony”
of investigating President Clinton, the Democrat-controlled Congress
delegated that responsibility to Independent Counsels. The effect was
even greater “unnecessary delays” than bemoaned by Conyers at the time
of Watergate.

In my view, the future standard for impeachment ought not to be
whether there is “probable cause” to charge the President with a felony,
Instead, the standard of the Rodino Committee should be reaffirmed — a
civil standard that was then eloquently articulated by Clinton’s present
secretary of Defense.

In applying that standard the Congress should follow the example of
Judicial Watch and the Landmark Legal Foundation. It should exercise its
own subpoena powers and conduct its own investigation — and not pass
the buck to an independent counsel.

Jerome M. Zeifman is a classical-liberal Democrat who served as chief
counsel to the House Judiciary Committee during the 1974 Nixon
impeachment proceedings.