Thank you, Mr. Chief Justice, House managers and staff, members of the Senate, the Majority Leader and the Minority Leader. At the beginning of these proceedings on January 16, the Chief Justice administered the oath of office to the members of this body and then again on Tuesday. In doing so, the Chief Justice was honoring the words of our Constitution, Article 1 Section 3. We all know the first sentence of that article by heart, “The Senate shall have the sole power to try all impeachments.” But, then the Constitutional text goes on to say this, “When sitting for that purpose, they shall be on earth, oath or affirmation.” That oath or affirmation in turn requires each member of the Senate to do impartial justice.
Now, this Constitutionally-administered oath or affirmation has been given in every proceeding in this body since 1798. Indeed to signify the importance of the occasion, the Senate’s more recent traditions call for you as you’re did to sign the book. That book is not simply part of the record, it’s entrusted to the National Archives. In contrast, members of the House of Representatives do not take an oath in connection with impeachment. The framers of our Constitution well knew when an oath or affirmation should be required. The Senate, yes, the House no, and thus each member of the world’s greatest deliberative body now has special indeed, unique, duties and obligations, duties imposed under our founding document.
During the Clinton impeachment trial 21 years ago in this chamber, the Chief Justice of the United States ruled in response to an objection that was interposed by Senator Tom Harkin of Iowa. “The Senators are not sitting as jurors,” Senator Harkin noted. The Chief Justice agreed with that proposition. Rather, the Senate is a court. In fact, history teaches us that for literally decades, this body was referred to in this context as the high court of impeachment. We’re not in a legislative chamber during these proceedings. We’re in a tribunal. We’re in court. In Federalist 78, Alexander Hamilton, who’s been quoted frequently in these proceedings, but in Federalist 78, he was describing the role of courts, your role. In doing so, he distinguished between what he called the exercise of judgment on the one hand, which is what courts do and the exercise of will or policy preferences, if you will, on the other hand, that’s what legislative bodies do. According to Hamilton, courts were to be in his word, impartial. There’s that word again.
That’s a daunting task for judges struggling to do the right thing to be impartial, equal justice under law. It’s certainly hard in life to be impartial. In politics it’s not even asked of one to be impartial, but that’s the task that the Constitution chose to impose upon each of you. Significantly in this particular juncture in America’s history, the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the age of impeachment.
In the House, resolution after resolution, month after month has called for the President’s impeachment. How did we get here with presidential impeachment invoked frequently and it’s inherently destabilizing as well as acrimonious way? Briefly told, the story begins 42 years ago. In the wake of the long national nightmare of Watergate, Congress and President Jimmy Carter collaboratively ushered in a new chapter in America’s Constitutional history. Together in full agreement, they enacted the Independent Counsel provisions of the Ethics in Government Act of 1978. But the new chapter was not simply the age of independent councils, it became unbeknownst to the American people, the age of impeachment. During my service in the Reagan administration as counselor and chief of staff to Attorney General William French Smith, the Justice Department took the position that however well intentioned, the Independent Counsel provisions were unconstitutional. Why? In the view of the department, those provisions intruded into the rightful domain and prerogative of the Executive Branch of the presidency. The Justice Department’s position was eventually rejected by the Supreme Court, but most importantly, in helping us understand this new era in our country’s history.
Justice Antonin Scalia was in deep dissent. Among his stinging criticisms of that law, Justice Scalia wrote this, “The context of this statute is acrid with the smell of threatened impeachment.” Impeachment, Justice Scalia echoed the criticism of the court in which I was serving at the time, the District of Columbia Circuit, which had actually struck down the law as unconstitutional in a very impressive opinion by renowned Judge Lawrence Silverman. Why? Why would Justice Scalia refer to impeachment? This was a reform measure. There would be no more Saturday night massacres. The firing of special prosecutor, as he was called, Archibald Cox by President Nixon. Government would now be better, more honest, greater accountability and the Independent Counsel would be protected.
But the word impeachment haunts that dissenting opinion. It’s not hard to discover why, because the statute by its terms expressly directed the Independent Counsel to become, in effect, an agent of the House of Representatives. To what end? To report to the House of Representatives when a very low threshold of information was received that an impeachable offense, left undefined, may have been committed. To paraphrase President Clinton’s very able counsel at the time, Bernie Nussbaum, “This statute is a dagger aimed at the heart of the presidency.”
President Clinton nonetheless signed the reauthorized measure into law. The nation then went through the long process known as Whitewater resulting in the findings by the office, which I led, the Office of Independent Counsel, in a written report to the House of Representatives. That referral to Congress was stipulated in the Ethics in Government Act of 1978. To put it mildly, Democrats were very upset about what had happened. They then joined Republicans across the aisle, who for their part, had been outraged by an earlier independent counsel investigation, that of a very distinguished former judge, Lawrence Walsh.
During the Reagan administration, Judge Walsh’s investigation of what became known to the country as Iran-Contra, spawned enormous criticism on the Republican side of the aisle, both as to the investigation itself, but also as to the statute. The acrimony surrounding Iran-Contra and then the impeachment and the trial and President Clinton’s acquittal by this body led inexorably to the end of the Independent Counsel era. Enough was enough.
Living through that wildly controversial 21- year bold experiment with the Independent Counsel statute, Congress in a bipartisan way had a change of heart. It allowed the law to expire in accordance with its terms in 1999. That would be a well-intentioned reform measure died a quiet and uneventful death. It was promptly replaced by Justice Department internal regulations promulgated by Attorney General Janet Reno during the waning months of the Clinton administration. One can review those regulations and see no reference to impeachment, none. No longer were the poison pill provisions of presidential impeachment part of America’s legal landscape. They were gone. The Reno regulations seem to signal a return to traditional norms. Impeachment would no longer be embedded in the actual laws of the land, but returned to the language of the Constitution.
But in the meantime, America’s Constitutional DNA and its political culture had changed. Even with the dawn of the new century, the 21st century, impeachment remained on the lips of countless Americans and echoed frequently in the people’s House. The impeachment habit proved to be hard to kick.
Ironically while this was happening here at home, across the Atlantic, the use of impeachment as a weapon disappeared. In the United Kingdom, from which of course we inherited the process, impeachment was first used more than two centuries before those first settlers crossed the Atlantic. But upon thoughtful examination, a number of modern-day Parliamentary committees looked and found impeachment to be obsolete. Among other criticisms, members of Parliament came to the view that the practice, which had last been attempted in Britain in 1868, fails to meet modern procedural standards of fairness. Fairness, as Sir William McKay recently remarked, ” Impeachment in Britain is dead.” Yet here at home, in the world’s longest standing Constitutional Republic, instead of a once in a century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one’s political opponent.
In her thoughtful Wall Street Journal op-ed a week ago Saturday, Peggy Noonan wrote this, “Impeachment has now been normalized. It won’t be a once in a generation act, but an every administration act. Democrats will regret it when Republicans are handing out the pens, the pens of the signing ceremony.”
When we look back down the corridors of time, we see that for almost our first century as a Constitutional Republic, the sword of presidential impeachment remained sheathed. Had there been controversial presidents, oh yes, indeed, think of John Adams and the Alien and Sedition Acts, think of Andrew Jackson and Henry Clay. Were partisan passions occasionally inflamed during that first century? Of course.
Unless there’d be any doubt, the early Congress’s full well knew how to summon impeachment to the floor, including against a member of this body, Senator William Blount of Tennessee. During the Jefferson administration, the unsuccessful impeachment of Justice Samuel Chase, a surly and partial jurist who was nonetheless acquitted by this chamber, became an early landmark in maintaining the treasured independence of our federal judiciary. It took the national convulsion of the Civil War, the assassination of Mr. Lincoln, and the counter-reconstruction measures aggressively pursued by Mr. Lincoln’s successor, Andrew Johnson, to bring about the nation’s very first presidential impeachment.
Famously of course, your predecessors in this high court of impeachment acquitted the unpopular and controversial Johnson, but only by virtue of senators from the party of Lincoln breaking ranks. It was over a century later that the nation returned to the tumultuous world of presidential impeachment necessitated by the rank criminality of the Nixon administration. In light of the rapidly unfolding facts, including uncovered by the Senate Select Committee, and an overwhelmingly bipartisan vote of 410 to four, the House of Representatives authorized an impeachment inquiry.
In 1974, the House Judiciary Committee after lengthy hearings, voted again in a bipartisan manner to impeach the President of the United States. Importantly, President Nixon’s own party was slowly but inexorably moving toward favoring the removal of their chosen leader from the nation’s highest office who had just won re-election by a landslide. It bears emphasis before this high court, this was the first presidential impeachment in over 100 years. It also bears emphasis, it was powerfully bipartisan.
It wasn’t just the vote to authorize the impeachment inquiry. Indeed the House Judiciary Chair, Peter Rodino of New Jersey, was insistent that to be accepted by the American people, the process had to be bipartisan. Like war, impeachment is hell, or at least presidential impeachment is hell. Those of us who lived through the Clinton impeachment, including members of this body, full-well understand that a presidential impeachment is tantamount to domestic war albeit thankfully, protected by our beloved first amendment, a war of words and a war of ideas. But it’s filled with acrimony and it divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that at a deep and personal way. Now in contrast, wisely and judiciously conducted, unlike the United Kingdom, impeachment remains a vital and appropriate tool in our country to serve as a check with respect to the federal judiciary. After all in the Constitution’s brilliant structural design, federal judges know as this body full-well knows from its daily work, a pivotally important feature. Independence from politics, exactly what Alexander Hamilton was talking about in Federalist 78, during the Constitution’s term, good behavior in practical effect, life tenure. Impeachment is thus a very important protection for we the people against what could be serious article three wrongdoing within that branch. And so it is that when you count of the 63 impeachment inquiries authorized by the House of Representatives over our history, only eight have actually been convicted in this high court and removed from office and each and every one has been a federal judge. This history leads me to reflect on the nature of your weighty responsibilities here in this high court as judges in the context of presidential impeachment, the fourth presidential impeachment. I’m counting the Nixon proceedings in our nation’s history, but the third over the past half century. And I respectfully submit that the Senate in its wisdom would do well in its deliberations to guide the nation in this world’s greatest deliberative body to return to our country’s traditions when presidential impeachment was truly a measure of last resort. Members of this body can help and in this very proceeding, restore our constitutional and historical traditions. Above all by returning to the text of the Constitution itself. It can do so by its example here in these proceedings in weaving the tapestry of what can rightly be called the common law of presidential impeachment. That’s what courts do. They weave the common law. There are indications within the constitutional text, I’ll come to our history that this fundamental question is appropriate to be asked. You’re familiar with the arguments. Was there a crime or other violation of established law alleged? Let’s turn to the text.
Throughout the Constitution’s description of impeachment. The text speaks always, always, without exception in terms of crimes. It begins of course with treason, the greatest of crimes against the state and against we the people, but so misused as a bludgeoned and parliamentary experiences to lead the founders to actually define the term in the Constitution itself. Bribery, an iniquitous form of moral and legal corruption and the basis of so many of the 63 impeachment proceedings over the course of our history. Again, almost all of them against judges.
And then the mysterious terms, other high crimes and misdemeanors. Once again, the language is employing the language of crimes. The Constitution is speaking to us in terms of crimes. Each of those references when you count them, count seven, count eight supports the conclusion that impeachments should be evaluated in terms of offenses against established law, but especially with respect to the presidency where the Constitution requires the chief justice of the United States and not a political officer, no matter how honest, no matter how impartial to preside at trial. Guided by history, the framers made a deliberate and wise choice to cabin, to constrain, to limit the power of impeachment.
And so it was on the very eve of the impeachment of president Andrew Johnson, the eminent scholar and dean of the Columbia Law School, Theodore Dwight, wrote this, “The weight of authority is that no impeachment will lie except for a true crime, a breach of the law, which would be the subject of indictment.” I’m not making that argument. I’m noting what he is saying. He didn’t over argue the case. He said, ” The weight of authority.” The weight of authority.
And so this issue is a weighty one. Has the House of Representatives, with all due respect, in these two articles of impeachment charged a crime or violation of established law or not? This is, I don’t want to over argue, an appropriate and weighty consideration for the Senate. But especially as I’m trying to emphasize in the case, not of a federal judge, but of the president. Courts consider prudential factors and there is a huge prudential factor that this trial is occurring in an election year. When we the people in a matter of months, we’ll go to the polls. And developing the common law of presidential impeachment, this threshold factor consistent with the constitutional text consistent with the nation’s history in presidential impeachments as I’ll seek to demonstrate serves as a clarifying and stabilizing element.
It increases predictability. To do what? To reduce the profound danger that a presidential impeachment will be dominated by partisan considerations, precisely the evil that the framers warned about. And so to history. History bears out the point, the nation’s most recent experience, the Clinton impeachment, even though severely and roundly criticized, charge crimes. These were crimes proven and the crucible of the House of Representatives’ debate beyond any reasonable observer’s doubt. So too the Nixon impeachment, the articles charged crimes. What about article two and Nixon, which is sometimes referred to as abusive power? Was that the abuse of power article, the precursor to article one that is before this court? Not at all. When one returns to article two and Nixon approved by a bipartisan House Judiciary Committee, article two of Nixon sets forth a deeply troubling story of numerous crimes, not one, not two, numerous crimes carried out at the direction of the president himself. And so the appropriate question, were crimes alleged in the articles in the common law of presidential impeachment? In Nixon, yes. In Clinton, yes. Here, no. A factor to be considered as the judges in the high court come as you will individually to your judgment.
Even in the political cauldron of the Andrew Johnson impeachment. Article 11 charged a violation of the controversial Tenure of Office Act. You’re familiar with it. And that act warrant expressly the Oval Office that its violation would constitute a high misdemeanor employing the very language of constitutionally cognizable crimes. This history represents and I believe, may it please the court, it embodies the common law of presidential impeachment. These are facts gleaned from the constitutional text and from the gloss of the nation’s history and under this view, the commission of an alleged crime or violation of established law can appropriately be considered again a weighty and an important consideration and element of an historically supportable presidential impeachment.
Will law professors agree with this? No. But with all due respect to the academy, this is not an academic gathering. We are in court. We’re not just in court. With all due respect to the chief justice and the Supreme Court of the United States, we’re in democracy’s ultimate court. And the better constitutional answer to the question is provided by a rigorous and faithful examination of the constitutional text and then looking faithfully and respectfully to our history.
The very divisive Clinton impeachment demonstrates that while highly relevant, the commission of a crime is by no means sufficient to warrant the removal of our duly elected president. Why? This body knows. We appoint judges and you confirm them and they’re there for life, not presidents. And the presidency is unique. The presidency stands alone in our constitutional framework. Before he became the chief justice of the United States, John Marshall, then sitting as a member of the people’s House made a speech on the floor of the House and there he said this, “The president is the sole organ of the nation and it’s external relations and it’s sole representative with foreign nations.” If that sounds like hyperbole, it has been embraced over decades by the Supreme Court of the United States, by justices appointed by many different presidents. The presidency is unique.
There’s no other system quite like ours and it has served us well. And so as to the presidency, impeachment and removal not only overturns a national election and perhaps profoundly affects an upcoming election, in the words of Yale’s Akhil Amar, it entails a risk. And these are Akhil’s words, Professor Amar’s words, “Grave disruption of the government.” Professor Amar penned those words in connection with the Clinton impeachment. “Grave disruption of the government,” regardless of what the president has done, grave disruption. We will all agree that the presidents under the text of the Constitution and its amendments are to serve out their term. Absent a genuine national consensus reflected by the two thirds majority requirement of this court that the president must go away, two thirds. In politics and in an impeachment, that’s called a landslide.
Here, I respectfully submit to the court that all fair-minded persons will surely agree there is no national consensus. We might wish for one, but there isn’t. To the contrary. For the first time in America’s modern history, not a single House member of the president’s party supported either of the two articles of impeachment, not one, not in committee, not on the House floor. And that pivotal fact puts in bold relief the Peter Rodino principle, call it the Rodino Rule, impeachment must be bipartisan in nature. Again, setting as a court, this body should signal to the nation the return to our traditions, bipartisan impeachments. What’s the alternative? Well, the president be king? Due oversight, the tradition of oversight, an enormous check on presidential power throughout our history and it continues available today.
In Iran-Contra no impeachment was undertaken. The Speaker of the House, a Democrat, Jim Wright from Texas, from Fort Worth where the West begins, knew better. He said, “No,” but as befits the age of impeachment, a House resolution to impeach president Ronald Reagan was introduced. It was filed and the effort to impeach President Reagan was supported by leading law professor, whose name you would well recognize and you’ll hear it again this evening, from Professor Dershowitz. I’ll leave it to him to identify, the learned professor, but the speaker of the people’s House echoing Peter Rodino, said, “No.” I respectfully submit that the Senate should close this chapter, this idiosyncratic chapter, on this increasingly disruptive act. This era, this age of resort to the Constitution’s ultimate democratic weapon for the presidency. Let the people decide.
There was a great justice who sat for 30 years, Justice John Harlan, in the mid-century of the 20th century. And in a lawsuit involving a very basic question, can citizens whose rights have clearly been violated by federal law enforcement agencies and agents bring an action for damages when Congress has not so provided no law that gave the wounded citizen a right to redress through damages? And Justice Harlan in a magnificent concurring opinion in Bivens v. Six Unnamed Federal Agents, suggested that courts, here you are, should take into consideration in reaching its judgment, their judgment, what he called factors counseling restraint. He was somewhat reluctant to say that we, the Supreme Court, should grant this right, that we should create it, when Congress has enacted and Congress could have acted, but it hadn’t. But he reluctantly came to the conclusion that the Constitution itself empowered the federal courts to create this right for our injured citizens, to give them redress, not just an injunctive relief, but damages, money recovery for violations of their constitutional rights. Factors, counseling, restraint. And he addressed them and he came to the view. He was so honest and said, “I came to the case with a different view, but I changed my mind and voted in favor of the Bivens family having redress against the federal agents who had violated their rights.” Judging in its most impartial, elegant sense. I’m going to draw from Justice Harlan’s matrix of factors, counseling, restraint, and simply identify these. I think there may be others. The articles do not charge a crime or violation of established law. I’m suggesting it’s a relevant factor. I think it’s a weighty factor when we come to presidential impeachment, not judicial impeachment. Secondly, the articles come to you with no bipartisan support. They come to you as a violation of what I’m dubbing the Radino rule.
And third is I will now discuss the pivotally important issue of process. The second article of impeachment, obstruction of Congress. This court is very familiar with United States versus Nixon. Its unanimity in recognizing the president’s profound interest in confidentiality. Regardless of the worldview or philosophy of the justice, the justices were unanimous. This is just a contrivance. It’s built in to the very nature of our constitutional order. So let me comment briefly. This constitutionally based recognition of executive privilege and then companion privileges, the deliberative process privilege, the immunity of close presidential advisors from being summoned to testify. These are all firmly established in our law. If there is a dispute between the people’s house and the President of the United States over the availability of documents or witnesses, and there is in each and every administration, then go to court. It really is as simple as that. I don’t need to belabor the point. But here’s the point I would like to emphasize. Frequently, the Justice Department advises the President of the United States that the protection of the presidency calls whatever the president might want to do as a political matter, as an accommodation of spirit of comity, to protect privileged conversations and communications. I’ve heard it in my two tours of duty at the Justice Department. “Don’t release the documents, Mr. President. If you do, you’re injuring the presidency.”
