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When Congress Decides A President'S 'High Crimes And Misdemeanors'

By Stephen Gettinger, CQ Staff Writer

Vice President Aaron Burr was indicted in two states for the murder of Alexander Hamilton in 1804, but he was not impeached. President Andrew Johnson was impeached in 1868, not only for defying Congress in Reconstruction, but also for "certain intemperate, inflammatory, and scandalous harangues [that] did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress." He harangued "in a loud voice," too.

After the House Judiciary Committee acted to impeach President Richard M. Nixon in 1974 for Watergate, it voted not to impeach him for evading a half million dollars in taxes. That "was indeed morally shabby conduct," said Rep. William S. Cohen, R-Maine (now Defense secretary), but not the stuff of impeachment.

Impeachment and removal from office is the Constitution's substitute for the guillotine. It has been attempted against presidents infrequently and inconsistently. Yet if the House Judiciary Committee opens an inquiry into President Clinton's behavior, these few precedents will be scrutinized for guidance.

In those rare cases where impeachment has been considered, the debate has centered not on the alleged misdeed, but on whether the behavior met the Constitution's test of "treason, bribery or other high crimes and misdemeanors." With no president having been accused of treason or bribery, the latter phrase has become the one at issue.

Raoul Berger, a former Harvard law professor whose 1973 book on impeachment influenced the Watergate deliberations, expressed the consensus view of scholars that "high" modifies both "crimes" and "misdemeanors," and that it refers not to the gravity of the offense, but to crimes against the state. Still, that adds little definition.

"What, then, is an impeachable offense?" Gerald R. Ford, R-Mich., asked rhetorically in 1970, when as House minority leader he sought the impeachment of Supreme Court Justice William O. Douglas. Ford replied with a stark answer that has become famous: "The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."

That absolutist position was echoed in 1992 by Kenneth W. Starr, then the solicitor general and now the independent counsel pursuing Clinton. In answering a question about a judicial impeachment, he agreed with a justice who skeptically asked whether an official could be impeached for something as trivial as poisoning a neighbor's cat.

But in practice, Congress does not want to appear capricious or vindictive, and a purely partisan assault would fail because a two-thirds vote of the Senate is required to convict.

In their treatment of presidential impeachment, history books generally center on the great constitutional confrontations of the Andrew Johnson trial (whether he could ignore an act of Congress) and the Nixon case (whether he had abused power, obstructed justice and defied Congress).

Interest today, however, focuses on the lower end of the spectrum: whether sexual misbehavior and perjury in a civil suit, even if clear-cut, would constitute a high crime or high misdemeanor.

Past judicial impeachments offer some examples, but scholars agree that they constitute a separate history, because the Constitution holds judges, but not other officials, to a standard of "good behavior."

Here, then, is a review of instances, some little-known even to historians, when Congress or its committees made a formal decision on whether to impeach a president (or vice president).

Tyler

"His accidency," they called John Tyler when he became president in 1841, after William Henry Harrison died a month into his term. Many members of Congress thought he should only be "acting president," but Tyler seized full power. A disaffected Democrat who had accepted a position on the first winning Whig ticket, he was soon disowned by the Whigs, who wanted Henry Clay to run the country from the Senate.

Tyler antagonized the Whigs by vetoing bills to revive the national bank, to give money from land sales to the states and to raise the tariff -- key elements of Clay's "American System."

After one veto, Clay offered a constitutional amendment to allow a simple majority for an override -- then quit the Senate. A House committee chaired by former President John Quincy Adams declared that Tyler deserved impeachment for his "weak and wavering obstinacy," but concluded that it was impractical.

Nevertheless, on Jan. 10, 1843, Rep. John M. Botts, a Virginia Whig, offered a resolution to impeach Tyler, accusing him of, among other things, "withholding his assent to laws indispensable to the just operations of government," "aiding to excite a disorganizing and revolutionary spirit in the country," and "gross official misconduct in having been guilty of a shameless, duplicitous equivocation and falsehood, with his late Cabinet and Congress, which led to idle legislation and useless public expense."

The record shows no substantive debate on the resolution before the House defeated it, 83-127.

Johnson

Of the 11 charges on which Andrew Johnson was impeached in 1868, 10 stemmed from his removal of Secretary of War Edwin M. Stanton, a close associate of the Radical Republicans. That violated the Tenure of Office Act, which Congress enacted in 1867 over Johnson's veto to keep him from removing Lincoln's Cabinet and taking charge of the reconstruction of the South.

But one count was for saying nasty things about Congress. It is something of a historical curiosity.

Article X of the impeachment cited impromptu remarks Johnson made a year and a half earlier to crowds in St. Louis, Cleveland and Washington, D.C. Newspapers reported that he had called the previous Congress "fractious and domineering. . . . A radical Congress, which gave origin to another rebellion. . . . A Congress upon whose skirts was every drop of blood that was shed in the [summer 1866] New Orleans riots."

The charge was the pet cause of Rep. Benjamin F. Butler, a Radical Republican from Massachusetts. Demagogic and cross-eyed -- "They didn't call him 'Beast' for nothing," says the current Senate Historian Richard A. Baker -- he earned his nickname as commander during the 1862 occupation of New Orleans, when he ordered that any woman showing disrespect for the Union would be treated "as a woman of the town plying her avocation."

Butler was a lead prosecutor in Johnson's Senate impeachment trial. He scorned Johnson's argument that he was merely exercising freedom of speech in a political campaign.

"Words may be, and sometimes are, things -- living, burning things that set a world on fire," Butler said. "Is it, indeed, to be seriously argued here that there is a constitutional right in the president of the United States, who, during his official life, can never lay aside his official character, to denounce, malign, abuse, ridicule, and contemn, openly and publicly, the Congress of the United States?"

In the closing argument, Rep. John Bingham, R-Ohio, puffed himself up to similar rhetorical heights over Article X. "By his intemperate and scandalous harangues, he was guilty of a great public indecency and of the attempt to bring the Congress of the United States into contempt and to incite the people to sedition and anarchy."

Article X never came to a vote. After three other articles failed by a single vote, the Senate abandoned the trial. Iowa Sen. James W. Grimes, a Republican who voted against impeachment, granted that the remarks "were indiscreet, indecorous, improper, vulgar. . . . [But] shall we not, by his conviction on this article, violate the spirit of the Constitution?"

Hoover

After Herbert Hoover was incinerated in the election of 1932, a distraught Republican tried to sweep him into the dustbin of history. Success would have brought Charles Curtis ("the epitome of the do-nothing vice president," according to Senate Associate Historian Donald A. Ritchie) to office as the lamest of all possible presidential ducks.

Rep. Louis T. McFadden, R-Pa., offered a motion to impeach Hoover on Dec. 13, 1932, for 26 offenses. These included reducing Germany's war debt, misadministering the Federal Reserve Board, and sending Gen. Douglas MacArthur to drive the "Bonus Marchers" of unemployed veterans out of Washington "by force of fire and sword and chemical warfare . . . acts that stamp their perpetrator as one who is socially and morally unfit to be President."

His exasperated colleagues did not even want to give McFadden a chance to debate his motion, and they tabled it by a vote of 361-8. He tried again a month later, and was silenced by 344-11.

Nixon

Probably the best example of Congress confronting presidential crime, and yet deciding that it did not merit impeachment, can be found in the House Judiciary Committee's deliberations on the Nixon case in 1974.

The committee, chaired by Peter W. Rodino Jr., D-N.J., had taken three climactic votes to impeach Nixon on the Watergate-related counts. There was an attempt to add a charge for deceiving the country with the secret bombing of Cambodia, but it was voted down.

Then, after maneuvering to get into prime television time July 30, Democrats brought up Article V, one that they thought would resonate with people who might dismiss Watergate as political folderol. It charged Nixon with tax fraud on two counts: making self-serving improvements to his houses in San Clemente, Calif., and Key Biscayne, Fla., that cost taxpayers as much as $17 million, and improperly deducting $482,000 for giving his vice presidential papers to the National Archives and backdating the deed for the papers.

The charge was presented by Edward Mezvinsky, D-Iowa. Its chief proponent was the irascible Jack Brooks, D-Texas, whose subcommittee had investigated the house improvements.

"No man in America can be above the law," Brooks thundered. "No president is exempt under our U.S. Constitution and the laws of the United States from accountability for personal misdeeds any more than he is for official misdeeds."

But several members who had voted to impeach Nixon on the other counts, including Cohen, felt this was overkill. California Democrat Jerome R. Waldie, who had been one of the first members of Congress to call for impeachment, said: "Though I find the conduct of the president in these instances to have been shabby, to have been unacceptable, and to have been disgraceful even, I do not find a presidential power that has been so grossly abused that it deserves redefinition and limiting."

As freshman Rep. Trent Lott, R-Miss., now Senate majority leader, put it: "It is a good political issue. But is it one that you impeach a president for?"

At 10:30 p.m., Article V was rejected 12-26. Rodino voted for it, as did John Conyers Jr., D-Mich., and Charles B. Rangel, D-N.Y. All Republicans opposed it, along with nine Democrats (including Paul S. Sarbanes of Maryland and Robert F. Drinan of Massachusetts, who had introduced the first impeachment resolution).

The article became a footnote six days later when Nixon released the "smoking gun" tapes; he resigned Aug. 9.

Vice Presidents

No vice president has suffered impeachment, but several have felt its singe.

  • Burr escaped censure partly because dueling was still considered somewhat acceptable, but mostly because his fellow Democrats wanted him to spend his last months in office presiding over the impeachment trial of Supreme Court Justice Samuel Chase, a staunch Federalist.
  • William Plumer, a Federalist senator from New Hampshire, wrote in his diary of Burr's first appearance, four months after killing Hamilton: "What a humiliating circumstance that a man who for months has fled from justice and who by the legal authorities is now accused of murder, should preside over the first branch of the national legislature! I have avoided him -- his presence to me is odious -- I have merely bowed and spoken to him."

  • Schuyler Colfax, Ulysses S. Grant's vice president, was implicated in the Credit Mobilier scandal of 1872, in which members were bribed with railroad stock. An impeachment resolution failed in the House Judiciary Committee, largely because his term would run out in a few weeks. Still, "Colfax left the vice presidency in disgrace, becoming a symbol of the sordidness of Gilded Age politics," a history of the vice presidents recounted.
  • Spiro T. Agnew resigned in October 1973 after his conviction for tax evasion related to bribes he had taken from Maryland contractors.
  • Lessons

    The current investigation into Clinton's behavior is far from history. That does not keep scholars from measuring today's headlines against the past.

    "In my view of the current situation, even assuming the worst, I don't think that rises to the level of grounds for impeachment," says John R. Labovitz, an attorney who researched past cases for Rodino's committee and wrote a 1978 book on impeachments.

    Alan Brinkley, a history professor at Columbia University, predicts: "The inveterate Clinton-haters are going to push to go wherever it leads. But they have absolutely no public support. They may use hearings to weaken him enough so that it will lap over into [Vice President and presumed presidential candidate] Al Gore."

    Joseph Cooper, a political scientist at Johns Hopkins University, is not so sure. "If they have definite evidence that he lied to a court and tried to cover up an investigation, that is obstruction of justice, and that's a high crime." But, he warns, that will take more than circumstantial evidence to prove.

    Michael J. Gerhardt, who in 1996 published a book on impeachment, agrees that perjury could be a violation of the president's oath to "take care that the laws be faithfully executed." But in the real world, he says, impeachment requires that the president first become vulnerable and unpopular. "The answer on that right now seems to be no," he says.

    The fact that the 1994 independent counsel law requires evidence of impeachment to be turned over to the House means that Congress will likely have to make some decision on how to proceed once Starr completes his work.

    And while it will look to the past for guidance, Cooper is not sure members will look very deeply.

    "Congress is turning over very quickly," he says. "As far as history is concerned, most of these people don't have any institutional memory at all."

    Any outcome will be precedent-setting, they agreed, in that this is the first case to deal publicly with the area of sexual mores.

    "I like the idea that politicians are making this judgment," said Akhil Amar, a professor of constitutional law at Yale University. "That's a nice feature of impeachment. They've got to make a judgment on political norms. And they can't set the bar too high -- or they have to live with it themselves."

    © 1998 Congressional Quarterly Inc. All rights reserved.
    In CQ News This Week

    March 7, 1998

    Panel Releases 'Dueling' Reports, Remaining Partisan To The End
    When Congress Decides A President'S 'High Crimes And Misdemeanors'
    For House Members, Higher Office Seems Less Of A Lure Or A Lock
    Gop Has Heated Fight To Pick Challenger For Moseley-Braun
    Productivity Likely To Be Low As GOP Sets Slow Pace
    Differences May Prompt Gop To Leave The Surplus Alone
    Torres Retires, Seeks To Anoint Son-In-Law As Successor





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