Transcript provided by FDCH
Transcript: Statement of Professor Samuel Beer
House Judiciary Committee hearing, December 8, 1998
HYDE: Now, the question of the day is, is it professor Ackerman or professor Beer? Professor Beer, you're next. Thank you.
BEER: Thank you, Mr. Chairman and members of the committee.
It's appropriate in a way I should be here before this committee, this formidable committee, since just last week I was in London advising some of my friends in the House of Commons and in the conference on the American view of the constitutional reforms being proposed there. The one that I particularly stressed was the need for them to beef up their legislative committees. And I'm sure my experience here won't change my mind on that point.
That shows what my real concern here is -- mainly, mainly, the political and constitutional consequences of impeachment rather than the legal and judicial aspects.
The process is judicial in form, impeachment by the House being like indictment by the grand jury, and trial and conviction by the Senate like trial and conviction by a court.
In fact, however, the consequences of successful impeachment do not resemble the usual consequences of a judicial trial. For instance, punishment by fine or imprisonment, as Article I, Section 3, Paragraph 7 provides punishment of that kind would be invoked after the president had become a private citizen by resignation, removal or expiration of his term of office.
Removal from office -- you see, I am emphasizing what my colleague Nicholas Katzenbach has said -- removal from office, that grand, forbidding consequence of a successful impeachment, distinguishes this process radically from the judgment of a court. It resembles rather a vote of no confidence in a legislature such as the British Parliament. By such a vote, the House of Commons can bring to an end the life of a government.
In 1841, Sir Robert Peal summed up this fundamental convention of the British constitution when in a what became a classic formulation he successfully moved that "Her Majesty's ministers do not sufficiently possess the confidence of the House of Commons to enable them to carry through the House measures which they deem of essential importance to the public welfare."
Now the relevance. Like a vote of no confidence, impeachment brings to an end a president's administration. Like a vote of no confidence, it relates not merely to some specific failure, but is a judgment on his record and promise as a whole with regard to those, to adapt to Peal's phrases, those measures which he deems of essential importance to the public welfare.
Because of these broad and weighty consequences, impeachment is primarily a political, not a judicial act. As a political act, impeachment, like a vote of no confidence, passes judgment on and enforces responsibility on the executive power. In the British system, that responsibility runs directly to the legislature.
In the American system, on the contrary, that responsibility runs to the legislature only secondarily. And in special circumstances for us, the responsibility of the president is essentially and directly to the voters.
The legislature as a separate office, separately elected, likewise is held accountable by the voters. This separation of powers is fundamental in our constitutional design and is a main point of distinction from the British system.
The direct responsibility of both branches to the voters expresses the sovereignty of the people -- popular sovereignty, that doctrine unique with us in this time -- sovereignty of the people as the ultimate authority of our Constitution and of the government established under it.
Now as the framers struggled to give expression to that principle, they ran into a problem: How were our liberties to be protected against misuse of power by the executive between quadrennial elections? At the Philadelphia Convention during the summer of 1787, they explored various possibilities and appealed to Supreme Court, concoction of other bodies of that kind, and discarded them.
The states similarly thinking of their systems of governors and legislatures were experimenting in theory and practice with a variety of methods of bridging the same gap.
At the last moment, the framers incorporated a structure almost exactly in the form then being used in England in the impeachment of Warren Hastings.
This device, although it had its ancient roots, had come to special prominence in the 17th and 18th centuries when Great Britain also for a time displayed a certain separation of powers, as a still powerful and independent monarch faced off against the rising assertions of the Parliament.
In those circumstances, impeachment was adopted by the parliamentarians as a means of enforcing responsibility on the monarch through action against his ministers. When finally the monarch was eased out of politics, the old fusion of executive and legislative powers was taken over by a committee of the parliament -- the Cabinet.
Now, the interim method of impeachment, of holding on -- of getting a hold on the executive was dropped in favor of a vote of confidence which performed more effectively in those circumstances the function of enforcing responsibility on Parliament. At the same time that impeachment was dying out in Britain, it was picked up, taken up by Americans who found in it a way of supplementing the principal mechanism of democratic responsibility by quadrennial elections.
And this is the point -- the broad stroke of impeachment was embodied in a very different system. Where the ultimate sovereign is the people, the interference of one power, the legislature, in its exercise of such a dire responsibility as removal of a popularly elected president imposes severe duties on the legislators.
The Congress itself, not the primary source of authority, but only a creature of the people, is acting in lieu of the people between quadrennial elections. At their best, the legislators will do what the people, at their best, would do, weighing the pluses and minuses of the record and the promise as a whole -- and I'm repeating what Nick Katzenbach said -- asking this central question, "Does the national interest require the removal from office of this president?"
It's not a little, detailed question. It's a great, big, broad question.
In the case of President Clinton, the American people have twice answered that question by electing him to the American presidency.
And if we seek further light on the present American mind, surveys of opinion continue to confirm that answer, which also in no way is disturbed by the outcome of the recent midterm elections.
I conclude that the failure to consider the whole record of Clinton's presidency in foreign and domestic affairs could have severe long-run costs.
The removal of a president, thanks to such a neglect of judgment, could substantially damage our democratic system. Consider the temptations which this precedent would excite in a Congress of a different party against a future president of a different party. As the great historian Henry Adams said, commenting -- when commenting on the failed attempt of the Jeffersonians to remove Justice Chase (ph), "Impeachment is not a suitable activity for party politics."
HYDE: Thank you very much, Professor Beer.
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