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 TIME on politics Congressional Quarterly CNN/AllPolitics CNN/AllPolitics - Storypage, with TIME and Congressional Quarterly

Transcript: Statement of former Attorney General Nicholas Katzenbach

House Judiciary Committee hearing, December 8, 1998

KATZENBACH: Let me first say, Mr. Chairman, that I thought your introduction was very fulsome and I appreciate it.

HYDE: Good.

KATZENBACH: I also appreciate the opportunity to testify before this once-familiar-to-me committee on the important constitutional question of impeachment of the president of the United States which is before this committee.

A great deal has been written, spoken on the subject of impeachment by the media, by members of Congress, by witnesses testifying before this committee, by academics and others -- so much, in fact, that it seems to me we're in danger of losing sight and understanding the fundamentals. So in the hope of simplifying a complex issue, I'd like to begin with some fundamentals that are not, I believe, controversial.

The process of impeachment is simply to remove from office upon conviction, not to otherwise punish the person involved. The Constitution provides the legislative branch, the Congress, with this means of removing from office the president, the vice president and all civil officers upon conviction of treason, bribery or other high crimes and misdemeanors.

The threshold problem for the committee is of course to determine what constitutes high crimes and misdemeanors, which would justify removal from office of an elected president.

The phrase "high crimes and misdemeanors" is not a familiar one in modern American jurisprudence. Common law constituted a category of political crimes against the state, and neither high crime nor high misdemeanor have ever been terms used in the criminal law.

In the United States, one of the founders, James Wilson made essentially that point when he wrote that -- quote -- "Impeachments are confined to political characters, to political crimes and misdemeanors, to political punishments."

Or as Justice Story observed impeachment is -- quote -- "A proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property but simply divests him of his political capacity" -- end quote.

The problem which the founders faced was how to adapt this process from a parliamentary system, in which there was no separation of powers, to one in which separation of powers was of great importance.

In Great Britain, the impeachment process was aimed at officers appointed by the Crown in circumstances historically where the king himself could not be removed from office, except perhaps by revolution, such as Oliver Cromwell's.

As the British system has evolved and the prime minister's become essentially a legislatively elected official where he or she could be forced to a midterm election by a parliamentary vote of no confidence, impeachment has lost its punch.

But in the United States, where the president is elected for a fixed term of office different from the legislative terms, the founders thought it essential to have some means of removing him, or her, before the expiration of his term if he's guilty of high crimes and misdemeanors.

Well, whatever that term may be found to mean, it's clear that the founders intended it to be a limited power.

Because in their debates, the founders dealt virtually exclusively with the president, civil officers, as you know, were added later in the process, and because for most of the convention, the impeachment clause was confined to treason and bribery, they equated other high crimes and misdemeanors with, in the debates, great offenses when that term was added.

Now I appreciate this brief history doesn't resolve in any decisive fashion the threshold problem the committee is facing in determining what conduct by a president justifies impeachment. But I do think it tends to provide some parameters which should be useful and which should not, at least when phrased generally, be very controversial.

It's a serious matter for the Congress to remove a president who has been elected in a democratic process for a term of four years, raising fundamental issues about the separation of powers.

If that power is not limited, as it clearly is, then any president could be removed with a sufficient number member -- number of members of the House and Senate simply disagreed with his policies, thus converting impeachment into a parliamentary vote of no confidence.

Whatever its merits, that isn't our constitutional system.

Because impeachment is a political process, it's always had a strong partisan quality element and strong partisan motivation. Still does, and in a Democratic political system probably always will. But that fact simply increases the risk of subverting the constitutional system. To appreciate those risks you need only consider the impeachment of Andrew Johnson, the president who came close to being convicted in a process as unfair as it was partisan, which should be an object lesson for all.

The job of this committee is to weigh the facts of President Clinton's alleged conduct against the limiting provision of the Constitution, "other high crimes and misdemeanors." The job may seemingly be made more difficult because of the application of that term to judges as well as president and vice president.

But judges are appointed during good behavior, a term which significantly does not apply to the four year -- to limit the four- year term of the president. By removing one of several hundred federal judges from office, doesn't have the same constitutional significance as removing the president. Even removal of a Supreme Court justice would raise different considerations from removing the president, and the standard is far higher for judges as -- where the standard is far higher than for judges as Congressman -- as he was then -- Gerald Ford recognized when he proposed impeachment of Justice Douglas.

To come to the same conclusions on the same facts in such different situations would make a mockery of the Constitution and intentions of the founding fathers. Only if one takes the view articulated by Senator Fessenden in the Johnson impeachment, that impeachment is a power, quote, "to be exercised with extreme caution, in extreme cases," can the same standard apply to both presidents and judges. One simply needs to take into consideration the different roles and responsibilities of the officers involved.

The proper way to resolve these problems, which are made more difficult by unfamiliar language than they are by clear purpose, is simply to return to the reasons for the provision. If we think of it in political -- not partisan -- political terms, impeachment is designed to provide the legislative branch with a method of removing a person from office whose conduct is so egregious as to justify reversing the process by which he was appointed or elected.

It seems to me clear that in our system of separation of powers this cannot mean simply disagreement, however sincere, however strongly felt, but either the decisions of judges or the policies of the president. It must be some conduct, some acts, which are so serious as to bring into question the capacity of the person involved to carry out his role with the confidence of the public.

If I'm correct, and it seems to me the fundamental question is simply whether the president has done something which has destroyed public confidence in his ability to continue in that office, if the public doesn't believe that what he has done seriously affects his ability to perform his public duties as president, should the committee conclude that his acts have destroyed public confidence essential to that office? The only question, after all, is removal of office from an elected official. Is it proper? Is it a proper role of a partisan majority in Congress to conclude that the offenses are so serious as to warrant removal even if the public believes otherwise?

I don't find the arguments for this position persuasive. First, there's an argument that perjury -- and for the purposes of this analysis I take it to be correct -- is always so serious, irrespective of the circumstance, as to warrant the removal of a president. I suggest that some perjury is more serious than others.

If, for example, the president were to swear falsely that he had no knowledge of a CIA plot to assassinate the speaker...

HYDE: Mr. Katzenbach, could you wind up, because your 10 minutes has expired.

KATZENBACH: Are you sure, Mr. President -- Mr. Chairman?

HYDE: Yes. That big red light tells me so.

KATZENBACH: Could I have one more minute?

HYDE: Surely...

KATZENBACH: All right.

HYDE: But I just wanted you to know.

KATZENBACH: OK. The point is simply that all perjury may be reprehensible, but it's still not of similar import when the ultimate issue is public confidence to perform the duties of office.

If the argument is made that the public's view as to what does or does not constitute a cause for impeachment is irrelevant because of the duty of the House to determine whether or not the president has committed a high crime or misdemeanor, I would agree if it were a criminal case. I would agree if the president was extremely unpopular because I then could not then separate that popularity from the acts causing the impeachment.

In those circumstances, the Congress would have a particularly difficult job. But this Congress and this committee are faced with a totally new impeachment problem. Due to the existence of the independent counsel, the facts are publicly known, the areas of factual dispute relatively minor. Members of Congress have expressed concern over the evils of perjury and other alleged offenses in this serious nature. For whatever reason, the public remains unpersuaded.

Finally, I can't see any constitutional basis for impeachment. To remove a popularly elected president requires, in my judgment, showing a great offense against the public will sufficient to bring into the question of reasonable people whether or not he should be removed.

The threshold constitutional question, Mr. Chairman, for each member of Congress is that he must -- which he must decide, or her, is simply -- can be simply stated: Is the conduct of the president such that he should be removed from office because as a consequence of that conduct the public no longer has confidence that he can perform the duties of that high office?

Remember, impeachment is a political process, a political remedy to preserve confidence in that political process, not to punish a perpetrator.

Thank you, Mr. Chairman.

HYDE: Thank you very much, Mr. Katzenbach.

Investigating the President


Tuesday, December 8, 1998

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