Transcript provided by FDCH
Transcript: Questioning By Representative Gerald Nadler (D-NY)
House Judiciary Committee hearing, December 8, 1998
SENSENBRENNER: The gentleman from New York, Mr. Nadler.
NADLER: Thank you, Mr. Chairman. My question is for Professors Wilentz and Ackerman.
Gentleman, I want to follow up sort on what my colleague, Mr. Boucher, asked about standards of proof. We've heard quotes that we just have to see if this is credible evidence, send it over to the Senate, see if their -- let them be the trier of facts. In my view, that simply transforms the role of the House into a rubber stamp for the special prosecutor, just a transmission belt. And it's incorrect.
We've also heard other comments. Special Prosecutor Smaltz, after Mr. Espy was acquitted, said that indictment by itself is a deterrence to corruption, as if you seek to punish someone by indictment. And a member of this committee was quoted as saying that impeachment itself, even if not followed by a conviction, even if you know that there's no real possibility of a conviction, is a punishment for misconduct -- a scarlet letter.
Now, we -- even if the Senate acquits and even if you know there's no possibility the Senate will, in fact, convict.
Now, we know that the canons of legal ethics say that it is unethical for a prosecutor to seek an indictment if the prosecutor does not believe that he can get a jury to convict the defendant.
Could you comment on the view that it's proper to seek an impeachment as a punishment for improper conduct even if you know or think that the evidence will not produce a conviction by the Senate?
WILENTZ: Let me start, Congressman Nadler, by quoting Oliver North's attorney, Brendon (ph) Sullivan, or paraphrase him, rather, to say that Congress is not -- or rather, the House of Representatives is not a potted plant.
You're not just sitting here passing things along to the Senate. To see that as your role, I think, is a violation of your oath of office, in fact. It certainly goes toward that, your oath to uphold the Constitution. That is what you are here for. And if you are derelict in that, if you back off from that out of fear, out of desire just to get it over with...
NADLER: It's not like a grand jury...
NADLER: ... if there is any probable cause?
WILENTZ: This is no more like a grand jury than an impeachment is like a normal jury trial. It's not. They're two different species.
NADLER: Could you comment to the second half of the question?
WILENTZ: Yes, could you remind me of that (OFF-MIKE) please?
NADLER: The second half of that question is the propriety of voting for impeachment if you think, as a punishment in and of itself, and if you think the Senate will probably not convict on the evidence you have.
WILENTZ: Historically, that -- that's just -- runs against the entire tenor of what impeachment has been about. There has never been a case where a House of Representatives has decided to move on impeachment proceeding with the idea that the Senate would not convict. The entire reason -- and I think Eliot Richardson said this very eloquently the other day -- a vote to impeach is, in effect, a vote to remove.
NADLER: And briefly, Professor Ackerman and Attorney General Katzenbach on the second half of the question.
ACKERMAN: It's especially inappropriate when you know that the 106th House is going to have to vote on it again. And if there is no reason to believe that the 106th House would be willing to vote an impeachment, this is to trivialize the impeachment process completely.
NADLER: So you think it's improper to vote for impeachment if you don't think the Senate would likely convict?
ACKERMAN: Or if the next House won't -- won't confirm you.
NADLER: Thank you. Attorney general?
KATZENBACH: It seems to me that nothing could be more improper than to use the impeachment process as a punishment, and that is what you're suggesting. It is absolutely clear constitutionally that however bad the acts, impeachment is not a punishment. It is to remove somebody from office, the president or a judge or somebody else.
NADLER: So do you think it would be proper or improper to vote for impeachment even if you thought the president should be removed from office, if you thought the likelihood the Senate would remove from office was nil?
KATZENBACH: If you met the standards, if the House met the standards of impeachment, as a high crime and misdemeanor, if those were met and sincerely met, then I would think simply to consider what the Senate would do might be a factor in the voting, but not necessarily from a matter of principle.
NADLER: Anybody else want to comment on that?
SENSENBRENNER: Gentleman's time has expired.
BEER: This points to the political constitutional consequences. I mean, this is not just something that's happening now. This goes on down and into the future history of the relation of Congress and president. It's a further attack on the separation of powers.
Now this kind of precedent -- I entirely agree with what my colleagues said.
NADLER: Thank you very much.
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