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Transcript provided by FDCH

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

Transcript: Statement of Professor Sean Wilentz

House Judiciary Committee hearing, December 8, 1998

Professor Sean Wilentz of Princeton.

Professor Wilentz.

WILENTZ: Thank you. Can you hear me all right?

HYDE: Turn the mike switch on.

WILENTZ: I believe it is on. There it is. OK.

Wilentz in Ackerman.

Mr. Chairman and members of the Judiciary Committee, it is a high honor to address to you today on the grave and momentous matter of presidential impeachment.

Although I appear at the invitation of the White House, I wish to make it clear from the start that I have no intention of defending the president over his confessed and alleged misdeeds. Lawyers with a far greater familiarity with the evidence than I are far better equipped to do that. Certainly, I do not think that the president is blameless in these matters, something that I have noted many times over the years in my writings.

Instead, I wish to defend the institution of the presidency, the Constitution and the rule of law from what I see as the attacks upon them that have accompanied the continuing inquiry into the president's misconduct.

In time we will learn how much these attacks have been calculated and how much they have been unwitting. Either way, they are extremely dangerous.

It is no exaggeration to say that upon this impeachment inquiry, as upon all presidential impeachment inquiries, hinges the fate of our American political institutions. It is that important.

As a historian, it is clear to me the impeachment of President Clinton would do greater damage -- great damage to those institutions and to the rule of law, much greater damage than the crimes of which President Clinton has been accused.

More important, it is clear to me that any representative who votes in favor of impeachment but who is not absolutely convinced that the president may have committed impeachable offenses, not merely crimes or misdemeanors, but high crimes and misdemeanors, will be fairly accused of gross dereliction of duty and earn the condemnation of history.

I would like to address three basic points of historical relevance: The grounds for impeachment as envisioned -- as envisaged by the framers of the Constitution, and our understanding of them; the dangers of politicizing the impeachment process; and the relation between impeachment and the rule of law.

First, regarding the framers, the scholarly testimony on November 9 before the subcommittee regarding the Constitution showed, alas, at mind-numbing length, that there is disagreement over what constitutes grounds for presidential impeachment as envisaged by the framers. Yet, the testimony also showed that there is substantial common ground.

WILENTZ: Above all, the scholars agreed that not all criminal acts are necessarily impeachable acts. Only -- quote -- "treason, bribery, other high crimes and misdemeanors" -- committed in George Mason's explicit original language -- quote -- "against the state" -- unquote -- would seem to qualify, at least if we are to go by what the framers actually said and wrote.

Or according to James Wilson of Pennsylvania, impeachment is restricted to -- quote -- "political characters, to political crimes and misdemeanors, and to political punishments."

Now, a great deal of the disagreement among historians stems from a small but fateful decision taken by the Constitutional Convention's committee on style.

Before the Constitution reached that committee, Mason's original wording on impeachment was changed from against the state to crimes against -- high crimes and misdemeanors against the United States. The committee was charged with polishing the document's language, but with instructions that the meaning not be changed at all.

Yet by removing in Article I, Section four, the words "against the United States," the committee created a Pandora's box which we have opened 211 years later.

The absence of the wording "against the state or against the United States" in the final document has persuaded some historians and constitutional scholars that the Constitution embraces all sorts of private crimes as impeachable.

Yet many, if not most American historians, including the nearly 500 who have now endorsed the widely publicized statement imploring the impeachment drive, hold to the view that Mason's wording and Wilson's observation best express the letter and the spirit of what the framers had in mind.

By that standard, the current charges against President Clinton do not -- we American historians believe -- rise to the level of impeachable offenses.

As further historical evidence, I would point to the fact that the only other occasions when presidential impeachment was pursued against Presidents Andrew Johnson and Richard Nixon plainly involved allegations of grievous public crimes that directly assaulted our political system.

Another pivotal piece of evidence has to do with the Nixon impeachment. In 1974, the Judiciary Committee declined to approve a bill of impeachment, an article of impeachment connected to serious allegations that President Nixon had defrauded a federal agency, the Internal Revenue Service.

Now without question, an occasion could arise when it would be necessary to expand on the framers language, to cover circumstances they may have never contemplated, including truly monstrous private crimes.

I would hope, for example, that any president accused of murder even in the most private circumstances would be impeached and removed from office. But not even the president's harshest critics -- as far as I know -- have claimed that the current allegations are on a par with murder.

Various representatives, scholars and commentators have offered technically plausible, though, I think deeply mistaken and misleading arguments contending that the allegations against President Clinton rise to an impeachable standard under the definitions of crimes against the state.

There has been talk of a concerted attack on one of the coordinate branches of government, of a calculated presidential abuse of power -- namely, that he raised issues of executive privilege and because he lied to his aides.

But these assertions rightly sound overwrought, exaggerated and suspicious to ordinary Americans, let alone to professional historians, when matched against the facts of the case.

Similar magisterial language was used in the impeachment proceedings against President Johnson and had impact in the Congress. Johnson, too, after all had violated a federal law much more definitively than President Clinton has.

Since then, though, historians have looked behind the language at the actual facts of the case as well as at the political context of the time. And in general, they have concluded that the impeachment effort against Johnson was a drastic departure from what the framers intended, one that badly weakened the presidency for decades.

It's the reason that very few of us can remember the names of all of those presidents between Ulysses S. Grant and Theodore Roosevelt. So, too, later generations of historians will judge these proceedings.

I strongly believe that the weight of the evidence runs counter to impeachment. What each of you on the committee and your fellow members of the House must decide, each for him or herself, is whether the actual facts alleged against the president, the actual facts and not the sonorous formal charges, truly rise to the level of impeachable offenses.

If you believe they do rise to that level, you will vote for impeachment and take your risks at going down in history with the zealots and the fanatics.

WILENTZ: If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway for some other reason, history will track you down and condemn you for your cravenness.

Alternatively, you could muster the courage of your convictions. The choice is yours.

Second, on impeachment and politicization. Many commentators have noted, including Attorney General Katzenbach, correctly, that presidential impeachment is strictly speaking a political and not a judicial matter. Yet there is all the difference in the world between a political procedure and politicized one. A political proceeding is a deliberative, bipartisan, even-handed effort to assess possible political offenses under the Constitution. A politicized procedure, however, overlooks constitutional standards and heeds other considerations, be they political favors, anger at the president or pressure from party leaders.

On the basis of recent press reports, I fear that these proceedings are on the brink of becoming irretrievably politicized, more so than even the notorious drive to remove Andrew Johnson from office 130 years ago.

I'd like to be able to share with you the story of that impeachment of Johnson and its relevance to our current distempers. The light, however, has turned orange, and I don't have much time. So I'll skip over that. Perhaps we'll be able to do that in questioning.

The point that I wanted to make is that it seems to me that unlike then when members of the House of Representatives were firmly convinced that President Johnson had committed high crime -- high misdemeanor, today it seems that other considerations are coming into play, that perhaps something else will be going on. Indeed, compared to 1868, a perverse logic has taken hold.

Some have said that we should impeach a president because we do not think the Senate will remove him. And this perverted logic turns the impeachment vote into a thoroughly politicized and reckless move. I see the red light, Mr. Chairman, and I will wrap up.

HYDE: Thank you.

WILENTZ: Forget about constitutional standards and duties and do the short-term political thing -- sailing the ship of state into dangerous waters uncharted in this century. Such willingness to pass the buck on so grave and indelible a matter of impeachment is a feeble evasion of responsibility and a degradation of conscience.

Finally, on the question of the rule of law, what I say in my written statement is basically that it is a greater threat to the rule of law to actually go ahead with this impeachment than not to go ahead with this impeachment.

The argument that somehow allowing the president to get away with suspected perjury and obstruction of justice will countenance an irreparable tear in the seamless web of American justice, that if we impeach the president the rule of law will be vindicated if only in a symbolic way, proving forcefully that no American is a above the law and that the ladder of the law has no top and no bottom, this argument I believe is nonsense, logically and historically, with all due respects.

Rather I believe -- and we can talk about this later on -- the impeachment process poses a far greater risk to the rule of law.

A final comment -- I began by discussing President Clinton's accountability for the current impeachment mess. By equivocating before the American people and before a federal grand jury, not to mention before his family and friends, he has disgraced the presidency and badly scarred his representation. He has apologized and asked for forgiveness.

But now, as mandated by the Constitution, the matter rests with you, the members of the House of Representative. You may decide as a body to go through with impeachment, disregarding the letter as well as the spirit of the Constitution, defying the deliberate judgment of the people whom you are supposed to represent, and in some cases deciding to do so out of anger and expedience.

But if you decide to do this, you will have done far more to subvert respect for the framers, for representative government and for the rule of law than any crime that has been alleged against President Clinton, and your reputations will be darkened for as long as there are Americans who can tell the difference between the rule of law and the rule of politics.

HYDE: Thank you, Professor, very much.


Investigating the President

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Tuesday, December 8, 1998

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