Sen. Kennedy's closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. Edward Kennedy (D-Massachusetts): Every four years, citizens of our country exercise one of the most important rights of our democracy--the right to vote for the President of the United States. This constitutional privilege is valued by all Americans and envied by millions around the world. It proves that the will of the majority will prevail, and that power will be transferred peacefully through the election process from one President to the next, time and again.
The essence of our democracy is the power of the right to vote. Many of our greatest battles in the Senate and the country in recent decades have been waged to extend and protect that right.
I think especially of the Voting Rights Acts, which have been at the heart of our civil rights debates. I think of our success in 1970 in lowering the voting age to 18, so that young Americans who were old enough to fight in the Vietnam War would be old enough to vote about that war, which America never should have fought. I think of the Supreme Court's great decision on one person, one vote, and our efforts in Congress to protect it.
I also think of the success of democracy in other lands--in Chile and Argentina and other nations in our hemisphere--and in Greece, in South Africa, and in many other countries.
The Framers of the Constitution clearly understood the fundamental place of the right to vote in the new democracy they were creating. They clearly did not intend the Impeachment Clause to nullify the vote of the people, except in the most extraordinary cases of great danger to the nation.
The entire history of the debates at the Constitutional Convention demonstrates their clear intent to limit impeachment as narrowly as possible, to prevent a willful partisan majority in Congress from undermining the right to vote and the power of the President the people had elected.
The Framers of the Constitution also made clear that the President was not to be subordinate to the Senate or the House of Representatives. The new government they created was based on another fundamental principle as well--the principle of separation of powers among the three coequal branches of government--the Executive Branch, the Legislative Branch, and the Judicial Branch. They specifically did not create a parliamentary system of government, in which the President would serve at the pleasure of Congress.
In their wisdom, the Framers recognized that in certain extreme cases, a narrow exception to the orderly transfer of Presidential power through national elections every four years was necessary to protect the nation from an abusive President. And so they created the impeachment process, by which the President could be removed from office by the Senate and the House of Representatives in extreme cases where the President had committed 'Treason, Bribery, or other high Crimes and Misdemeanors'.
The Framers of the Constitution made clear that the orderly transfer of Presidential power through national elections was to be scrupulously followed. They took great care to guarantee that this transfer would rarely, if ever, be undermined by the impeachment of the President. Removal of the President would come only after the House of Representatives--with the sole power to impeach--and the Senate--with the sole power to conduct a trial--found that the President had committed 'Treason, Bribery, or other high Crimes and Misdemeanors,' a term borrowed from the English impeachment experience.
Clearly, the Framers intended the House and the Senate to use the impeachment power cautiously, and not wield it promiscuously for partisan political purposes. Sadly, in this case, Republicans in the House of Representatives, in their partisan vendetta against the President, have wielded the impeachment power in precisely the way the Framers rejected--recklessly and without regard for the Constitution or the will of the American people.
First, Republicans on the House Judiciary Committee essentially swallowed the referral of Independent Counsel Kenneth Starr whole, without seriously questioning it or calling any witnesses. They used the referral as the foundation for Articles of Impeachment which were released to the public before the White House counsel had an opportunity to complete their testimony before the Committee.
Why were the House Judiciary Committee and the House of Representatives on the fast track to impeachment? Because, as House Manager Hyde told the Senate, 'we were operating under time constraints which were self-imposed but I promised my colleagues to finish it before the end of the year. I didn't want to drag it out.' In the battle between speed and fairness, should speed have prevailed over fairness? Clearly not. But the lame duck Republican House of Representatives was bent on acting before the last Congress ended, fearful that their slimmer majority in the current Congress would not approve any articles of impeachment at all.
In their most blatant attempt of all to stack the deck against the President, the House Republican leadership refused to allow a fair vote on censure as an alternative to impeachment an alternative that would have ended this unseemly charade two
months ago. Instead, Members of the House were given a single choice--a vote to impeach the President or do nothing.
After their partisan victory in the House of Representatives, the House Managers brought their vendetta against the President to the Senate. They brought thousands of pages of evidence, containing 22 statements by Monica Lewinsky, 6 statements by Vernon Jordan, 3 statements by Sidney Blumenthal, the videotaped deposition of President Clinton in the Jones case, and the videotaped record of his appearance before the grand jury. Their opening statements attempted to shed the most favorable light on the evidence, but it was quickly apparent that they had not and could not persuade two-thirds of the Senate to remove the President.
While trying to persuade Senators to convict President Clinton, the House Managers argued relentlessly for the opportunity to examine witnesses during the trial. The hypocrisy in the position of the House Managers on witnesses was obvious. They did not think it was necessary to call witnesses in the House proceedings. They demeaned the House by their partisan excesses. But they were shameless in their attempt to force the Senate to wallow in witnesses.
Our Republican friends have desperately been trying to produce a two-thirds majority to remove the President from office. But their efforts have succeeded only in turning a serious constitutional process into a partisan process that demeaned both the House and the Senate and became a painful ordeal for the entire country.
In pursuing the allegations of perjury and obstruction of justice, the House Managers presented an ever changing, constantly shifting list of charges to the Senate. Veteran prosecutors testified before the House Judiciary Committee that they would never prosecute such a case, and that it would be irresponsible for the Senate to attempt to use these allegations as a basis to remove the President from office.
Some of the allegations of perjury by the House Managers were laughable. Clearly, it was not perjury for the President to use the phrase 'certain occasions' to describe the frequency of his contacts with Miss Lewinsky, or to use the word 'occasional' to describe the frequency of his telephone conversations with her.
Even the few allegations of perjury and obstruction of justice that are arguably more serious are far from proven beyond a reasonable doubt, which is the standard that I believe should be applied by the Senate in considering the facts of this case. Indeed, I do not believe they were proved by clear and convincing evidence. But even if any such allegations were true, they still fall far short of the constitutional standard required for impeaching a President and removing him from office.
President Clinton's behavior was wrong. All of us condemn it. None of us condones it. He failed to tell the truth about it, and he misled the country for many months. But nothing he did rises to the high constitutional standard required for impeachment and removal of a President from office.
I believe that conclusion is required by the Constitution. At the time of the Constitutional Convention in 1787, the Framers engaged in a vigorous debate about the role of the President, the new chief executive they were creating. In addition to determining the basic powers of the office, many of those at the convention debated whether or not impeachment should apply at all to the President. As University of Chicago Law School Professor Cass Sunstein told the House Judiciary Subcommittee on the Constitution, 'Many of the framers wanted no impeachment power whatsoever . . . [t]hey suggested that in a world of separation of powers and election of the President, there was no place for impeachment. . . . That position was defeated by reference to egregious hypotheticals in which the President betrayed the country during war or got his office through bribery. Those are the cases that persuaded the swing votes that there should be impeachment power.' In the end, the Framers reluctantly agreed that there might be limited circumstances in which a President should be removed from office by Congress in order to protect the country from great harm, without waiting for the next election.
Once the Framers concluded that the President could be removed by the legislature in such cases, they debated the standard for impeachment. Nine days before the final Constitution was signed, the impeachment provision was limited only to treason and bribery. George Mason then argued that the provision was too restrictive, and should be amended to include the phrase, 'or maladministration.' But, vigorous opposition came from others who believed that such a vague phrase would give Congress too much power to undermine the President. Mason withdrew his original proposal and substituted the phrase, 'other high Crimes and Misdemeanors against the State'--a phrase well-known from English law.
The Constitutional Convention adopted the modification by a vote of eight states to three--confident that only serious offenses against the nation would provide the basis for impeachment. Later, the Committee of Style removed the words, 'against the State,' but because the Committee had been instructed not to change the meaning of any provision, the impeachment clause should be interpreted as it was originally drafted.
The debate surrounding the Impeachment Clause was significant. By first expanding and then narrowing the clause, the Framers clearly intended that the President could be removed from office for 'crimes' beyond treason and bribery, but that he could not be removed for inefficient administration or administration
inconsistent with the dominant view in Congress. Impeachment was not to be the illegitimate twin of the English vote of 'No Confidence' under a parliamentary system of government. The doctrine of separation of powers was paramount. The President was to serve at the pleasure of the people, not the pleasure of the Congress, and certainly not at the pleasure of a willful partisan majority in the House of Representatives.
As Charles Black stated in his highly regarded work on impeachment, the two specific impeachable offenses--treason and bribery--can help identify both the 'ordinary crimes which ought also to be looked upon as impeachable offenses, and those serious misdeeds, not ordinary crimes, which ought to be looked on as impeachable offenses . . .' Using treason and bribery as 'the miners' canaries,' Professor Black states that 'high crimes and misdemeanors, in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not 'criminal,' and which so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.'
The distinguished historian, Professor Arthur Schlesinger, told the House Judiciary Subcommittee on the Constitution, the '[e]vidence seems to me conclusive that the Founding Fathers saw impeachment as a remedy for grave and momentous offenses against the Constitution; George Mason said, great crimes, great and dangerous offenses, attempts to subvert the Constitution.'
In addition to Professor Schlesinger, over 430 law professors and over 400 historians and constitutional scholars have stated emphatically that the allegations against President Clinton do not meet the standard set by the Constitution for impeachment. The scholarly support for the argument that the charges against President Clinton do not rise to the level of impeachable offenses--even if they are true--is overwhelming, and it cannot be ignored.
The law professors wrote, '[i]t goes without saying that lying under oath is a very serious offense. But even if the House of Representatives had the constitutional authority to impeach for any instance of perjury or obstruction of justice, a responsible House would not exercise this awesome power on the facts alleged in this case.'
The historians wrote, '[t]he Framers explicitly reserved [impeachment] for high crimes and misdemeanors in the exercise of executive power. Impeachment for anything else would, according to James Madison, leave the President to serve 'during the pleasure of the Senate,' thereby mangling the system of checks and balances that is our chief safeguard against abuses of power . . . Although we do not condone President Clinton's private behavior or his subsequent attempts to deceive, the current charges against him depart from what the Framers saw as grounds for impeachment.'
The House Managers apparently made no attempt to obtain scholarly support for their opposition. It is a fair inference that they did not do so because they knew they could not obtain it.
The House Managers argue that because the Senate convicted and removed three federal judges for making perjurious statements, we must now convict and remove the President. But, to determine whether or not President Clinton should be removed from office requires the Senate to do more than make simplistic analogies to federal judges.
Removal of the President of the United States and removal of a federal judge are vastly different. The President is unique, and his role is in no way comparable to the role of the over 900 federal judges we have today. The impact on the country of removing one of 900 federal judges is infinitesimal, compared to the impact of removing the only President we have. And the people elect the President for a specific four year term, while federal judges are appointed for life, subject to good behavior. These distinctions are obvious, and they make all the difference.
Other precedents also undermine the House Managers' insistence that the Senate is bound to remove President Clinton from office. The House Judiciary Committee refused on a bipartisan basis to impeach President Nixon for deliberately lying under oath to the Internal Revenue Service, although he under reported his taxable income by at least $796,000. During the 1974 Judiciary Committee debates, many Republican and Democratic members of the Committee agreed that tax fraud was not the kind of abuse of power that impeachment was designed to remedy.
Finally, the House Managers argue that President Clinton must be removed to protect the rule of law and cleanse the office. It is not enough, they say, that he can be prosecuted once he leaves office. But protecting the rule of law under the Constitution is not the proper standard for removal of the President. Before impeaching and convicting the President, the Senate must find that he committed 'Treason, Bribery, or other high Crimes and Misdemeanors.' As Professor Laurence Tribe testified before the House Judiciary Subcommittee on the Constitution, '[i]f the proposition is that when the President is a law breaker, has committed any crime, then the rule of law and the take care clause requires that one impeach him, then we have rewritten the [impeachment] clause.'
The Constitution has guided our country well for two centuries. The decision we make now goes far beyond this President. As we decide whether President Clinton will be removed from office, the future of the Presidency and the well-being of our democracy itself are at stake.
How will history remember this Congress? The Radical Republicans in the middle of the 19th century were condemned in the eyes of history for using impeachment as a partisan vendetta against President Andrew Johnson. And I believe the Radical Republicans at the end of the 20th century will be condemned even more severely by history for their partisan vendetta against President Clinton.
The impeachment process was never intended to become a weapon for a partisan majority in Congress to attack the President. To do so is a violation of the fundamental separation of powers doctrine at the heart of the Constitution. It is an invitation to future partisan majorities in future Congresses to use the impeachment power to undermine the President. It could weaken Republican and Democratic Presidents alike for years to come.
This case is a constitutional travesty. We deplore the conduct of President Clinton that led to this yearlong distraction for the nation. But we should deplore even more the partisan attempt to abuse the Constitution by misusing the impeachment power.
Friday, February 12, 1999
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