Sen. Sarbanes' closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. Paul Sarbanes (D-Maryland): Mr. Chief Justice and colleagues, in his award-winning book "The Making of the President, 1960," Theodore H. White refers to an American Presidential election as "the most awesome transfer of power in the world."
He notes that:
No people has succeeded at it better or over a longer period of time than the Americans. Yet as the transfer of this power takes place, there is nothing to be seen except an occasional line outside a church or school or file of people fidgeting in the rain, waiting to enter the voting booths. No bands play on election day, no troops march, no guns are readied, no conspirators gather in secret headquarters.
And later in that opening chapter White observes:
Good or bad, whatever the decision, America will accept the decision and cut down any man who goes against it, even though for millions the decision runs contrary to their own votes. The general vote is an expression of national will, the only substitute for violence and blood.
I begin with those quotes to underscore the critical significance of a Presidential election in the structure of our national politics. Many learned commentators have observed that one of the original contributions to the art of government made by the Constitutional Convention was to develop a Presidential, as opposed to a parliamentary, system of government, wherein the executive is chosen by the electorate and is not dependent upon the confidence of the legislature for his office. As former Attorney General Katzenbach observed:
It is 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 concerns about the separation of powers.
He goes on to note that if the removal power is not limited, as it clearly is, impeachment could be converted into a parliamentary vote of no confidence which, whatever its merits, is not our constitutional system. The separation of powers embraced in our Constitution and the fixed term of the President have been credited by many observers with providing stability to our political system.
It is important therefore to recognize that in considering the matter before us we do so in the context of a Presidential election, wherein the people have chosen the single leader of the executive branch of our Government--the President.
Since the Framers put the impeachment remedy in the Constitution, it is obvious they recognized that there may be circumstances which require the Congress to remove a duly elected President. However, in my judgment, as the Framers indicated, we need to be very careful, very cautious, very prudent, in undertaking that remedy lest we introduce a dangerous instability in the workings of our political institutions.
Viscount Bryce, whose bust is at the foot of the steps in the hallway below, was a distinguished commentator about the American political system. He wrote in "The American Commonwealth" in discussing the impeachment of a President:
Impeachment is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy, it is unfit for ordinary use. It is like a 100-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at. Or to vary this simile, impeachment is what physicians call a heroic medicine, an extreme remedy proper to be applied against an official guilty of political crimes.
Let me turn next to the argument which seeks to draw an analogy between the impeachment of a President and the impeachment of judges, an argument that cites three recent cases in which judges have been removed from office. In my view, this analogy misses the mark.
Two of the judges that the Senate convicted and thus removed from office had been accused in a criminal case, tried before a jury, found guilty beyond a reasonable doubt, and were in jail. Until we removed them they were still drawing their salary. In the third case, the defendant had been acquitted of bribery, but a judicial inquiry found that he had perjured himself to cover up the bribery misdeeds. Difference No. 1: Judges can be criminally prosecuted while in office; the President cannot. (At least that has been the theory up to this point.)
Secondly, elected versus appointed. Judges are appointed to the bench for life. They can only be removed by impeachment. The President is elected by the people for a 4-year term and can only hold two such terms. As President Ford, when he was a Congressman, stated:
I think it is fair to come to one conclusion, however, from our history of impeachments. A higher standard is expected of Federal judges than of any other civil officers of the United States. The President and the Vice President and all persons holding office at the pleasure can be thrown out of office by the voters at least every 4 years.
Thirdly, one needs to consider the injury to the branch of Government which would result from the removal of the officer. The removal of one judge out of hundreds and hundreds of judges does not significantly affect the operation of the judicial branch of our Government. The removal of the President, the single head of the executive branch, obviously is in an entirely different category. The President, under our system, holds the executive power. In the end, executive branch decisions are his decisions.
In the minority report in the House Watergate proceedings, Republican Members stated:
The removal of a President from office would obviously have a far greater impact upon the equilibrium of our system of Government than removal of a single Federal judge.
The House Judiciary Committee majority report accompanying the article of impeachment against Judge Walter Nixon in 1989 similarly stated as follows:
Judges must be held to a higher standard of conduct than other officials. As noted by the House Judiciary Committee in 1970, Congress has recognized that Federal judges must be held to a different standard of conduct than other civil officers because of the nature of their position and the tenure of their office.
In putting on their case, the House Republican managers sought to portray a simple logical progression--first that the material which they brought before the Senate showed violations of provisions of the Federal Criminal Code, i.e., perjury and obstruction of justice. Then they argued that if you find such crimes, you have high crimes and misdemeanors and, ergo, removal from office. But let us look at this supposed logical progression which I view as flawed at each step.
First, I do not believe the House managers carried the burden of proof with respect to the commission of crimes. Since they relied on the Federal Criminal Code--charging crimes--in making their case, it is appropriate that they be held to the burden of proof of beyond a reasonable doubt--the standard used in criminal cases.
In the House Judiciary Committee a panel of distinguished former Federal prosecutors testified that a responsible Federal prosecutor would not have brought a criminal prosecution on the basis of the case set out in the Starr Report on which the House Judiciary Committee relied. One of them, Thomas P. Sullivan, a veteran of 40 years of practice in Federal criminal cases, and U.S. Attorney for the Northern District of Illinois from 1977 to 1981, stated the following:
If the President were not involved, if an ordinary citizen were the subject of the inquiry, no serious consideration would be given to a criminal prosecution arising from alleged misconduct in discovery in the Jones civil case having to do with an alleged coverup of a private sexual affair with another woman or the follow-on testimony before the grand jury. The case simply would not be given serious consideration for prosecution.
Now, let me move beyond this question of proving the case and address the next step in the managers' ostensible logical progression, namely that the crimes that they were trying to prove are high crime and misdemeanors and, therefore, a vote for conviction and removal must follow.
Actually, in considering this issue we must bear in mind the ultimate question: Does the conduct warrant removal from office? The House logic seems to be that any perjury, any obstruction of justice, warrants removal. As serious as those charges are, not all such conduct in all instances may rise to the level of an impeachable offense. In considering this matter, it is important to understand that the House articles included within them not only the charges but also the penalty. In the ordinary criminal case, there is a two-step judgment--guilt and then sentence. In an impeachment case, the finding of guilty carries with it removal from office--the remedy provided by the Constitution.
There is an important precedent for the view that in certain circumstances offenses of the sort alleged here may not rise to the level of a high crime and misdemeanor. That precedent is found in the tax article of impeachment of Richard Nixon which was before the House Judiciary Committee in 1974. That article charged President Nixon with knowingly filing tax returns which fraudulently claimed that he had donated pre-Presidential papers before the date Congress had set for eliminating such a charitable tax deduction. (It was worth $576,000 in deductions.) This deduction was claimed in tax returns that contained the following assertion just above the taxpayer's signature:
Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and, to the best of my knowledge and belief, it is true, correct and complete.
The House Judiciary Committee voted down that article of impeachment by a vote of 12 for, 26 against. As one of nine Democrats who joined the Republicans in voting against this article of impeachment in the Nixon case, I did not believe that in the circumstances of that case it rose to the level of a high crime and misdemeanor, I did not believe it was conduct against which the Founding Fathers intended the Congress to invoke the impeachment remedy.
Let me turn briefly to the procedure followed in this impeachment matter, since good procedure enhances the chances of good results while bad procedure does the opposite. I am prompted to do so by various comments made by House managers criticizing the Senate for the procedure we have followed. I think the Senate has handled this matter well under very difficult circumstances. Given that the House managers questioned our procedure, let us look at the procedure on the House side.
The House, which brought in no "fact" witnesses, came to the Senate and said to us, "In order to evaluate testimony that is in the record, you must bring witnesses in and look them in the eye in order to assess their credibility." Obviously, one must ask, how did the House managers assess the credibility of witnesses when they brought none before them and yet voted to bring articles of impeachment recommending the President's removal to the Senate?
Secondly, the other day, in response to a reasonable request by the President's lawyers on how the House planned to proceed in using deposition excerpts, a House manager said, "I believe the appropriate legal response to your request is that it is none of your damn business what the other side is going to put on." This same attitude marked the treatment of President Clinton's lawyers before the House Judiciary Committee.
Contrast this with the House Judiciary Committee's conduct in the matter of President Nixon's impeachment when the President's lawyers sat in with the committee in its closed sessions when committee staff presented findings of fact. The President's lawyers were able to challenge material, to ask questions, to supplement all presentations. Fact witnesses were called in and were subjected to questions by all. There was an understanding of the gravity of the matter for the Nation and the absolute imperative of having a fair process.
In this matter the House Judiciary Committee took only a few weeks to report impeachment articles. In the Nixon case the committee took 6 months. In the Judge Hastings case, the House Judiciary Committee received an 841-page report from the Judicial Conference as to why Hastings should be removed. Nevertheless, the committee undertook its own examination of the evidence. It heard 12 fact witnesses, deposed or interviewed 60 others, and held 7 days of hearings.
In closing, it is very important to keep in mind the distinction between the person who is President and the Office of President of the United States provided for in our Constitution.
President Clinton has engaged in disgraceful and reprehensible conduct which has severely sullied and demeaned his tenure as President. Because of his shameful and reckless behavior he has brought dishonor upon himself, deeply hurt his family, and grievously diminished his reputation and standing now, and in history.
But the diminishing of Bill Clinton must not lead us to diminish the Presidency for his successors as our Nation moves into the new millennium. There is a danger to the Nation in deposing a political leader chosen directly by the people and we must be wary of the instability it would bring to our political system.
In the report of the staff of the impeachment inquiry in 1974 on the constitutional grounds for Presidential impeachment, the conclusion states:
Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement--substantiality. In deciding whether this further requirement has been met, the facts must be considered as a whole in the context of the office, not in terms of separate or isolated events. Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.
I do not believe the conduct examined here meets this test.
I will vote against removing the President.
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