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Constitution mum on sexual peccadilloes


By Charles Bierbauer
CNN Senior Washington Correspondent

September 18, 1998
Web posted at: 10:16 a.m. EDT (1016 GMT)

In this story:

WASHINGTON (CNN) -- Even Jefferson, Madison, Hamilton and Mason, heads together at the Constitutional Convention, had difficulty agreeing just what constitutes grounds for impeachment.

Treason and bribery were clear, but that was not quite enough. Virginian George Mason proposed adding "maladministration" as a catch-all constraint against an overreaching president.

"So vague," complained James Madison, in about so many words.

So the framers of the U.S. Constitution borrowed from English law and settled on the bedeviling compromise "high crimes and misdemeanors."

So vague, we might ourselves complain.

What were those founding fathers thinking?

Could the founding fathers have contemplated the sexual peccadilloes of a philandering president and his possible penchant for perjury?

Founding Fathers

"I highly doubt that Mr. Madison and Mr. Jefferson had this in mind when they wrote the Constitution," said James Carville, staunch defender of President Clinton, in criticizing the grounds for impeachment advanced by independent counsel Ken Starr.

Thomas Jefferson, if his purported dalliance with his slave Sally Hemmings is to be believed, might have had to think twice about extending impeachable offenses to the bedroom -- or the pantry off the Oval Office.

It may have been a "misdemeanor" by the founding fathers not to have spelled out more clearly the grounds for impeachment. But the question is not what might have been impeachable in 1787, but what is in 1998.

Is there a Webster's in the House?

It's important to remember that the founding fathers were the "framers" of the Constitution, not its decorators. The framework is solid, for the ages. Individual offenses are more the fabric of an age.

Clinton attorney David Kendall argues the impeachment mechanism "is only to be employed for the most serious kinds of public malfeasance."

And constitutional scholars note that in 1787 parlance, the term "misdemeanors" meant more than unpaid parking tickets.


"Their definition was a lot closer to the definition of 'high' than the way we consider misdemeanor today," says former Republican Congresswoman Susan Molinari. "That's not to say that perjury would not fit under those circumstances."

"Lying to a grand jury is also a felony, so it would be at the level of an 18th century misdemeanor," says former Democratic Congresswoman Pat Schroeder.

If the House Judiciary Committee approves articles of impeachment, the 435 current representatives will have to judge whether Clinton's transgressions amount to an impeachable offense.

Perhaps the most frequently quoted definition was offered in 1970 by then-Congressman Gerald Ford.

"An impeachable offense is basically whatever a majority of the House of Representatives considers it to be at a given moment in history," Ford suggested.

Ford was speaking in the context of starting impeachment proceedings against Supreme Court Justice William O. Douglas. Little did Ford know that in just four years the imminent impeachment of President Richard Nixon would lead to Ford becoming the nation's only unelected president.

Ford says now he'll stick by his definition. But whatever the House "considers it to be" is hardly a legal definition. They knew that at the Constitutional Convention.

"Those offenses which proceed from the misconduct of public men ... may with peculiar propriety be denominated POLITICAL," Alexander Hamilton wrote in 1788 in Federalist Paper No. 65 (his emphasis).

"The prosecution ... will seldom fail to agitate the passions of the whole community, and to divide it into parties," Hamilton added.

Hamilton knew politics, then and now.

No one said this was supposed to be easy

It was not meant to be an easy process.

Andrew Johnson, the only U.S. president ever impeached, was certainly a political target, and barely held onto the nation's highest office. (Nixon resigned before impeachment proceedings against him could get that far.)

Chief Justice William Rehnquist, who would serve as judge if a Clinton case came to trial in the Senate, called Johnson's case one of "legislative bullying."

In 1868, Johnson fired Secretary of War Edwin Stanton, defying the Republicans who had passed legislation that barred him from changing Cabinet members. The House impeached Johnson, and the Senate fell one vote short of the two-thirds majority needed to convict him.

Rehnquist, in a 1987 book, described Congress as being "in the hands of Radical Republicans" who sought to tie the hands of the president.

But with the experience of presidential impeachment so limited, parallels are risky to draw.

Andrew Johnson was an unpopular president, but innocent of any crime. Bill Clinton remains a popular president, but has admitted a sexual relationship after repeatedly denying it, even under oath in his deposition in the Paula Jones sexual harassment case.

Independent counsel Starr believes that's impeachable, but Congress will have to make up its own mind.

So, how low can a high crime go? How demeaning can a misdemeanor be?

Members of the House can look to the founding fathers for inspiration in trying to answer those questions, but not for much guidance.

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