Why Impeachment Was Wrong -- And Summary Judgment Now is Right

Nicholas Johnson

December 20, 1998

Note:  This piece was first "published" as an entry on the "JC News" [Johnson County, Iowa] list December 17, 1998, and slightly revised post-impeachment.

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Yesterday, December 19, 1998, the U.S. House of Representatives approved articles of impeachment of President Clinton.  This was only the second time in U.S. history the House had done so.  The action is of sufficient significance that I believe every citizen would do well to think through the issues and come to his or her own conclusions.  What follows is the result of my attempts to do so.

 -- N.J.

I believe that the impeachment of President Clinton, based on the allegations before the House of Representatives, was wrong because:

1. It is inconsistent with the constitutional language and intent. Whatever Clinton may or may not have done, whatever he may have said about what he may or may not have done, by no stretch can it be characterized as akin to "Treason, Bribery, or other [my emphasis] high Crimes and Misdemeanors." There was no "treason." There was no "bribery." This did not involve personal use of governmental power and agencies to punish a president's enemies (as with Nixon's use of the CIA, FBI and IRS). It did not involve the unauthorized sale of weapons to an enemy to raise the money to conduct a secret and undeclared war elsewhere (as with the Reagan-Bush Iran-Contra efforts). Had the Constitution's drafters intended to make "high crimes and low life lying, lust and slime" grounds for impeachment presumably they would have given us more of a clue.

2. It establishes a precedent that it is legitimate to use impeachment as a political weapon, as an alternative to (a) democratic elections, or (b) routine law enforcement, or (c) censure. (Contrary to the impeachment advocates' arguments, censure is not only constitutional, but often has been used by the House in a variety of contexts). The almost pure party split in the House vote, and the majority of public opinion that opposed impeachment, go to both 1 and 2. Impeachment should require a fairly substantial public, nonpartisan, national consensus. At a minimum it should include a substantial number of members of the president's political party in the House -- as it did in Nixon's case. It is dangerously subversive of the constitutional separation of powers in a democracy to permit a president's political opponents to utilize impeachment when the outcome turns, merely, on which party has the most members in the House of Representatives.

3. There has been no fact-finding. Yes, I know the "trial" is to take place in the Senate. But, as the federal prosecutors brought before the Judiciary Committee explained, one normally does not proceed to criminal trial without a firm sense that conviction is relatively certain. Presumably, before "impeaching" a president, and putting the Senate and country through something much more costly and disruptive than an ordinary criminal trial, the standard should be even higher. Congressman Conyers spoke most persuasively, during the floor debate, regarding the record evidence contradicting the impeachment articles' allegations. It is not necessary to believe that Congressman Conyers is right and the Republican majority wrong to understand that there is, at a minimum, a failure to agree, a failure to find, "the facts" in this case.

4. Many (including my own member of Congress, Jim Leach) have been quick to say "the President lied under oath" or "committed perjury." One need not reach a sophist's parsing of "is" to realize that something more than Judge Starr's careful selection of testimony from the record is necessary before reaching this conclusion. What, precisely, did the President say that you believe was a "lie"? What are the underlying events that prompt your conclusion? How do you know those to have been the events? If based on a witness' testimony, why do you think it reliable? If contradicted by some other witness' testimony, why do you find the former more credible? The Committee made some, feeble, efforts in this direction; but because they refused to call any fact witnesses they did not, and could not, make any precise fact findings as such. In short, ask the general semanticist's questions: "What do you mean?" and "How do you know?"

5. At bottom, what we have here are: (a) allegations based on disputed facts (presented in a one-sided manner by Starr), (b) without Committee fact findings, (c) which, even if proved, might well not constitute perjury (because there is considerable dispute about the law of perjury (both in theory and as applied) as well as the facts), (d) which, even if perjury, would not be prosecuted as such. (According to the unanimous opinion of the bi-partisan prosecutors who appeared before the Judiciary Committee perjury prosecutions are usually limited to cases in which the lying is about a serious crime.) (e) This should not be treated as grounds for removing from office a twice-elected United States President.

6. As a result, there is a constitutional impropriety in the House essentially serving as a mere conduit from the Starr report to the Senate, rather than itself taking evidence, making findings, and identifying, precisely, what words the President said that it has found to be “lying under oath.”

7. It imposes on the U.S. Senate, and the American people, potentially months of additional focus on issues which (if reports of potential votes in the Senate, and polls of the people, can be believed) neither thinks are deserving of more money and time (not to mention the "opportunity costs" of not focusing on what does need attention).

8. The impeachment is widely perceived to have been the result of a petty, partisan, power play driven by vindictiveness -- whether or not this perception is accurate or fair. (It does seem to be the case that some have been intent on "getting" Clinton since he first entered office, charging (unsuccessfully) everything from drug transactions in Arkansas to murder in Washington -- none of which have, until now, stuck.) The impeachment has had, and will continue to have, an adverse impact on the political system, the respect of American citizens for their institutions of government, their willingness to hold office (or even to vote), the comity that must exist within the House, and the nation's view of the Republican leadership -- the recently-designated Speaker Livingston having already resigned. Regardless of one's political affiliation, the success of our democratic system of government requires that the people have at least minimal respect for all political leaders.

9. It is nonsense, in my view, to suggest that impeachment was necessary in order to insure that President Clinton be punished in some way for his behavior. (By way of typical example, Iowa's Congressman Ganske said such things as, "if an elected official can commit felony crimes," "the only real remedy [is impeachment]," "lie under oath . . . and then escape punishment.") (a) Those voting for impeachment because "the President is not above the law" are correct. But that is precisely why they are wrong to argue that he will go unpunished unless he is impeached. He can be prosecuted for perjury -- if such there has been -- just like any other citizen; just not while he is still in office. If the reason he will go unpunished is because he did not, in fact, commit perjury, or, if he did no prosecutor would ever prosecute (anyone) under these facts, that would seem to me stronger reasons to vote against impeachment, not for it. (b) In fact, of course, he has already been, and will continue to be, "punished" in a number of ways: [1] imagine if the details of your worst deeds were, over a period of months, repeatedly spread around the neighborhood, let alone the world, [2] dealing with his wife and daughter, [3] the fact that the House Judiciary Committee recommended, and the full House voted, to make him the second president in U.S. history to be impeached by the House, [4] the impact on the history books (the only thing of real value any President has to look forward to), [5] legal fees, [6] the threat of future prosecution for perjury, [7] the continuing threat of Senate (or even House) censure, [8] not to mention the possibility of his ultimate removal from office following Senate trial, [9] the inclusion of the previously unprecedented (in impeachment proceedings) House suggestion that he not only be removed but be banned forever from future public office -- to name a few.

10. What Clinton did was not only morally wrong, it was reckless and stupid. But it was a form of immoral reckless stupidity in human behavior that seems to be rather widespread -- so much so as to include the recently-elected Republican Speaker of the House, and the Republican Chairman of the Judiciary Committee that brought forth the articles of impeachment --  not to mention notorious examples from among televangelists of the religious right. "Ah, but Clinton tried to cover it up until he was found out and could deny it no longer and then he 'lied under oath.'" Livingston’s resignation suggests that even he recognizes that there is little or no difference between (a) Clinton's misleading (while, in his own mind, perhaps, technically "telling the truth") his staff and the American public by what he did say, and (b) Livingston's misleading, by his failure to say anything, his Republican colleagues about a matter that, surely he must have known, would be of relevance to them at this time and in this age -- until he was "found out and could deny it no longer." Chairman Hyde was equally silent until his past was revealed. Presumably, Clinton, Livingston and Hyde all believe they "did not lie." They just tried to cover up, to fail to reveal -- to reveal either the truth or a lie -- to postpone in the hopes of avoiding. At least one rather decisive reason why Hyde and Livingston did not "lie under oath" about the matter was because neither was ever pursued -- let alone by a prosecutor with a $40 million budget -- to the point of being put under oath and asked. We can only speculate as to what they might have done; it is not clear that, had they the legal acumen and counsel that Clinton had, they would have done any differently from what he did. Regardless of the answer to that question, I do not think Livingston should have resigned; I do not think Hyde should resign; I do not think Clinton should resign -- let alone be impeached and removed from office.

In short, in my view, it's very difficult to come up with a rational, non-partisan explanation as to why what the Republican members of the House have done was necessary, constitutional, wise, just, in the best interests of the House and the American people -- or even the Republican Party.

11.  Summary Judgment.  Now that this impeachment proceeding has moved to the U.S. Senate the controversies and questions continue -- some new, some old.  Can an impeachment proceeding continue beyond the expiration of the impeaching House?  Are there enough votes in the Senate to remove President Clinton from office?  Should the Senate consider censure, and if so before or after the impeachment trial?  Can it conduct a trial at the same time it is carrying on other business?  How long will the trial take?  What rules of evidence and procedure should be applied?  What is the role of the presiding officer, the Chief Justice of the United States?  Should witnesses be brought before the Senate, and if so how many, and who?

Although the following proposed procedure does not answer all of these questions, I believe it is a constructive way to address many of them.

There are Federal Rules of Civil Procedure ("FRCP") applicable in federal courts.  They are not, of course, binding on the Senate during an impeachment trial.  But they are an illustrative source of the concept of "summary judgment," found in FRCP Rule 56.  It provides that "a party against whom a claim . . . is asserted . . . may . . . move . . . for a summary judgment in the party's favor . . ..  The judgment sought shall be rendered forthwith if the pleadings . . . show . . . that the moving party is entitled to a judgment as a matter of law."  Rule 56 (b) and (c).

It's a common sense, practical procedure.  In other words, why put the judge, jury, parties, witnesses and lawyers through a protracted trial if no matter what the plaintiff is able to prove we know ahead of time that the plaintiff is going to lose as a matter of law?

(For the purposes of this suggestion it is not necessary to examine whether the appropriate analogy would be to a demurrer, or motions for summary judgment, dismissal, futility -- or something else.  Not only does the Senate have its own "Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials,"  but they may be changed at any time.  The present rules do contemplate motions.  "If a Senator wishes . . . to offer a motion . . .." Rule XIX.  "All preliminary questions . . . and all motions, shall be argued . . .."  Rule XXI.  "[N]o member shall speak more than once on one question, and for not more than ten minutes on an interlocutory question . . .."  Rule XXIV.  It is the principle and procedure I advocate, not its precise formulation.)

Nor do I wish to pursue the substantial body of law involving the details of Rule 56.  For one thing, it also contemplates that "there is no genuine issue as to any material fact," Rule 56(c), whereas (as discussed above) one of the major failings in the House proceedings was the failure to address and resolve very substantial fact issues.

The general concept of summary judgment, however, does offer the Senate the following possible scenario.  (a) Open the new Senate session and proceed immediately to the impeachment "trial" in accordance with the Constitution and the Senate's Rules.  (b) Accept as evidence the report passed from Starr to the House Judiciary Committee to the full House.  (c) Use whatever procedure is appropriate to bring before the Senate a motion similar to a motion for summary judgment.  It would declare, in effect, "assuming the worst about President Clinton, based on the evidence before the Senate, and assuming that after our trial every disputed fact question was decided against him, we would still not vote to remove him from office."  (d) If such a motion would pass (that is, receive enough votes to preclude the two-thirds vote necessary for removal), there would be no need to proceed further.  The "trial" would have been held and judgment rendered.  (e) The Senate could then get on with its business, including the possibility of a censure resolution (such as proposed by Presidents Bush and Carter, or in some other format).