Good article from WSJ: re:Clinton is indictable w/o impeachment -
March 9, 1998
Yes, You Can Indict the President
By GARY L. MCDOWELL
In the next few weeks Kenneth Starr is likely to find himself at a particularly
vexatious fork in the legal road he has been traveling these past four years.
From the earliest Whitewater fraud investigations, through Travelgate and
Filegate, to the allegations of possible perjury and witness tampering
emanating from the Monica Lewinsky matter, Mr. Starr will have to decide
where to go with whatever evidence of presidential wrongdoing he has
uncovered.
One path, undoubtedly the smoother one, would lead him to the House of
Representatives under the independent counsel statute, which obligates him
to inform that House of any impeachable offenses. The other more
treacherous way would take the independent counsel directly to a criminal
indictment against President Clinton. Unfortunately, he is not likely to find
much guidance in most of the recent discussions of these weighty matters.
The past few weeks have focused public attention on impeachment for the
first time since Watergate, but this most basic and straightforward
constitutional provision has been the subject of great confusion at nearly
every level of public discourse. From the commonplace assumption that the
constitutional standard of "high crimes and misdemeanors" means whatever
Congress says it does (it does not; the phrase was a common law term of
art to the Founders with a reasonably precise meaning) to the idea that a
president cannot be indicted before he is impeached, history has been the
victim of political calculations. This is especially troubling on the issue of
whether indictment may precede impeachment.
The argument that a sitting president may not be indicted prior to
impeachment derives not from the Constitution or even from a judicial
decision as a matter of constitutional law. Rather, it originated in a
memorandum prepared in 1973 by then-Solicitor General Robert Bork in
the matter of Spiro Agnew. In that report, Mr. Bork drew a distinction
between indictment of the president and indictment of the vice president and
all other civil officers. In the case of Agnew, Mr. Bork concluded, there
was no reason he could not be indicted prior to impeachment; such was not
the case for the president, however, who would have to be impeached first.
The basis of this distinction was certain institutional attributes peculiar to the
presidency that Mr. Bork found "embedded" in the structure of the
Constitution.
The problem with this interpretation is that it elevates an argument that might
be reasonably inferred from the Constitution's overall design and structure
over the clear language of the document itself. When the provisions of the
Constitution dealing with impeachment are viewed in light of the history that
inspired them, it is clear that there is no immunity from indictment conferred
on the president or any other officer of the government. Nor is there any
demand that impeachment must precede such an indictment.
The Constitution lays out the mechanics of impeachment, including the limits
of the sanction, in Article I, 3: "Judgment . . . shall not extend further than to
removal from office and disqualification to hold and enjoy any office of
honor, trust or profit under the United States: but the party convicted shall
nevertheless be liable and subject to indictment, trial, judgment and
punishment according to law."
Later, in Article II, 4, the Constitution provides that the president, vice
president and all civil officers "shall be removed from office on the
impeachment for, and conviction of, treason, bribery, or other high crimes
and misdemeanors." To make clear that impeachment is a political rather
than a legal process, the Constitution specifically precludes the right to a trial
by jury or the possibility of a presidential pardon or reprieve in cases of
impeachment.
As Alexander Hamilton put it in The Federalist, echoing British
constitutional history, impeachable offenses are those that "proceed from the
misconduct of public men, or in other words from the abuse and violation of
some public trust," what Sir William Blackstone had termed
"maladministration." Such political sins would include such things as neglect
of duty, abuse of power, or subversion of the Constitution. Although
indictable offenses are not necessary for an impeachment, they may surely
be deemed sufficient grounds to proceed. This is especially so in the case of
the president, in whom any criminal behavior would likely be seen as a clear
failure to "take care that the laws be faithfully executed."
Indeed, the language of the Constitution--"the party convicted shall
nevertheless be liable and subject to indictment, trial, judgment and
punishment according to law"--was designed for just such a possibility.
Should there be evidence of criminal acts, and should that give rise to a
successful impeachment and removal from office, the Founders did not wish
to shield the person impeached from further legal proceedings under any
notion of double jeopardy. High office offers no immunity from the ordinary
rigors of the criminal law.
But neither does that constitutional language demand that impeachment must
precede indictment. As legal historian Raoul Berger showed long ago, there
is only one place in the Constitution where immunity is conferred on public
officials, and that involves not holding members of the Senate and House
liable to arrest for anything they may say or do in their respective chambers
or "in going to and returning from the same." Even then the Founders did not
include the more serious offenses, making clear that such immunity extended
to "all cases, except treason, felony or breach of the peace."
As Mr. Bork pointed out in his memorandum denying immunity to the vice
president, "[s]ince the Framers knew how to, and did, spell out immunity,
the natural inference is that no immunity exists where none is mentioned."
This logic applies equally to the president. Had the intention been to
demand impeachment before indictment, the Framers would have spelled
that out.
When Mr. Starr comes to that fork in the road he may well decide, on the
basis of what would be best for the country, to turn it all over to the House
Judiciary Committee and leave them to it. But that would be a political
choice, not a constitutional one. There is no constitutional roadblock
keeping him from taking the road directly to criminal indictment. Given the
Republican majorities in both houses and the high poll ratings he now
enjoys, Mr. Clinton might even thank him for it, preferring a jury of his peers
to facing what Hamilton described in The Federalist as that "awful
discretion" the Constitution gives to the political court of impeachments.
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