Newsgroups: bit.listserv.politics
Date:         Wed, 6 Jan 1993 11:51:37 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Impeachment, with honor

T, returning, remarks,

>Impeachment is the legal means of removing a high-ranking government
>official from office due to "High crimes & Misdemeanors"; it is
>_not_ the legal means whereby _all_ indictments are served.

Ok, I admit I am still a little confused about this.

Could a president be tried while still in office? Here's why
I doubt it.

First, as T himself notes, during Watergate Cox thought it would
be legally impossible to indict a sitting president. That's why
(again, as T notes) Nixon was an "unindicted co-conspirator."

Congress critters DO, in fact, have a limited immunity from
prosecution, as spelled out in Article 1 sec. 6. Daniel R.
seemed not to know this, by the way! Attorney to be, huh?

Executive officials are not granted any explicit immunity.
And there is no *sweeping* division of powers argument
that can be made good, since Marbury v. Madison; that is,
since the dawn of judicial review.

Agnew claimed, though, that immunity from criminal proceedings
is implied by the wording of the impeachment provision, in
Article 1 sec.3. The clause says that the party *convicted*
... shall nevertheless be liable to indictment, and so forth.
Agnew argued that this meant presidents (and vice presidents,
of course!) are NOT so subject UNLESS impeached. The Justice
Department replied that although the president IS immune,
the VP is not.

There are supposed to be some relevant passages in the
Federalist Papers. I haven't looked into them. Maybe
tomorrow.

>The direct final outcome of an impeachment is removal from office;
>not fines, imprisonment, etc.

Right. Indeed, it is unconstitutional to attach any penalty
to impeachment other than removal.

(Peter S., in private communication, suggested that this
provision is intended to remove any claim of double jeopardy
if the official is later tried. I misunderstood what he was
saying at first. Now I agree, the hypothesis seems likely.
I can look into this.

> The interpretation has clearly been that while impeachment is our
>means of removing a President,
>etc., it may not be used for every criminal offense.

I don't think this has clearly been the interpretation.
Well, hold on, yes I do. I mean, not EVERY criminal offense,
sure.

> I can't recall any kind of ruling as to whether or not "High"
> included "Misdemeanors."  I would like ask Jamie to clear that up,
> as an actual friendly question (believe it or not).

There was, in fact, no Court ruling to that effect. I meant to
say that there was a Congressional ruling.

Sorry about that.

Here's the story.
Nixon (or rather, James St.Clair) had argued that "other High
Crimes and Misdemeanors" comprised only serious criminal acts.
The staff of the Judiciary Committee said otherwise.

The Staff Report, released Feb. 22 1974, concluded:

[quotation begins]

Impeachment is a constitutional remedy addressed to serious
offenses against the system of government.... 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.

[Historically, in English law,] the criminality issue was not
raised at all. The emphasis has been on the significant effects
of the conduct--undermining the integrity of office, disregard
of consitutional duties and oath of office, arrogation of
power, abuse of the governmental process, adverse impact
on the system of government.... Impeachment was evolved
by Parliament to cope with both the inadequacy of criminal
standards and the impotence of courts to deal with the
conduct of great public figures.

[end of quotation]

There was some interesting difference of opinion between
St. Clair & Co, and John Doar (head of the Special Committee)
about the implications of debates between George Mason and
Madison, revolving around the significance of rejected wording
ultimately replaced, in a kind of compromise, by the
"High Crimes and Misdemeanors" clause. Shall I type it in?

Also interesting are Gerald Ford's early comments on the
grounds of impeachment--in the context of the attempted
impeachment of Justice Douglas, but they were tossed in
Ford's face four years later--the remarks of Attorney
General Kleindienst--"you don't need facts, you don't
need evidence, all you need is votes"--and the findings
of the NYC Bar Association in a committee report.

I think the Watergate case is really fascinating.
I had hoped to fill you all in on Archibald Cox's
views about the legality of indicting a sitting
president, but I forgot to bring in the book.
I'll try to remember to do it tomorrow.

In a way, I think Watergate, that is, U.S. v. Nixon, was
the most significant case since Marbury v. Madison. It
decided a question which I think was RADICALLY undecided
before it--that is, there simply was no answer to the
question until shifting tides of power settled and their
vectors were resolved. (ugh. sorry.) Did Nixon have
to turn over the tapes? I don't think there was any
answer until political forces decided the question for
him. Now, I think, it is settled law.

Anyway. I'm sure I've failed to answer the questions I meant
to answer. Ask again.

Jamie
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