January 18, 1999
Trial and Tribulation
By Akhil Reed Amar
Warning: Constitutional danger ahead.
No president is above the law, but the law for presidents is different than for others, at least in cases of impeachment. This is probably good news for Bill Clinton but bad news for senators seeking quick and, preferably, easy answers to the hard questions raised by putting a president on trial. Some senators--Robert Byrd comes to mind--might be tempted to resolve tough issues by appealing to a trio of impeachment cases in the 1980s. (Before that, the last impeachment trial occurred in 1936.) But these three cases involved federal district judges and are thus constitutionally far afield. For better or worse, the Clinton case is literally unprecedented: never before in American history has a duly elected president been impeached.
Sound constitutional judgment in the weeks and months ahead will require appeal to first principles, not flawed precedents. Compared to the 1980s cases, Clinton's Senate trial will involve a distinct cast of characters, will raise unique issues of legal ethics, and will involve a different sequence of judicial proceedings. Most important of all, a trial of any sort will raise intricate issues of procedure and proof far more complex than anything that arose in the 1980s, and will ultimately call for a more nuanced interpretation of "high crimes and misdemeanors." Any Senate veteran who thinks he has seen it all before should think again.
For starters, note the unique cast of our impending drama. In presidential impeachments, the chief justice of the United States, who plays no role in any other impeachment, must "preside" over the Senate trial according to the command of Article I, section 3. His very presence should remind us that this inherently political trial must be scrupulously fair to the president in both reality and appearance. (The regular presiding officer of the Senate under section 3 is the vice president of the United States, whom the Framers wisely excluded from a trial that could end with his winning the defendant's job. This mandatory recusal rule made even more sense at the Founding, when presidents did not handpick their vice presidents, who were more likely to be rivals than partners.) If, for some reason, a chief justice were to deem a particular impeachment trial utterly unfair and inherently improper, might he simply refuse to take the chair? In the wake of such a refusal, could a "trial" nonetheless proceed? If so, would it be seen as legitimate at home and abroad? These foundation-shaking questions, implicating the tops of all three branches of government, never arise in other impeachments.
The pivotal role of the chief justice has profound implications for the proper ethical relations between senators and the president. Suppose a sudden illness were to require the chief to resign. Although the senior associate justice might presumably fill in temporarily, at some point a new chief would need to be installed, and Article II, section 2 tells us how this would happen. The president would appoint, with the advice and consent of the Senate, a new chief. In other words, even in the middle of a trial, the judges and the judged might need to confer and collaborate to pick the permanent presiding officer. Stranger things have happened.
The point is that, even during the pendency of an impeachment trial, the Senate and the president must work together to do the people's business. Vacant appointments must be filled, treaties considered, laws enacted, budgets approved, foreign policy--even war--conducted. Even as senators sit as detached judges and jurors over defendant Bill Clinton every afternoon (bound by an oath of impartiality as prescribed under Article I, section 3), they must as legislators work closely with fellow lawmaker Bill Clinton every morning. Once again, this is different from impeachments of, say, federal district judges. In these low-level impeachments, senators may be free to shun all contact with the defendant, analogizing such meetings to "jury tampering." But this finicky standard of legal ethics makes no constitutional sense when the man in the dock is the president, with whom parliament must parley.
Consider next the typical sequence of judicial proceedings in presidential and nonpresidential impeachments. In two of the three district judge impeachments during the 1980s, Senate trials occurred after the judges had been tried and convicted of statutory crimes in ordinary courts. The Constitution does not require this sequence, but the Framers expected that it would often make sense. District judges would be scattered across the continent, as would the evidence of and witnesses to their wrongdoing. Congress, by contrast, would sit in the capital, weeks away from the most remote hinterlands. Given this geography, the Founders anticipated that the easiest venue to gather all the evidence and witnesses would often be in a trial held in the judge's home district. After such a trial, the Senate's job in impeachment would be much easier--senators could simply take as given the facts duly found beyond reasonable doubt in an ordinary court following strict evidentiary rules and affording procedural rights and other safeguards to the defendant.
But this system generally will not work in presidential impeachments. Given his unique and awesome constitutional powers, the president can often inflict great harm on the nation without violating any specific criminal statute. Thus, presidential impeachments are less likely to simply track ordinary prosecutions and may charge the chief executive with abuses of power beyond the criminal code. More fundamentally, it is doubtful under Article II that a sitting president may be forced to stand trial in an ordinary criminal court. In a couple of Federalist Papers (Numbers 69 and 77), Hamilton suggested that an incumbent president must first be tried in the Senate; only after his removal (via conviction or resignation or the natural expiration of his term) would ordinary courts have a crack at him. This impeachment-first rule has a strong bipartisan pedigree--affirmed two centuries ago by Senator (and later Chief Justice) Oliver Ellsworth, Vice President John Adams, and President Thomas Jefferson, and reiterated during the Nixon impeachment crisis by then-Solicitor General Robert Bork on the right and Professor Charles Black on the left. The rule also makes good structural sense. A president represents the nation and may need to pursue sound national policies that will render him unpopular in certain localities--just imagine Lincoln's poll numbers in South Carolina in early 1861. While in office, the president should not be obstructed by a grand or petit jury from any one locality, whether Charleston or Little Rock or the District of Columbia. The House and the Senate represent the conscience of the entire nation, and thus they are the only grand and petit juries that a sitting president must answer to.
But note the huge complications all this will raise concerning issues of evidentiary procedure and proof. In an actual trial of Bill Clinton, the Senate will not be able to simply point to an earlier judicial proceeding that clearly established the relevant facts beyond reasonable doubt. The Senate will be obliged to find the facts for itself. But how? What precisely will the rules of evidence be? Will the federal hearsay rule--and its countless exceptions--be enforced? Even if senators try to dodge the unseemly business of fact-finding in this particular case by using Kenneth Starr's grand jury transcripts and the like as "evidence," what will happen if the president's lawyers insist--as fairness surely entitles them to do--on cross-examining every relevant witness? Given that the Senate is not accustomed to trying cases--and neither is William Rehnquist, for that matter--the evidentiary problems that could arise are truly mammoth, unlike any the Senate has seen in the modern era. Indeed, one of the tools that the Senate used in the 1980s impeachment cases to cut the evidentiary monster down to size--delegating fact-gathering to a committee--is politically unimaginable, and perhaps unconstitutional, in presidential impeachments. (Could such a committee meet without the presence of the chief justice as a presiding officer? On the other hand, could the chief ever preside over such a rump?)
And then there's the pesky definitional problem posed by "high crimes and misdemeanors." A slim and partisan majority of the lame duck House deemed Clinton's misdeeds impeachable, but the Senate as the final judge must decide for itself. (Similarly, ordinary judges are free to reject prosecutors' overly zealous interpretations of criminal laws.) Even if the Senate deems Clinton's crimes technically impeachable, it need not vote to convict unless it also thinks that the punishment--mandatory removal from office, under Article II, section 4--fits the crime. (Analogously, every criminal trial jury has the inherent power to acquit against the evidence if it deems punishment unjust.) In impeachment, the Senate sits as both judge and jury, finding the facts, judging the law, and embodying the conscience of the community. In Clinton's case, the basic question reduces to this: Is perjury about a sexual matter a "high crime" that justifies ousting a duly elected president?
Some senators may say yes, and others no, but none should say that this open question has already been resolved because a pair of judges were impeached and removed for perjury a decade ago. To begin with, one of these judges (Walter Nixon--no relation) had already been convicted, sentenced, and imprisoned by an ordinary criminal court. On these facts, House impeachment and Senate conviction merely reaffirmed the commonsensical notion that the man should not continue to get paid for being a judge while doing no judicial business behind bars. The other judge--Alcee Hastings--was impeached and removed for lying under oath not about some sexual matter but about financial misconduct that in turn suggested judicial corruption. (Hastings had earlier won an acquittal in a bribery trial, but Congress thought he had lied in that trial and elsewhere.)
But, more important, we must ask whether these Senate adjudications concerning the "high crimes" of lower judges stand as sturdy precedents when pondering the possible "high crimes" of presidents. A blinkered textualist might say so, pointing to Article II, section 4: "The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." This clause lumps together presidential impeachments with all others (vice presidents, judges, justices, Cabinet officers, inferior officers) and uses the same linguistic standard (high crimes) across the board.
At first this seems a strong argument. But it crumbles on closer inspection--and every senator should intuitively understand why. Consider another patch of constitutional text familiar to every senator and implicating the Senate as a judge, of sorts. According to Article II, section 2, "by and with the Advice and Consent of the Senate, [the president] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and ... other Officers of the United States." If we applied the same blinkered textualism to this clause, we would say that the Senate must give the exact same deference to a president's choice for Supreme Court justice that it would give to a president's choice for his Cabinet, and that the Senate should never apply a stricter standard when considering a nomination to the Supreme Court than to a district court. After all, this clause lumps together all officers, high and low, executive and judicial, and uses the same linguistic standard (advice and consent). But this has never been the Senate's view of the matter--and rightly so. The Senate has rejected blinkered textualism in favor of a more structural and holistic approach that ponders all the texts of the Constitution and considers their interrelation. Other parts of the Constitution establish important differences between, say, Cabinet officers and judges. Cabinet officers are part of the president's executive branch team under Article II. They answer to him (quite literally, in the Article II, section 2 Opinions Clause) and will leave when he leaves. Federal judges, though perhaps appointed to further the president's agenda, are not part of the president's team in the same sense. Their independence is secured by life tenure under Article III--a separate article for a separate branch. In light of these important constitutional differences, the Senate has always given the president far more leeway in naming his own executive team than in proposing judicial nominees. And, even within a single branch, the Senate scrutinizes a nominee to the Supreme Court more intensely than a nominee to some lower court. Just ask Robert Bork.
Now apply this structural insight to the "high crimes" clause, and count the ways in which presidential impeachments are qualitatively different from all others. When senators remove one of 1,000 federal judges (or even one of nine justices), they are not transforming an entire branch of government. But that is exactly what happens when they oust America's only president, in whom all executive power is vested by the first sentence of Article II. In the case of a judge, a long and grueling impeachment trial itself inflicts no great trauma on the country--but, again, the case of a president is very different. (And don't forget the disruption of the chief justice's schedule, and the commandeering of the entire Senate, given the inability to shunt things off to committee.) Presidential impeachments involve high statecraft and international affairs--the entire world is watching--in a manner wholly unlike other impeachments. Most important, when senators oust a judge, they undo their own prior vote (via advice and consent to judicial nominees). When they remove a duly elected president, they undo the votes of millions of ordinary Americans on Election Day. This is not something that senators should do lightly, lest we slide toward a kind of parliamentary government that our entire structure of government was designed to repudiate. Although the Philadelphia Framers may not have anticipated the rise of a populist presidency, later generations of Americans restructured the Philadelphians' electoral college, via the Twelfth Amendment and other election reforms, precisely to facilitate such a presidency. Narrow arguments from the high crimes clause in isolation fail to see how holistic constitutional analysis must take account of post-Founding constitutional developments.
To recast these points about constitutional structure into the language of policy, even if the Senate decides that all perjury--of any sort, by any officer--is an impeachable high crime, senators must further decide whether a given perjury warrants removal as a matter of sound judgment and statesmanship. In making this decision, they must be sensitive to the ways in which the presidency is a very different office from a federal district judgeship. Where extremely "high crimes" are implicated--treason or tyranny--senators should probably be quicker to pull the trigger on a bad president, whose office enables him unilaterally to do many dangerous things. (A single bad judge, by contrast, is hemmed in by colleagues and higher courts.) But where borderline or low "high crimes" are involved, the Senate would be wise to spare the people's president--especially if his crimes reflect character flaws that the people duly considered before voting for him, or if the people continue to support him even after the facts come to light.
Thus the relevant precedents for conscientious senators to ponder are presidential precedents. To counterbalance the 1980s trio of impeachments, let's look at a trio of presidents over the centuries who had their own troubles with Congress. Begin with Andrew Jackson, who killed a man in a duel before he was elected president. Technically, this was a crime, although it was rarely prosecuted in Jackson's day. Should Congress have impeached and removed Jackson even if the people who elected him knew about his crime and voted for him anyway? The duel Jackson fought concerned his wife's honor and chastity. Suppose Jackson had lied under oath to protect his wife's honor. Again, suppose the people knew all this when they voted for him. Should Congress have undone the people's votes on a theory that all crime is high crime, and that all perjury is the same? Now consider the next presidential Andrew--Johnson, that is. Given our structural analysis, it seems relevant that Johnson was never elected president in his own right and that he was in fact working to undo the policies of the man the people did elect, Abraham Lincoln. If ever our structural argument cautioning restraint in ousting an elected president were weak, it was here, since Johnson lacked a genuine electoral mandate. And his policies toward unrepentant rebels could have been viewed as akin to treason, giving aid and comfort to men who were--not to mince words--traitors (see "Impeach Johnson!" by Joshua Zeitz, page 13). And yet even here--an unelected president cozying up to actual traitors--the Senate acquitted. Finally, consider President Nixon, whose extremely "high crimes" and gross abuses of official power posed a threat to our basic constitutional system. Although Nixon was elected by the people, his own unprecedented use of political espionage and sabotage tainted his mandate, in the same way that bribing electors would have. When all the facts were brought to light and the tapes came out, the people did indeed turn against him, prompting leaders of both parties to conclude that the time had come for him to go.
William Jefferson Clinton is not above the law. But the law that the Senate must apply is the law applicable to presidents, not the law applicable to district judges. In trying a man whose name has eerily intertwined with that of Nixon again and again, the Senate must remember that Bill Clinton is best judged in light of the case of Richard Nixon, not the case of Walter Nixon.
Akhil Reed Amar is the Southmayd Professor of Law at Yale Law School and author of The Bill of Rights: Creation and Reconstruction (Yale, 1998).
(Copyright 1998, The New Republic)