This testimony by Drinan--and similar testimony by former Judiciary Committee members
Liz Holtzman (D-New York) and Wayne Owens (D-Utah)--offers an interesting way to approach
the theoretical differences between the two impeachments, although admittedlly through a
Testimony at the Hearing on "The Background
And History of Impeachment"
Before the Subcommittee on The Constitution
of the House Judiciary Committee
Room 2141 of the Rayburn House Office Building
Monday, November 9, 1998 at 9:30 a.m.
by former Representative Robert F. Drinan, S.J.
Professor, Georgetown University Law Center
Member, House Judiciary Committee 1971-1981
The framers of the United States Constitution knew that every president would have many political enemies. The authors of the Constitution consequently made the president virtually immune from legal action. They knew furthermore that America was inventing not a system of parliamentary democracy but a system in which the majority of the members of the Congress could not call or win a vote of no confidence.
But the founding fathers knew that in an extreme case there would be a need to remove a president before the time of his re-election. This was especially true since the writers of the Constitution feared (long before the time when a president was limited to eight years in office) that a president could aggregate power to himself and stay in office as if he were a member of a royal family.
Benjamin Franklin noted that the method adopted in impeachment and removal was devised as a process to prevent the assassination of a president by an exasperated and hostile adversary.
The framers sharply curtailed the availability of impeachment which had been liberally used and abused in England. At first the authors of the Constitution made treason and bribery the only offenses that merited impeachment. This was broadened to include "mal-administration" but then was restricted to include other high crimes and misdemeanors. The word "other" is most significant. It clearly implies that the "high crimes and misdemeanors" must be comparable or close to "treason and bribery".
The United States Congress has almost always understood that impeachment was designed by the founding fathers to be a remedy intended only for a dire situation for which no other political remedy exists. The one exception was the impeachment of President Andrew Johnson in the tumultuous years after the Civil War. It seems to be the consensus of historians and analysts that the impeachment of Johnson was motivated primarily by political and partisan reasons and hence was a misuse of the power of the House of Representatives to impeach a president.
Similarly the House has been very reluctant to use its power to impeach since in all of American history it has used that power on some 20 occasions-mostly on federal judges.
The impeachment process is by its very nature somewhat political. The power was not given to the courts or the executive branch of government but to the House of Representatives-the entity of government closest to the people. The only involvement of the courts is the role played by the Chief Justice who is to preside at the trial of a president (not judges or other civil officers) in the Senate.
Perhaps the best definition of impeachment is found in the classic work on jurisprudence by Justice Joseph Story of the United States Supreme Court, which states that impeachment is "proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity."
Impeachment, therefore, should not be looked upon or compared with an indictment. Nor should the role of the House of Representatives be deemed to be that of a grand jury.
Impeachment is a non-criminal and a non-penal proceeding.
Of equal importance is the fact that the impeachment of a president must relate to some reprehensible exercise of official authority. If a president commits treason he has abused his executive powers. Likewise a president who accepts bribes has abused his official powers. The same misuse of official powers must be present in any consideration of a president's engaging in "other high crimes and misdemeanors."
This House Judiciary Committee in 1974 recognized this distinction. It was clear that President Nixon had back-dated his taxes in order to claim a tax deduction for his papers which was no longer available at the time he and his accountants prepared his income tax return. This was a serious offense, probably a felony. But the House Judiciary Committee in a vote of 26-12 on a non-partisan basis, declined to make this conduct an impeachable offense. As a member of the House Judiciary Committee at that time, I voted with the 26 members who believed that the President's misconduct was not impeachable.
This decision confirmed the fact that an indictable offense need not be impeachable. All of the literature concerning the Constitutional Convention demonstrates that there is no evidence that any member of that convention expressed the opinion that impeachment was only intended to cover indictable offenses. That is the conclusion of the learned volume of Professor Raoul Berger entitled Impeachment: The Constitutional Problems. Professor Berger states that
"One may fairly conclude that indictability was not the test of impeachment . . ."
The same author expands on this by asserting that
"In sum high crimes and misdemeanors (are) without roots in the ordinary criminal law and which, as far as I can discover, had no relation to whether an indictment would lie in the particular circumstances."
The non-criminal character of the impeachment process is uniquely important in the case of the recommendations set forth by the office of Independent Counsel. These are framed as a criminal indictment.
In addition, for the first time in American history, an entity in the executive branch of government has performed the work specifically delegated by the Constitution to the U.S. House of Representatives. This fact is enormously important because it seems to change and distort the legal machinery designed by the framers for the process of impeachment; it is a process which, in the very words of the Constitution, is in the "sole" power of the House.
It is noteworthy that in 1974 the Special Prosecutor gave information and facts to the House Judiciary Committee; he did not urge impeachment. He knew that the power to recommend impeachment was committed solely to the House in the Constitution itself.
The history and definition of impeachment do not yield all of the clarity which everyone might wish. But the intention of the founding fathers as found in the ways in which Congress for over 200 years has reacted to the impeachment process demonstrates a consensus that is clear and remarkably consistent. Impeachment is a unique and extraordinary weapon which should be considered only in extreme cases when impeachment is the only remedy available to oust a president even though the majority of the nation's voters elected him.
On the contrary the idea of a Congressional "censure" for the President has no legal or Constitutional history. It needs to be considered only because the majority of citizens in this country state in polls at this time that they oppose impeachment but desire some form of Congressional "sanction" as a way of expressing their disapproval of the President's conduct. They propose a "censure" as a compromise or a plea bargain. But there has never been a definition of "censure." Is it an admonition, a rebuke or a reprimand? Presumably it has no legal consequences.
The only occasion when a Congressional censure was enacted was in the 1830's when President Andrew Jackson received a censure from the Senate. Not surprisingly it was initiated by Senator Henry Clay whom Jackson had defeated in the presidential race. The censure was subsequently expunged.
The Constitution states clearly that the House may impeach or not impeach. The separation of powers guarantees the president immunity from any other penalty.
To encourage or allow the House to "censure" the President for misconduct bypasses the only process set forth in the Constitution to penalize a president. A vote to censure a president by one or both bodies of Congress would establish a dangerous precedent which would weaken the institution of the presidency. It would invite the erosion of the separation of powers in ways which the framers sought carefully to prevent.
It seems clear from all that we know about the long history and rich tradition surrounding the impeachment clause that the framers intended that impeachment was placed in the Constitution as a final safety net in case somehow the separation of powers did not work and that a near tyrant in the executive branch could not be stopped by any means short of removal. The extremely cautious approach which should characterize any consideration of the use of the impeachment clause should be intensified when an independent counsel and not the Congress has initiated the possibility of impeachment. The Constitution made it clear that the framers placed the power to bring action for impeachment not in the courts or in the executive branch or the Senate but in the agency in government which is closest to the people-the House. Impeachment is not a criminal matter or a judicial procedure. It is one that depends in significant ways on the people. It is the people who elected a president who should be consulted before the Congress seeks to impeach him and remove him from office.