Introduction The Nixon-Clinton Impeachment: A New Constitutional Theory Dedication: to my Parents |
The main purpose of this book is to introduce for public debate a new Constitutional theory on impeachment and removal from office of U.S. Presidents and other civil Officers. The nub of the theory is this: If a President is impeached by the House of Representatives based on allegations of a criminal violation of a Federal statute, there are two Constitutional ways to remove the President from office. Based on the recent Clinton impeachment proceeding, we are all familiar with one way of possible removal — by conviction in a Senate impeachment trial. However, a second way of removal from office is conviction in a Judiciary criminal trial that commences based on Presentment of House Articles of Impeachment to a Judiciary court.
Granted...this is a startling conclusion. However, in the next two pages of this Introduction, I can give you enough information for you to conclude that it is at least possible that my conclusion is correct.
When the Senate's Impeachment Trial of Clinton was just starting, I thought that that Clinton should be removed from office if he was found to be guilty of felony offenses. However, it was obvious that a real Senate trial on the issues, similar to a criminal trial, would probably take months. In an effort to try to better understand the impeachment provisions, I decided to re-read the Constitution.
In the process of doing this, I reached Article Two, on the Executive, and the passage: "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."
I wondered. Conviction by whom? It didn’t say.
We’ve all assumed that "Conviction" refers to conviction by the Senate. After all, in Article One concerning the Legislative branch, the Constitution specifies: "The Senate shall have the sole Power to try all Impeachments." It seems obvious that because the Senate has the sole power to try all Impeachments, the word conviction in Article Two must refer to Senate conviction. Nevertheless, I decided to study further, to see if there might be some possibility that the word Conviction in Article Two refers to Judicial conviction in a criminal trial. To my surprise, I found after a close examination of the text of the Constitution, that there was strong reason to think "Conviction" does include Judicial conviction. Let me offer two brief points here for your consideration. First, a Senate impeachment trial and a Judiciary criminal are two separate kinds of trials. Of these two kinds of trials, there is no question that the Constitution gives the Senate the sole power to hold one kind of trial — an impeachment trial —where the only issues to be decided are: removal from office and disqualification. However, from the fact that the Senate has the sole power to hold the specialized kind of trial called an impeachment trial, it is not a logical consequence that the word "Conviction" can only refer to conviction in an impeachment trial, and can not refer to conviction in a Judiciary criminal trial. Second, in my study of the Constitutional Convention’s debates, I found that about ten days before the final session, the Convention considered draft language similar to the Article Two passage we just looked at. This draft language included the phrase "...conviction by the Senate..." James Madison, our fourth President, who is often referred to as "the Father of the Constitution", moved to strike the words "...by the Senate..." His motion failed. However, later the same day, Mr. Madison was appointed to the committee of five that produced the final draft Constitution. In that final draft, the phrase "...by the Senate..." was deleted. As you will see, this was not an accident, an omission, or an attempt to improve the style. It was one of several changes in wording and structure carried out by the committee that form a deliberate provision for a second Constitutional trial venue for any civil Officer, including a President, who has been impeached by the House of Representatives.
It is only natural for you to be skeptical about the thesis I am advancing. It is so different from our common understanding of the Constitution, and this common understanding has prevailed for so long, that any theory purporting to depart so fundamentally from the prevailing understanding has a strong burden of proof to meet. Nevertheless, I think that after you have considered the background, information, and arguments presented in this book, you will reach the same conclusions I have reached.
The remainder of this introduction outlines briefly how this book is organized, and encapsules some of the main ideas advanced in the book. Let me speak first to those of you who are pressed for time, and have a fairly extensive knowledge of impeachment.
Chapters Two and Three are the heart of the book. Assuming that you are skeptical about the thesis I am advancing, but willing to consider it, you should read these two chapters in their entirety. Chapter Two gives crucial background information about the Constitutional Convention of 1787, and the history of both impeachment and other less well known legal procedures for removing office holders, both in England and in America. You will need to know the information in Chapter Two to understand Chapter Three, which sets forth in detail the Constitutional theory of this book.
When you have read the sixty pages of Chapters Two and Three, you will have a reasonable basis to make your own preliminary judgment about whether the thesis of this book is correct. If you have concluded that it probably is right, or might be right, your next step should be either to read the entire book, or to read Chapter Four, which reviews the Constitutional Convention’s debates on impeachment and related removal from office issues. Chapter Four traces in detail both how relevant Constitutional passages on impeachment and removal took their final Constitutional form, and what I see as the underlying reasoning behind the final wording. You will find that James Madison is the most prominent person in Chapter Four — the Chapter is based entirely on his notes of the Convention. As mentioned, Madison was on the crucial committee of five that produced the final draft. I think Chapter Four makes a strong showing for the claim that it was the committee’s specific intention to make sure that the final Constitution provided for Judicial trial as a second way of removing Presidents and other civil Officers who had been impeached by the House.
At this point (if not before), you are probably wondering: why doesn’t the book start with Chapter Two? I assume you’re busy, and I wanted to map for you a shortcut, so you can decide whether to take the time to read the entire book. However this book properly should, and does, start with Chapter One. Chapter One presents information about impeachment that you will find very helpful in reading the rest of the book. Chapter One also places the Nixon and Clinton impeachment proceedings in an historical context that I think you will find valuable.
Regarding Chapter One, as I researched and wrote, two major changes occurred in my own thinking about the Clinton impeachment. First, in going back over the Nixon history, I became convinced that Clinton’s impeachment was so closely related to the Nixon impeachment proceeding that it was almost a direct consequence. I treat the Nixon and Clinton impeachment proceedings as both a single historical event, and as a tragedy. Specifically, during the Nixon proceedings, the House Judiciary Committee disapproved an Article of Impeachment that was based on possible felony income tax evasion by President Nixon. I have not researched what merit there may have been to these allegations. My only concern was with the position taken by the Judiciary Committee, as described in Congressional Quarterly’s book, Impeachable Offenses: "...a majority of the committee, including a number of Democrats, believed that Congress could only impeach for actions against the government and against the political system - in a sense ‘public’ crimes - and that while Nixon might be guilty of the felony of tax evasion or misuse of government funds, these were personal and private crimes, not crimes against the Constitution or the nation." [1]
Hillary Rodham worked on the staff of the Judiciary Committee that reached the above stated conclusion. A direct consequence of the Constitutional thesis of this book is that the 1974 Judiciary Committee was mistaken — this was never the intent when the Constitution was written and agreed to. I am convinced that this doctrine — "private wrongdoing", including criminal acts, is somehow OK for a President — is poison to our system of government. However, I also became convinced that from the Nixon impeachment proceeding to the present, both the Clintons have believed that this doctrine is true. The Clintons can make a strong showing that this doctrine is supported by historical precedent, by the Federalist papers, and by reason. It is possible that if the Clintons come to consider the thesis of this book, they may rethink both their own actions and the historical context they have been living in and rendering.
A second change that occurred in my thinking while working on Chapter One is that the actual 1998-99 Clinton impeachment may have been a diversion — a scandal that was either manufactured, or fueled — to divert attention from more serious wrongdoing that might have been pushed to an impeachment proceeding in 1998. The peripheral treatment that I give to this possibility may be "burying the lead" in a journalistic sense. This story deserves separate treatment. However, it is tangential to the Constitutional thesis of this book.
Campaign finance reform is not peripheral or tangential to the thesis of this book. Campaign finance reform was one of the major results of the Nixon impeachment proceeding. When comparing the Nixon impeachment proceeding to the Clinton impeachment proceeding, it is crucially important to look at how different the result was between these two impeachments regarding the issue of campaign finance reform. As you will see in Chapter One, the dominance of Corporate and special interest money over our political process may actually have been at the root of the actual Clinton impeachment proceeding. The crucial point is this: if Congress and the Presidency are dominated by special interest money, these institutions of government are in danger of ceasing to be independent branches in a larger Constitutional framework — becoming instead, competing bases of operation for occupants who fight for the special interests that control them. If this happens, the Judiciary branch will be lost in the scuffle.
Chapter Five considers the application and implications of the Constitutional thesis of this book. Chapter Five is rooted in today’s historical context, and in what I see as the major political and Constitutional issues that face us, including campaign finance. Some consideration is given to the implications of this theory regarding impeachment of civil Officers other than the President and vice-President. If the thesis of this book is correct, this area of analysis merits significant expansion.
This book was written from December 1999 into mid-February 2000. I am well aware that it must have significant shortcomings and weaknesses. It was written in haste, and without the benefit of having an editor or a publisher. If the thesis of this book is correct, others will expand on it, correct it, and improve it. Although I did a substantial amount of research, due to both limited time and limited prior background, this work is simply inadequate to the task of serving as anything other than a starting point for considering the Constitutional thesis presented. When this book is read by others with far more extensive background and knowledge than I have, its many flaws and shortcomings will be identified. Even with these stipulations, I think the thesis of this book is fundamentally correct, and has been set forth with sufficient detail, factual basis, and historical context to merit your consideration, and to initiate further thinking and discussion.
Robert S. Carney Jr. Minneapolis, MN February 17, 2000
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.