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My new book: The Nixon-Clinton Impeachment: A New Constitutional Theory, presents and supports the theory that if a president or any civil Officer is impeached by the House of Representatives on criminal grounds, the Articles of Impeachment can serve as a presentment to commence a Judicial trial, where removal from office is an automatic consequence of conviction.

In other words, for impeachments based on a criminal statutory violation there are two independent trial venues that can effect removal from office. This is a major departure from the universally held understanding that only Senate conviction can effect removal from office.

At this point, your reaction may be something along this line:

So what? Why are you telling me this?

These are legitimate questions. My short answer is this: "if this new theory is correct, and comes to be accepted and carried out, one practical consequence is that our Federal government can be made to work a lot better. This theory will cause us to look first to Congress to see if it is acting in the national interest, and second to the executive to see that laws of Congress are being carried out fairly and openly. The theory will also encourage campaign finance reform for this reason: under the theory, our government a) can work a lot better with campaign finance reform, and b) will probably work even worse without campaign finance reform. This theory will tend to force the issue of campaign finance reform."

That's the short answer. You will find that this new Constitutional theory isn't rocket science - most people can understand the basics of it fairly quickly. However, we are dealing with quite a few threads - the text of the Constitution, English and American history, and current events, just to name a few. Because of the tapestry-like nature of the topic, I decided to organize this article (re-written from a letter from me to Ralph Nader), into a blend of a) an exposition of what this new Constitutional theory is, and b) a discussion of consequences that follow if the theory is correct.

To restate the nub of this theory: if the House impeaches any Federal civil Officer (including presidents) on criminal grounds, the Articles of Impeachment can be sent to a Judicial court, where removal from office is an automatic consequence of conviction, with no action required by the Senate. Let's start to consider the "so what?" question.

One consequence of this theory is that the standard for serving as a Federal civil Officer is higher than we had previously thought. During the Nixon impeachment proceeding, the House Judiciary Committee considered an Impeachment Article concerning alleged tax evasion by president Nixon. As recounted in Congressional Quarterly's book Impeachable Offenses: "... a majority of the [House Judiciary] 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."

The root of this idea that there is a class of crimes called "personal and private crimes", and that it is somehow Constitutionally OK for a president (or other Federal civil Officer) to commit such a crime and remain in office, goes back as far as Federalist #65, written by Alexander Hamilton during the debate leading to New York's ratification of the Constitution in 1788. Today, with a president, vice-president, a cabinet, 5,000 appointed Federal civil Officers, hundreds of Federal judges, and only one Senate, a trial on criminal issues of even moderate complexity is an enormous demand on the Senate's time. Because we have thought up to now that only Senate conviction can effect removal from office, when push comes to shove the Senate has become a kind of impeachment bottleneck, forcing us to adjust upward our tolerance level for wrongdoing.

If this Constitutional theory is correct, one implication is that there is simply no such thing as "personal and private crimes", in the sense that if a criminal act does not violate a public trust or injure society itself (Hamilton, Federalist #65) it inherently does not rise to the level of an impeachable offense. Whether any stipulated criminal violation of a Federal statute is so serious that conviction should result in removal from office is a judgment for the House of Representatives to make, on a case by case basis. There is no doubt in my mind that the House of Representatives can legitimately conclude for a specific case that even with clear evidence of a specific act that is a violation of a Federal statute, under the circumstances of the case the violation is simply not serious enough to justify impeachment and removal. However, according to this Constitutional theory, the House need not and should not consider the Senate's limited time and many other duties to be a resource constraint that should affect this judgment. This new Constitutional theory shows that if an impeachment is based on a stipulated violation of a Federal statute, the Senate (part of the independent legislative branch) can simply decline to proceed with an impeachment trial (one specialized kind of trial), and can leave the issue to a more appropriate venue, a Judicial court (part of the independent judicial branch) conducting a criminal trial (another specialized kind of trial). The main Constitutional point is this: if a conviction results from either kind of a trial (Senate impeachment trial or Judiciary criminal trial), removal from office is an automatic consequence (from our Constitution's passage: "...shall be removed from office on Impeachment for and Conviction of...").

Regarding the above passage, and quoting from my book's introduction: "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."

Let's consider this Constitutional theory in the context of the issue of U.S. military intervention.

It appears that a president can gain at least initial public support as an automatic consequence of committing U.S. forces. Congress has attempted to restrict the ability of U.S. presidents to use U.S. military forces, by means such as the 1973 War Powers Resolution. If this Constitutional theory is correct, one consequence is that when Congress legislates to restrict a president's ability to commit U.S. military forces without prior approval by Congress, Congress has the option of imposing as one condition of the legislation, that a violation of the terms of the legislation would be a criminal offense. The House of Representatives would then be in a position to impeach, by majority vote, if a president commits U.S. forces in violation of the law. Such an impeachment could be presented immediately to the Supreme Court, and the court could resolve in the same case both the issue of removal from office and any questions regarding the Constitutionality of the law restricting commitment of U.S. forces.

A president can, and should, obtain prior approval from Congress before committing U.S. military forces. If a president does not obtain such prior approval, violates the terms of a governing law that includes provision for removal from office via judicial trial, and an impeachment results, the outcome may be unpredictable due to a lack of precedent..

Regarding this danger of such an unpredictable situation, you should be made aware of an important aspect of the Constitutional theory that is detailed further in the book. Congress has the Constitutional power to specify by law the details of the Case of Removal, i.e., the mechanisms and provisions governing how Federal civil Officers are removed from office. This power is based on the Article II passage ("...the Congress may by Law provide for the Case of Removal..."), and supported by what is often called the "necessary and proper" clause of the Constitution (giving Congress the power: "To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.") Based on this Constitutional power to legislate regarding a Case of Removal, a law restricting the ability of a president to commit troops can include provisions such that any claimed violation of that specific law could not be the basis for any House of Representatives Article of Impeachment that could serve as a presentment to commence a Judiciary trial. According to this Constitutional theory, removal from office via judiciary trial can only occur if there is a statutory basis for conducting a Judiciary criminal trial. The point of this is simple: arguments against this Constitutional theory cannot be supported by a claim that it would inherently cause the relations between Congress and the president to become more unstable and unpredictable regarding the issue of committing U.S. military forces. For questions regarding commitment of U.S. forces, Congress can legislatively restrict consideration of removing a president to the Senate trial venue only, i.e., representing no change from our previous understanding of the Constitution. If this new Constitutional theory comes to be accepted, my present view is that this would probably be the wisest course of action in the short run, to avoid the danger of a Constitutionally ambiguous situation during a national security crisis. However, based on this very preliminary analysis regarding the use of U.S. military forces, it appears if this Constitutional theory is correct, Congress is in a stronger Constitutional position to place restrictions on a president's ability to commit U.S. forces without prior Congressional approval - if a violation is clear, and the law is Constitutional, removal from office could be triggered by a majority vote of the House of Representatives. If this new Constitutional theory becomes accepted over time, and precedents are established for removing Federal civil Officers, it may be appropriate at some future time for Congress to include provisions opening the second venue of a Supreme Court judicial trial as a consequence of a president's violation of legislative restrictions on the commitment of U.S. forces.

Let's move to a second question: honest government.

When I look back on the Nixon and Clinton impeachment proceedings, my perception is that regarding legal due process, in many ways the Nixon Administration was more honest and open than the Clinton Administration has been. We know that Nixon lied, (he said so in his autobiography). However, as one example of a higher level of honesty in the Nixon Administration, when Alexander Butterfield was asked during a deposition if president Nixon had a taping system, he testified there was one. Nixon fought to retain records, based on a reasonable Constitutional construction, but when he lost in the Supreme Court the evidence was turned over. With the open question of one 18 minute gap, the evidence turned over included evidence that prompted his resignation. My point is this: those in the Nixon Administration, as a group, respected our Constitution's system of checks and balances. Regarding the tapes, this evidence was a) preserved, and b) turned over.

By contrast, the prevailing philosophical and operational doctrine in the Clinton Administration appears to be two-fold. Recall, president Clinton is on record, in deposition testimony, stating, (I'm writing from memory and may be paraphrasing): "It depends on what the meaning of the word 'is' is." At the philosophical level, Clinton seems to accept the idea that "if two people say something didn't happen, and there are no other witnesses, then it didn't happen." In other words, truth is not an objective external reality, truth IS whatever a group of people agree to say it is.

At an operational level, the consequence of this is that a group of people in the Clinton inner circle can agree on what "the truth" is, and, since "the truth" is defined by this group internally, who knows what might have been done en route to this agreed-upon "truth?" Within this world-view, a concept like "destroying evidence" simply has no meaning - other than in the context of the tactical consideration of ensuring that no bit of physical evidence leaks out to contradict what has been agreed to as "the truth."

Our Constitution requires the president to "...take Care that the Laws be faithfully executed,...". Behind this phrase there is a spirit of good faith - the idea that the president and all executive officers will be honest and above board both in their administration of the laws of Congress, and in their relations with the other branches of government. One consequence of this Constitutional theory is that the impeachment powers give Congress, and specifically the House of Representatives, a far greater oversight authority over the entire Executive branch than we have realized. A second, contingent consequence is that the House of Representatives can work with the Judiciary to oust any Federal civil Officer who is not forthcoming with information and records that Congress needs to carry out its oversight responsibilities.

Specifically, if the House of Representatives has reason to think Federal civil Officers are providing dishonest testimony, withholding records, or providing false records, the House of Representatives can commence an impeachment proceeding to investigate. This can be undertaken by the Judiciary Committee, a Judiciary sub-Committee, or a permanent House Committee on Impeachments. Congress can specify by law a specific set of duties that Federal civil Officers have in providing honest and complete information and testimony to Congress. Such a law can specify a) that a failure to provide honest and complete information to Congress is a criminal offense (say, a misdemeanor), b) the evidentiary standard for conviction of such a criminal offense, and c) the punishment (say, a $1 fine). The point is this: if the House of Representatives finds reasonable evidence that a Federal civil Officer is failing to provide honest and complete information, the House of Representatives can simply pass Articles of Impeachment, present them to a Judiciary court, and if the Court convicts, the Federal civil Officer is removed from office. Let me add some detail here. The presenting of House of Representatives Articles of Impeachment to a Judiciary court is rooted in part on the use of the word "presentment" in the Fifth Amendment. This term "presentment" is defined and categorized by Sir William Blackstone in his Commentaries on the Law, published in England from 1765 to 1769, and a major legal reference source for the Constitutional Convention. From Blackstone, a "presentment" is a term that can include something Blackstone calls an "Inquisition or Inquest of Office", an English legal proceeding that can result in an officeholder's loss of office. According to this Constitutional theory, Articles of Impeachment can be regarded as a kind of Congressional referral of a case to a Judiciary court, with the specific intent of having the court undertake what can amount to an inquest (can we agree to use the term inquest instead of inquisition?) to resolve the question of whether a criminal violation of a Federal statute has or has not occurred.

The point of all this is twofold. First, Congress has a reasonable and Constitutional claim to be able to exercise effective oversight of the Executive branch (based on the president's duty to "...take Care that the Laws be faithfully executed,..., the "necessary and proper" clause, and impeachment and removal provisions). The ability of Congress to obtain honest testimony from Federal civil Officers, and full access to records administered by the Executive branch, is a necessary part of the oversight function of Congress. Second, the Constitution's impeachment powers give the House of Representatives, working with the Judiciary, the power to remove from office Federal civil Officers who are not meeting their legal obligation to assist Congress in effective oversight.

Is the idea of declaring an offense by a Federal civil Officer to be a), a criminal violation, and b) a misdemeanor with only a $1 fine, just a convoluted way to get impeachment cases into a Judicial trial venue - circumventing Constitutional intent in the process? I chose the low fine for a reason, and even though at one point during the Convention Madison expressed opposition to providing for impeachment based on a misdemeanor, in the final analysis I don't think this would circumvent Constitutional intent. First, based on reading Madison's notes of the Constitutional Convention, the Convention's main concern regarding removal of Federal civil Officers was to be able to do this when it was necessary to protect and safeguard the Republic. Second, the Constitution explicitly provides for removal from office based on "...other high Crimes and Misdemeanors." The point of impeachment is not to punish per se - it is to keep the process of our government open and above-board, and to safeguard the Republic. Given this, it seems reasonable to me that the punishment specified by a Federal law can and should be nominal in some cases. The Congress may want to legislatively establish a lower evidentiary standard for Cases of Impeachment in the interest of giving the benefit of the doubt to safeguarding the Republic. The assignment of only a nominal, "wrist-slap" fine may be seen as an equitable counterbalance to the fact that conviction can occur based on a lower evidentiary standard.

This brings us to a third and concluding topic - a more general view of the relationship between the three branches of our Federal government.

If this Constitutional theory is correct, the "correctness" goes beyond the specifics of technical legal issues. This theory illuminates the proper Constitutional relationships between and among the branches of our Federal government.

It is obvious from both the debates at the Constitutional Convention, and from the text of the Constitution, that the Legislative branch is Constitutionally the pre-eminent branch of our government. This Constitutional theory highlights and strengthens that pre-eminence, first by giving Congress power to legislate the terms under which Federal civil Officers serve, and second by giving the House of Representatives power to ensure, via impeachment proceedings, that the oversight of Congress over the Executive branch cannot be rendered ineffective by Executive stonewalling. The nub of the Legislative-Executive relationship reinforced by this Constitutional theory is simply this: that the main administrative function of the Executive is to "faithfully execute" the laws of Congress, in other words, to carry out the legislative intent of Congress.

The function of the Judiciary in impeachment proceedings under this new Constitutional theory also sheds new light on what our expectations should be regarding impeachment proceedings. Because removal from office can result from conviction in a Judiciary trial, this is further evidence that including the option of this removal venue was driven by the consideration that professional judges, trained in the law, are among all people the most likely to be fair and impartial. You can think of a specific instance of impeachment as revolving around two fundamental questions - question one: "does it rise to the level...", i.e. is a stipulated offense serious enough to warrant removal, and question two, has the evidence been presented and weighed in a fair, objective, and impartial way? According to this new Constitutional theory, question one is viewed as having a legitimate political element, and is properly answered by a political body (the House), while question two is viewed as essentially a judicial issue, properly answered by a Judiciary court.

When we consider the relationship between the Executive and Legislative branches, it is also important to explicitly consider the fact that the Chief Executive is a person, while the Legislature is a group of people. The media makes it far easier for most people to relate to a person, rather than a group. An individual person can express intent more clearly than a group - unfortunately this intent may sometimes be a pose. A legislative body is inherently more difficult for people to understand, in the same sense that two (or multiple) points of view are more difficult to understand than one point of view. However, a legislative body (if it is not controlled by special interest money), is collectively far more capable than any individual of understanding the goals and interests of all the different constituencies of a society, and legislating in a way that will accommodate the vital interests of all these constituencies. Because all the members of a legislative body have an equal voice and an equal vote, the deliberative process surfaces the various views and ideas that shape legislation. By contrast, the cliché "faceless bureaucrat" is an important reminder that regarding the Executive branch, we may see the president, or a spokesman, on TV, but it is more difficult for the public to see what the Executive branch is doing than for the public to see what the Legislative branch is intending.

As our society careens faster and faster-forward, the very fact that a legislature is slow moving is an advantage - what else is big enough and unwieldy enough to slow down technology? As a society, we simply can't keep up with the rate of change that technology makes theoretically possible. Remember, these people who talk the talk about "chaos theory" are the same people who balance their checkbooks and keep their living room nice and tidy. When "chaos theory" devotees come up against real, actual chaos, the "rule of law" starts to look pretty good.

If this Constitutional theory is correct, we will still have an Executive, with all the advantages that a focused, coherent personality can offer in leading our nation. However, the legislative branch of our Federal government will be far more capable of both a) de-pose-ing (literally, through hearings and depositions) posturing by the Chief Executive and administration spokespersons, and b) exposing failures of the Executive branch to "faithfully execute the laws" when these failures occur. As news moves from TV to the internet, we are moving to a format that is far more capable of presenting news and information that is tailored to both the breadth-of-subject and depth-of-detail interests and priorities of each individual. The internet certainly has the capability to make it easier for our citizenry to follow, and influence, the deliberations of Congress. However, special interest money is still the eight hundred page gorilla that won't download out of our national living room.

Let's delete the special interests!

All we have to do is tell our reps either a) what passages of what Federal laws to delete (it's all on the internet), and maybe even what to add, or b) goodbye!

Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.

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