ferred to as irregular actions. That is why we created the Senate for this function.

When the President engages in conduct that deprives him of perceived legitimacy that divides a nation, that conduct will require him at times to stand in the well of the Senate and there he will regain the legitimacy that he lost. There is a difference between spiritual redemption and constitutional redemption. Spiritual redemption you can gain from a community of friends and family, but constitutional redemption is a little more difficult. Constitutional redemption occurs in the well of the Senate. It is when you stand there as a chief executive who by his own admission has taken reprehensible conduct in office, and you stand before the public and they will make a decision, and if you leave that body with your of fice intact, you have regained the legitimacy that you lost. That is constitutional redemption. That is what I believe the Madisonian system requires.

But I will end there, and I apologize for going on, and I appreciate the extension. Thank you.

[The statement of Mr. Turley follows:]

PREPARED STATEMENT OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL INTRODUCTION

Mr. Chairman, members of the Subcommittee on the Constitution, my name is Jonathan Turley. I am a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. I am honored to join you today in discussing the standards for impeachment. The Subcommittee has assembled an impressive array of law professors, lawyers, historians, and political scientists to assist you in exploring this fundamental question. We all come to the question from different disciplines, different backgrounds, and different perspectives. Regardless of our differences, however, we share a common concern that the standards applied in this crisis will have considerable ramifications for our country and our constitutional system of government.

For my part, I come to this question as a law professor who has litigated many of the constitutional issues involved in the current crisis. Although I have taught constitutional criminal procedure and lectured on the Madisonian Democracy for years, my views have been most influenced by my litigation in past cases dealing with the separation of powers doctrine, executive privilege, and Article II authority. While academic debates like today's can appear arcane and theoretical, these standards have concrete expression in cases involving the lives of average citizens and the conduct of executive branch officials. Executive power exhibits the same physical properties as a gas in a confined space: as the constitutional space expands, executive power expands to fill that space. The Framers were well aware of this tendency among all of the branches when they created a system of checks and balances. They sought to confine the space for expansion of one branch with the counter-pressure of the other branches. Congress should not be confused by the difference between a formal expansion of authority and an expansion of authority by negative inference. When Congress decides that certain criminal conduct does not rise to the level of impeachable offenses, it is defining a permissible parameter for future presidential conduct. Executive power will fill the space created by any decision of this body.

Before addressing the constitutional issues raised by this inquiry, I must acknowledge that, like some of my colleagues testifying today, I have reached personal conclusions as to the merits of this impeachment inquiry. My conclusions are a matter of public record. In addition to testifying in the Senate hearing on these issues, I have written many articles on the specific legal, historical, and constitutional questions facing Congress. While I clearly come to this question with some prior conclusions as to the basis for impeachment, my views on the standards for impeachment are entirely independent of this crisis or its underlying allegations. As an academic, I have a particular interest in the role of the House of Representatives in the impeachment process. See Jonathan Turley, Congress as Grand Jury: The Role of the House of Representatives in the Impeachment of an American President, 67 Geo. Wash. Law Review (1999) (upcoming March issue).

I raise this issue because there has been a tendency in this crisis to define fundamental questions in terms of personalities. This has created an unfortunate tendency to judge impeachment standards depending on one's view of the President or the Independent Counsel. This is precisely why this hearing is so important. Long after this President, this Independent Counsel, and this crisis have faded into history, we will live with the standards that we articulate in the coming weeks. The standards for impeachment are not simply important for what they say about the government but what they say about the governed. We define something about ourselves in defining our expectations of our leaders. Academics cannot give an answer in such an inquiry. The most that we can do is help define the various dimensions of the question.

SUMMARY AND METHODOLOGY

Much of the recent debate over the standards for impeachment has focused on whether certain types of criminal acts or misdeeds are by definition outside the scope of Article II, Section 4. The White House has argued that a threshold definition of "high crimes and misdemeanors" excludes the conduct alleged as the basis for articles of impeachment in this inquiry. Some of the academics present today have endorsed variations of this theory. Accordingly, it is argued, the inquiry should be concluded without further action (beyond a possible censure) since, even if proven, the alleged misconduct could not fall under the clear meaning of impeachable acts. Additionally, it is argued that any impeachment based on the allegations of the Independent Counsel would actually undermine our constitutional system.

It is important to restate the specific context for this threshold argument. President Clinton stands accused of a series of knowing criminal acts in office, including perjury, obstruction of justice, witness tampering, and abuse of office. While I greatly respect the academics on the other side of this debate, I do not believe that there is a basis to exclude such conduct from potential articles of impeachment on any definitional, historical or policy basis. Far from it, I believe that the argument advanced by the White House would create extremely dangerous precedent for our country and would undermine fundamental guarantees of the Madisonian Democracy. It is my view that the allegations in this inquiry, if proven, would constitute clear and compelling grounds for impeachment and the submission of this matter to the United States Senate for a determination of the merits.

Before explaining the basis for this conclusion, a brief methodological point is warranted. You will note that many academics present today will rely on the same quotations from the Framers in advancing their rivaling conclusions. The literature in this area is rich with different theories of constitutional interpretation. The meaning of the impeachment standard is heavily influenced by the view of the individual academic. Many academics follow a variety of alternative interpretative approaches other than textualist or originalist interpretation. There is a danger when these theories are super-imposed on a sparse historical record to advance a claim of clear original intent or restrictive hidden meaning. They represent choices by academics as to the most vital factors or values within the constitutional system. They are choices that may be probative and informed but they are also highly personal choices. In reality, I expect that you will find at the end of this day that academics are divided much in the same way that the Framers were divided. You will be left with a personal judgment as to the seriousness of the President's conduct as considered by the standards and expectations of this generation.

One of my primary interests in the current debate is the repeated use of historical or originalist arguments to claim a restrictive definition of "high crimes and misdemeanors." In my opinion, there is no objective basis in the text or history of the Constitution to claim a clear answer to this question. There is no "dead-hand control" of the Framers on answering the question before this body. The Framers were more concerned with who would decide this question rather than what they would decide in a given circumstance.

Since this argument has been advanced on originalist and textualist grounds, three obvious questions should be addressed by this Subcommittee. First, Congress must examine the actual language of Article II to determine any textual meaning of the terms "other high crimes and misdemeanors." Second, if no clear textual definition in the language, Congress must look at the history and debates behind_the language to determine any original intent of the Framers. Third, and finally, Congress must consider the meaning of "high crimes and misdemeanors" in relation to the function of impeachment within the Madisonian Democracy.

My formal testimony today will address each of these discrete inquiries.

TEXTUAL ANALYSIS

While (as will be shown below) impeachment was not a primary focus of the Framers, it was viewed as central to the structure of the tripartite system. Impeachment is mentioned in five different provisions of the Constitution. Although the critical language is found in Article II, it is useful to begin with the actual textual references to this process:

Article I, Section 2

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. U.S. Const. art. I, cl. 8.

Article I, Section 3

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. U.S. Const. art. I, 3, cl. 6.

Article I, Section 3

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to the Law. U.S. Const. art. I, 3, cl. 7.

Article II, Section 2

[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. U.S. Const., art. II, 2, cl. 1.

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. U.S. Const. art. II,

4.

These provisions yield primarily procedural limitations that were laid out with considerable specificity. They relate to the questions of who will decide impeachment issues and how that decision will be made. The two houses of Congress are given distinct and exclusive roles in the impeachment process. The Framers designated the specific voting requirements for each house in fulfilling these respective roles. The Framers further added such details as the identity of the presiding judge, the use of oaths or affirmations in impeachment trials, and limitations on the permissible punishment for committing impeachable offenses. After designating such procedural issues with specificity, however, the Framers left the actual standard for impeachment as an extremely general and potentially malleable phrase.

Interestingly, the phrase "high crimes and misdemeanors" was not made part of Article I and the limitations on the congressional impeachment authority. In defining the process by which Congress would carry out this duty, the Framers did not elect to add limiting language for areas of legitimate inquiry. Rather, the phrase appears as part of the description of executive authority in Article II where it defines the parameters for presidential conduct and conditions for removal.

The meaning of Article II, Section 4, is properly the focus of this hearing and the central issue for the House of Representatives in this crisis. The text of this provision, of course, yields little evidence of definitional intent. The language establishes three basic textual points. First, "other high crimes and misdemeanors" obviously refers to conduct other than treason and bribery. Second, it is generally accepted that "misdemeanors" encompasses non-criminal conduct in the sense of "misdeeds." Finally, in the description of the House impeachment authority, the Framers only designated a specific process by which such decisions are to be made rather than add any exclusionary or restrictive phraseology.

The text is most notable in its omission of certain distinctions. The text does not, for example, distinguish between the standard of impeachment as applied to the President, Vice-President or other civil officers (which include federal judges). There is no textual basis to claim that the Framers intended a lower standard to apply in the impeachment of federal judges than in the impeachment of presidents. The same standard of "other high crimes and misdemeanors" is stated as applicable to all of the subject officials regardless of their office. Likewise, the text does not limit

or restrict the impeachment standard to official acts or abuse of power. In fact, as will be shown below, words that would have restricted the standard to such misconduct were actually removed from the text.

Analyzing this language from an originalist or textualist viewpoint would lead to an extremely broad definition of "other high crimes and misdemeanors." While impeachment decisions are not reviewable by the federal courts, a judicial review of this language would produce a predictable result for judges who subscribe to a strict construction theory of interpretation. Such judges would conclude that, if the Framers intended a more restrictive definition or a different standard for presidents as opposed to judges, the text would reflect such an intent. Instead, the Framers defined the process of impeachment with specificity but not the standard applied in the respective inquiries or trials of either house.

An objective textualist reading reveals no conclusive definition of "other high crimes and misdemeanors." Both sides in this debate could claim some support in the text. The word "other" can be cited as evidence of the intent to include offenses of a similar magnitude as the identified offenses. Under the canon of construction "ejusdem generis," the term "other high crimes and misdemeanors" can be read "as the same kind" as treason and bribery. Conversely, the general and undifferentiated language can be legitimately cited as textual support for applying to presidents the same broad standard applied to judges. Under the interpretation given this phrase in past impeachment cases, the President's conduct would clearly fall within the meaning of "high crimes and misdemeanors." Absent the most ardent textualist approach, however, an objective reading of Article II leaves the question unresolved. The next interpretive step is to look to the historical evidence behind this language.

HISTORICAL ANALYSIS

A. The Constitutional Convention of 1787

It is not a particularly challenging task to review the original words of the Framers on this issue. Impeachment was not a central focus of the Constitutional Convention. See generally Michael J. Gerhardt, The Constitutional Limits to Impeachment and its Alternatives, 68 Tex. L. Rev. 1 (1989). The Federalist Papers contain only limited discussion of this area. Likewise, the references in the debates over the language and ratification of this clause is quite sparse. The "legislative history" on this issue can be found in the debates in Philadelphia during the summer of 1787 and the later ratification debates in the various states. What these debates reveal is open division among the Framers resulting in a general compromise. It does not reveal a clear resolution for either side in this debate.

Most academics have used the same limited references to support either broad or restrictive definitions of impeachable offenses.2 In the Constitutional Convention, only a small number of delegates spoke in any detail on this issue and the result was a general phrase incorporating a long-used English standard. There is evidence in the Constitutional Convention to support both sides of this debate. The only clear matter is that the delegates were divided on the standard for impeachment but resolved impeachment issues of greater concern.

There were two types of impeachment issues raised in the Constitutional Convention and state ratification debates. First, the delegates were concerned about institu

1This canon appears to underlie the analysis of a letter circulated by law professors supporting the narrow interpretation of "high crimes and misdemeanors" in this crisis. While certainly a legitimate interpretative point, this canon is primarily used in statutory construction and, even in the statutory context, rarely "impl[ies] that an ejusdem generis reading of the statute is constitutionally_compelled to the exclusion of other reasonable interpretations." Garner v. Louisiana, 368 U.S. 157, 168 (1961). Even in such statutory cases, courts rarely apply the doctrine where "[n]o conflict between a general and a specific proposition of law is involved." Campbell v. United States District Court, 501 F.2d 196, 201 (9th Cir. 1974). When construing a constitution, courts tend to be more circumspect. The text of Article II can be easily read to mean what it states: the Framers wanted to identify two specific acts of impeachable offenses while allowing Congress to define additional impeachable acts within the established structure of Article 1. As will be shown below, there is a strong functional argument for such a standard without resorting to a canon of construction.

2 The use of legislative history in actual cases has proven one of the most controversial and divisive among the courts. Jurists like Justice Anton Scalia have waged a furious war against the use of legislative sources in many statutory cases as inherently unreliable and opportunistic. See Frank Easterbrook, Statute's Domain, 50 U. Chi. L. Rev. 533, 541 (1983) ("The number of judges living at any time who can, with plausible claim to accuracy, think [themselves]. into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar,' may be counted on one hand.") (quoting Richard Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983)). For these jurists, reliance on the "legislative” record in this matter would be positively maddening.

tional issues related to the whether and how a president could be removed from office, particularly the proper "court" that would rule on impeachable offenses. Second, the delegates were concerned about the specific standard to be used in any removal. While the delegates were very clear as to the institutional issues, they did not to define the standard for removal beyond a highly generalized phrase. Instead, they spent considerable time defining the "jury" or "court" that would decide the merits of any impeachment.

There was debate on the very option of impeachment of a president. At the time, before the enactment of the twenty-fifth amendment in 1967, impeachment was the only method of removal for a President under the Constitution. Delegates often suggested standards contained in their own state constitutions, such as the "maladministration or corruption" standard used in such states as Delaware and North Carolina. Some delegates like Charles Pinckney of South Carolina, Gouverneur Morris of Pennsylvania, and Rufus King of Massachusetts struggled at various points with the notion of a chief executive who could be subject to removal on any ground. Delegate Gouverneur Morris initially believed that impeachment would place a president under the de facto control of the legislature.3 William Davie of North Carolina, however, warned that impeachment was "essential security for the good behaviour of the Executive." 2 Records of the Federal Convention of 1887, at 64 (M. Farrand ed.) (rev. ed. 1937) [hereinafter Records vol. 2] Ultimately, delegates like Benjamin Franklin, George Mason, and James Wilson persuaded the Convention that impeachment was vital to the structural integrity of the system.4

The delegates divided more sharply on the appropriate mechanism and "court" for impeachments. Each of the delegates advanced plans that often reflected the conclusions of their state conventions. Some delegates, like Edmund Randolph and James Madison, advocated the "Virginia Plan," which would have given the federal courts the authority to try impeachments. Other delegates like William Paterson of New Jersey advanced the "New Jersey Plan," which would have placed the power of impeachment in the hands of the nation's other chief executives, the state governors. John Dickinson of Delaware recommended that the President "be removable by the national legislature upon request by a majority of the Legislatures of the individual States," 1 Records of the Federal Convention of 1787, at 78 (M. Farrand ed., 1937) [hereinafter Records vol. 1]. New York Delegate Alexander Hamilton advanced a plan similar to the New York impeachment process in which impeachments were tried by a court "to consist of the Chief or Judge of the superior Court of Law of each State." Records vol. 1, supra, at 292–93. Ultimately, with the Pennsylvania and Virginia delegates in continued opposition, the delegates agreed on leaving the impeachment decision to Congress. The delegates, however, divided the process between the houses and gave each house distinct roles in promulgating articles of impeachment and trying articles of impeachment.

While the debate over the proper court for impeachment and necessary vote was quite detailed, the issue of the standard for impeachment remained notably general throughout the debates. The delegates were again divided. On one end of this debate, delegates like Roger Sherman of Connecticut "contended that the National Legislature should have power to remove the Executive at pleasure." Id. at 85. Likewise, other delegates like George Mason of Virginia offered the standard to be “maladministration." Records vol. 2, supra, at 550. Conversely, as noted above, some delegates like Charles Pinckney believed that a president should not be subject to impeachment for any offense. In response to Mason's standard, James Madison objected that "maladministration" as too ambiguous but Madison also stated impeachment was a necessary precaution against "the incapacity, negligence or perfidy of the chief Magistrate." Id. at 65. For his part, Alexander Hamilton referred to impeachable offenses as "those offences which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust." The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

Benjamin Franklin viewed impeachment as a process by which public concerns over presidential misconduct could be resolved and the legitimacy of a presidency restored. Franklin noted that there are times when a president's conduct is viewed "obnoxious" and demands a process of public review and decision. Records vol. 2, supra, at 550. The impeachment process, he concluded, is "the best way . . . to provide in the Constitution for the regular punishment of the Executive when his mis

3 Morris favored a shorter term of office and impeachment of the "great officers of State" in the cabinet. See generally, Alexander Simpson, Jr., Federal Impeachments, 64 U. Pa. L. Rev. 651, 656 (1916).

4On July 20, 1787, the question was presented after a motion for postponement: “[s]hall the Executive be removable on impeachments?" The vote was eight to two with Massachusetts and South Carolina voting against the measure. Records vol. 1, supra, at 69.