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JAMES W. MCCORMACK, CLERK
BY: VICK TURNER

Mr. CANADY. The subcommittee is adjourned.

[Whereupon, at 7:40 p.m., the subcommittee was adjourned.]

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING

[From The Washington Post, Oct. 2, 1998.]

THE IMPEACHMENT INQUIRY

The limits that House Judiciary Committee Democrats have suggested imposing on the panel's forthcoming impeachment inquiry are mostly bad ideas that the Republicans are right to resist. The Democrats say their only goal is to keep the inquiry from being turned into a fishing expedition. No doubt that is a risk, but with one possible exception, the limits they were still discussing yesterday would create greater risks in the opposite direction of obfuscation and delay. The Republicans, if they abuse the impeachment process, will suffer mightily-and deservedly—in terms of precisely the public opinion that they seek to influence. Our guess is that the gravity of the task will be a greater discipline on them than any rule.

The Democrats' first idea is to put a time limit on the committee's deliberations. We favor as quick a resolution of this matter as the committee can achieve, but experience suggests a time limit could encourage delaying tactics instead. The Senate Governmental Affairs Committee conducted a time-limited investigation of fundraising abuses in the 1996 presidential campaign and was foiled in part by witnesses who simply ran the clock. Better than any artificial deadline would be a simple commitment on the part of the Judiciary Committee to work nonstop until the inquiry is complete.

Some Democrats also want the panel to decide in advance what constitutes an impeachable offense, and only then begin an inquiry into the president's behavior if the two seem to match up. Judiciary Chairman Henry Hyde is correct to resist that as well. It's true that in eventually deciding whether the president's conduct constituted an impeachable offense, the committee will have to decide, if only implicitly, how serious such an offense must be. But that kind of judgment is all but impossible to make in the abstract, outside the context of facts that are still emerging and that almost daily paint President Clinton's behavior in slightly different hues.

The White House says an inquiry is unnecessary, that the basic facts are known and it's already clear they don't amount to an impeachable offense. But that's not clear. Plainly there are offenses so minor as to permit a before-the-fact judgment that, even assuming the worst, they are not impeachable. Perjury and obstruction of justice, however, are not among them. The committee needs to find the facts.

The Democrats suggest, finally, that the scope of the proposed inquiry is too broad. Absent a further report from the independent counsel, they would limit it to the charges arising out of the Monica Lewinsky affair, and thereby rule out expeditions of the kind some Republicans have threatened into other areas the FBI files issue or the long-ago White House travel office flap, for example. We agree that without good cause, which does not now exist, the committee ought not venture into such areas. Will a rule or an understanding be a better way of achieving such restraint?

The Watergate parallel keeps being invoked in this connection, wrongly, we believe. Mr. Hyde has based his open-ended resolution of inquiry on the one used by the Judiciary Committee in investigating Richard Nixon's behavior 25 years ago. That has touched off a mostly partisan squabble as to whether the offenses in the two cases are comparable. They aren't, but even if they were, comparison is not the issue. The issue is whether the rules are fair and the inquiry produces a credible result. It won't if the inquiry is artificially constrained, and it won't if it is artificially extended, either. The parties, both of them, need to understand that; this is not one that either side should try to game in advance.

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[From the New York Times, Oct. 4, 1998.]

THE JUDICIARY VOTE

This week, for just the second time this century, the House of Representatives is likely to approve an impeachment inquiry into the conduct of a President. Given the serious charges leveled against Bill Clinton by Kenneth Starr-and the need to have those charges resolved in an open, orderly way that decision is justified and will be supported by many Democrats. But how the inquiry is conducted is a matter that requires very careful consideration by the American people and their representatives.

With midterm elections just a month away, the political conflict promises to be intense. But it need not be disabling, if sensible rules are adopted and followed. The plan proposed by the Republican majority looks sound and fair.

It is essentially the model used 24 years ago by a Democratically controlled House in examining the conduct of Richard Nixon in the Watergate case. It sets no limits on the duration or dimensions of the inquiry. Democratic leaders on Friday urged the House to set a late-November deadline for completion of the Judiciary Committee's work, and to limit the investigation to the Monica Lewinsky case.

Though this page favors the expeditious handling of this case, and believes it could eventually be resolved through a censure that would allow Mr. Clinton to remain in office, an artificial timetable serves no useful purpose. It only invites the White House to stall and forces the committee to rush its work. Though Americans are impatient with the Lewinsky scandal, a snap inquiry would be a disservice to the rule of law.

There is also no reason for the committee to fence off Whitewater, the dismissal of staff at the White House travel office and the White House misuse of Federal Bureau of Investigation background files, matters still being investigated by Mr. Starr. Those who complain that Mr. Starr has spent too much time and money investigating Mr. Clinton cannot now argue that the results of that work should be denied to Congress, if they are germane. But Mr. Starr must tell the Judiciary Committee right away if he has additional evidence of impeachable offenses by Mr. Clinton. The committee, for its part, must assure that marginal matters are not added to its investigation. Nor should the 1996 campaign-finance abuses be included in this inquiry, since Attorney General Janet Reno seems to be moving toward the long overdue appointment of an independent counsel in that area.

The natural contours of an impeachment inquiry accommodate two converging avenues of work, one dealing with the evidence, the other with the constitutional question of what constitutes an impeachable offense. The Judiciary Committee has wisely chosen to consider these in tandem, with the expectation that each inquiry will inform the other. Representative Henry Hyde, the chairman of the committee, has proposed other sensible rules, including subpoena power for the democrats, public hearings and ample opportunity for the White House to defend the President and to contest the committee's work. He has also authorized a bipartisan group of members to review Mr. Starr's files for exculpatory evidence.

In the end, both constitutional and practical considerations argue for keeping the process moving under clear rules. On the first point, the charges against Mr. Clinton cannot now be ignored or allowed to linger. They must be resolved in the way described by the Constitution. On the practical side, gearing up this somber constitutional process will provide incentive for the Republican Congressional leadership and the White House to try to find a settlement that respects both political continuity and the rule of law.

[From the Wall Street Journal, Oct. 1, 1998.]

ONE THING BLOCKS A CLINTON DEAL: THE CONSTITUTION

(By John O. McGinnis)

Some politicians and commentators are suggesting that Congress should abort the impeachment process and instead censure President Clinton and make him pay a fine. Such a deal has its allures. It would immediately end Kenneth Starr's referral without lengthy hearings. It would allow members of Congress to go on record condemning Mr. Clinton's behavior, while avoiding any real consequences that might annoy voters.

But such a scheme is unconstitutional. It flouts the separation of powers that is the keystone of our republic. By allowing Congress to punish the president outside the bounds of impeachment, this precedent would establish a new avenue of legisla

tive political assault against the executive. Any such action would weaken the presidency while permitting Congress to avoid its responsibility to render considered judgments on the integrity of our highest officers.

The Constitution clearly contemplates a single procedure for Congress to punish the president-impeachment by the House and subsequent trial by the Senate. Article II specifies the penalty: "The president shall be removed from Office on Impeachment for, and, Conviction of, Treason, Bribery or other high Crimes and Misdemeanors." Article I states that “Judgment in cases of Impeachment will not extend further than to removal from office, and disqualification to hold and enjoy any Office of honor, Profit or Trust under the United States."

Neither provision authorizes Congress to impose legislative punishments short of removal. Read together, the impeachment clauses require removal upon conviction and allow the Senate, at its discretion, to impose a single additional penalty—disqualification from future office. As Michael Gerhardt of William and Mary Law School has noted in his magisterial study of impeachment, the Senate itself has consistently adopted this interpretation. The Senate's vote to convict on an impeachment count brings automatic removal without any further action on its part. It occasionally then votes also to disqualify the official from future office.

The Framers' decision to confine legislative punishment of executive officials in this way was carefully considered. By forcing the House and Senate to act as a tribunal and trial jury rather than merely as a legislative body, they infused impeachment with notions of due process so that it would not become a common tool of party politics. The requirement of removal upon conviction accentuates the awesomeness of the procedure, encouraging serious deliberation among members of Congress.

Besides perverting the Framers' design for impeachment, a resolution imposing punitive censure with a fine would violate two express constitutional prohibitions. First, the Constitution forbids bills of attainder. Such bills were the legislative acts by which the British Parliament punished executive officials with death or forfeiture of property. Second, the Constitution prevents Congress from “diminishing” the president's compensation during his term. Both prohibitions underscore that Congress's power to punish the president is limited to impeachment.

As always in moments of crisis, some will attempt to stretch the Constitution to fit their current political expedient. Censure alone, they will argue, is not a bill of attainder because it is merely an expression of strong disapproval without real penalties. True, nothing in the Constitution precludes any member of Congress from denouncing anyone. A resolution condemning the president may be justified legally as a loud collective shout from the floor. But this justification exposes the emptiness of such an act. Wrongdoing among legislators may be curbed by the censure of their peers. But when the admonishment concerns a member of another branch, it represents cheap talk and a flight from accountability that only encourages future lawlessness.

The self-evident insufficiency of joint fulmination has generated the demand for a substantial fine. It will be argued that even if Congress has no legal power to impose a fine, Congress can surely "suggest" one. The president then can voluntarily pay that amount because the Treasury's miscellaneous-receipts account stands ready to accept gifts. But such a "voluntary" payment is a legal fiction, for Mr. Clinton would be paying a fine under the shadow of impeachment. Congress would be using its impeachment powers as a club to impose bills of attainder.

This would represent a truly disastrous precedent. Congress could then establish a schedule of legislative fines for the perceived offenses of other branches. The going price for an attorney general who refuses to turn over a document might be $100,000. Life-tenured judges might be required to pay fines for unpopular opinions. Congress will have created a new power to enable it to harass the other branches and yet escape its constitutional duty to hold officials to ultimate account.

The push for a quick fix to this scandal tells us something deeply troubling about the attitude of many toward constitutional governance. Many Americans believe that impeachment distracts both the president and Congress from their "real business." This sentiment cannot be squared with the Framers' paramount concern for the integrity of public officials.

They recognized that the prosperity and stability of the nation ultimately rest on the people's trust in their rulers. They designed the threat of removal from office to restrain the inevitable tendency of rulers to abuse that trust. But this constitutional restraint can work only if citizens have the self-restraint to allow its processes to unfold solemnly, majestically and without concern for their own short-term gains and losses.