alties for those who committed both perjury and subornation of perjury.107 Thus were human punishments made to augment the fear of divine vengeance for lying under oath.108 This was, in Pufendorf's view, absolutely essential, as he noted by quoting Demosthenes:

Those who escape your justice, leave to the vengeance of the gods; but those on whom you can lay hands, never consign over to Providence without punishing them yourselves. 109

It was by this joint power of the sacred and the secular that men could put their faith in oaths as a means of securing truthful testimony from those sworn to give it. And by such oaths and the punishments to be meted out for perjury, the commonwealth could secure the proper administration of justice within the courts of law. Perjury was no longer just a sin; it was a crime.

Based on the foregoing analysis and review of the historical record, the conclusion seems inescapable, based on the expressed intent of the framers, the wording of the Constitution, the writings of the principal legal authorities known to the framers, and the common law, that perjury would certainly be included as a “high Crime and Misdemeanor" in an impeachment trial under the United States Constitution. Further, the record fails to support the claim that impeachable offences are limited to only those abuses that occur in the official exercise of executive power. As seen in the authorities, impeachable offences, in both English and American history, have been understood to extend to "personal misconduct," "violation of . . . trust,” and "immorality or imbecility," among other charges.110

Conclusion

There is no power granted to the House of Representatives more formidable than "the sole power of impeachment." Knowing as they did the dangers of subjecting those in high office to the mere passion and caprice of the moment, the founders sought to create a power to impeach that would be capable of "displacing an unfit magistrate" but within the confines of a written and ratified Constitution of enumerated and limited powers. Thus did they limit the reasons for which an impeachment could be undertaken to "Treason, Bribery, or other High Crimes and Misdemeanors."

The success of the founders in creating the impeachment power to be both politically effective and safe to the demands of republican government is seen most clearly in how few have been the instances of its use. Lord Bryce described the power of impeachment over a century ago as "the heaviest piece of artillery in the congressional arsenal" and thus "unfit for ordinary use." The process seeking to remove a president, he said, “is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at." 111 The constitutional provisions for impeachment were intended, in part, to secure the chief executive from being driven from office for mere partisan reasons. To get rid of a president-or to try to Congress has to have good cause. As Bryce said, one does not use impeachment for light and transient causes, "as one does not use steam hammers to crack nuts." 112

In the end, the determination of whether presidential misconduct rises to the level of "high Crimes and Misdemeanors," as used by the framers, is left to the discretion and deliberation of the House of Representatives. No small part of that deliberation, guided as it must be by the history and meaning of "high Crimes and Misdemeanors," must address what effect the exercise of this extraordinary constitutional sanction would have on the health of the republic, as weighed against the necessity of making clear that in America no one is above the law. In the end, that is what matters most and must bear most heavily on the members of the House of Representatives as they consider what they must do in the weeks ahead.

Mr. CANADY. Thank you, Professor McDowell.

107 Holdsworth, History of English Law, IV:515–18.

108 "The two expedients of the oath and the perjury penalty are similar in their operation; that is, they influence the witness subjectively against conscious falsification, the one by reminding him of ultimate punishment by a supernatural power, the other by reminding him of speedy punishment by a temporal power." Wigmore, Evidence, Sec. 1831, V:432.

109 Of the Law of Nature and Nations, IV. II. II., p. 118.

110 Story, Commentaries on the Constitution, II:274; Simpson, Treatise on Federal Impeachments, p. 144, n. 6; Curtis, History of the Origin, Formation, and Adoption of the Constitution, II:260.

111 James Bryce, The American Commonwealth, 2 vols. (Indianapolis: Liberty Fund, 1997), I:190.

112 Ibid.

Professor Gerhardt.

MICHAEL J. GERHARDT, PROFESSOR OF LAW, COLLEGE OF WILLIAM & MARY SCHOOL OF LAW

Mr. GERHARDT. Thank you, Mr. Chairman. I want to thank the Chair and Representative Scott for the opportunity to be a shared witness. It is a privilege to be a part of this and the other distinguished panel.

There are, I think, at least three lessons to draw from the history of impeachment that might be useful for the subcommittee to keep in mind. First, the most common examples of impeachable offenses cited in the Constitutional and Ratifying Conventions were for great or dangerous offenses causing some serious injury to the Republic and/or reaching the special trust held by virtue of the office held. The framers also emphasized that the ultimate purpose of impeachment was not to punish but to protect and preserve the public trust. The framers did not try to exhaust the list of potential impeachable offenses. Instead, they left it to subsequent generations, particularly to subsequent Congresses, to decide on a case-by-case basis.

The second lesson relates to what we can learn from what Congress has found and not found constitutes an impeachable offense. Here I think there are two relevant sets. The first consists of attempted formal inquiries into presidential impeachments, and the second consists of attempted judicial impeachments.

The first set is awfully small, perhaps too small to suggest very much. We have had two examples from the 19th century and one dramatic example from the 20th century. The two formal attempted presidential impeachments from the 19th century include the House's decision not to initiate a formal impeachment inquiry against President John Tyler and the Senate's refusal by a single vote to convict Andrew Johnson.

These cases have some telling things in common. First, both men became President by means other than election, the deaths of the Presidents who had selected them as Vice Presidents. Second, neither was a member of the President's party. Third, neither was a member of the majority party in Congress. And perhaps most importantly, fourth, both were very aggressive in their efforts to frustrate congressional supremacy in national policy-making.

The House's failure to impeach or even to authorize an impeachment inquiry against Tyler, and the Senate's failure to convict Johnson, confirm one of the most often repeated pronouncements of the framers, that impeachment is not designed to address policy differences or opinion.

The Nixon episode in the 1970s has come to symbolize appropriate use of impeachment. We all assumed that President Nixon would have been impeached and removed. Like President Grant's Secretary of War William Belknap, President Nixon resigned when his impeachment and removal seemed inevitable. In the popular and scholarly mind, Nixon's impeachment represents the appropriate use of the impeachment process to address true abuse of power or the use of presidential power abusively.

The other set of relevant precedents are judicial. As we all know, all seven of the people impeached or removed from office have been

Federal judges. The common features of these cases are the nexus that exists between the conduct alleged and the special trust or responsibilities of the judicial officers impeached or removed in those

cases.

Of course, the critical question that remains is whether the same constitutional standard applies to judicial and presidential impeachment. Interestingly, Representative Ford himself answered that question "yes." After having said that he thought what would constitute an impeachable offense rested with whatever a majority of the House thought. He went on to add at the end of his statement that of course it is different when one talks about Presidents; they may only be impeached for great offenses.

My answer is that the same standard applies to all impeachments. The constitutional language, after all, is uniform. The same standard applies to all impeachments, while the context to which the standard is applied is often different.

The factors taken into account by the House, and particularly by the Senate in the case of deciding whether any given misconduct constitutes an impeachable offense, include the following: the official duties; the degree of nexus between the misconduct alleged and the official duties; the magnitude of the offense and the magnitude of its harm to the Nation; and, lastly, other conceivable means of redress.

A final lesson, in my opinion, is that in deciding whether certain misconduct constitutes an impeachable offense, Members of Congress at some point feel justifiably the pressure to make a judgment that will withstand the test of time.

Alexander Hamilton warned that all impeachments begin in a partisan atmosphere. The critical question is whether impeachments can be conducted and reach resolution on a nonpartisan basis. The critical test is whether the judgments reached can withstand the test of time.

Near the end of the Johnson impeachment trial, Senator William Fessenden said that the burden is on Congress. In that case obviously on the Senate, as it is in every impeachment, to reach a judgment about what constitutes an impeachable offense on which, as he put it, all right-thinking people would agree. James Iredell said very much the same thing in the North Carolina ratifying convention. Twenty-five years ago the House Judiciary Committee, to its everlasting credit, created such a model. Today the subcommittee takes a step undoubtedly to create a similar model, but whatever happens today or tomorrow, the critical factor to keep in mind is that the ultimate judge is history.

Thank you.

[The prepared statement of Mr. Gerhardt follows:]

PREPARED STATEMENT OF MICHAEL J. GERHARDT, PROFESSOR OF LAW, THE COLLEGE OF WILLIAM AND MARY

INTRODUCTION

I am enormously grateful for the honor and privilege to share with you some of my thoughts about the background and history of the federal impeachment power. Over the past decade, I have had several occasions to review in detail the topic of today's hearing. In order to be of assistance to the Committee, I have organized my testimony in three parts, with an eye toward illuminating to the fullest possible extent and consistent with the weight of authority the historical issue of greatest con

temporary concern relating to impeachment—the scope of impeachable offenses. As background, Part I identifies the ways in which the founders purposely tried to distinguish the federal impeachment process from its British counterpart. One of the most important of these features was the founders' desire to narrow or restrict the range of impeachable offenses. Part II examines the likeliest meaning of the terms of art "other high crimes and misdemeanors" that provide the bases for federal impeachment. I believe that the weight of authority, as most other scholars and commentators have found, that these words constitute technical terms of art that refer to political crimes. For the most part, the founders did not regard political crimes to be the functional equivalent of indictable crimes; rather, they considered political crimes to consist of serious abuses of official power or serious breaches of the public trust, which might also but not necessarily be punishable in the courts. Given that the founders expected that the scope of impeachable officials would work itself out over time on a case-by-case basis, I turn in Part III to consider the possible lessons that might be derived from trends or patterns in the Congress' past impeachment practices. Three are especially noteworthy. The first is that criminal conviction or prosecution of an individual prior to impeachment dramatically increases the likelihood of impeachment. The second is the relatively widespread recognition of the paradigmatic case for impeachment as being based on the abuse of power. The three articles of impeachment approved by the House Judiciary Committee against President Richard Nixon have come to symbolize this paradigm. The great majority of impeachments if not all of the impeachments brought by the House and convictions by the Senate approximate this paradigmatic case, for most if not all of these cases involve the serious misuse of office or official power. There is a third conceivable trend based on the recognition of some legitimate impeachment actions falling outside of the first category (or paradigmatic case). The latter cases, best symbolized by the Claiborne decision, is that there may be some kinds of misconduct in which an impeachable official might engage that are so outrageous and thoroughly incompatible with an official's status or responsibilities that Congress has no choice but to impeach and remove an official who has engaged in such misconduct.

I.

The discussions of the delegates to the constitutional convention and state ratifying conventions provide some background for appreciating the distinctive features of the federal impeachment process. The founders wanted to distinguish the impeachment power set forth in the U.S. Constitution from the British practice in eight important ways. First, the founders limited impeachment only to "[t]he President and all civil officers of the United States," whereas at the time of the founding of the Republic anyone (except for a member of the royal family) could be impeached in England. Second, the delegates to the constitutional convention tried to narrow the range of impeachable offense for public officeholders to "treason, bribery, and other high crimes or misdemeanors,” ,"2 while the English Parliament had always refused to constrain its jurisdiction over impeachments by restrictively defining impeachable offenses. Third, whereas the English House of Lords could convict upon a bare majority, the delegates to the constitutional convention agreed that in an impeachment trial held in the Senate "no Person shall be convicted [and removed from office] without the Concurrence of two thirds of the Members present."3 Fourth, the House of Lords could order any punishment upon conviction, but the delegates limited the punishments in the federal impeachment process "to removal from Office, and disqualification to hold and enjoy any Office or honor, Trust or Profit under the United States. . ."4 Fifth, the King could pardon any person after an impeachment conviction, but the delegates expressly prohibited the President from exercising such power in the Constitution.5 Sixth, the founders provided that the President could be impeached, whereas the King of England could not be impeached. Seventh, impeachment proceedings in England were considered to be criminal, while the Constitution separates criminal and impeachment proceedings. Lastly, the British pro

7

7 See generally Michael J. Gerhardt, The Constitutional Limits to Impeachment and its Alternatives, 68 Texas L. Rev. 1, 23 (1989).

vided for the removal of their judges by several means, whereas the Constitution provides impeachment as the sole political means of judicial removal.8

Of these distinctive features, the one of greatest contemporary concern is the founders' choice of the words "treason, bribery, and other high crimes or misdemeanors"-for the purpose of narrowing the scope of the federal impeachment process. The founders did not discuss the meaning of "other high crimes or misdemeanors" extensively, certainly not in any way that definitively resolves the precise meanings of those terms. Nevertheless, the context and content of the founders' principal discussions about the phrase "other high crimes or misdemeanors" provide an important backdrop to contemporary efforts to understand the meaning of the phrase.

Throughout the early debates in the constitutional convention on the scope of impeachable offenses, every speaker agreed that certain high-ranking officials of the new national government should not have immunity from prosecution for common law crimes, such as treason and murder. Many delegates also envisioned a body of offenses for which these federal officials could be impeached. Early in the convention's proceedings, they referred to "mal-" and "corrupt administration," "neglect of duty," and "misconduct in office" as the only impeachable offenses and maintained that common law crimes such as treason and bribery were to be heard in the courts of law. Several delegates, notably William Paterson, Edmund Randolph, James Wilson, and George Mason, argued that the federal impeachment process should apply to misuse of official power in accordance with their respective state constitutions and experiences. As late as August 20, 1787, the Committee of Detail reported that federal officials "shall be liable to impeachment and removal from office for neglect of duty, malversation, or corruption."

Yet, in its report on September 4, the Committee of Eleven proposed that the grounds for conviction and removal of the President should be limited to "treason or bribery." On September 8, George Mason opened the convention's discussion on this latter proposal by questioning the wisdom of limiting impeachment to those two offenses. He argued that "[t]reason as defined in the Constitution [would] not reach many great and dangerous offences." He used as an example of such subversion the contemporaneous English impeachment of Governor Warren Hastings of the East India Company, whose trial was based in part not upon specific criminal acts but rather upon the dangers presented to the government by his wielding of virtually absolute power within the Indian colony. Mason was concerned that "[alttempts to subvert the Constitution may not be Treason as . . . defined," and that, since "bills of attainder are forbidden, it is the more necessary to extend the power of impeachments." Mason therefore moved to add the term "maladministration" to permit impeachment upon less conventionally defined common law offenses. Elbridge Gerry seconded the motion. James Madison, without taking issue with either the appropriateness of including such subversion or the need to expand the standard to include such potentially noncriminal wrongs, responded that "Islo vague a term will be equivalent to a tenure during pleasure of the Senate." Recalling an earlier debate on June 20 in which he had asked for more "enumerated and defined" impeachable offenses, Governor Morris agreed with Madison. Mason thereupon withdrew his motion and substituted "bribery and other high crimes or misdemeanors against the States," which Mason apparently understood as including maladministration. Without further comment, the motion was approved by a vote of eight to three.

The convention, again without discussion, later agreed to replace the word "State" with the words "United States." The Committee of Style and Arrangement, which was responsible for reworking the resolutions without substantive change, eliminated the phrase "against the United States," presumably because it was thought to be redundant or superfluous. The convention accepted the shortened phrase without any further debate on its meaning.

Subsequently, the most substantial discussions of the scope of impeachable of fenses, besides those in The Federalist Papers (discussed in the section below), occurred in the ratification conventions in North Carolina and Virginia. For instance, in the North Carolina ratifying convention, James Iredell, who would later serve as an Associate Justice on the Supreme Court, called attention to the complexity, if not impossibility, of defining the scope of impeachable offenses any more precisely than to acknowledge that they would involve serious injustices to the federal government. He understood impeachment as having been "calculated to bring [great offenders] to punishment for crime which it is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against government. [T]he occasion

8 See generally Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 82-102 (1996).