“The Need for Bipartisanship on Impeachment”
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For close to a year, Washington has been traumatized by the non-stop debate about President Clinton’s shameful behavior. The President’s indiscretions have been the focus of intense scrutiny here in America — and intense puzzlement overseas. We have heard from the politicians, the pundits and the people. Everyone has had their say and now Congress is on the verge of impeachment hearings, where the members will be heard.
I have engaged in hundreds of discussions with citizens, elected officials, Constitutional scholars and even members of the press.
I have studied the Constitutional commentaries and carefully considered what my responsibilities would be as a juror and judge in the trial of the century. I believe that I have done everything possible to ensure that I am ready to address one of the most difficult decisions that may confront me as a United States Senator.
While the debate about the President’s conduct rages on, it seems we will never reach consensus on the challenging legal and constitutional issues that surround impeachment. Yet there is one area where almost everyone agrees. That is the need to conclude this episode as quickly as possible.
I do not mean that people want Congress to rush to judgment. After a year spent obsessed with this subject, we are beyond rushing. The consensus I am referring to is the need for all involved to act with sober deliberation but also with a sense of urgency as we approach the final stages of this difficult controversy.
If the recent election results told us anything, if elected officials learned anything, it was that the American people want the House to end the political posturing, get on with the process, and resolve the issue so we can get on with the Nation’s business. The American people have made up their minds on this matter.
Now it is time for members of the House make up their mind. And if they reach a different conclusion from the American people, they must convince the American people that they reached that conclusion through a fair and deliberate means.
I am here today to call for bipartisanship in the impeachment process. It is a concept many will say they agree with. But actions speak louder than words.
The framers of the Constitution knew that the greatest danger associated with impeachment was the presence of partisan factions that could dictate the outcome.
It is clear from the debates and from the commentaries on the Constitutional Convention that the framers were concerned that anything less than bipartisanship could, and would, do great damage to our form of government. They knew that to contemplate an action as profound as undoing a popular election requires at a minimum that members of both parties find that the alleged wrong is grave enough to overturn the will of the majority of the American people.
The framers also understood the sentiment expressed nearly 200 years later by Congresswoman Barbara Jordan during the impeachment proceedings of Richard Nixon.
She said, “it is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.”
But the current debate is guided by faction, not reason. One example: The House Judiciary Committee this month heard a battery of witnesses address the question of what is an impeachable offense. Democrats called legal experts who testified that the President’s acts are not impeachable offenses, and Republicans called witnesses who were just as certain they were. By the end of the hearing, anyone listening would have the overwhelming impression that there was no consensus in the legal community on the issue, that it was an open question.
Yet the vast majority of historians and legal scholars have concluded — and stated publicly — that nothing that President Clinton has been accused of rises to the level of an impeachable offense. The hearing was a political charade.
We are told that ultimately, this is a political process. Ultimately, it is. The question is whether it is going to be a fair process. I argue that it can, and must be fair.
In his marvelous book on the impeachment process, published while the country was in the throes of President Nixon’s Watergate troubles, Professor Charles Black alerted us to the danger of partisanship.
Because the constitution and its history provide us with more questions about impeachment than answers, he said, “it is always tempting to resolve such questions in favor of the immediate political result that is palatable to us, for one can never definitely be proved wrong, and so one is free to allow one’s prejudices to assume the guise of reason.”
Black was echoing Alexander Hamilton, who warned in Federalist 65 that impeachments:
“will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on the one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of guilt or innocence.”
I don’t think I am being partisan myself in warning about the risks of partisan excess. As a 32 year-old Senator, I expressed this same concern about the fate of a Republican President. On April 10, 1974, I rose on the floor of the United States Senate and said:
“In the case of an impeachment trial, the emotions of the American people would be strummed, as a guitar, with every newscast and each edition of the daily paper in communities throughout the country.
The incessant demand for news or rumors of news — whatever its basis of legitimacy - - would be overwhelming. The consequential impact on the federal institutions of government would be intense – and not necessarily beneficial. This is why my plea today is for restraint on the part of all parties involved in the affair.”
I make the same plea for restraint today. And while the circumstances surrounding these two events are starkly different, the consequences for our Nation are the same. The gravity of removing a sitting president from office is the same today as it was twenty-four years ago.
The American people understand that the consequences of impeaching a sitting President are grave and, thus far, they have shown a remarkable restraint – more than some of the pundits and experts. But I believe they have reached two clear conclusions: Congress should resolve the matter expeditiously and resolve the matter in a fair and non-partisan manner.
These conclusions have great significance to the impeachment process. I believe the American people will ultimately make their judgment about the proceedings and the outcome based in part, on whether the House Judiciary Committee votes along strict party lines and whether the House of Representatives acts in a similar manner.
That may not be fair, but I believe that is how they will judge it. Therefore, it seems clear to me that for history’s sake, and with the Committee’s legacy in mind, Chairman Hyde and the Republican majority in the House must bend over backwards to demonstrate that they have conducted this proceeding based on principle, not politics.
There is yet another issue where public opinion comes into play. That is the question of whether the President’s transgressions warrant impeachment. We know from survey after survey that the American people believe the President’s actions do not justify impeaching him.
Should that have any bearing on the outcome? Many of my colleagues say they will ignore public opinion. In most cases, this is a sound position for a member of Congress to take. When we are elected to the House and the Senate, we are sent here to exercise judgment, not simply to be weathervanes that shift with the political winds. The fact that this is an impeachment proceeding doesn’t change that – it makes it even more important that we exercise our best judgment.
But I believe it is a serious mistake to take the position that public opinion should have no bearing on how we act and what we do. Let me explain. Many people — and many legal scholars — have said that impeachment should be reserved for grave breaches of the public trust. Surely, if we are trying to decide whether an offense is a breach of the public trust, it is important to know what the public thinks. If the American people think the President’s actions do not warrant impeachment, we should listen to their views, and take them seriously.
It would be a serious mistake to ignore public opinion for another, more fundamental reason. This is their President we are talking about. The President of the United States doesn’t serve at the pleasure of the legislature, as a prime minister does in a parliamentary system. He is elected directly by the people of the United States.
The election of a President is the only nationwide vote that the American people ever cast. That is a big deal. If the American people don’t think they have made a mistake in electing Bill Clinton, we in the Congress had better be very careful before we upset their decision.
This was brought home to me several weeks before the elections at a filling station in Wilmington. The woman working the cash register looked up at me with something of a scowl on her face. I assumed — incorrectly, it turned out — that she had voted against me the last time I ran. She said, “You’re Joe Biden, aren’t you?” I nodded. She said, “What are you going to do to President Clinton on this Lewinsky thing?” I started to give her a noncommital answer about the process needing to go forward, but she brought me up short. “Don’t you or anyone else take my vote away, Joe. He’s my President! If you remove him, I will never vote again.”
This woman — and the American people — understand the genius of the American system in their bones. They know that the Congress and the President are separate branches of government. They understand that each branch is responsible to them, not to the other branch of government. Just as they know that the Senators from their state are theirs, and the Representative from their district is theirs, they know that the President is theirs, too.
Anyone who wants to impeach Bill Clinton needs to keep in mind what the American people think about it, because he is their president.
Let me be absolutely clear. This does not mean just doing what the opinion polls say. It means proceeding in a manner that the American people understand to be fair. In the case of an impeachment, fair means bipartisan. It means putting aside the disagreements that stem from partisan factions. The time for partisan factions to play a role is in the process of elections, where candidates advance competing policies and platforms and the people vote. Once the election is held, our leaders hold office until the next election. It is simply antithetical to our constitutional democracy to use impeachment to overturn an election on partisan grounds. It violates the independence of the Presidency and it usurps the people’s voice.
The Framers saw this danger when they wrote the impeachment power into the Constitution. Hamilton warned that an impeachment would “connect itself with pre-existing factions,” just as Black much later saw that impeachment was an occasion for “prejudices to assume the guise of reason.”
So those who wish to proceed with impeachment in the face of the public’s contrary opinion bear a special obligation and confront a special risk. The obligation they face is that they must proceed in a bipartisan manner, so that we can defend the Congress’s actions as fair and consistent with the constitutional framework – so that if impeachment goes forward, those who support it can look my constituent, or their constituent, straight in the eyes and defend the process as fair and just.
Should they fail to do this, the risk they face is the chance that they will inflicting more damage on our system of government and induce more cynicism and disgust with politics than anything the President has done so far.
So we must be prudent. Otherwise we will succumb to the danger the Framers warned against. We will subject the President to what amounts to a vote of no confidence. If you disapprove of his presidency and its policies, or if you do not like the man, vote to impeach. If, on the other hand, you support his presidency and his policies, or if you do like the man, vote to acquit. But that is not our system of government.
When Benjamin Netanyahu returned home after signing the Wye accords, he faced a vote of no confidence. If he had lost, he would have been out of office and another government would have to be formed.
That is simply not our system of government. Ours is not a parliamentary system. That is not how impeachment is supposed to operate.
Reflect for just a moment on how different our government is. Here, the president and the congress are separate branches of government. Each is elected directly by the people. The president and vice president are the only officials elected by ALL the people. Through the electoral process, they answer to all the people. In such a system, a vote of no confidence, as a means of removing the head of government when the Congress disapproves of his leadership, contradicts the theory of separated powers. It would trample on the choice made by the people through the electoral process.
This is no small matter. It goes to the heart of the constitutional design. As Jack Rakove, the Stanford historian, noted during the recently held House hearings on the standard for impeachment, the prevailing principle that guided the Framers in shaping the institution of the Presidency during the Philadelphia Convention, the one major goal and idea that best explains how that office took shape over the summer of 1787, was their intention on “making the presidency as politically independent of the Congress as they could.”
The Framers saw the system of separated powers and checks and balances as a bulwark in support of individual liberty and against government tyranny. The separation of powers prevents government power from being concentrated in any single branch of government. Permit one branch of government to subjugate another to its partisan wishes, and you permit the kind of concentration of power that can lead to tyranny.
So the system the Framers established is utterly incompatible with the idea that sharp partisan divisions could be sufficient to impeach. Preserving our system, with its checks and balances and separation of powers, ought to be part of our consideration as we attempt to resolve the current controversy.
How do we ensure that impeachments do not become the partisan showdowns that the Framer’s warned about? The answer is both simple and elusive. The only thing that prevents the impeachment power from being abused is the good faith of Members of Congress.
Professor Black proposed a simple test. He said that for the purposes of impeachment, members take off their party’s hat — shed their partisan identity — and then try to take on the identity of a member of the other party. In other words, Republicans who favor Clinton’s impeachment should try to pretend they are Democrats, and see if they still hold that same conclusion. Democrats who scoff at impeachment in the present instance should try to see it from the Republican’s point of view.
It is very difficult to perform this test, especially in the highly charged partisan atmosphere in which we live, but you get the point. Before we undertake such a solemn act as impeachment, we should examine our reasoning very carefully to be sure we are not simply following partisan instincts.
Impeachment can be legitimate if and only if it emanates from a bipartisan conviction that the president has committed high crimes and misdemeanors – when people of opposing viewpoints can come together in agreement over the seriousness of the offense and the appropriateness of the sanction.
Partisanship need not disappear entirely — that would be impossible. It simply must be held in check for a time – a few weeks, perhaps a month – and by a relatively small number of people, so that a bipartisan consensus can take shape.
Look back at the Nixon impeachment. It took on legitimacy when a core of Republicans on the House Judiciary Committee were moved by the nature of President Nixon’s offenses to break party ranks and vote for articles of impeachment. In the Senate, it was the stark reality of eroding Republican support that prompted President Nixon to resign. There was bipartisan consensus that what Nixon did was impeachable.
Partisanship did not evaporate entirely during the impeachment trial of Andrew Johnson. In fact, the entire episode was riddled with partisanship, and overall it stands as an excellent example of how not to conduct an impeachment.
Still, seven Republican Senators did vote with the Democrats for acquittal, shedding their partisan preferences, to prevent that impeachment from succeeding. It took only that amount of bipartisanship to save the country from an impeachment that most people – in retrospect – have concluded would have been a terrible mistake. The fact that a conviction in the Senate requires a two-thirds majority guarantees a measure of necessary bipartisanship except in all but the most lopsided Senates.
But bipartisanship should not wait until the matter reaches the Senate chamber. In previous impeachments the votes in both the House and the Senate have been by overwhelming majorities. In the past, except for the Johnson impeachment, the only times articles of impeachment reached the floor were in cases of tremendous bipartisan consensus that the offenses satisfy the constitutional standard and that the officer ought to be removed.
As for the Johnson impeachment itself, according to James Blaine, one of the Republican House members who voted for impeachment, he and others came in time to regret the effort. In private correspondence, Blaine wrote that, “the sober reflection of after years has persuaded many who favored impeachment that it was not justifiable on the charges made, and that its success would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict.”
The conclusion I reach is this. The burden is, as it always has been, on those who seek to impeach and convict a President. To overturn a popular election, they must convince the American people and at least some in the President’s party that the President’s actions meet the high standard for impeachment settled upon by our founders in the Constitution.
This is what I mean by bipartisanship.
The standard is “principled political neutrality.”
And one measure of whether a member has met that principle is to ask in Professor Black’s words:
“Would they have answered the same question the same way if it came up with respect to a president towards whom [they] felt oppositely from the way [they] feel toward the President threatened with removal.”
The American people will know whether each member met that test. They will not demand unanimity, but they will demand consensus.
Thus far, the House Judiciary Committee has proceeded without dignity, causing the American people to loose respect for the Committee.
As a result, the burden of demonstrating that they are proceeding with a standard of “principled political neutrality” will be politically difficult to meet.
Ken Starr will make his case, the President should be allowed to make his. Then let them decide if the President’s conduct meets the test of what the framers had in mind by “high crimes and misdemeanors.”
The choice is not whether the President’s self-evidently shameful and possibly criminal conduct must be punished by impeachment or be condoned. The choice is whether the process for dealing with his conduct is removal from office or some other means — censure, or perhaps even a criminal trial after he has left office.
To those who say that failure to bring articles of impeachment against the President would amount to condoning his immoral behavior or overlooking a criminal act, not withstanding the fact it does not meet the test of an impeachable offense, I say they do not understand our system of government. For the Constitution contemplates and the law provides for such a circumstance - it is called a criminal trial after his term is served. It is a way to punish the President without doing damage to the system of separated powers or overruling the judgment of the American people.
Failure to impeach, even failure to proceed with a criminal action, does not mean that the President has not paid for his immoral behavior — he has already been sentenced to a hundred years of shame in the history books, which is not an insignificant penalty.
So I say to my colleagues in the House, do your duty. Proceed with principled political neutrality.
For if you do, history will judge you kindly. And if you do not, it will judge you harshly.
And for those of us who hold high public office and the public trust, history is a judge.