Missing Grounds for Impeachment of Bill Clinton

by Jon Roland, Constitution Society

Independent Counsel Kenneth Starr, in testimony before the House Judiciary Committee, stated that the referral on impeachment of President Clinton only included the charges of perjury, subornation of perjury, and obstruction of justice because despite investigation of other improprieties, these were the only ones that could be "laid at the feet" of the president. The lack of more serious offenses has raised objections to impeachment.

The problem is that the grounds for impeachment specified in the Constitution at Art. II Sec. 4, "Treason, Bribery, or other high Crimes and Misdemeanors", is not limited to criminal offenses against which there are laws. The phrase "high crimes and misdemeanors", as explained by Ann Coulter in her recent book entitled High Crimes and Misdemeanors, is a term of art that includes many offenses that are not criminally or civilly actionable but are, nevertheless, grounds for impeachment and removal from office. Many of those grounds survive today only in the Uniform Code of Military Justice, and include such things as dereliction of duty, moral turpitude, and conduct unbecoming which can adversely affect good order and discipline and bring discredit to the person, his office, his organization, and his country.

The duties of the president are provided in Art. II Sec. 1 Cl. 8, to "faithfully execute the Office of President of the United States" and to "preserve, protect and defend the Constitution of the United States" to the best of his ability. He is ultimately responsible for any failures of his subordinates or for their violations of the Constitution and the rights of persons committed by them. It is not necessary to be able to prove that such failures or violations occurred at his instigation or with his knowledge, to be able, in Starr's words, to lay them at the feet of the president. It is sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinate and compensation for his victims or their heirs. His subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. And he is not protected by "plausible deniability". He is legally responsible for knowing what everyone in the executive branch is doing.

Some may object that under English law, from which we derive the phrase "high crimes and misdemeanors", things like dereliction of duty and moral turpitude were common law crimes, and that by U.S. v. Hudson (7 Cranch 32) we don't have common law crimes under U.S. law. It doesn't matter. If an official, any official, simply refuses to do his job, his refusal is not a ground for criminal prosecution or civil action, other than a writ of mandamus, but if he continues to refuse, then removal from office need not wait for the next election.

We can all provide a litany of offenses against the Constitution and against the rights of persons committed by federal officials and their agents which have not been adequately investigated or remedied. The massacre at Waco, the assault at Ruby Ridge, and many, many other illegal or excessive assaults by federal agents, and the failure of the president to take action against the offenders, is more than enough to justify impeachment and removal from office on grounds of dereliction of duty. To these we could add the many suspicious incidents that indicate covered up crimes by federal agents, including the deaths of Vince Foster, Ron Brown, Jim McDougal, and others knowledgeable of wrongdoing by the president.

The impeachment and removal process should be a debate on the entire field of proven and suspected misconduct by federal officials and agents under this president, and if judged to have been excessive by reasonable standards, to be grounds for removal, even if direct complicity cannot be shown.

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Original URL: //constitution.org/cmt/impeach_grounds.htm | Text Version
Maintained: Jon Roland of the Constitution Society
Original date: 1999 January 16 —