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THE CONFUSING IMPEACHMENT PROCESS
THE CONSTITUTION IS TOO VAGUE, AND THE PARTY SYSTEM ADDS COMPLICATIONS, SO CONGRESS WILL HAVE TO BOLDLY GO WHERE NO ONE HAS GONE BEFORE

The looming possibility of impeachment of President Clinton has created all kinds of confusion and uncertainty about how to proceed. Why should this be? After all, the power to impeach the president is specifically provided for in that most revered of all documents: the United States Constitution.

The Constitution specifically provides that the president "shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors." The Constitution further specifies that the House of Representatives shall have the "sole power of impeachment," which in modern parlance means that it is to act as a grand jury. If it indicts the president, he is required to stand trial before the Senate, which acts as his jury, with the Chief Justice of the Supreme Court as the presiding officer, and a two-thirds vote of the members of the Senate present required for a conviction.

Seems simple enough, but it has not worked out that way. In fact, over the course of U.S. history, it has proved to be a difficult and messy process to implement. Actually, there have been only two major impeachment trials since the adoption of the Constitution, as well as a number of minor ones involving lower federal court judges that were so distinct and disconnected that they do not offer much of a precedent.

The first was of Associate Supreme Court Justice Samuel Chase in 1805 and the second of President Andrew Johnson in 1868. Both trials were politically motivated, and both trials were decided on narrow legal points and ended in acquittal, in large part because a number of senators were reluctant to embrace the long-term constitutional implications of removing the most important officers of the federal government in this manner. As a consequence, neither trial offers viable precedents for the current crisis. After the trials, most people simply wanted to forget what happened.

An important source of the current confusion is the impeachment article itself. It is not very clear on what it means and offers no help on how it is to be implemented. The term "high crimes and misdemeanors" is simply too vague and outdated a term to relate meaningfully to late 20th century criminal law categories. As a result, it is now up to the House of Representatives to determine what is an impeachable crime.

Similarly, the constitutional requirement that the Senate act as a jury in the case of an impeachment trial contains all kinds of difficulties. In any other criminal case, no one would be allowed to serve on a jury who had any kind of personal contact with the defendant, to say nothing of people who had openly supported or opposed a defendant's policies and aspirations for public office or who might benefit from the outcome of the trial. But since it is a constitutional requirement that the Senate sit as a jury, there is no way, in the present crisis, to get around it. But is it a requirement that makes sense?

A substantial number of people who are members of Congress have argued that they can be "fair," "just," "objective," "reasonable," "deliberative" and "bipartisan and non-partisan" in dealing with the present crisis. But the extreme partisan remarks and decisions that have been coming out of Washington effectively belie these claims.

And it is in precisely this development that we find the second major cause for the problems inherent in the impeachment process. What is involved here is how the operation of the government created by the U.S. Constitution has been transformed by the development of the two-party system of politics.

Although it is almost impossible today to imagine the federal government operating without political parties, there is no provision for them in the Constitution. Indeed, there is overwhelming evidence that the Founding Fathers thought they were a bad thing and opposed their development, and had little use for what today we term the loyal opposition.

The Founding Fathers, of course, expected that there would be differences on specific issues, but they believed the alignment would shift from issue to issue, much like a kaleidoscope, so that there would be no fixed and permanent opposition.

But this is not how things worked out, and during the decade immediately following the adoption of the Constitution, the Federalists, led by George Washington, Alexander Hamilton and John Adams, denounced their opponents as a faction intent upon overthrowing the government. It was an understandable point of view for a generation that had participated in the overthrowing of British authority in 1776 and the Articles of Confederation in 1787-88.

Moreover, the Republicans, led by Thomas Jefferson and James Madison, justified their hostility to Federalist measures on the grounds that they were unconstitutional and illegitimate. When they came to power in 1800, they adopted a policy of conciliation and moderation in order to bring about elimination of partisan politics.

They were only partially successful in this endeavor, however, and slowly but surely between 1828 and 1840, a permanent system of two-party politics was established and accepted in the United States. First, the struggle was between Democrats and Whigs, and then it became what it is today, a struggle between Democrats and Republicans.

Partisan politics, therefore, is something that has been superimposed on the Constitution and in many important ways, has transformed the way the Founding Fathers intended the government to operate.

This is certainly true of the impeachment process. All the indications are the Founding Fathers expected it to be a non-partisan event. But, as the current crisis reveals, partisan politics has come to dominate every aspect of the impeachment process, and it is impossible to eliminate or even contain it.

Regardless of public pronouncements to the contrary, the White House and members of Congress are carefully watching the polls in order to coordinate their strategies with public opinion. Since the entire House of Representatives and one-third of the Senate are up for re-election in less than two months, most members of Congress are preoccupied with their own future. The president's strongest supporters are most concerned that his departure will jeopardize their own interests, and everyone is trying to figure out how the present crisis will impact on the presidential election in 2000. Party politics, in short, is the driving force behind almost every decision currently being made in Washington.

Making the situation even messier is that much of the debate over whether to impeach the president has to focus on his sexual activities. What has not been adequately appreciated is how deeply the country is divided in regard to its sexual mores.

To begin with, there are those (mainly liberals) who see the president's sexual activities as essentially a private thing and accuse his opponents of engaging in a kind of sexual McCarthyism, although many of them also believed the unsubstantiated charges made against Clarence Thomas at his confirmation hearings in 1991 were sufficient to disqualify him for an appointment to the Supreme Court.

On the other side, there are conservatives who not only see the president as a criminal and a liar but also as a sexual predator, a degenerate and a pervert. Yet it also is becoming clear, when you examine their private lives, that many of these people are not only hypocrites but also, to use Andy Rooney's wonderful phrase, "psalm-singing sons of bitches."

Certainly, not everyone is cynical on sexual matters, but it is clear that the feelings go deep and that the contradictions are complex and not fully understood. Moreover, most people say one thing about sex publicly and secretly feel and do other things. Many will denounce the Starr report and the videotape of the president's testimony as disgusting, but will be secretly titillated and avid consumers of them. The sexual dimension of the present crisis is explosive and unpredictable in its ramifications. And this makes everyone, especially the politicians, nervous and unsure how to proceed.

What can be done? It is hard to know for sure.

Censure would probably be considered a victory for the White House and the Democrats, and therefore will probably not be an acceptable solution to a Republican-controlled Congress, outraged moralists and others who believe the president engaged in criminal activities.

Actually removing Clinton from office could be tricky and unpredictable, since conviction will require a two-thirds vote from the Senate, and this is never an easy kind of majority to obtain. The trial itself could be extraordinarily acrimonious and create divisions that might take years to heal, and distract the country for an indeterminate amount of time.

For many people resignation appears to be an attractive way out of the current mess, but the White House appears intransigent, and it is unclear that there are enough moderate Democrats around to convince him that this is the right way to go.

Also, resignation, particularly its timing, will undoubtedly be mired in politics, since, according to the 22nd Amendment, if the resignation were to take place before Jan. 20, 1999, Gore would be eligible to be elected for only one more term as president, while if it occurred after Jan. 20, he could serve two full terms if elected.

There is probably no happy way out of the present crisis. The country will have to muddle its way through as best it can. Resignation may be the best alternative, but it isn't a good precedent and does not effectively deal with the inadequacies of the Constitution's impeachment provisions.

Therefore, once the present crisis is over and emotions begin to subside, it may make sense to take a hard and careful look at the Constitution and consider changing it to make the impeachment provisions more precise, and, if possible, to depoliticize them.

There is no question that the Constitution has served the United States well. Indeed, under it we have become the most powerful and prosperous country in the history of the planet, and it is the main source of the political stability that has made us the envy of the world.

But the Constitution is by no means a perfect document. Certainly, the Founding Fathers did not think so, which is why they provided a process for amending it. If the Founding Fathers were present today, they would be amazed to see how little it has been changed and would recognize that most of the changes that had been made were for the better. One thinks in particular of the elimination of all the provisions dealing with slavery, the direct election of senators, and that interesting experiment giving women the right to vote.

It is hard to say specifically what changes ought to be made where the impeachment provisions are concerned. One possibility would be to allow the Supreme Court rather than the Senate to determine the guilt or innocence of the president, since it is both more experienced in dealing with legal issues and less concerned about election results. A careful and thoughtful investigation of the problem may lead to other alternatives.

What is clear is that the impeachment clauses of the Constitution have not worked well in the past and are not working well now.

RICHARD E. ELLIS is chairman of the History Department of the University at Buffalo and author of several books, including "The Jeffersonian Crisis," which dealt in part with the impeachment of Samuel Chase.