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December 16, 1998

To the Editor: [several were included, none of whom accepted the piece for publication]

There are many reasons to oppose Clinton's policies, at least one of which entails a potentially impeachable offense. President Clinton could indeed be removed from office on strictly constitutional grounds for having given China top-secret technical aid that could be used for military purposes in exchange for campaign contributions. Or even for launching a foreign attack simply to divert public attention from his own domestic crisis. However, lying to an Arkansas grand jury about a sexual liason in the White House does not constitute an impeachable offense on constitutional grounds--at least not as was intended at the 1787 Constitutional Convention.

Resolution 9 of the Virginia Plan, presented to the Convention on June 12 1787, declared that a president would "be removable on impeachment and conviction of mal practice [sic] or neglect of duty" (Farrand's Records, vol. 1, p. 230). As phrased, this wording could indeed be stretched to justify the impeachment of President Clinton. Its description of transgressive offenses is limited to the broad terms malpractice and neglect of duty, and there is no effort to specify the party (or parties) violated by the transgression. However, this portion of the Virginia Plan was discussed at length during the July 20th and September 8th sessions of the Constitutional Convention (respectively in Farrand's Records, vol. 2, pp. 64-69 and 550-51), and it seems apparent from Madison's summary of these two sessions that the final will of the body was to limit impeachment to transgressions against the government of the United States. If this be the case, President Clinton's sexual misconduct and false testimony are not impeachable.

Pinckney and Gouverneur Morris began debate on July 20 by advocating that the impeachment clause in the Virginia Plan be struck from the Constitution. Davie and Wilson disagreed, but Morris replied with several arguments, the most cogent of which was that, instead of impeachment, defeat in the next election would be sufficient punishment. George Mason supported Davie and Wilson by arguing that a more inclusive definition of impeachment would be needed to discourage political corruption. He specifically referred to the use of corruption during elections: "Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?" Benjamin Franklin added that impeachment for misconduct would also preempt assassinations. Apparently Franklin did not explain what he meant by misconduct, so Morris responded that the "cases [for impeachment should] be enumerated & defined," presumably in the Constitution itself, and he expressed his agreement with Franklin that misconduct could properly be included in this list. Madison thereupon offered a list of additional infractions he felt were deserving of impeachment, inclusive of incapacity, negligence and perfidy.

Gerry likewise argued that the threat of impeachment would be a useful deterrent to bad presidents, but, like Franklin, he failed to define what he meant by "bad." Randolph advocated an even broader definition of impeachment with the argument, "Guilt wherever found ought to be punished," and he went on to explain that this was needed to preempt tumults and insurrections. However, both Pinckney and King favored narrowing the definition of impeachment to prevent it from being used by Congress as a "rod over the executive" that would "effectually destroy his independence," thus disrupting the balance between the executive and legislative branches of government. King repeated Morris's earlier argument that future elections would normally be sufficient punishment for presidential infractions, and Pinckney added that [as defined by the Constitution] presidential powers "would be so circumscribed as to render impeachments unnecessary."

Gouverneur Morris brought debate on the issue to a close by announcing that he had changed his mind and could now recognize the importance of impeachment for bribery, receiving foreign pay, incapacity, and corrupting electors. That he did not include misconduct, which he had accepted earlier, was very likely because he considered these four impeachable offenses to be specific examples of misconduct. What resulted was a more narrow specification of impeachable offenses as compared to the wording of the Virginia Plan--narrow enough, in fact, not to apply to President Clinton's infraction.

That nothing was decided by the July 20th discussion of impeachment would be suggested by the Committee of Detail's first draft of the Constitution offered to the Convention on August 6, which simply reiterated the Virginia Plan's wording "malpractice or neglect of duty" (Farrand, vol. 2, p. 134). However, when the issue of impeachment was revisited on September 8, once again its breadth of application became the primary issue. Mason asked why impeachment needed to be limited to treason and bribery, two of the transgressions cited by Morris in his final remarks on July 20. To expand the use of impeachment, thus somewhat restoring the thrust of the Virginia Plan, Mason moved to add "maladministration" to the list of impeachable offenses. The Constitution would read, "impeachment for treason, bribery or maladministration" (Farrand, vol. 3, p. 530). The word maladministration was obviously more useful than misbehavior, since it limited misbehavior to the wrong conduct of official business. However, both Madison and Morris objected to the word maladministration because of its potential misinterpretation in other respects, so Mason substituted the words "other high crimes and misdemeanors." His amendment passed by a vote of eight to three with the addition of the words against the state. Madison did not specify who it was that added these final three words to Mason's amendment, but they were of singular importance, since they limited the injured party to the state itself, not any particular individual or group of individuals. None of Mason's wording had been discussed earlier during the Convention relevant to the issue of impeachment, and Madison's record suggests that this wording was not discussed at the time it was voted upon. So there is no indication at this point what it might have been intended to represent beyond maladministration (Mason's original wording) typified by corruption as explained by Mason on July 20.

Later a new amendment was proposed (by whom Madison does not specify) to replace the word state with United States. At this point, Article II, Section 4, of the Constitution read, "The President . . . shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors against the United States." The explanation for this unanimously accepted substitution was that it was done "in order to remove ambiguity." With the revised wording, the injured party could only be the the United States itself; conversely, the only transgression that justified impeachment was against the United States itself. Once again, the irrelevance to President Clinton's case seems obvious. Whether President Clinton's presumed act of perjury during a grand jury hearing has been a crime against a particular jury or state court, or possibly even the state of Arkansas, it was not against the United States either as a government or as a nation under the authority of that government. State and federal sovereignties cannot be confused in this manner.

Only later, and apparently for the purpose of style, did Morris and others on the Committee of Style eliminate the prepositional construction, "against the United States," thus restoring the original wording of Mason's amendment. Might Morris have deleted this construction to suggest expanding the use of impeachment to apply to less important acts of malfeasance? Possibly, but if so, his editorial modification exceeded his delegated responsibility to improve the style of the Constitution without distorting its substantive content already debated and resolved on the floor during the Convention. Moreover, the more inclusive application Morris might have wanted to suggest, if in fact this was his intention, can best be determined by consulting his earlier remarks on July 20, when he mentioned incapacity and corrupting electors in addition to bribery and receiving foreign pay. None of these apply to the case against President Clinton. However, the overwhelming probability is that Morris eliminated the reference to the United States strictly for stylistic improvement, and without any intention to dilute the status of the United States government as the single injured party for which impeachment would be justified. Apparently, Morris felt the reference to "high crimes" was sufficient for this purpose. If this be the case, as seems probable, there is once again no obvious application to President Clinton's present difficulties. As earlier indicated, state and federal sovereignties cannot be confused.

In the most inclusive sense, what happened on the days of July 20 and September 8 during the Constitutional Convention was that the relatively vague specification of the Virginia Plan that a president can be impeached for malpractice and the neglect of duty was substantially narrowed to the issues of bribery, treason, and, as a catch-all third category, other high crimes and misdemeanors, very probably referring for the most part to acts of corruption as described by Mason, Morris, and Madison. Granted, other transgressions were also mentioned on July 20--for example, misconduct, negligence, perfidy, guilt, treachery, incapacity, and corrupting the electors--but none of these, with the possible exception of guilt and misconduct, bears any relevance to President Clinton's case. However, by September 8 the list of infractions additional to treason and bribery was reduced to maladministration, almost immediately replaced for clarification by "high crimes and misdemeanors against the United States." Indeed, misdemeanors were included in this final list, but, as with high crimes, they only justified impeachment if committed against the federal government itself. It is also to be stressed that throughout these deliberations there was the awareness articulated by both Pinckney and King that limits were needed in the definition of impeachable offenses in order to prevent Congress from usurping the final authority of the electorate at the polls.

Ironically, Representative Henry Hyde and other Republicans who seek to impeach President Clinton repeatedly argue that their effort is to defend the Constitutional as it was originally intended. Nothing could be further from the truth. Close reading of Madison's Convention Records establishes that debate over impeachment was often unclear during the Convention, but to the extent that its arguments can be sifted relevant to the Constitution's final wording, there is ample evidence that the designation of high crimes and misdemeanors intended by our Founding Fathers simply did not bear any application either to President Clinton's sexual misbehavior or to his misleading testimony before an Arkansas grand jury. Paradoxically, the national importance of these misdeeds wholly derives from the choice of Republican congressmen to make an issue of them.

Simply enough, the charges of impeachment against President Clinton should be voided based on law, not fact, since his transgression does not fit the definition of impeachable offenses by our Founding Fathers at the Constitutional Convention. The sooner this is done this coming year, the better for everybody concerned.

Yours truly,

Edward Jayne
526 Montrose Ave.
Kalamazoo, MI 49008