President Bill Clinton and Impeachable Offenses

prev | next

Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The impeachment of President Bill Clinton stemmed from an investigation that originally centered on financial transactions occurring many years prior to President Clinton taking federal office.1 Attorney General Janet Reno appointed Robert Fiske, Jr. as a special prosecutor in January 1994 to investigate the dealings of President Clinton and his wife with the “Whitewater” real estate development during the President’s tenure as attorney general and then governor of Arkansas.2

Following the reauthorization of the Independent Counsel Act in June, the Special Division of the United States Court of Appeals for the District of Columbia Circuit replaced Fiske in August with Independent Counsel Kenneth W. Starr, a former Solicitor General in the George H.W. Bush Administration and federal appellate judge.3

During the Whitewater investigation, Paula Jones, an Arkansas state employee, filed a civil suit against President Clinton in May 1994 alleging that he sexually harassed her in 1991 while governor of Arkansas.4 Lawyers for Jones took depositions of President Clinton at the White House and asked questions about the President’s relationship with staffers, including an intern named Monica Lewinsky.5 Independent Counsel Starr received information alleging that Lewinsky had attempted to influence the testimony of a witness in the Jones litigation,6 along with tapes of recordings between Monica Lewinsky and former White House employee Linda Tripp.7 Tripp had recorded conversations between herself and Lewinsky concerning Lewinsky’s relationship with the President and hope of obtaining a job outside the White House. Starr presented this information to Attorney General Reno. Reno petitioned the Special Division of the United States Court of Appeals for the District of Columbia Circuit to expand the independent counsel’s jurisdiction, and the Special Division issued an order on January 16, 1998, permitting the expansion of Starr’s investigation into President Clinton’s response to the Paula Jones case.8 Over the course of the spring and summer a grand jury investigated whether President Clinton committed perjury in his response to the Jones suit and whether he obstructed justice by encouraging others to lie about his relationship with Lewinsky.9 President Clinton appeared by video before the grand jury and testified concerning the Lewinsky relationship.10

105-830

, at 28 (1998); The Starr Report: Grounds For Impeachment, No. II, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/7groundsii.htm.

Independent Counsel Starr referred his report to the House of Representatives on September 9, 1998, noting that under the independent counsel statute, his office was required to do so because President Clinton engaged in behavior that might constitute grounds for impeachment.11 The House then voted to open an impeachment investigation into President Clinton’s behavior, released the Starr report publicly, and the House Judiciary Committee voted to release the tape of the President’s grand jury testimony.12

Although the House Judiciary Committee already had conducted several hearings regarding the possibility of impeachment,13 the Committee did not engage in an independent fact-finding investigation or call any live witnesses to testify about the President’s conduct.14 Instead, the Judiciary Committee largely relied on the Starr report to inform the Committee’s own report recommending impeachment, which was released December 16, 1998.15

105-830

, at 200–02 (1998) (minority views). The Committee report recommended impeachment of President Clinton on four counts.16 The first article alleged that President Clinton perjured himself when testifying to a criminal grand jury regarding his response to the Jones lawsuit and relationship with Lewinsky.17 The second alleged that the President committed perjury during a deposition in the civil suit brought against him by Paula Jones.18 The third alleged that President Clinton obstructed justice in the suit brought against him by Jones and in the investigation by Independent Counsel Starr.19 The fourth alleged that the President abused his office by refusing to respond to certain requests for admission from Congress and making untruthful responses to Congress during the investigation into his behavior.20

On December 19, 1998, in a lame-duck session, the House voted to approve the first and third articles.21 After trial in the Senate, the President was acquitted on February 12, 1999.22 Statements of the Senators entered into the record regarding the impeachment indicate disagreement about what constitutes an impeachable offense for the President and whether Clinton’s behavior rose to this level.23 For instance, Republican Senator Richard G. Luger voted to convict on both articles, noting in his statement the gravity of the “presidential misconduct at issue” and arguing that the case was “not about adultery.” 24 Instead, it centered on the obstruction of justice that occurred when the President “lied to a federal grand jury and worked to induce others to give false testimony.” 25 For Senator Lugar, the President ultimately “betrayed [the] trust” of the nation through his actions and should be removed from office.26 In contrast, Republican Senator Olympia Snowe voted to acquit on both articles. In her statement, she admonished the President’s “lowly conduct,” but concluded there was “insufficient evidence of the requisite untruth and the requisite intent” to establish perjury with regard to the concealment of his relationship with a subordinate; and the perjury charges regarding his relationship with a subordinate concerned statements that were largely “ruled irrelevant and inadmissible in the underlying civil case” which “undermine[d] [their] materiality.” 27 She also stated that she thought one of the allegations in the second impeachment article had been proven—the President’s attempt to influence the testimony of his personal assistant—but that the proper remedy for this was a criminal prosecution.28 Indeed, a number of Senators indicated that they did not consider the President’s behavior to constitute an impeachable offense because the President’s conduct was not of a distinctly public nature.29 For instance, Democratic Senator Byron L. Dorgan voted to acquit on both articles.30 He described Clinton’s behavior as “reprehensible,” but concluded that it did not constitute “a grave danger to the nation.” 31

The significance of the Clinton impeachment experience to informing the understanding of what constitutes an impeachable offense is thus open to debate. One might point to the impeachment articles recommended by the House Judiciary Committee, but not adopted by the full House, as concerning conduct insufficient to establish an impeachable offense. Specifically, the House declined to impeach President Clinton for his alleged perjury in a civil suit against him as well as for alleged untruthful statements made in response to congressional requests.32 Likewise, some scholars have pointed to the acquittal in the Senate of both impeachment articles that were brought by the House as evidence that the Clinton impeachment articles lacked merit or were adopted on purely partisan grounds.33 The statements of some of the Senators just mentioned, reasoning that Clinton’s conduct did not qualify as an impeachable offense, may provide support for arguments that impeachment is not an appropriate tool to address at least some sphere of conduct by a President not directly tied to his official duties.34 However, the failure to convict President Clinton might instead simply reflect the failure of the House managers to prove their case,35 or simply bare political calculation by some Senators.36 Ultimately, the lessons of the Clinton impeachment experience will be revealed in the future practice of Congress when assessing whether similar conduct if committed by future Presidents is impeachable.

More broadly, the results of the Clinton impeachment revealed perceived problems with the Independent Counsel Act (ICA), the statute that authorized the investigation which sparked the impeachment proceedings.37 Dating back at least to the 1988 Supreme Court case of Morrison v. Olson, some expressed concerned that the scope of an independent counsel’s authority under the ICA, combined with a lack of accountability to the political branches, posed considerable risk of abuse.38 The statute was permitted to lapse in 1999 amidst bipartisan congressional agreement that the law posed significant problems.39

1: See Ken Gormley, Death of American Virtue: Clinton vs. Starr 33–114 (2010).
2: Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 267 (1999); see generally Whitewater: Timeline, Wash. Post, http://www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline.htm (1998) (last visited Jan. 24, 2018).
3: Gormley, supra note 1, at 143–69. A previous version of the statute under which the independent counsel was appointed was challenged as unconstitutional in Morrison v. Olson. 487 U.S. 654 (1998). The Supreme Court upheld the statute as constitutional. Id. at 685–96.
4: In Clinton v. Jones, 520 U.S. 681, 684 (1997), the Supreme Court held that the President was subject to civil suits in his individual capacity while in office. Id. at 684.
5: Tassel & Finkelman, supra note 2, at 268.
6: The Starr Report: Introduction, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/5intro.htm.
7: See Gormley, supra note 1, at 304–06.
8: Id.
9: Tassel & Finkelman, supra note 2, at 269.
10: H.R. Rep. No.
105-830
, at 28 (1998); The Starr Report: Grounds For Impeachment, No. II, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/7groundsii.htm.
11: The Starr Report: Introduction, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/5intro.htm; see 28 U.S.C. § 595(c).
12: Tassel & Finkelman, supra note 2, at 271.
13: Background and History of Impeachment, Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 105th Cong. (1998); Impeachment Inquiry: William Jefferson Clinton, President of the United States, Hearing Before the H. Comm. on the Judiciary, 105th Cong. (1998).
14: Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 176–77 (2000).
15: See H.R. Rep. No.
105-830
, at 200–02 (1998) (minority views).
16: H.R. Rep. No.
105-830
, at 28.
17: Id. at 2.
18: Id. at 2–3.
19: Id. at 3–4.
20: Id. at 4–5.
21: 144 Cong. Rec. 28,035–113 (1998).
22: 145 Cong. Rec. 2375–78 (1999); Alison Mitchell, Clinton is Acquitted Decisively by Senate on Both Charges, N.Y. Times (Feb. 13, 1999), http://www.nytimes.com/learning/general/featured_articles/990216tuesday.html.
23: See Published Closed Door Statements, 145 Cong. Rec. S1471–1637 (daily ed. Feb. 12, 1999); Gerhardt, supra note 14, at 175.
24: Proceedings of the United States Senate in the Impeachment Trial of President William Jefferson Clinton, Volume IV: Statements of Senators Regarding the Impeachment Trial, S. Doc. No. 106-4, 106th Cong. 2571–72 (1999).
25: Id.
26: Id. at 2573.
27: Id. at 3002.
28: Id. at 3004.
29: See 145 Cong. Rec. S1471–1637 (daily ed. Feb. 12, 1999); Gerhardt, supra note 14, at 175.
30: Clinton Proceedings, supra note 24, at 2942.
31: Id.
32: 144 Cong. Rec. 28,110–12 (1998).
33: Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 Harv. J.L. & Pub. Pol’y 647, 728 (1999) ( “President Clinton’s acquittal, a constitutional law decision by the Senate—the final arbiter of the impeachment law—will reaffirm Congress’s prior ‘holdings’ that impeachment carries a ‘substantiality’ requirement. Impeachable offenses are offenses seriously incompatible with the institutions of government or those that substantially impair a president’s ability to perform his constitutional duties. President Clinton’s conduct falls short of this extraordinarily high threshold.” ). But see Charles J. Cooper, A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice As High Crimes and Misdemeanors, 22 Harv. J.L. & Pub. Pol’y 619, 621 (1999) ( “[T]he crimes alleged against the President . . . plainly do involve the derelict violation of executive duties. Those crimes are plainly impeachable offenses.” ).
34: Michael J. Gerhardt, The Perils of Presidential Impeachment, 67 U. Chi. L. Rev. 293, 300 (2000).
35: See 145 Cong. Rec. S1577 (daily ed. Feb. 12, 1999).
36: Gerhardt, supra note 14, at 175–76.
37: Akhil Reed Amar, America’s Unwritten Constitution 296 (2012); Gerhardt, supra note 14, at 189–91.
38: Morrison v. Olson, 487 U.S. 654, 699–734 (1988) (Scalia, J., dissenting) (asserting that the independent counsel statute created improper incentives for investigations and prevented the President from holding prosecutors accountable) (quoting Brief for Edward H. Levi et. al, as Amici Curiae in Support of Appellees at 11, Morrison v. Olson, No. 87-1279 (Apr. 8, 1988)).
39: See Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 525–26 (2005) ( “In the wake of Kenneth Starr’s investigation of several Clinton-era scandals, a bipartisan consensus emerged against the use of independent counsels.” ); Gerhardt, supra note 14, at 189–91; see, e.g., Future of the Independent Counsel Act, S. Governmental Affs. Comm., 106th Cong. 248 (1999) (statement of Janet Reno, Attorney General) ( “However, after working with the Act, I have come to believe—after much reflection and with great reluctance—that the Independent Counsel Act is structurally flawed and that those flaws cannot be corrected within our constitutional framework.” ); id. at 425 (testimony of Kenneth Starr, Independent Counsel) (describing the independent counsel statute as creating a “fourth branch of government” with results that are “structurally unsound [and] constitutionally dubious” ).