Michael Gaynor
August 15, 2005
Reviewing the Clinton years: Part X
By Michael Gaynor

As a practical (but not legal or historical) matter, former President Ford was right when he said on April 15, 1970 that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history...."

It is useful to review the impeachment proceedings against Andrew Johnson, the only other President ever impeached, particularly the review of the comments of the Framers on the impeachment clause. At the end of the discussion Gouveneur Morris indicated that impeachment was available for "flaws" ("facts" appears to be a mistranscription) as well as "crimes," although he might not have conceived of how "flawed" some Presidents would be.

As the twentieth century comes to a close, the notion that neither crimes involving sex nor serious character flaws are proper bases for impeachment and removal from office has acquired a popularity that the Founders would have found as revolting as the thought of a President doing what President Clinton apparently did.

In this respect, it is instructive to consider an impeachment case at the beginning of the century: the case of William Sulzer, distinguished as the only New York Governor to be impeached, convicted and removed from office.

On October 16, 1913, Mr. Sulzer was convicted on three articles of impeachment, each of which charged a "high crime and misdemeanor." These charges: (1) filing a false statement of his receipts and other monetary transactions involved in his successful gubernatorial campaign; (2) committing perjury in his statement to New York's Secretary of State relative to receipts and expenditures of funds for his campaign; and (3) suppressing evidence by means of threat to keep witnesses from testifying before the Legislative Investigating Committee.

Mr. Sulzer, upon removal, stated that he had been the victim of "a political lynching" and pledged that "the fight for reform and honest government will go on." Presumably, but for his removal, he would have provided New York with the most ethical administration in its history.

The New York Sun was not deceived. It wrote:

"[Mr. Sulzer] is self-destroyed — in fact self-convicted. An innocent man, a true man, even a brave scoundrel, would have acted otherwise from the beginning. Even if William Sulzer had escaped this terrible judgment by means of the technicalities on which he and his counsel depended on as their only possible resources in the emergency, Mr. Sulzer's annihilation before the court of public opinion would nevertheless have been accomplished."

Mr. Sulzer and his able counsel argued that Mr. Sulzer had not committed an impeachable offense because the acts with which he was charged took place before he became Governor.

The United States Senate that decided the Clinton case was not as courageous as the New York State Senate that decided the Sulzer case.

Senators should have followed the advice of Iowa's Senator James Grimes, who explained in simple terms in 1868 what a United States senator hearing an impeachment case is required to do. Since Senator Grimes, a Republican, cast the final vote acquitting President Johnson, a Democrat, he cannot plausibly be accused of partisanship and his words have special significance.

Senator Grimes forthrightly stated that "[h]owever widely...[he]...differ[ed] with the President respecting his political views and measures, and however deeply [he]...regretted...the differences between [the President] and the Congress," he could not "suffer [his] judgment of the law governing [the] case to be influenced by political considerations."

Senator Grimes explained that in voting whether or not to convict he was "acting in a judicial capacity, under conditions whose binding obligation can hardly be exceeded," and that he "must act according to the best of [his] ability and judgment." He humbly acknowledged that he was obligated to follow the law. In his words, "[i]f...the President is guilty, I must say so; if...the President is not guilty, I must say so."

For Senator Grimes the question was whether or not the President was "guilty of an impeachable offense by reason of anything alleged in either of the articles preferred against him" and the President's "character as a statesman, his relations to political parties, his conduct as a citizen, his efforts at reconstruction, the exercise of his pardoning power, the character of his appointments, and the influences under which they were made" were "not before" him.

James Iredell had spoken eloquently on the subject at the North Carolina Ratification Convention. (See The Debate of the Constitution, Vol. 2 (Library of America, 1993), speech delivered by Iredell on July 28, 1787, entitled "James Iredell on the Presidency, Spies, the Pardoning Power, and Impeachment ." beginning at page 780.)

Iredell declared in that speech: "It is the genius of a republican government that the laws should be rigidly executed without the influence of favour or ill-will: That when a man commits a crime, however powerful he or his friends may be, yet he should be punished for it....This strict and scrupulous observance of justice is proper is all governments, but it is particularly indispensable in a republican one; because in such a government, the law is superior to every man, and no man is superior to another." Id. 874-75

Iredell obviously did not consider a President above the law. To the contrary, he insisted that it is indispensable that the President strictly and scrupulous observe justice.

Later on July 28, 1788, Iredell directly addressed the essence of an impeachable offense, in a speech entitled "James Iredell on Impeachment: 'It Must Be for an Error of the Heart, and Not of the Head,'" in which he explained that actions taken in good faith, even though reflecting poor judgment, are not impeachable.

Iredell stated: "Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuses his trust, he is to be held up as a public offender, and ignominiously punished." Id. 883.

Iredell further stated that he "suppose[d]" that "the only instances in which the President would be liable to impeachment would be where he had received a bribe, or had acted from some corrupt motive or other." Id.

Iredell proceeded to clarify what he meant by "act[ing] from some corrupt motive or other." He meant lying, or deceiving, or misleading a governmental authority.

Specifically, Iredell said, without any equivocation: "The President must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives. If it should appear that he has not given them full, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which the y would not have consented to had the true state of things been disclosed to them — In this case, I ask whether upon an impeachment for a misdemeanor upon such an account, the Senate would probably favour him?"

Iredell would have impeached, convicted and removed forthwith a President who lied in a civil court proceeding, to his Cabinet and the nation for seven months, and to a grand jury investigating his conduct.

It would not have been a difficult decision for him.

To be continued....

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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