Guest Essayist: The Honorable James E. Rogan, Judge of the Superior Court of California

Article 1, Section 3, Clause 6-7
6. The Senate shall have the sole Power to try all Impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside:  And no Person shall be convicted without the Concurrence of two thirds of the Members present.
7. Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:  but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

During President Bill Clinton’s administration, he became a defendant in a sexual harassment civil rights lawsuit filed against him by a subordinate state employee from his days as Arkansas governor. At the case proceeded toward trial, Clinton tried to conceal from the court a recent affair with another young subordinate employee. When the federal judge in the lawsuit ordered Clinton to answer questions about such relationships, Clinton denied the affair under oath. Thus, the president committed felony perjury, and later obstructed justice, to avoid paying damages to the plaintiff in the lawsuit, as well as to duck the embarrassment and political damage of disclosure. After a special prosecutor investigated and delivered an evidentiary report to Congress on Clinton’s deceit, the House impeached Clinton, thereby triggering the constitutional obligation of an impeachment trial under Article 1, Section 3, Clauses 6 and 7. In 1998-1999, I became intimately familiar with this obligation: I was one of the prosecutors in Clinton’s Senate impeachment trial. Here are three brief thoughts about the experience:

First, the Constitution solemnly required Clinton, as a condition of becoming president, to swear an oath to “preserve, protect, and defend the Constitution,” and to take care that he executed our laws faithfully. That obligation included defending laws that protect women in the workplace, just as it also required protecting our legal system from perjury, obstruction of justice, and abuse of power. Fidelity to the presidential oath is not dependent on any president’s personal threshold of comfort or embarrassment.

Second, during Clinton’s impeachment, we came under attack from many who accused us of using impeachment to unconstitutionally seek to “undo an election.” Hillsdale College President Larry Arnn debunked this notion eloquently:

[E]lections have no higher standing under our Constitution than the impeachment process. Both stem from provisions of the Constitution. The people elect a president to do a constitutional job. They act under the Constitution when they do it. At the same time, they elect a Congress to do a different constitutional job…. If the President is guilty of acts justifying impeachment, then he, not the Congress, will have overturned the election. He will have acted in ways that betray the purpose of his election. He will have acted not as a constitutional representative, but as a monarch, subversive of, or above, the law. If the great powers given the president are abused, then to impeach him defends not only the results of elections, but that higher thing which elections are in service, namely, the preeminence of the Constitution[.]

Finally, I didn’t vote to impeach Clinton or prosecute him in an effort to police his personal life. Whether he had one affair or a thousand of them was of no moment to me. (Besides, as an ex-bartender from Hollywood’s Sunset Strip, I’m hardly a stranger to temptation myself). However, I did care deeply about the precedent his conduct set for future chief executives who might later commit the same felonies for reasons weightier than testosterone.

Why is this notion of precedent so important?

When the Founders wrote impeachment into the Constitution as the remedy against those who commit “high crimes and misdemeanors,” they never defined that phrase. The definition comes from precedent, i.e., the previous House of Representatives impeachments. Whenever the House decides certain conduct is (or is not) impeachable, that becomes the precedent, or the standard, for future impeachments. Had the House failed to impeach Clinton just because of the tawdry subject matter underlying his crimes, any future president committing perjury or obstructing justice with far more destructive motives could point to the Clinton Precedent and claim his conduct was not impeachable.

The polls showed that most Americans at the time hated Clinton’s impeachment, and also hated those of us involved in it. As a result of impeachment, my opponent in the next congressional election defeated me handily. Despite the loss, I take comfort in knowing that because we impeached Clinton, Americans today live in a country where every future president is on notice that perjury and obstruction of justice is a one-way White House eviction notice—as long as a future members of Congress have the spine to stand up to him.

 James E. Rogan is a Judge of the Superior Court of California. He is a former Member of Congress who served as a House Manager in the impeachment trial of President Clinton. This essay is adapted from his new book, “Catching Our Flag: Behind the Scenes of a Presidential Impeachment,” published by World Net Daily Books and scheduled for release on May 3, 2011.

Posted in Uncategorized | 5 Comments »

3 replies
  1. David Anderson
    David Anderson says:

    Clinton should not have engaged in such behavior in the Whitehouse. He should not have lied to cover up, nor obstructed justice. All these are a given. Moreover I feel he should have resigned the office. Had Al Gore succeeded him, the likelihood of Bush presidency shrinks considerably. The country would be very different today.

    However I never believed that Clinton’s actions rose to the level of “high crimes and misdemeanors.” Impeachment proceedings were politically motivated out of jealously and pettiness.

  2. yguy
    yguy says:

    I never believed that Clinton’s actions rose to the level of “high crimes and misdemeanors.”

    To this day I’m not sure whether the phrase is properly parsed as “high crimes, and misdemeanors” or “high crimes and high misdemeanors”; but regardless of that, if the majority opinion in Nixon v. United States, 506 U.S. 224 (1993). is substantially correct, as I believe it is, an impeachable offense is pretty much whatever the House of Representatives says it is.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      Right, and a high crime and a high dismeanor is nothing more than the commission of the same felony or the same dismeanor than any other citizen of the United States, the difference being that it was committed while serving in office, and not necessarily by abuse of the same office. But the abuse of office is taken to be more heinous; but even when it comes down to a covert or overt act in a personal capacity the issue still is that the office is in the person of the president. How can you separate the office of the president from the person and assure that some indiscretions in personal life while in office was not influed or coerced by virtue of being the president or any other office holder?

      What is interesting to note is that when a person becomes a public person, they both gain some rights and lose some rights. They gain the right to immunity to an extent to the performing of their duties that they cannot be questioned while performing them except for breach of peace, treason, or felony; but they also lose some rights to petition for defamation against their name against slander and libel for that very same performance of their duties.

      In the last, the House of Representatives are the accusers and the Senate the jury of peers to hear what is not a question of the crimes or misdeamors themselves, but a question of removal from office. Impeachment is not a convinction of a crime. It is only nothing much more than a civil court where a preponderance of evidence is considered sufficient by a 2/3rds majority vote for removal from office. But a petit jury requires 100% majority vote to convict on a charge for a crime. So it is that someone may very well be removed from office; but in criminal proceedings, not be charged, be pronounced innocent, or acquitted. In addition, civil torts for damages may or may not ensue. But it sure seems highly unlikely that anyone impeached from office would be able to navigate any criminal and civil proceedings of any sort, including that of mediation and settlement out of court, at least without the assistance of a shrewd legal team.


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