Salon Newsreal | Dear Henry:

A L S O+T O D A Y

We interrupt this impeachment ...
By Joshua Micah Marshall
Two years in a row, Clinton's State of the Union address proves he won't follow the Presidential Tragedy script

Diamond in the Ruff
By Harry Jaffe
The president's lawyer, a lone figure in his wheelchair in the well of the Senate, could not have been a more effective defender

Reactions to the president's speech
Experts discuss Clinton's performance and what effects his proposals would have on the actual problems he identified as priorities

What might have been
By Joan Walsh
It's hard to watch this president perform so well, knowing that he has already undermined his -- and our -- hopes for any real legislative success

The State of the Union
Prepared text of President Clinton's State of the Union address

T A B L E+T A L K
Ignore the talking heads! Discuss your thoughts on Clinton's State of the Union address in the Politics area of Table Talk
___________________
Visit barnesandnoble.com for politics books on both sides of the aisle
___________________

Portrait of a political "pit bull"
By Russ Baker
Rep. Dan Burton, who called President Clinton a "scumbag," has a few questions to answer about his own behavior
(12/22/98)

R E C E N T L Y
Clinton's Star Wars sequel
By Christopher Hitchens
The president pays off the military by funding a notorious boondoggle
(01/19/99)
Impeachment diary III
By Anonymous
In the absence of real action, Senate insiders give the House Boyz low grades, rue the end of bipartisan cooperation and spread a whole lotta rumors about Trent Lott
(01/15/99)
American gerontocracy
By Christopher Shea
Is the mental capacity of the aged leaders judging President Clinton a fit subject for commentary?
(01/15/99)
Counting the dead children
By Jeff Stein
Critics blast U.S. sanctions that kill Iraqi babies, but leave Saddam fat and happy
(01/15/99)
Cracks in the bipartisan façade
By Joshua Micah Marshall
As House Republicans tried to depict their impeachment vendetta as a brave civil rights struggle, the important action was all taking place off-camera
(01/15/99)
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-----Dear Henry:
A SALON EXCLUSIVE: HISTORIANS TALK BACK TO HOUSE IMPEACHMENT MANAGERS.

In October, Salon printed a statement signed by more than 400 prominent historians making the case that the charges against President Clinton did not meet the historical, constitutional standard for impeachment. This week, three historians who organized that group -- Arthur Schlesinger Jr., Sean Wilentz and C. Vann Woodward -- submitted to Salon the following open letter to House impeachment managers, which Salon is printing in full.
House Impeachment managers have charged that the views of the "prominent historians" cited in the Trial Memorandum of President Clinton "do not stand up to careful scrutiny." The Managers go on to make specific allegations about the statements of Historians in Defense of the Constitution, published on Oct. 30, 1998, casting doubt on the historians' conclusion that the Framers explicitly reserved impeachment "for high crimes and misdemeanors in the exercise of executive power." They claim this conclusion means that the historians "believe that commission of a murder or rape by the president of the United States in his personal capacity," is not subject to the impeachment clause in Article II of the Constitution.
Since Jan. 14, the Managers have recycled other charges about Historians in Defense of the Constitution, including the claim, which appeared on George magazine's gossip page (citing unidentified sources), that the White House initiated our effort. Armed with highly selective quotations from Arthur Schlesinger, Jr.'s book from the aftermath of the Watergate crisis, The Imperial Presidency, they have also insinuated that Schlesinger's current stance against impeachment flies in the face of his earlier statements.
All of these charges are false. They are also nothing new. The report about White House solicitation of the historians has been answered in a letter to the editor of George which, alas, will not be published for some time, if at all. In an article in the New York Times on Jan. 17, 1999, Schlesinger noted how Judiciary Committee Chairman Henry Hyde mangled his writings at the committee's hearings on Dec. 8. Schlesinger also made it clear he would support President Clinton's removal had Clinton done what President Nixon did. We have also refuted the other claims -- claims more central to the current impeachment debate -- in various other venues, including the hearings held by the House Judiciary Committee (of which every one of the House Managers is a member). That the Managers would attempt to revive them suggests either that they were not listening during the Judiciary hearings, or that they are desperate to find some way, any way, to discredit the historians' statement and confuse the public. Either way, the Managers compel us, for the sake of clarity, to go over the history of impeachment once more.
It is all the more important that we do so in light of the misleading view of the Constitution, which the Managers presented in their statements to the Senate, particularly in the statements delivered on Jan. 16. We believe that a careful reading of those statements, with their selective treatment of the Constitution and the Federalist Papers, and their endorsement of an eccentric view of impeachment, vividly shows the weakness of the Managers' constitutional case, and the radical character of their new theory of impeachment . Above all, the Managers' case flagrantly departs from both the letter and the spirit of the Constitution.
We hope that the Senate, upon careful consideration of these matters, will defend the Constitution against those who would convert impeachment into a sinister instrument of partisan politics. This is not a party matter. The constitutional principles under attack protect Republican as well as Democratic presidents.
I. The Framers, Impeachment, and the Exercise of Executive Power
The evidence about the Framers' explicit reservation of impeachment for public executive acts - in short, for executive tyranny, a premier concern of the Revolutionary generation - appears in the Constitutional Convention debates of 1787, the debates in the various states over ratification in 1787-88 and in the Framers' subsequent speeches and writings. Most of these materials are published in the standard historical compilations edited by Max Farrand, Jonathan Elliot, and John P. Kaminski. Additional supporting arguments appear in subsequent commentaries (including Joseph Story's). And, interestingly, further historical support has appeared most recently in testimony by some of the scholars called by the Republican majority (not simply by the Democratic minority) at the sub-committee hearings on Nov. 9.
Early on in their discussions of the grounds for presidential impeachment, the delegates in Philadelphia confined themselves to grave abuses of executive power. Concerned about those who were skeptical of, or opposed to, any sort of impeachment provision, they purposely kept the standard for impeachable offenses high, and reserved it for grave matters concerning the performance (or non-performance) of executive duties. They could not have been more explicit: "[M]alpractice or neglect of duty" (Hugh Williamson); "incapacity, negligence, or perfidy of the chief Magistrate," involving crimes that would "pervert his administration into a scheme or peculation or oppression.," including, specifically "betraying his trust to foreign powers" (James Madison); "corruption & some few offenses," such a as "treachery," "corrupting his electors," and being "bribed by a greater interest to betray his trust" (Gouverneur Morris).
(As a quick historical note, it is important to understand that when the Framers talked of "bribery," they were thinking of instances in which someone would bribe the chief executive for some ulterior political purpose. In particular, they were thinking of the case in which Charles II was bribed by Louis XIV of France. The suggestion by some, including Kenneth Starr, that any sort of bribery is impeachable - including, say a president paying off a bellhop to buy his silence about an assignation - is a misreading of the Framers and a distortion of the Constitution.)
True, none of the delegates asked, in effect, "Hey, what about other kinds of abuses, not involving public duties;" and hence none of the other delegates replied that such abuses were not impeachable. (Had such an unlikely discussion come up, the historians' statement would have quoted it directly.) Those questions and those replies did not arise, though, because it never would have occurred to the delegates to raise them. In the context of their discussions, to bring up crimes other than abuses of executive power would have been like asking a convention of apple growers about the price of oranges. In any case, the delegates were explicit that they reserved impeachment for "great and dangerous offenses," in George Mason's words, on the order of "[a]ttempts to subvert the Constitution." And these were confined to crimes committed in the exercise of executive power.
The matter came to a head on Sept. 8, when the Convention approved wording that would have specified impeachment in cases of "Treason, Bribery, or other high crimes & misdemeanors agst. the State." Here again, was an explicit statement that the Framers had reserved impeachment for grave misdeeds committed in the exercise of executive power. No less of an authority than the conservative historian Forrest McDonald (another scholar called by the Republican majority) has affirmed that, according to the wording approved on Sept. 8, impeachable offenses were "limited to actions taken in the performance of public duties." When James Madison objected to George Mason's earlier wording, about "maladministration" (which Mason had lifted from Blackstone's Commentaries) it was precisely because the term was so vague that it would permit the Congress (Madison specifically mentioned the Senate) to lower the standard and remove a president at its pleasure. Everyone in the Convention knew what that standard was, not least because the matter had been before them for months. And so Mason's revised wording, "high crimes & misdemeanors agst. the State," carried the convention.
For reasons that are still a little obscure, the wording of the final clause was changed later that same day to "against the United States," in order to remove "ambiguity." A reasonable reading of this is that the delegates were concerned about what would later be known as federalism and the division of powers, and wanted to keep state crimes distinct from federal ones. But that's a matter of conjecture. Factually, the new wording still confined the grounds of impeachment to abuses of executive power. It was only when the Committee of Style removed the wording after "misdemeanors" that the possibility for later confusion was created. The Convention had instructed the Committee of Style not to change the meaning of any phrase. The new wording did not, in their eyes, do so. Nor did it do so for succeeding generations, including those Americans who called for the impeachment and removal of Andrew Johnson and Richard Nixon. It only did so in the minds of some commentators and officeholders (and an Independent Counsel) 211 years later, in their efforts to promote a radical new theory of impeachment.
After the Convention had finished its work, individual Framers reiterated (again, quite explicitly) what they had in mind as impeachable offenses, when they argued in favor of ratification before their state conventions. The details are contained in Elliot; in brief, the offenses discussed including the receipt of payments from a foreign power (in violation of Article I, section 9), giving false information to the Senate in order to gain measures injurious to the country, and, more generally, failure to perform the duties of the Presidency. The Framers' comments referred exclusively to the offenses against the state stemming from the exercise and abuse of executive power, in perfect harmony with their work at the Philadelphia Convention. James Wilson, second in importance only to Madison in getting the constitution framed and ratified, put it well in the Pennsylvania ratification convention, when he observed that, "Far from being above the laws, he [the president] is amenable to them in his private character as a citizen, and in his public character by impeachment."
Years later, James Wilson returned to the matter and wrote that, in the United States, "impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments." Thereafter, Joseph Story - who although born in 1779, too late to be a Framer, is seen as second only to John Marshall in advancing a neo-Federalist view of the Framers' work - wrote that impeachment dealt with "offences which are committed by public men in violation of their public trust and duties." Again, the matter comes down to official public abuses.
The House Republican Impeachment Managers have turned a blind eye to these fundamental matters. With highly selective quotations from Hamilton's 65th Federalist, for example, Manager Charles Canady, on January 16, attempted to argue that Hamilton did not focus his discussion of impeachment on political acts that did direct damage to society. (See Part III below.) And in that same statement, Canady actually endorsed -- and this bears close attention -- the eccentric view, expressed by James Iredell at the North Carolina ratification convention, that, in Iredell's words, "If [the president] commits any misdemeanor in office, he is impeachable." Here is the essence of the House Republican Impeachment Managers' radical new theory lowering the bar to impeachment -- that any misdemeanor is an impeachable offense. It is explicitly at odds with both the Framers' discussions and the language of the Constitution. Unless it is rejected, the Constitution will have been in effect amended by fiat of the Congress.
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A L S O+T O D A Y We interrupt this impeachment ... By Joshua Micah Marshall Two years in a row, Clinton's State of the Union address proves he won't follow the Presidential Tragedy script Diamond in the Ruff By Harry Jaffe The president's lawyer, a lone figure in his wheelchair in the well of the Senate, could not have been a more effective defender Reactions to the president's speech Experts discuss Clinton's performance and what effects his proposals would have on the actual problems he identified as priorities What might have been By Joan Walsh It's hard to watch this president perform so well, knowing that he has already undermined his -- and our -- hopes for any real legislative success The State of the Union Prepared text of President Clinton's State of the Union address T A B L E+T A L K Ignore the talking heads! Discuss your thoughts on Clinton's State of the Union address in the Politics area of Table Talk ___________________ Visit barnesandnoble.com for politics books on both sides of the aisle ___________________ Portrait of a political "pit bull" By Russ Baker Rep. Dan Burton, who called President Clinton a "scumbag," has a few questions to answer about his own behavior (12/22/98) R E C E N T L Y Clinton's Star Wars sequel By Christopher Hitchens The president pays off the military by funding a notorious boondoggle (01/19/99) Impeachment diary III By Anonymous In the absence of real action, Senate insiders give the House Boyz low grades, rue the end of bipartisan cooperation and spread a whole lotta rumors about Trent Lott (01/15/99) American gerontocracy By Christopher Shea Is the mental capacity of the aged leaders judging President Clinton a fit subject for commentary? (01/15/99) Counting the dead children By Jeff Stein Critics blast U.S. sanctions that kill Iraqi babies, but leave Saddam fat and happy (01/15/99) Cracks in the bipartisan façade By Joshua Micah Marshall As House Republicans tried to depict their impeachment vendetta as a brave civil rights struggle, the important action was all taking place off-camera (01/15/99) - - - - - - - - - - - - - - - - Browse the Newsreal Archives - - - - - - - - - - - - - - - -
		-----Dear Henry: A SALON EXCLUSIVE: HISTORIANS TALK BACK TO HOUSE IMPEACHMENT MANAGERS. In October, Salon printed a statement signed by more than 400 prominent historians making the case that the charges against President Clinton did not meet the historical, constitutional standard for impeachment. This week, three historians who organized that group -- Arthur Schlesinger Jr., Sean Wilentz and C. Vann Woodward -- submitted to Salon the following open letter to House impeachment managers, which Salon is printing in full. House Impeachment managers have charged that the views of the "prominent historians" cited in the Trial Memorandum of President Clinton "do not stand up to careful scrutiny." The Managers go on to make specific allegations about the statements of Historians in Defense of the Constitution, published on Oct. 30, 1998, casting doubt on the historians' conclusion that the Framers explicitly reserved impeachment "for high crimes and misdemeanors in the exercise of executive power." They claim this conclusion means that the historians "believe that commission of a murder or rape by the president of the United States in his personal capacity," is not subject to the impeachment clause in Article II of the Constitution. Since Jan. 14, the Managers have recycled other charges about Historians in Defense of the Constitution, including the claim, which appeared on George magazine's gossip page (citing unidentified sources), that the White House initiated our effort. Armed with highly selective quotations from Arthur Schlesinger, Jr.'s book from the aftermath of the Watergate crisis, The Imperial Presidency, they have also insinuated that Schlesinger's current stance against impeachment flies in the face of his earlier statements. All of these charges are false. They are also nothing new. The report about White House solicitation of the historians has been answered in a letter to the editor of George which, alas, will not be published for some time, if at all. In an article in the New York Times on Jan. 17, 1999, Schlesinger noted how Judiciary Committee Chairman Henry Hyde mangled his writings at the committee's hearings on Dec. 8. Schlesinger also made it clear he would support President Clinton's removal had Clinton done what President Nixon did. We have also refuted the other claims -- claims more central to the current impeachment debate -- in various other venues, including the hearings held by the House Judiciary Committee (of which every one of the House Managers is a member). That the Managers would attempt to revive them suggests either that they were not listening during the Judiciary hearings, or that they are desperate to find some way, any way, to discredit the historians' statement and confuse the public. Either way, the Managers compel us, for the sake of clarity, to go over the history of impeachment once more. It is all the more important that we do so in light of the misleading view of the Constitution, which the Managers presented in their statements to the Senate, particularly in the statements delivered on Jan. 16. We believe that a careful reading of those statements, with their selective treatment of the Constitution and the Federalist Papers, and their endorsement of an eccentric view of impeachment, vividly shows the weakness of the Managers' constitutional case, and the radical character of their new theory of impeachment . Above all, the Managers' case flagrantly departs from both the letter and the spirit of the Constitution. We hope that the Senate, upon careful consideration of these matters, will defend the Constitution against those who would convert impeachment into a sinister instrument of partisan politics. This is not a party matter. The constitutional principles under attack protect Republican as well as Democratic presidents. I. The Framers, Impeachment, and the Exercise of Executive Power The evidence about the Framers' explicit reservation of impeachment for public executive acts - in short, for executive tyranny, a premier concern of the Revolutionary generation - appears in the Constitutional Convention debates of 1787, the debates in the various states over ratification in 1787-88 and in the Framers' subsequent speeches and writings. Most of these materials are published in the standard historical compilations edited by Max Farrand, Jonathan Elliot, and John P. Kaminski. Additional supporting arguments appear in subsequent commentaries (including Joseph Story's). And, interestingly, further historical support has appeared most recently in testimony by some of the scholars called by the Republican majority (not simply by the Democratic minority) at the sub-committee hearings on Nov. 9. Early on in their discussions of the grounds for presidential impeachment, the delegates in Philadelphia confined themselves to grave abuses of executive power. Concerned about those who were skeptical of, or opposed to, any sort of impeachment provision, they purposely kept the standard for impeachable offenses high, and reserved it for grave matters concerning the performance (or non-performance) of executive duties. They could not have been more explicit: "[M]alpractice or neglect of duty" (Hugh Williamson); "incapacity, negligence, or perfidy of the chief Magistrate," involving crimes that would "pervert his administration into a scheme or peculation or oppression.," including, specifically "betraying his trust to foreign powers" (James Madison); "corruption & some few offenses," such a as "treachery," "corrupting his electors," and being "bribed by a greater interest to betray his trust" (Gouverneur Morris). (As a quick historical note, it is important to understand that when the Framers talked of "bribery," they were thinking of instances in which someone would bribe the chief executive for some ulterior political purpose. In particular, they were thinking of the case in which Charles II was bribed by Louis XIV of France. The suggestion by some, including Kenneth Starr, that any sort of bribery is impeachable - including, say a president paying off a bellhop to buy his silence about an assignation - is a misreading of the Framers and a distortion of the Constitution.) True, none of the delegates asked, in effect, "Hey, what about other kinds of abuses, not involving public duties;" and hence none of the other delegates replied that such abuses were not impeachable. (Had such an unlikely discussion come up, the historians' statement would have quoted it directly.) Those questions and those replies did not arise, though, because it never would have occurred to the delegates to raise them. In the context of their discussions, to bring up crimes other than abuses of executive power would have been like asking a convention of apple growers about the price of oranges. In any case, the delegates were explicit that they reserved impeachment for "great and dangerous offenses," in George Mason's words, on the order of "[a]ttempts to subvert the Constitution." And these were confined to crimes committed in the exercise of executive power. The matter came to a head on Sept. 8, when the Convention approved wording that would have specified impeachment in cases of "Treason, Bribery, or other high crimes & misdemeanors agst. the State." Here again, was an explicit statement that the Framers had reserved impeachment for grave misdeeds committed in the exercise of executive power. No less of an authority than the conservative historian Forrest McDonald (another scholar called by the Republican majority) has affirmed that, according to the wording approved on Sept. 8, impeachable offenses were "limited to actions taken in the performance of public duties." When James Madison objected to George Mason's earlier wording, about "maladministration" (which Mason had lifted from Blackstone's Commentaries) it was precisely because the term was so vague that it would permit the Congress (Madison specifically mentioned the Senate) to lower the standard and remove a president at its pleasure. Everyone in the Convention knew what that standard was, not least because the matter had been before them for months. And so Mason's revised wording, "high crimes & misdemeanors agst. the State," carried the convention. For reasons that are still a little obscure, the wording of the final clause was changed later that same day to "against the United States," in order to remove "ambiguity." A reasonable reading of this is that the delegates were concerned about what would later be known as federalism and the division of powers, and wanted to keep state crimes distinct from federal ones. But that's a matter of conjecture. Factually, the new wording still confined the grounds of impeachment to abuses of executive power. It was only when the Committee of Style removed the wording after "misdemeanors" that the possibility for later confusion was created. The Convention had instructed the Committee of Style not to change the meaning of any phrase. The new wording did not, in their eyes, do so. Nor did it do so for succeeding generations, including those Americans who called for the impeachment and removal of Andrew Johnson and Richard Nixon. It only did so in the minds of some commentators and officeholders (and an Independent Counsel) 211 years later, in their efforts to promote a radical new theory of impeachment. After the Convention had finished its work, individual Framers reiterated (again, quite explicitly) what they had in mind as impeachable offenses, when they argued in favor of ratification before their state conventions. The details are contained in Elliot; in brief, the offenses discussed including the receipt of payments from a foreign power (in violation of Article I, section 9), giving false information to the Senate in order to gain measures injurious to the country, and, more generally, failure to perform the duties of the Presidency. The Framers' comments referred exclusively to the offenses against the state stemming from the exercise and abuse of executive power, in perfect harmony with their work at the Philadelphia Convention. James Wilson, second in importance only to Madison in getting the constitution framed and ratified, put it well in the Pennsylvania ratification convention, when he observed that, "Far from being above the laws, he [the president] is amenable to them in his private character as a citizen, and in his public character by impeachment." Years later, James Wilson returned to the matter and wrote that, in the United States, "impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments." Thereafter, Joseph Story - who although born in 1779, too late to be a Framer, is seen as second only to John Marshall in advancing a neo-Federalist view of the Framers' work - wrote that impeachment dealt with "offences which are committed by public men in violation of their public trust and duties." Again, the matter comes down to official public abuses. The House Republican Impeachment Managers have turned a blind eye to these fundamental matters. With highly selective quotations from Hamilton's 65th Federalist, for example, Manager Charles Canady, on January 16, attempted to argue that Hamilton did not focus his discussion of impeachment on political acts that did direct damage to society. (See Part III below.) And in that same statement, Canady actually endorsed -- and this bears close attention -- the eccentric view, expressed by James Iredell at the North Carolina ratification convention, that, in Iredell's words, "If [the president] commits any misdemeanor in office, he is impeachable." Here is the essence of the House Republican Impeachment Managers' radical new theory lowering the bar to impeachment -- that any misdemeanor is an impeachable offense. It is explicitly at odds with both the Framers' discussions and the language of the Constitution. Unless it is rejected, the Constitution will have been in effect amended by fiat of the Congress. 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