The Impeachment Showdown
Philip Lacovara, counsel to the Watergate Special Prosecutor, Analyzes the House Debate

Transcript from Dec. 18, 1998

Timehost: A momentous day in the history of the country...

Philip Lacovara: Certainly is. Who would have thought it?

Timehost: The full House is debating whether Bill Clinton will be the second president to be impeached. Our guest is Philip Lacovara, former counsel to the Watergate Special Prosecutor. He also argued the case US v. Nixon, the Nixon tapes case, before the Supreme Court. Thank you very much for joining us today.

Philip Lacovara:You're very welcome. Glad to be here.

Timehost: Before we take questions, I'd like to follow up on your first comment... this should be an historic day but it doesn't really seem like it, does it? Is that what you were getting at?

Philip Lacovara: Well, what makes it so difficult to gauge how historic it is, is that we have the American people largely uninterested in what's happening in Washington and much of the nation's attention focused on the military operations in Iraq. So the debate is taking place at a time when American forces are involved in hostile operations under the command of the commander-in-chief who is on the edge of being impeached.

Timehost: We keep saying that President Clinton will probably be the second President to be impeached...

c___i___ asks: Who was the first?

Timehost: A number of people have questions about that and about the historical comparisons.

Philip Lacovara:Andrew Johnson in 1868. He became president when Lincoln was assassinated. And he was impeached, but not convicted by the Senate because of political hostility to his policy of trying to reestablish good relations with the Southern states that had been vanquished in the Civil War. The Radical Republicans wanted to remove him from office for being too conciliatory. He was impeached for violating a statute that attempted to prevent the President from firing any Cabinet official without the Senate's permission, a statute that the Supreme Court ruled unconstitutional 70 years after Johnson was impeached but acquitted by the Senate.

Timehost: A number of people have had questions about censure...

Kafka1979 asks: Is censure really constitutional? I'm interested in Henry Hyde's argument that the House can't censure Clinton because the House accuses, the Senate tries and punishes. What are your thoughts?

chilebuff asks: Is it true that the House Parliamentarian has already stated that censure would violate House rules and is not an option?

Philip Lacovara: There's no clear answer to the question whether the House alone or both houses together through a joint resolution have the legal authority to censure the President. The Constitution, in one of its original protections of civil liberties, explicitly prohibited Congress from enacting bills of attainder. This was a kind of legislative punishment that Parliament used to impose against enemies of the Parliament. And the Framers of the Constitution wanted punishment or condemnation limited to proceedings in the courts. The only exception expressly authorized in the Constitution is the impeachment mechanism, and there is a very good argument that an effort to declare the President guilty of misconduct through a censure resolution would exceed Congress's powers and set a very dangerous precedent for the future. The impeachment process at least leads to a formal trial in the Senate where evidence is taken, witnesses can be examined, Senators are under oath to decide the case fairly, and in the case of impeachment of the president, the Chief Justice of the Supreme Court is presiding.

IanRoycroft asks: Does lying equate to using the FBI and CIA to cover-up a rigged election? (Like Nixon)

Philip Lacovara: The Democratic side in the debate draws a contrast between the seriousness of President Nixon's manipulation of federal agencies such as the CIA and FBI to cover up responsibility of White House officials for Watergate, and, on the other hand, the charges against President Clinton. The Republicans, however, charge that Mr. Clinton himself misused government officials and agencies, including his own Cabinet officers and senior White House officials in order to disseminate a version of events that the Starr report and the Judiciary Committee articles contend was deliberately misleading. So one of the articles of impeachment against President Clinton resembles the charge against President Nixon in alleging obstruction of justice and misuse of official power.

shell_8_56 asks: Why have our congressman turned deaf ears to the majority of people who do not want Mr. Clinton impeached?

Philip Lacovara: Well, there are two responses to that. One is a political science answer, and the other is a constitutional answer. The first is that our system of government is a representative system rather than a democratic system, which means that people vote for representatives who are then expected to inform themselves on important issues in a way that the average citizen cannot and exercise their own best judgment on issues. That may mean that they properly reach a conclusion different from what a public opinion poll might reveal even in their own district. In addition, the impeachment responsibility is a matter of high constitutional duty. It would be just as improper for a member of Congress to vote to impeach a president because a majority of the people wanted him out even if the member of Congress concluded that there were not sufficient grounds for impeachment -- just as wrong as it would be for a member of Congress who firmly believes that the President's conduct merits impeachment to ignore that judgment because it is politically unpopular.

KarriMarie asks: Can you explain the legal definition of perjury? I've heard it is based on whether it is pertinent to the case.

Philip Lacovara: There is an element of the crime of perjury that it must be material to the proceeding in which the false testimony is given. Materiality means that the information may affect the outcome in the proceeding and is therefore pertinent to the issues being litigated. Therefore, a false answer on a completely irrelevant issue might not be sufficient basis for a perjury prosecution. The Republican articles of impeachment rely on the fact that the trial judge in the Paula Jones case required President Clinton to answer questions about his relationship with Ms. Lewinsky after hearing arguments about whether and to what extent this information would be material. Then, the Starr grand jury probed whether the President had testified truthfully in that earlier civil case.

Yuletiger_5001 asks: What would be the political advantage to the Republicans of impeachment? The November elections have proved this issue is not a vote-winner and it is now too late to effectively prevent Gore from having two terms if he is drafted into the Presidents role.

Philip Lacovara: That's a very good question. And it's hard to see what the partisan political advantage is to the Republicans since the consequence of removing President Clinton from office would be to give the presidency to Vice President Gore. It is generally thought that it is more effective to run for election as an incumbent and therefore Mr. Gore, who plans to run for the presidency in 2000 in any event, would be running as an incumbent. Thus, one might argue that this political reality suggests that the Republican impeachment effort is not politically motivated. There is, however, a theory that the goal is to tarnish the Clinton-Gore administration because it is generally assumed that the Senate will not convict and remove President Clinton. Therefore, when Vice-President Gore runs for the presidency in 2000 he will be running as a member of an administration led by a president severely tarnished by scandal, even if two-thirds of the Senate was not willing to remove him from office.

pick119 asks: Does Mr. Lacovara believe that this is a dangerous abuse of the impeachment process?

Philip Lacovara: Any decision to impeach a president is fraught with risk . It certainly unsettles the government and unsettles our allies. It also increases the likelihood of another impeachment on marginal or limited justifications. But if a majority of the members of Congress believe that the President has engaged in conduct that seriously undermines his integrity and his fitness to lead the country, they have a constitutional responsibility to decide whether that justifies putting him on trial and allowing the Senate to decide whether he engaged in the conduct and whether he should be removed.

sweetypiesue asks: Why are the representatives so willing to impeach him but not the Senate?

Philip Lacovara: The breakdown in the House seems to be on party lines. And it has generally been the case that the House has been more partisan. This has been the rather continuous pattern since the early days of the Republic. The Andrew Johnson case, 130 years ago, illustrates what is likely to be the situation here, with the Senate taking a somewhat more statesmanlike and cautious position -- not governed quite as firmly by partisan or party positions. In any event, since it takes 67 votes to convict and remove the president, and the Republicans will have fewer than 60 members of the new Senate, it is very unlikely that a sufficient number of senators will cross over and vote against the leader of their party to provide the two-thirds majority necessary.

MrGovernor asks: Sir, do you think the Republicans are making the right choice to go ahead with the impeachment proceedings as US Troops and British allies continue to fight?

Penny4_Your_Thoughts asks: Do you think he ordered the bombings to take the people's attention off of the hearings?

Philip Lacovara: On the first question, it seems likely that the decision to proceed so quickly with the impeachment vote while American troops are involved in combat was designed to bring this matter to a head before the current Congress goes out of existence in the beginning of January. The new Congress would have to start the impeachment process all over again and the Republican and Democratic lineup in the new House would be much closer. Only President Clinton can say whether he was influenced by the impending impeachment debate in deciding whether to launch American strikes against Iraq at the 11th hour. But, he did act as soon as Ambassador Butler of the inspection group reported that the Iraqis had ceased cooperating and there was only a small window of opportunity between that report and the beginning of the Muslim holy month of Ramadan this weekend.

Timehost: What is your opinion of the tenor of the debate on the House floor?

Philip Lacovara: No one has made any new points. The Republicans emphasize their view of the seriousness of the charges. The Democrats emphasize their view that the inquiry into President Clinton's sexual activities should never have taken place, and that, in any event, false statements about private sexual conduct are not high crimes and misdemeanors as the Constitution uses that term. The tone of the Republican presentation seems more high-minded even if this is for political effect, and the tone of many of the Democratic speeches is much more vituperative and harsh. What is somewhat disquieting is that very few members of Congress are in the House chamber listening to the debate. This indicates that virtually all of the members had their minds made up before the debate began. So the session is more of a stage for delivering prepared statements often for local consumption back home, than it is a genuine debate seeking to change minds.

VariFagel asks: If the vote in the House goes against him, what will actually happen next? Excuse my ignorance, but I'm a foreigner who doesn't totally understand the impeachment process.

Philip Lacovara: The impeachment vote is a determination that the President should be brought to trial before the Senate on specific charges, called the articles of impeachment. If the House approves one or more articles , it then will appoint a team of House members called "managers" who will be responsible for presenting the charges against the President in the Senate. The Senate then serves as the trial body to adjudicate the charges . Every Senator must be sworn in, just like a juror in a court case, taking an oath to decide the matter fairly on the basis of the evidence. The Chief Justice of the United States presides at the trial. Evidence is taken with witnesses or other forms of legal evidence and ultimately the Senate will vote whether to convict the President on any article of impeachment. There are , however, various procedural mechanisms that could end the proceedings before a vote on guilt or innocence. For example, the Senate by a mere majority vote may decide to adjourn the trial indefinitely, thus bringing it to an end without a vote on guilt or innocence.

Timehost: There was one surreal moment today on the floor, and that was watching Rep. Alcee Hastings talk about impeachment from personal experience -- and his own long process of being impeached when he was a federal judge.

Philip Lacovara: I'm personally familiar with the Hastings matter because I was involved in a litigation brought as a result of President Reagan's decision to appoint me to a judicial screening committee. That appointment required him to discharge the presidential designee who had been appointed by President Carter. That person sued President Reagan and me, invoking the same legal arguments that, ironically, had been at the core of the Andrew Johnson impeachment, namely that Congress had guaranteed the tenure of the appointee and that the President could not lawfully remove him before his term ended. While the lawsuit was pending, however, my predecessor was indicted for conspiring to bribe Judge Hastings. He was convicted and gave up his effort to defend his presidential appointment. Meanwhile, the judge was prosecuted for accepting bribes, but was acquitted under the statutes governing the judiciary. However, a panel of supervisory judges investigated Judge Hastings' conduct and concluded that his acquittal may have been tainted. They recommended impeachment proceedings. The House conducted its own investigation and the full House impeached Judge Hastings and he was tried and convicted by the Senate and removed from office. Several years later, though, he was elected to the House of Representatives, where, I think, he will be the only impeached and convicted official in the history of our country to have sat in judgment on another target of an impeachment proceeding.

Timehost: There are all sorts of questions about what a Senate trial will look like...

cat1031 asks: What rules of evidence obtain in a senate trial?

Philip Lacovara: There are no formal rules of evidence in the Senate trial. In fact, the Senate, in effect, makes up many of the rules as it goes along. With recent impeachments, the Senate has delegated the function of actually taking testimony to a committee of senators, rather than hearing the witnesses before the full, 100-member Senate. And the Supreme Court has refused to overturn the conviction and removal of a federal judge who was removed after only a small number of senators had actually heard testimony but reported to the full Senate that they were satisfied that the judge had committed the crimes charged. It is uncertain whether the Senate would try to do something like that if the President has to be put on trial. In addition, even though the Chief Justice of the U.S. will preside at the trial and will make rulings on evidence the way a trial judge would in a traditional courtroom proceeding, the decisions of the presiding officer are subject to review by a vote of the full Senate. So, the power to decide what evidence will be heard and by whom rests in the hands of a majority of the members of the Senate.

Mulder1960 asks: What is YOUR opinion about this? Should Clinton be impeached or not?

Philip Lacovara: Since my law firm has provided legal advice and representation to the office of White House counsel in connection with recent claims of privilege, it would not be proper for me to express any personal opinions on the issues that the House is debating. All I can say is that I am troubled that the line-up is essentially along party lines when it seems to me that there are at least fair arguments on each side of the issue and one would have thought that in the application of objective judgment more members of each party would have crossed over to agree with the conclusion reached by members across the aisle.

thedoctor9 asks: What do you think will be the outcome of a Senate trial?

Philip Lacovara: At this stage it seems almost certain that the President will not be convicted and there are two reasons for that. One is purely a matter of party line-up. The Constitution requires a two-thirds vote for conviction and even if every Republican voted for conviction it would still be necessary to come up with 12 Democrats to cross the line. That is unlikely. And in addition, it is highly unlikely that all Republicans in the Senate will vote for conviction. In part, that reluctance reflects the fact that there is at least a fair basis to question whether perjury is the kind of misconduct that the Framers had in mind when they used the term "high crimes and misdemeanors" and a number of members of the Senate may decide that doubts on that issue should be resolved in favor of the President. The principle here would be that one should be cautious about pushing the outer limits of the Constitution when something as grave as a change in the chief executive is at stake.

Timehost: Thank you very much, Philip Lacovara for joining us today...any closing thoughts?

Philip Lacovara: I think we'll all look back on this in six months or six years and have a very different sense of what has gone on than we do today. And I hope that we will feel better about what happens today than we do at the moment.

Timehost: Again, thanks for taking the time for being with us. We hope you'll come back.

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