High Crimes and Misdemeanors: The Clinton-Gore Scandals and the Question of Impeachment

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Page 1 of 41igh Crimes and Misdemeanors

HIGH CRIMES )~ND MISDEMEANORS: THE CLINTON-GORE SCANDALS AND THE QUESTION OF

IMPEACHMENT

Bob Barr*

Table of Contents

I

II

III

Introduction

What is Impe~lchment?A. In trodu(:,tionB. The Pur])ose of ImpeachmentC. The Impeachment ProcedureD. The Scope of Impeachment

1. The Criminality Issue2. The Contours of Impeachment3. Problems with the Scope of Impeachment

E. A Stznunary of ImpeachmentImpeachable Offenses by the Clinton AdministrationA. Delay, Incompetence, and Obstruction: A Course of Conduct

1. Vin(:e Foster I s Documents

2. The "Coffee" videos3. The White House Data Base {"WhoDB"} Memo

B. Impeach~lble Offenses During the 1996 Campaign1. IllE~gal Solicitations in the White House

2. IllE~gal Fund-Raising Outside the White House3. Conflpiracy to Circumvent Spending Limits4. Abufle of the Immigration Process5. OthE~r Possible Impeachable Offenses

Impeachment: The RemedyConclusion

IV

V

Introduction

Early this year, before mlany of the revelations about systemic abuse of government personnel

and process by the Clirlton- Gore campaign hit the public newsstands, I raised the issue of

beginning an inquiry of irnpeachment.[1] I had reviewed evidence of possible offenses that couldappropriately constitute the basis for an impeachment of the President and Vice President,

pursuant to Article II, § 4 of the Constitution of the United States.[21

As recent press reports (;ontinue to document the gravity of how the integrity of the Presidencyand Vice Presidency ha~; been compromised, the House of Representatives has only begun toexamine these scandal~5 in the fashion that the Founding Fathers intended that they be

explored: through the mechanism of impeachment.[3]

Confusion abounds about the constitutional implications of this sordid pattern of abuse. Most

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continue to perceive thEt Clinton scandals only through the lens of a strict interpretation of

criminal law and the questions surrounding potential criminal indictment, to be resolved in theclosed, sterile environment of lawyers arguing fine points of law. What I see, however, from thevantage point of my duties and responsibilities as a I~ember of the House Judiciary Committee,

are questions concerning impeachment. I discern serious questions of abuse of office that oughtto be debated openly and vigorously by Congress ,and a public properly concerned about the

selling of high political office, the abuse of power, and the betrayal of the public trust.

Still, there remains a darlger that attention will contirlue to focus exclusively on the appointment

of an independent coun~iel as the sole remedy with which to address these abuses of power.The Independent Counsel statute,[4] only a quarter- century old, should not be considered or

employed as a substitute for impeachment.[5] The independent counsel is concerned only with

criminal violations that could lead to criminal prosecutions.[6] Evidence uncovered by the

independent counsel car lead to the impeachment of an official, but it does not, in any sense,

replace the constitutional procedure of impeachment.

Our Founding Fathers dEwised the impeachment procedure to be a safeguard against a breachof trust by the executive branch.[7] In light of what the House Judiciary Committee has termed"overwhelming and wid£~ly available" evidence suggesting the violation of numerous felonystatutes by the President and the Vice President,[8:1 it is timely for Congress uphold its public

trust by fulfilling its constitutional duty. As former Representative Peter W. Rodino, Jr. (D.-N.J.),the House Judiciary Committee Chairman during the Watergate scandal, recognized:

We cannot turn away, out of partisanship or convenience, from problems that are now our

responsibility to corlsider. It would be a violation of our own public trust if we, as the

people's representatives, chose not to inquire, not to consult, not even deliberate, and then

pretend that we had not by default, made choices.[9]

What follows is an anal'(sis that will look first at the purposes, procedures, and principles ofconstitutional impeachm(~nt. Second, the analysis will review some of the "overwhelming and

widely available" evidence by examining several ~)f the more grievous and fully developedinstances in detail. Finally, the analysis applies the principles of impeachment to the examined

abuses and investigates 1he implications.

II. What is Impeachment?

A. Introduction

The Constitution provide') that the "President and all civil Officers of the United States, shall be

removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other highCrimes and lv1isdemeanors."[10] Thus, impeachment is the constitutional remedy--the only one--addressed tal serious offenses against the system of government and the public trust.[11 ] Theimpeachment procedure, outlined in the Constitution, has been given content over the two

centuries since its adoption. What conduct justifies impeachment has been the subject of some

controversy among legal scholars.[12] One cause of the controversy is the political nature of

impeachment.[13] As constitutional scholar Michael Gerhardt has noted, "Impeachment is by

nature, structure, and de:)ign an essentially political process."[14] Our Founding Fathers adopted

this view of impeachment from English law and made it uniquely their own.[15] Its scope is

confined to political offi-Gials; it charges only "political crimes" and imposes purely "politicalpunishments."[16] Thus, impeachment is not a criminal proceeding dependent on proof of a

criminal infraction.[17] All inquiry of impeachment examines the "undermining [of] the integrityof office, disregarding of constitutional duties and oath of office, arrogation of power, abuse of

governmental process, [and] adverse impact on the system of government."[18]

B. The Purpose of Impeachment

Impeachment was intemjed to be a "safety valve, a security against an oppressive or corrupt

President and his sheltered ministers."[19] Our Founding Fathers were familiar with the despotic

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rule a too-powerful execlltive could impose. Consequently, they constructed a safeguard against

the executive abuse and usurpation of power that might occur in the separate executive branch

they fashioned. James V\filson, a member of the Pennsylvania ratifying convention, noted thatthe President is "placed '1igh, and is possessed of power far from being contemptible, yet not a

single privilege is annext~d to his character; far from being above the laws, he is amenable to

them in his private chal"acter as a citizen, and in his public character by impeachment. "[20]

James Madison noted that impeachment was "indispensible" to protect the state from "the

incapacity, negligence 01"perfidy of the chief Magistrate"[21] and "as a supplementary securityfor the good behavior of the public officers. "[22] Our Founding Fathers conceived of

impeachment as a device to preserve constitutional government, designed to address actionsby an official that subver1 the structure of government and impugn the integrity of office.

There are three major duties imposed on the President by the Constitution and his oath of office.

His first duty is "to take (~are that the Laws be faithfully executed."[23] The other two duties--"tofaithfully execute the Office of President of the United States" and to "preserve, protect anddefend the Constitution of the United States."[24]--are included in the oath of office. The power

of impeachment serves as a guarantee that these duties are performed.

c. The Impeachment Procedure

The Constitution also sets forth the general principles governing the procedural aspects of

impeachment. In assignillg the House of Representatives the !lsole Power of Impeachment,!1[25]

the Constitution vests thu House with the authority to initiate impeachments. An impeachment isinstituted by written acclJsations, termed !lArticles of Impeachment,!I which state the offensescharged.[26] Under Article I of the Constitution, the House has the power to !ldetermine the

Rules of its Proceedings. ...!1[27] To implement this grant, the House has developed specialrules for impeachment proceedings that are detailed in Jefferson's Manual, and Rules and

Practice of the House of qepresentatives.[28]

An impeachment proceeding can begin with a direct impeachment resolution or an inquiry of

impeachment resolution.[29] An inquiry of impeachment resolution differs from a direct

impeachment resolution in that the inquiry constitutes a preliminary investigation. While a directimpeachment resolution simply calls for a vote to impeach the official, an inquiry resolution

commences an inquiry into whether an impeachment resolution would be appropriate. It is a

prudent first step in the impeachment process. An inquiry is an investigation, conducted by the

Judiciary Committee, to determine whether impeachment is appropriale.[30] The House ofRepresentatives began the Nixon impeachment proceedings with an impeachment inquiry six

months before it voted 011whether to adopt articles of impeachment.[31]

The investigation of an i1dependent counsel is not an adequate substitute for an impeachment

inquiry because an independent counsel is restricted to investigating only statutory felonies;political crimes are excluded from the scope of its investigation.[32] As will be discussed in detailbelow, the scope of an impeachment inquiry concerns offenses that are political in nature.

If the Judiciary CommittE!e finds that grounds for a resolution of impeachment exist, it may then

submit articles of impeachment to the House for a vote.[33] The House votes on each article

separately, and any articles that pass by a majority vote are sent to the Senate for trial.[34]

The Constitution gives to the Senate "the sole Power to try all impeachments."[35] Like the

House, the Senate has also adopted rules for its impeachment proceedings.[36] Once the Househas approved the articles, it requests the Senate "to order the appearance of the accused to

answer the charges, demands a conviction and appropriate judgment, and presents the articles

of impeachment."[37] The Senators then try the case according to the Rules of Procedure andPractice in the Senate \'1/hen Sitting on Impeachment Trials.[38] A conviction requires a two-

thirds majority of the Serlate[39] to find that the accused official committed "Treason, Bribery, or

other high Crimes and Misdemeanors."[40] The Constitution also prescribes the consequencesfor an impeachment <:onviction, including "removal from Office,"[41] and the possible"disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States. .

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.."[42] The influence of the English impeachment proceedings on our Founding Fathers is clearin the procedural aspect~i they adopted,[43] as well as in the grounds for impeachment identified

inArticlell,§4.

D. The Scope of Impeachment

The "President and all ':ivil Officers of the United States, shall be removed from Office on

Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes andMisdemeanors."[44] The phrase "high crimes and misdemeanors" was an English term of ari thatdenoted political crimes against the state,[45] and the choice of this phrase was a deliberate andconsidered action.[46] E;y including that English phrase, our Founding Fathers intended to

expand the scope of impeachable offenses beyond the scope of criminally indictable

offenses.[47] This language incorporates political offenses against the state that injure the

structure of government and tarnish the integrity of the political office.[48] As AlexanderHamilton observed, these political offenses include breaches of the public trust that a presidentassumes once he has taken office. Hamilton made this point in the Federalist, describing

impeachable crimes as "those offences which proceed from the misconduct of public men, or, inother words, from the abuse or violation of some public trust. They are of a nature which maywith peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done

immediately to the society itself."[49]

However, the scope of Dffenses that constitute "political crimes" is not at once apparent. In

1970, during the House impeachment proceedings against Supreme Court Justice William 0.Douglas, then Represenjative Gerald Ford (House Minority Leader at the time) argued that an

impeachable offense "is whatever a majority of the House of Representatives considers it to beat a given moment in history ...[;] there are few fixed principles among a handful of

precedents."[50] Representative Ford's broad view of the scope of impeachment has beencriticized,[51] but disagreement about the range of conduct that is included in the notion of"political crimes" continues. It has never been possible to define the notion precisely; asSupreme Court Justice Joseph Story noted, "[P]olitical offenses are so various and complex in

character, so utterly incapable of being defined, or classified, that the task of positive legislationwould be impracticable, if it were not almost absurd to attempt it."[52] In light of the

disagreement among the commentators and Story's warning, we can, at best, only define the

"contours" or principles of the scope of impeachment by examining its history and the

scholarship generated by that history .

1. The Criminality Issue

As noted earlier, the weight of scholarship has rejected the notion that impeachable offenses

should be limited to only criminal acts.[53] This point, however, is so critical that it needs further

analysis. The phrase "hi,~h crimes and misdemeanors" is "without root in the ordinary criminallaw and [has] no relation to whether an indictment would lie in the particular circumstances."[54]

Of course, an indictable crime can constitute grounds for impeachment, but it is not necessary

to an impeachment conviction.[55] It is a mistake to assume that because "crimes andmisdemeanors" are terms of criminal law that "high crimes and misdemeanors" are just ordinary

crimes and misdemeallors committed by high government officials.[56] This simplistic

assumption ignores the history of term as it was used in England and America prior to theadoption of the Constitution.

In England, the term first appeared in 1386 during the impeachment of the Earl of Suffolk.[57]The Earl had used appropriated funds for purposes that were not specified.[58] Some otheroffenses considered to be "high crimes and misdemeanors" were the placement in office of unfitor incompetent officials[Ei9] and the neglect of duties related to the office.[60] Impeachment wasused in these cases to remedy political crimes that could not be reached by the criminal law.

The Constitutional Convi3ntion looked to this history to fashion an impeachment procedure for

the new nation.[61]

The impeachment procel~ding set out in the Constitution is certainly not a wholesale adoption of

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the English system,[62] but it shares the principle that impeachment is a remedy for actions

beyond the scope of the criminal law. The adoption of the English term "high crimes andmisdemeanors," which came at the end of a thorough debate over the scope ofimpeachment,[63] confirms this view. By adopting this term of art, our Founding Fathersintended to adopt its technical meaning. George Mason, who finally proposed the inclusion of"high crimes and misdeneanors" in the impeachment standard,[64] objected to a standard that

only covered the crimes of treason and bribery.[65] He believed that a more narrow standardwould "not reach many !)reat and dangerous offences."[66] These other offenses could not be

addressed by the criminal law. Thus, the scope of impeachment was expanded beyond the

criminal law to those offenses of a political nature.

Finally, the Judiciary Committee's Report on the Nixon impeachment proceedings in 1974

rejected criminality as a necessary element of impeachment.[67] The report explored the historyof the term "high crimes and misdemeanorS,"[68] but it also examined the fundamental

differences between impeachment and criminal law. First, the report noted the differentpurposes served by impE!achment and the criminal law. Impeachment is "not so much designedto punish an offender as to secure the state against gross official misdemeanors. It touches

neither his person nor his property, but simply divests him of his political capacity."[69] Thus,

unlike a criminal indictment, impeachment is not a personal punishment.[70] The text of the

Constitution mandates this distinction by expressly leaving the impeached official subject to

criminal liability, illustrating that impeachment is not a substitute for a criminal prosecution.[71]

The Committee Report also noted the significant differences between conduct that is madecriminal and impeachab1e conduct.[72] The primary focus of the criminal law is to prohibit

specific acts, while an impeachment may be based on a "failure to discharge the affirmativeduties imposed. ..by the Constitution"[73] or an entire "course of conduct more than individualacts that have a tendency to subvert constitutional government."[74] Indeed, the decision not tocodify those actions that constitute impeachable conduct reflects this difference.[75]

Finally, the most compt~lling argument against the necessity of criminality to the scope of

impeachment is the simplest. Ten out of the fifteen impeachments since 1787 have included atleast one article not involving the violation of criminallaw.[76] Criminality, therefore, has never

been treated as a necessary element of impeachment.

As members of the Hou!;e of Representatives, we deceive ourselves if we pretend that we are

satisfying our constitutional duty by merely seeking the appointment of an independent counsel.Impeachment is a constitutional proceeding "to be exercised over offenses, which arecommitted by public men in violation of their public trust and duties. Those duties are, in manycases, political. ...Stlictly speaking, then, the power partakes of a political character, as itrespects injuries to the society in its political character."[77] Congress has a constitutional duty tothe public to investigate and remedy breaches of the public trust, not just the criminal law. A

violation of the criminal I~w is most certainly a breach of the public trust, but an official need not

violate the letter of the law to violate the public trust. To ignore political offenses while onlypaying attention to crinlinal actions would be a derogation of Congress's duty under the

Constitution.

2. The Contours of Impeachment

Though legal scholarship has for the most part agreed that the scope of impeachable offensesexceeds prohibitions of <:riminal law, a consensus has not emerged on the exact categories of

impeachable offenses. I-lowever, general principles can be derived from the existing legalscholarship to provide ~)ome boundaries or contours to the scope of impeachment. Theseprinciples offer a means to gauge the seriousness of the acts committed by the President and

those under his authority

In his comprehensive work on impeachment, Raoul Berger argued that when the FoundingFathers adopted the phrase "high crimes and misdemeanors" they also adopted the "limited"

and "technical meaning" it had in England.[78] Examining several English impeachment cases,

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Berger reduced that meaning to "intelligible categories."[79] These categories included the"misapplication of funds," "abuse of official power," "neglect of duty," "encroachment on orcontempts of Parliament's prerogatives," "corruption," the "conversion of public property," "thesale of public offices," "betrayal of trust," and "giving pernicious advice to the Crown."[80] In

Berger's view, the Fourjding Fathers considered the technical meaning of the phrase "highcrimes and misdemeanors" and chose to adopt it, along with these categories. Thus, any

impeachable offense should be classified in one of these categories to qualify as a "high crimeand misdemeanor."

In contrast, the 1974 Judiciary Committee Report examined the thirteen American impeachment

proceedings that had takl~n place up to that time and defined three broader categories:

( 1) exceeding the constitutional bounds of the powers of the office in derogation of the

powers of another hranch of government; (2) behaving in a manner grossly incompatible

with the proper function and purpose of the office; and (3) employing the power of the office

for an improper purpose or for personal gain.[81 ]

Reflection reveals that these categories encompass the same conduct defined by Berger, albeitwith broader headings. This is not surprising because they are both efforts to explain the same

general types of conduct that impeachment addresses, namely the subversion of constitutional

government, breaches 01' he public trust, and the corruption of the integrity of public office. TheEnglish and American impeachment cases offer limited examples of these political crimes, but

do not establish the full tlreadth of actions impeachment was meant to address. Indeed, this factis the basis for Justice ~;tory's warning about the impossibility and absurdity of any attempt to

codify the actions that warrant impeachment.[82] This distinction also appears to be consistent

with Hamilton's description of impeachable offenses as "POLITICAL" because "they relatechiefly to injuries done immediately to the society itself."[83] We may look to history for

precedent, but it is manifest that an inquiry of impeachment should, and indeed must, addresswhether the actions of a president or vice president subvert the structure of government and

impugn the integrity of their office. This is something that can only be determined on a case-by-case basis, according to the circumstances of the offense and the "collective political judgment

of Congress."[84]

In 1974, the Judiciary Committee Repor1 on the Nixon impeachment quoted the view of Justice

Story to explain impeachment:

Not but that crimes of a strictly legal character fall within the scope of the power. ..but

that it has a mOrE! enlarged operation, and reaches, what are aptly termed political

offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual

disregard of the public interests, in the discharge of the duties of political office. These are

so various in their character, and so indefinable in their actual involutions, that it is almost

impossible to provi,je systematically for them by positive law. They must be examined

upon very broad and comprehensive principles of public policy and duty.[85]

Justice Story then elaborated on the standard used to measure these political offenses:

They must be judged of by the habits and rules and principles of diplomacy, or

departmental oper~tions and arrangements, of parliamentary practice, of executive

customs and negoti13tions of foreign as well as domestic political movements; and in short,

by a great variety of circumstances, as well those which aggravate as those whichextenuate or justify the offensive acts which do not properly belong to the judicial character

in ordinary administration of justice, and are far removed from the reach of municipal

jurisprudence.[86]

Story's comprehensive statement defines the scope of impeachment as well as it can be

defined. The "very broad and comprehensive principles of public policy and duty," the "habits

and rules and principles .Jf ...departmental operations. ..and. ..executive customs" are the

standards to be used to judge the propriety of impeachment.

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3. Problems with the Scope of Impeachment

One might criticize these standards as too broad and vague to impose any concrete limits.

Trusting the application of this standard to the "collective political judgment of Congress"[87]

could be unfair to the individual charged and allow partisanship to drive the impeachment

procedure. To be sure, the standard is difficult to define, but it is an appropriate one for thehighest offices of goverllment. The Founding Fathers desired a standard of conduct in office

that exceeded what is minimally required by the criminallaw,[88] and the wisdom of this desireis beyond reproach. Thl~ Offices of the President and the Vice President are endowed with

enormous power, and the Founding Fathers included the protection of the broad impeachment

standard as a check against the danger that a "[m] an, in public trust, will much oftener act insuch a manner as to remjer him unworthy of being any longer trusted, than in such a manner asto make him obnoxiou~; to legal punishment."[89] The standard is difficult to define, and,

consequently, demanding to meet, but that is appropriate for the highest officers of the UnitedStates.

The concern that partisanship will be the primary impetus behind impeachment is a legitimate

one.[90] However, the partisan nature of impeachment is nothing new; as Berger observes, it isinherent in the "nature of the beast."[91] The Founding Fathers were aware of this tendency and

Hamilton noted this fact in the Federalist:

The prosecution of [impeachment], for this reason, will seldom fail to agitate the passions

of the whole community, and to divide it into parties more or less friendly or inimical to the

accused. In many c-ases it will connect itself with the preexisting factions, and will enlist all

their animosities, p11rtialities, influence, and interest on one side or on ttle other; and in

such cases there will always be the greatest danger that the decision will be regulated more

by the comparative strength of parties, than by the real demonstrations of innocence or

guilt.[92]

Despite this reality, thE\ Founders still believed impeachment to be a critical element in

safeguarding "the public trust, the powers of government conferred upon the President andother civil officers, and the division of powers among the legislative, judicial, and executive

departments."[93] The F'ounders included protections to curb this tendency of factionalism

through the formal impeachment procedure.[94] First, the separation of the impeachment

procedure between the House and the Senate makes it very difficult for anyone faction to bothimpeach and remove.[95] Second, the two-thirds conviction requirement provides an additionalbraking measure to the process separating partisanship from "real demonstrations of guilt or

innocence."[96] While it is impossible to ensure that an impeachment will not be founded onbase political motives or a difference in policy, these safeguards assure that such an

impeachment will be unlil<.ely to result in a conviction and removal from office.[97]

E. A Summary of Impeachment

Impeachment is a mechclnism included in the Constitution to protect constitutional government.

It addresses actions that may be beyond the reach of the criminal law, but still produce grave

consequences for our sy~)tem of government. These include actions that subvert the structure of

government, impugn the integrity of the office, or breach the public trust that inheres in the

Presidency.

The appointment of an independent counsel is grossly inadequate to address this sort of political

malfeasance. Thus, Collgress must remedy these abuses because only Congress has theauthority under the Constitution to do so. Indeed, it is Congress's duty, part of its own public

trust, to investigate evidence of these political offenses. During the Watergate scandal,

Congress was reminded that "it would be a violation of our own public trust if we, as the people'srepresentative, chose not to inquire, not to consult, not even deliberate, and then pretend that

we had not by default, made choices."[98]

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An inquiry into impeachment is a prudent first step in satisfying Congress's constitutional duty to

safeguard the public trust. If, at the end of the inquiry, Congress is convinced that the President,Vice President, or other officers have not committed political crimes, the inquiry is ended. The

investigated officials are absolved of wrongdoing, and Congress has satisfied its constitutional

duty. If, however, Congress finds that grounds for impeachment exist, articles of impeachmentmay be passed and a Senate trial conducted. Again, Congress will have discharged its

constitutional duty. Thus an inquiry into impeachment is a preliminary step in the impeachmentprocess, but it is a necessary one if Congress is serious about preserving its own public trust.

III. Impeachable Offenses by the Clinton Administration

The scandals plaguing the Clinton Administration are varied and, it appears, never-ending. In

addition, the constant stream of new information being uncovered makes a completely currentanalysis of each allegati:Jn difficult, if not impossible. Despite this difficulty, the seriousness ofthe evidence already revealed compels an impeachment inquiry. The following analysis covers

some of the more developed scandals and some of the most egregious. Some of the offenses

examined are violation~; of the criminal code; all of them constitute impeachable political

offenses.

A. Delay, Incompetence, and Obstruction: A Course of Conduct

Beginning with the mistrt~atment of Deputy White House Counsel Vince Foster's files relating to

"Whitewater" and the Tri)vel Office firings ("Travelgate"), the six month delay in the productionof video recordings of White House fund- raising events, and the suppression of evidence

relating to illegal use of ~he White House database, the Clinton White House has engaged in a

course of conduct that reflects, at best, incompetence and obstruction of justice at worst.[99]

Twenty-three years ago, the Judiciary Committee noted that it is a "course of conduct more than

individual acts that have a tendency to subvert constitutional government."[100] Though the

pattern of evasion and stonewalling in the Clinton White House mayor may not be criminal, it

certainly undermines the competence and integrity of senior White House officials and the

President responsible for their appointments.

1. Vince Foster's Documents

The death of Deputy White House Counsel Vince Foster was the first suicide of a senior U.S.

official in forty-four year~;.[101] The investigations by the Park Police and Department of Justice

were authorized and m~cessary .White House officials had a duty to cooperate with the

investigation. Instead, thl~ investigation was repeatedly impeded by a deliberate effort to conceal

potentially embarrassing information Foster possessed relating to the imminent investigations ofWhitewater and Travelgete.

The hindrance of the Foster investigation began the evening of his death on July 20, 1993.

Ignoring specific requests by the Park Police to seal Foster's office, White House CounselBernard Nussbaum, ChiE!f of Staff to the First Lady Margaret Williams, and Deputy Assistant to

the President Patsy Tl1omasson entered Foster's office unescorted by law enforcement

officers.[102] In addition, the Park Police complained that White House staffers had been

coached on the testimony they gave during subsequent interviews.[103]

The Depar1ment of Ju~itice's investigation encountered the same resistance and evasion.

Nussbaum had initially agreed to Deputy Attorney General Philip B. Heymann's request to

review documents in Fo~iter's office jointly with senior prosecutors of the Depar1ment of Justice.

However, after First Lady Hillary Rodham Clinton expressed a concern about "unfettered

access," Nussbaum performed the review alone.[104] The Justice Depar1ment had no

meaningful role in the re'i/iew, and Nussbaum provided them with only a "generic description" of

the files.[105] After the rrleeting, Nussbaum transferred boxes of documents to the White House

residence for review by the President and Mrs. Clinton and seized records concerning

Travelgate, depositing them in his own office.[106]

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In addition to these actions, Nussbaum's conduct concerning the note found in Foster's

briefcase is highly suspil;ious.[107] Even after the time Mr. Nussbaum acknowledged he knew ofthe note's existence, he delayed informing the Justice Department for another twenty- six

hours.[108] When the note finally surfaced, Mr. Heymann ordered Justice to investigate thediscovery of the note ar1d the assertions made by Foster contained in the note.[109] Foster hadasserted that the FBI hsd lied in their report to the Attorney General on Travelgate.[110] Anyevidence relating to thai assertion would, of course, have been critical evidence. Nevertheless,

Nussbaum removed Fo~)ter's Travelgate notebook from Foster's briefcase and placed it in his

own office without disclosing its existence to authorities.[111 ]

Though ultimately not e~;sential to the question of impeachment, the evidence strongly suggeststhat the White House Counsel's Office is guilty of obstruction under 18 U.S.C § 1505.[112] First,the White House was aware that a criminal investigation of Foster's death had begun and also

knew that investigations into the Whitewater and Travelgate affairs were imminent.[113] Second,

the "unfettered access" of Foster's office permitted the files in the office to be removed and

altered. Thus, it became impossible to have an accurate or comprehensive list of the contents ofFoster's office on the day of his death. These actions impeded the Park Police and Justice

Department investigations into Foster's death, as well as ultimately hindering the legislativeinquiries into Whitewater and Travelgate.

The Office of the White House Counsel is expected to ensure a faithful execution of the laws of

the United States.[114] The actions taken by the Office in the Vince Foster affair breached thattrust and, perhaps, violated 18 U.S.C. § 1505. However, far from being an isolated incident, thedelay of investigation may have become habitual in the White House Counsel's Office.

2. The "Coffee" Videos

More recently, the six- rnonth delay in the release of videotapes of "coffees" held inside the

White House tends to confirm this view.[115] The White House has claimed that the delay was

caused by an inadvertent oversight and was not the result of any deliberate attempt to delay the

investigation.[116] At this point, evidence is still lacking to prove more than incompetence was toblame for the delay in producing the tapes. However, the non-production of another key item inthe investigation of illegal fund-raising appears to transcend mere incompetence.

3. The White House Data Base ("WhoDB") Memo

Since last year, the l-jouse Government Reform and Oversight Committee has been

investigating fund- raisinlJ abuses during the 1996 campaign. Federal law prohibits the use of

government property fol. partisan political purpoSeS,[117] and many of the inquiries into theimpropriety of the Clinton-Gore campaign's fund-raising efforts have concentrated on possibleviolations of this law.[110] As a part of that investigation, in September, 1996, the Committee

formally subpoenaed "all communications related to the WhoDB [the White Housedatabase]."[119] The WhoDB is a $1.7 million taxpayer-financed database used to keep track ofthe correspondence and visits of several hundred thousand people.[120] As property of the

taxpayers, it cannot be E!mployed for political purposes. In March, 1997, memoranda producedby the White House revl~aled a proposal to merge a Democratic National Committee ("DNC")

contributor database with the WhoDB "so that everyone doing outreach in the White House

[could] utilize the informcrtion."[121] White House spokesman Barry To iv attempted to minimizethe importance of the memos claiming, "Every White House invites supporters to events and

every White House maintains lists of people to invite to events including friends and supportersof the President and that's what this database did."[122] These memos revealed that merging

the database had been considered, but they did not demonstrate that the plan had actually been

implemented.

However, in late OctobE~r, 1997, White House Counsel Charles F .C. Ruff released a 1994

handwritten note by former aide Brian Bailey that evinces an intention to merge the WhoDB withapolitical DNC database.[123] The memo reads, "Harold and Debra Delee want to make sure





WhoDB is integrated wlDNC database-- so we can share."[124] The next line explains, "[E]

vidently POTUS wants tllis to[o]! (Makes sense)."[125] Thus, the memo reveals that the mergingof the two databases wa~) more than just an idea; it even had the support of the President.

Putting aside the possibility that this memo may constitute the proverbial "smoking gun,"evincing intent on the part of the President to violate 18 U.S.C. § 641,[126] the fact that thismemo has only recently been produced even though it was clearly responsive to a Committee

subpoena of documents is inexcusable. The Committee unambiguously demanded "allcommunications" dealin!~ with the database.[127] Nevertheless, Deputy White House Counsel

Cheryl D. Mills, attempting to deflect a charge of obstructing justice, testified that she had notregarded the memo as being responsive to the subpoena, but she could not recall the reasoningused to make that decisi~)n.[128]

The actions taken by the Counsel's Office appear to meet the elements of obstructing justice

under 18 U.S.C. § 1505, which prohibits the obstruction of legislative investigations.[129] A

subpoena had been issued by the Committee that clearly covered the memo at issue. The

memo, which demonstrated an intention to commit an illegal act with the approval of the

President, was intentiorlally withheld by the Counsel's Office.[130] Thu.'3, obstructing justiceappears to have become a habit in the White House Counsel's office.

Taken together, these actions reveal a course of conduct within the Clinton White House thatexceeds mere mistake or even aggressive legal tactics. They manifest a pattern of evasion and

resistance to legitimate investigations by law-enforcement agencies and Congress that impugnsthe integrity and calls into question the competency of the Clinton White House.

Article I of the Nixon articles of impeachment concerned the "course of conduct" taken by the

Nixon White House to "delay, impede, and obstruct the investigation" of congressional inquiresinto the Watergate break- in.[131] Article III charged him with failing, "without lawful cause or

excuse," to "produce papers and things directed by duly authorized subpoenas."[132] President

Nixon, like all president~; before and after him, made an affirmative oath "to faithfully executethe Office of President' and, to the best of his ability, "preserve, protect, and defend the

Constitution of the United States."[133] Nixon's actions, committed by his own accord and

through his subordinatE!s, violated that Oath of Office and warranted his impeachment.President Clinton has ta~;en the same oath, and tne pattern of obstruction that has developed inhis White House bears (I striking resemblance to the corruption experienced twenty-four years

ago.

B. ,Impeachable Offenses During the 1996 Campaign

The 1996 Clinton-Gore I.~ampaign has been the subject of investigation for several misdeeds.

Evidence of illegal soli(~itations by the President and Vice President, the circumvention of

campaign spending limits, abuse of the immigration process, the solicitation of illegal foreigncampaign contributions, and the illegal conversion of federal property for political purposesreveal a campaign motivated by two goals: money and votes. These goals dictated every action

taken by the Clinton-Gorl~ campaign, and inconvenient laws were no obstacle.

1. Illegal Solicitations in the White House

Federal law prohibits ti le solicitation of campaign contributions on federal property. The

Pendleton Act[134] makes it illegal for "any person to solicit or receive any contribution" from

"any room or building occupied in the discharge of official duties" by "an officer or employee ofthe United States or any department or agency thereof."[135] The purpose of the law, according

to the United States Supreme Court, is to "check a political abuse" that is "not different in kind

whether practiced by letter or by word of mouth."[136] For years, members of Congress havebeen advised to "troop down the street to their party campaign committees" before "dialing for

dollars."[137] Because the law carries a penalty of up to three years in prison for its

violation,[138] it is no wonder that most federal employees are very familiar with the prohibitionon soliciting campaign funds from federal property.

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High Crimes and Misdemeanors Page 11 of41

Adhering to the plain language of the law, former White House Counsel Bernard Nussbaumcirculated a memorandum in 1993 warning the staff of the illegality of making campaign

solicitations from federal property.[139] "White House telephones," he stated, "must not be used"for activities such as fund- raising.[140] Clearly, the "solicitation or receipt of contributions inFederal buildings" is "prohibited."[141] The White House Counsel emphasized the application of

the federal law to the White House by warning about the potential for "prosecution by an

Independent Counsel" that accompanies its violation.[142] More recently, former White HouseCounsel Abner Mikva[143] reiterated Nussbaum's advice in a 1995 memo to the entire White

House staff: "[N]o fund-raising phone calls," Mikva wrote, "may emanate from the White Houseor any other federal building."[144]

The revelations of the hundreds of telephone calls the President and Vice President placed tosolicit funds for the DNC and the Clinton-Gore campaign demonstrate that they did not heed the

counsel of Nussbaum and Mikva.[145] While the extent of the telephone calls placed by the

President has yet to be determined, Vice President Gore admitted that he "made sometelephone calls from [his] office in the White House" that were charged to a "DNC creditcard."[146] In fact, the solicitations were numerous and of significant importance to the Clinton-Gore campaign. The DtJC asked the Vice President to place at least 140 calls to Democratdonors thought willing to give at least $25,000 each.[147] Records show that Vice PresidentGore placed at least 86 fund- raising telephone calls from his White House office, reaching 46

donors.[148] A November, 1994, memorandum reveals that the Vice President raised over

$370,000 in one afternOOn.[149] Furthermore, Vice President Gore admitted that he "erred" inhis reference to a DNC c:redit card; the calls, it turns out, were billed to a presidential campaign

credit card.[150]

Similarly, White House officials have recently produced to the Justice Department and

congressional investigalors numerous memoranda and telephone records disclosing thatPresident Clinton also made fund-raising telephone calls from the White House.[151] The callsinclude one made from the Oval Office and others made from the President's residence.[152]

Apparently, President ClInton had personally requested a list of potential contributors whom heoffered to call to try to ra,se $1 million, according to a White House memorandum.[153]

Upon the realization thi3t the Washington Post had divulged the nature and extent of his

solicitations from the White House, Vice President Gore proffered several theories to excuse his

actions. Initially, the Vice President declared that he "understood what [he] did to be legal andappropriate."[154] After all, he claimed, "there is no controlling legal authority" holding that hiscampaign solicitations from the White House "violated any law."[155] Referring to a 1908

Supreme Court opinion (~onstruing the Pendleton Act, Vice President Gore proclaimed that the

scope of the law extend~; only to the place from which the solicitation was received, and not to

the place from which the solicitation was made.[156] Therefore, the Vice President asserted, thestatute merely prohibits <:ampaign solicitations aimed at individuals who themselves are locatedin a federal building.[157] It does not, he maintained, disallow solicitations originating from

federal property.[158] In addition, the Vice President declared that the Act was only enacted toprotect federal employees working in federal buildings.[159]

Even if one disregards the plain language of the law,[160] the unambiguous account of the

scope of the Pendleton Act by Senator Joseph Hawley, a member of the committee responsible

for drafting the original statute,[161] contradicts the Vice President's interpretation of the law.According to Senator Hawley, "the committee instructed me to put. ..clauses forbidding any

person in the world to h,ave anything to do with collecting or receiving any money for political

purposes in any public building. ..or office of the United States."[162] To conclude, then, that

the Act does not prohibit campaign solicitations from a federal building ignores the plain words

of the statute itself and the legislative history. Furthermore, the argument that the law wasintended only to protect federal employees from solicitation on the job fails because the code

includes a separate provision that bars the solicitation of federal employees.[163] If Congresswanted to address only that issue, it would not have redundantly enacted the independent ban of

fund-raising on federal property.

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Likewise, Vice Presiderrt Gore submitted that the Pendleton Act, by neglecting to refer

specifically to the Presiijent and the Vice President, applies only to the federal employeesspecifically mentioned ill the law, and not to himself or President Clinton.[164] Again, VicePresident Gore's theory fails when considered in light of Hawley's guidance. Because the lawapplies to "any person ir the world,"[165] the suggestion that the application of the statute doesnot extend to the Presidunt and the Vice President is specious. Furthermore, a 1979 opinion by

the Justice Department's Office of Legal Counsel made clear that the President and Vice

President were among the "officers" covered by the Act.[166] Any contention otherwise, itseems, is supported neitller by authority nor common sense.

Amazingly, the Vice President's defenders seek refuge in yet another artif icial defense of his

actions not present in the statute: the distinction between "hard" money and "soft" money.[167]Relying on a "loophole" in the law invented by Attorney General Janet Reno, Vice President

Gore's supporters contend that the Pendleton Act covers only "hard" money--that is, donationsto a specific candidate.[168] Thus, soft money donations, or unregulated contributions to apolitical party, are not the focus of the statute.[169] This conclusion is based on the fact that thelaw covers only those donations made "for the purpose of influencing any election for Federal

Office."[170] Therefore, the Vice President contends, solicitations of "soft" money from theWhite House, for the benefit of the DNC, are not barred by the Act.[171]

In any event, the Vice President's statements at a news conference on campaign fund-raising

abuses belie his contertion that his telephone calls raised only soft money.[172] The VicePresident repeatedly said that the telephone calls were made to raise funds for "the

campaign,"[173] and the calls were in fact billed to a presidential campaign credit card.[174]Claiming that he "felt" like he was "doing the right thing,"[175] Vice President Gore declared that

he was "proud" that he was able to do "a lot of effective work to help reelect Bill Clinton andkeep this country moving in the right direction."[176] Furthermore, many of the donations

solicited from the White House actually were deposited into "hard" money accounts, promptingthe Attorney General to launch an investigation.[177] Clearly, the fund-raising solicitations from

the White House were aimed at President Clinton's reelection campaign. To assert, then, that

the telephone calls were intended to generate funds for the general benefit of the DNC is

remarkably disingenuous.

Finally, the purpor1ed "oIJscurity" of the Pendleton Act has been declared to be reason enough

to ignore the Vice President's violation of it.[178] This defense is purpor1edly based on therelative antiquity of the law and its supposed lack of use. Generally, the vintage of a law is notdeterminative of whether the law still applies, but it is clear from the memoranda by two White

House Counsels and Collgress's perpetual adherence to the law that the Pendleton Act is not an

obscure, anachronistic statute.[179]

To date, the White House has offered a plethora of imaginative excuses for these flagrant

violations of campaign fund- raising laws in a vain attempt to evade national attention. Suchdefense tactics may be ~Iermitted a desperate defendant in a criminal case, but they fall short of

the constitutional standards appropriate for men holding the highest offices in the United States.

The President and ViCE' President have violated the law by making solicitations from their

federal offices. Their sutlsequent denials and evasions send a message to the American public

that the President and Vice President are beyond the reach of law. This erodes the integrity of

their offices and falls far short of their duty to faithfully execute the laws of the United States.

2. Illegal Fund-Raising Outside the White House

In addition to the campaign abuses committed inside the White House, the Clinton- Gore

campaign engaged in illegal fund-raising activities outside the White House. On April 29, 1997,

Vice President Gore attended a campaign fund-raising event at the Hsi Lai Buddhist Temple inHacienda Heights, California, a suburb of Los Angeles.[180] It is a violation of federal and

California laws for religious, tax- exempt organizations like the Hsi Lai Temple to partake

actively in political campaigns or attempts to influence legislation.[181] By participating in the

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planning and execution of a political fund-raiser at the temple, the campaign knowingly violatedboth California and federal laws separating political fund-raising from religion. Consequently, the

evidence strongly suggests that the Vice President was involved in a conspiracy to evade thetax laws.[182]

Not surprisingly, when the Hsi Lai fund-raising event first attracted publicity, the Vice President

first denied both that it was a fund- raising event and that he or any other member of the

administration knew or had anything to do with it as a fund-raising event.[183] In an October 21 ,

1996, interview on Natiollal Public Radio, the Vice President declared:

The DNC set up that event, and asked me to attend it. It was not billed as a fund-raiser. It

was billed as a community outreach event, and indeed, no money was offered or collected

or raised at that eVE!nt. But after the fact, contributions were sent in, and they came. ..in

too soon after the e"'ent to say that it was anything other than an event directly tied to that.

I did not know that cJt he time. The people with me did not. ...[S]ome mistakes are going

to be made from time to time, and I don't know any more about it than that.[184]

Documents uncovered b~( he Senate Governmental Affairs Committee and statements made by

members of the Clinton Administration now expose, however, that the Vice President did morethan attend the temple event and knew more than that the event was "finance-related."[185] He

was intimately involved in its planning and knew for several months before the event that its

primary purpose must have been to raise money for the Clinton/Gore reelection campaign.[186]

On January 14, 1997, a spokesman for the Vice President, Lorraine Voles, conceded that the

Vice President "knew" th3t the Buddhist temple event was "finance-related."[187] "He knew," she

said, "because we looked at documents in a briefing memo that were finance-related." Two days

later, the Vice President admitted that he had reason to know that the event was "finance-related,"[188] but he accepted responsibility only for his attendance at the event.[189]

Shamelessly shifting resoonsibility, Gore blamed the DNC, criticizing them for having arrangedthe event:

In retrospect, whether the event was a fund-raiser or not, it was a mistake for the DNC to

hold a finance-relat4~d event at a temple, and I take responsibility for my attendance at the

event, especially since I was informed that this outreach event was sponsored by the

Asian-American Le~dership Council of the DNC, and participation in the council required a

prior donation.[190]

However, the Vice President's involvement extended beyond this mere presence to the actual

planning of the fund-rai~ier. Mr. Gore's relationship with the two key players in the fund-raiser

dates back to 1989.[191] At that time, the Vice President met Hsing Yun, the Buddhist leader of

the temple where the April, 1996, event took place.[192] Senator Gore traveled with John Huang

to Taiwan to meet with Hsing, whose temple funded the trip.[193] After Gore became Vice

President he met with rising in 1993 and again in 1995.[194] Indeed, brochures from Hsing's

temple projects in California describe him as an "informal liasion [sic] with the White House on

Asian affairs."[195]

In March, 1996, Huang, I)y then a fund-raiser for the DNC, arranged a another meeting between

Hsing and the Vice President through the Vice President's Deputy Chief of Staff, David

Strauss.[196] Shortly thereafter, Huang took Hsing to meet with the Vice President at the WhiteHouse.[197] In response to Huang's call to arrange the meeting, Strauss wrote on his telephone

log: "Lead to a lot of money moving support."[198] On the day of the meeting, the VicePresident, in response to a memo from aide Kimberly Tilley affirmed that he knew that two

"fund- raisers"-- one scheduled in San Jose and another in Los Angeles-- had been booked for

April 29, 1996.[199] Evidently, the purpose of Vice President's meeting with Hsing and Huangwas to facilitate the planning of a major fund- raising event at Hsing's Buddhist temple in

Southern California.

Additional documents reveal that the fund- raising event referred to in the Gore memorandum

was the one to be held al the Buddhist temple. For instance, Huang sent a memo dated April 11 ,

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1996, to Ms. Tilley: "R E: Fundraising lunch for Vice President Gore 6/29/96 in SouthernCalifornia."[200] In the memo, Huang stated that arrangements had been made for this lunch tooccur at the "Hsi Lai Temple, Hacienda Heights, California."[201]

The event at the Hsi Lai Temple was not one arranged by the DNC with Vice President merelyattending at the DNC's request, as Gore has contended. Rather, the Vice President knew the

key planners--Huang amj Ling--and met with them in the White House over a month before theevent took place. As for the purpose of the event, the Clinton-Gore campaign knew, as early as

the first days of January , 1996 that Huang had been hired by the DNC for the very purpose of

raising money for the campaign and that all of the events arranged by Huang on April 29, 1996would be for that purpose.[202] On April 10, 1996, the White House Deputy Chief of Staff sent a

memo to the President ~Ind the Vice President after a weekly fund-raising meeting in which henoted that on April 29th the Vice President would be in Los Angeles to attend events arranged

by Huang with a goal of ('aising $250,000.[203]

The actions of the Vice President and other members of the Clinton-Gore campaign regarding

the Hsi Lai Temple fumjraiser were clearly violations of both state and federal laws against

holding fund-raisers at rt~ligious temples.[204] The Vice President acknowledged as much when

he was first questioned .about the fund-raiser. Instead of taking full responsibility for his role inthe planning of the event, however, he attempted to shift the blame to the DNC and other

members of his staff.

The Vice President's attt~mpt to raise campaign funds at a religious temple and classify it as a

community outreach program was foolish at best. The obvious illegality of the action and theVice President's role in planning it strongly suggest a more sinister intention. In any event, hisactions may constitute criminal acts under 26 U.S.C. § 7201 and 18 u.s.c. § 371.[205]

Regardless of whether these actions constitute criminal acts, they evince an extreme deficit ofintegrity eroding the trust placed in the Vice President to uphold the law. It is this sort of dearth

in integrity that impeachrnent was intended to remedy.

3. Conspiracy to Circumvent Spending Limits

Candidates for President of the United States have a choice. They can elect to devote their own

personal funds and whatever funds they might be able to raise from individual Americans, orthey can opt to receive public funding for campaign efforts.[206] If they choose to receive publicfunds, they are required to limit the amount of money raised and spent during the

campaign.[207] Once the choice to accept public funds is made, it is a criminal violation toexceed the cap.[208]

Political parties, by contrast, are not limited by the statutory expenditure cap.[209] In addition,

national parties may raise soft money contributions that are not subject to the $1 ,000 limit

placed on contributions made directly to candidates.[210] Political parties may also runadvertisements for the party and expend funds for other party- building activities. The Federal

Election Campaign Act[~~11] ("FECA") places a limit, however, on the expenditures a party canmake "in connection wilh the general election campaign" of a presidential candidate.[212] In

1996, this limit was $12 rnillion.[213]

In exchange for public funding for the 1996 presidential campaign,[214] President Clinton agreed

to cap his campaign's ~ipending at that level of public funding.[215] The evidence, however,

strongly suggests that the Clinton-Gore campaign, with the personal involvement of President

Clinton, deliberately circ:umvented the cap and the prohibition against using soft money for

campaign purposes by orchestrating and controlling a $45 million ad campaign financed by DNC

"soft money."[216]

The television ad campaign from the summer of 1995 through August of 1996 celebrated

President Clinton's record while attacking Senator Bob Dole's.[217] The campaign was financed

by DNC soft money thirt was transferred to state Democrat parties who then proceeded to

transmit those same fu'llds to the Clinton campaign's media firms.[218] No Democrat party

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officials, state or national, ever had control over the money or the content of the ads.[219]Instead, President Clinton and his top campaign aides orchestrated and managed every aspectof the advertising barra~le.[220] Top campaign advisor Dick Morris characterized the President

as the

day- to- day operational director of our TV ad campaign. He worked over every script,

watched each ad, ordered changes in every visual presentation, and decided which ads

would run when and where. He was as involved as any of his media consultants were. The

ads became not thf: slick creations of admen but the work of the President himself. In that

sense, they were much l ike the thirty-second speeches he had written to convey his viewsto the American people. ...Every line of every ad came under his informed, critical, and

often meddlesome ~Iaze. Every ad was his ad.[221]

Thus, the DNC was used as a shell to funnel soft money into an ad campaign organized,controlled, and implemented by the Clinton campaign, apparently at the direction of PresidentClinton himself. The White House contends that the ads were Democrat party "issue" ads,

because they did not explicitly say "Vote for Clinton" or "Vote against Dole."[222] Thus, they

should be considered independent expenditures.[223]

Nonetheless, the absence of an explicit "Vote for Clinton" or "Vote against Dole" statement doesnot alter the fact that the commercials were controlled entirely by the Clinton-Gore campaign.

Indeed, the evidence demonstrates that the President designed the ads to benefit directly the

Clinton-Gore campaign. At a December 7, 1995, fund-raising event, for example, the President,captured on videotape, ~Iroclaimed that he could "not overstate too much the impact these paidads have had. ...[W]E! are basically doing ten to fifteen points better than in the areas where

we are not showing thern, and these areas include areas not all that friendly to me. ..."[224]

President Clinton also recognized the fact that soft money was used to finance these ads: "[W]erealized we could run ads through the Democrat Party, which means we could raise

[unregulated] money in 20, 50 and $100,000 blocks. We didn't have to do it all in $1000

[regulated] contributions, which is limited by law."[225]

In terms of criminal offe'lSe, the critical issue is whether these ads may be considered political

party issue ads or Clinton reelection campaign ads. According to a former chairman of the

Federal Election Commission, Trevor Potter, this issue is determined by control: "The issue

becomes who decided tc run the ads, who created [them], who determined where they would be

broadcast, who raised money for them, who edited them? In sum: Whose ads are they really?Who controlled them?"[~'26] After reviewing the Clinton fund-raiser videotape, Potter concludesthat the ads "weren't a project of the DNC, they were a Clinton- Gore project, so they should

have been subjected to spending limits."[227] Philip Heymann, a former Deputy Attorney

General in the Clinton Administration, agreed with Potter's assessment. "This strategy to evade

campaign finance laws was so transparent that the Justice Department could easily have

dismissed the notion that the donations were given to political parties for non- campaign

purposes."[228]

Even if the ads could qualify as mere "issue" ads, despite the intimate control the President

exercised over them and his admitted purpose in running them, the ad campaign still constitutes

an expenditure made "in connection" with the presidential campaign. According to Bucklev v.

~,[229] an expenditure is "independent," falling outside the limits set out by the FECA and

not treated as a contribution, only if it is "totally independent."[230] Expenditures that arecoordinated with the candidate's campaign or the candidate should be "treated as

contributions."[231] The account of Dick Morris, and that of the President himself, reveals that

the ad campaign was, at the very least, a $45 million coordinated expenditure. Under section441 a (d) (2), these expenditures are subject to a $12 million limit.[232] Thus, the $45 mill ion adcampaign is a violation of a federal campaign cap regardless of whether it was an "issue" ad or

not.

At the very least, the Prosident's actions reveal an intention to circumvent federal election laws.

The President was awart~ that the amount of money available to the Clinton-Gore campaign was

limited.[233] Indeed, he had in exchange for the provision of taxpayer money promised the

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High Crimes and Misdemeanors Page16 of 41

American people not to :)pend more than that maximum amount to campaign for his reelection.Nevertheless, President Clinton intimately involved himself in a $45 million ad campaign that

was under the exclusive control of the Clinton- Gore campaign and paid for with DNC "softmoney."[234] Irrespective of whether the ads were "express advocacy" or "issue advocacy," the

Clinton-Gore campaign far exceeded the FECA spending cap of $12 million.[235]

4. Abuse of the Immigration Process

The Constitution gives C:ongress the power to establish procedures for naturalization.[236] Theexecutive branch has the duty to faithfully execute those naturalization procedures.[237] There is

abundant evidence that 1he Clinton Administration seriously abused the naturalization process inan attempt to gain a strategic electoral advantage in the 1996 elections.[238]

"Citizenship USA" was an election- year program designed by the Clinton Administration to

naturalize 1.3 million immigrants in 1996;[239] almost triple the previous record set in 1995.[240]

Indeed, Vice President 1.3ore identified Citizenship USA as one of the key components of his

program to "reinvent go"ernment."[241] While the expedition of citizenship applications may bea worthy goal, the evidence demonstrates that under Citizenship USA, coordinated from the

Vice President's National Performance Review office, 1,049,872 immigrants were naturalized indisregard of normal proc:edures and legal standards, such as criminal background checks.[242]

The Clinton Administration's concern for naturalizing unprecedented numbers of immigrants,

along with the paper tri3il surrounding the Citizenship USA scandal, demonstrates a greaterconcern about re- ele(~tion strategy than the proper administration of the immigration

system.[243]

The troubling events began in September, 1994, when Daniel Solis, an official of a Chicago-

based Latino advocacy group, met with President Clinton at a fund- raiser.[244] After the twomen discussed Solis's plans for naturalization and registration of new citizens, Clinton instructedSolis to start corresponding with Harold Ickes and Rahm Emanuel, top White House political

aides.[245] In September, 1995, just a few months after Citizenship USA was initiated, Solis

wrote Hillary Clinton to explain how the innovative program presented an "opportunity" to

naturalize "thousands of potential voters," many of which were in "politically important

states."[246] It is likely Ihat the First Lady understood what Solis meant when he stated that

Citizenship USA had the potential to "provide the Democrats with a strategic advantage at nex1

year's convention."[247]

In early 1996, White House staff members responsible for the execution of Citizenship USAcame under fire from tht~ President because of impatience with the rate of naturalization under

INS procedures. In March 1996, Elaine Kamarck, one of Vice President Gore's senior advisers,

wrote to Doug Farbrothf:f, a Gore aide who had played a central role in the implementation of

Citizenship USA, to alert him that "[T] he President is sick of this and wants action."[248]

Apparently, the "action" I~resident Clinton wanted was the naturalization of citizenship applicantsin time for them to vote in the November elections.[249] In the course of her work, Kamarck

wrote to Vice President Gore regarding her "assignment from the President to look into the

citizenship backlog."[2501In her memo, she explained that only heavy overtime by INS officialscould "make a significant enough dent in the backlog that it will show up when it matters."[251] In

addition, the fact that no swearing- in ceremonies took place after the October 8th voter

registration deadline demonstrates the real purpose of Citizenship USA.[252]

The Washington Post reports that Farbrother, on behalf of the Vice President, drafted a memo

to President Clinton warning "that if we are too aggressive at removing the roadblocks to

success, we might be publicly criticized. ..and even risk having Congress stop uS."[253]

Although the memo W8S never delivered, the Post reports that the President was briefed

orally.[254] Thus, the White House staff, the President, and the Vice President were fully aware

of the impropriety of their actions. To cover their real intentions, the aides claimed to be acting

out of concern for the interests of immigrants and placed heavy pressure on the INS to providethe names and addresses of the newly naturalized citizens before election day, ostensibly so

that the President could send each a special, personalized letter in lieu of the standard "Dear

Fellow American" letter.'255] However, the agency refused due to privacy grounds and out of

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concern that the idea "m~ght be criticized as campaign politics."[256]

As a result of this Administration pressure, Citizenship USA and the INS allowed a flood ofimmigrants to gain citizE!nship without meeting the standard INS procedures.[257] On March 5,

1997, Assistant Attorney General Stephen Colgate admitted in testimony before two House

subcommittees that 71,~'57 of the 1,049,872 immigrants naturalized under the Citizenship USA

program were made citizens without undergoing the FBI criminal background check required by

law.[258] Later reports show that the number is closer to 180,000.[259] As a result of this rush for

numbers, citizenship wa~i granted to almost 11 ,000 immigrants with prior felony arrests.[260]

The Chicago Tribune reported that politically- active organizations, such as the United

Neighborhood Organization (UNO), a Hispanic group, were "licensed to take the prospectivecitizens' fingerprints, prepare their applications and help them study for citizenship tests."[261]Such private and partisan activities by UNO had yielded 35,988 new citizens since the 1992elections, until the INS !Jeneral counsel ruled that using volunteer organizations such as UNOwas illegal.[262] By then, however, Citizenship USA had substantially completed its work in the

Chicago area.[263] The Tribune also reported a number of abuses, including the taking of

fingerprints by unauthori:zed persons and the failure to retrieve the newly minted citizens' "greencards" as required by law.[264] Such "green cards" could be sold for as much as $30,000 on the

streets of Chicago.[265]

The Tribune interviewed an INS deportation officer who had left the Citizenship USA program:

"They are not stopping people the way we used to. The big initiative is to get all these peopleeligible to vote and reg'stered. It's just a rush for numbers."[266] The deportation officer alsostated to the Tribune that before Citizenship USA was commenced the rate of denial of

citizenship was thirty- three percent; by July, 1996, that rate had declined to six percent.[267]Applicants were being approved at an unprecedented ninely-four percent rate under Citizenship

USA.[268]

To rectify these errors, the administration is beginning the process of revoking their citizenship,

which is a very time-consuming, costly, and difficult process.[269] While the long-term cost of

the revocation proceeditlgs, in tax dollars, is still being assessed, the cheapening of the full

meaning and value of U.S. citizenship is a cost for which deserving immigrants naturalizedunder Citizenship USA can never be reimbursed.

In shor1, Citizenship U:3A was a success for the Clinton campaign and a disaster for theAmerican people. The VVhite House appears to have adopted a policy of getting new voters atany cost. The Clinton campaign added over 1,000,000 voters in Democrat strongholds, while the

American people gained at least 11 ,000 felons as fellow citizens.

Citizenship USA was an appalling and blatant abuse of office by the President and the Vice

President. The facts reveal that the program was nothing more than a Democrat voter drive

meant to achieve a stated goal by the registration deadline at any cost. In many ways, this

abuse is the most serious of the campaign abuses examined above. That is, the other abuses,while certainly impeachable subversions of federal election law, do not so directly harm the

American people. The other violations certainly harm the citizenry because they are all

violations of the duty to faithfully execute the law that the President and the Vice President oweto those citizens, but the! actions taken by the President and Vice President through CitizenshipUSA have the potential to harm citizens in the most fundamental way. The disregard for INSprocedures allowed known felons to become "citizens," jeopardizing the physical safety of

Americans who rely on those procedures to protect them. This shameful consequence cannot be

ignored.

5. Other Possible Impeachable Offenses

It is illegal for foreign citizens to contribute to an American candidate's campaign for any

office.[270] Yet scandal.'S concerning the acceptance and solicitation of foreign contributions

have surrounded the C"nton- Gore campaign.[271] The release of the White House "coffee"

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videotapes have revealed President Clinton's close relationship with many of the key players inthe foreign money scandals.[272] Thus, there is evidence that suggests that the President,through his close relationship with Huang, Trie, and Riady, was aware of the foreign money

being brought into his campaign.

Under 18 U.S.C. § 6411 it is illegal for a person to convert "anything of value" that is property ofthe United States to personal use.[273] Whether this statute covers the "rental" of the Lincoln

bedroom in return for ~.pecific monetary contributions, for example, is a subject for further

inquiry. The recent revE!lation of the WhoDB memo discussed earlier strongly suggests thatthere was an intent to c:onvert the White House database, property of the United States, for

Clinton-Gore campaign ~Iurposes and that the President approved of the merger.[274]

At this writing, there is emerging evidence that the President may have been involved in a quid

pro quo exchange of mclney for political favor in the circumstances surrounding the denial of a

federal permit for a Wi5,consin Indian casino. The issue is whether the Department of Interiordenied a purportedly routine gambling permit to a number of Chippewa Indian tribes because of

pressure placed on the Department by the White House.[275] Evidently, seven other tribes that

already held permits were opposed to the issuance of a new permit and made donations totaling

$330,000 to the DNC and other state and local Democrat organizations.[276] There is evidencethat suggests the permit was denied on the basis of the $330,000 in contributions.[277]

Currently, the appointment of an independent counsel is being considered, and the extent of thePresident's involvement has yet to be determined.[278]

The preceding was an a;nalysis of some of the more egregious offenses and charges that have

been revealed in last three years. It is not a comprehensive list, but it provides a sufficientaccount of the actions taken by the President and Vice President alone and through their

subordinates to investigGIte whether an impeachment, or at least an inquiry into impeachment, is

justified. Part IV examinus that question in detail.

IV. Impeachment: The Remedy

Historically, the House of Representatives has placed very little emphasis on criminal conduct in

drafting articles of impeachment.[279] The more common allegations are those that accuse the

officer of a violation of his duties or oaths, or that he has "seriously undermined public

confidence in his ability to perform his official functions."[280] Indeed, nine of the articlesbrought against Presiderrt Andrew Johnson accused him of being "unmindful of the high duties

of his office and of his oath of office."[281] In addition, many impeachments have focused moreon the course of conducl displayed by the official than on anyone act. The decision to impeach,

in these cases, was made principally on the basis of the allegations taken together, rather than

viewing them as separate offenses.[282]

Would a prosecutor have enough evidence to bring criminal charges against the President orthe Vice President for violations of campaign finance election laws? Would a jury find, beyond a

reasonable doubt, that the Clinton Administration manipulated the immigration laws for its ownpolitical gain? The answer to these difficult questions is, of course, uncertain. However, theanswers to these questions are not essential to the propriety of impeachment; a conviction ofcriminal conduct would I.::ertainly warrant impeachment, but it is not necessary .The real issuethat Congress has a duty to address is whether these activities, and the course of conduct they

represent, are "high crimes and misdemeanors." Has the President adhered to his Oath ofOffice? Are they acts that subvert the structure of government or impugn the integrity of office?

Do these actions constitute abuse of office? These are the only questions that are essential to

impeachment, and these are the questions that must be investigated by an impeachment

inquiry. The evidence revealed to date answers these questions in the affirmative.

The pattern of obstruction and delay in the Clinton White House is reminiscent of the Nixon

White House's actions twenty- four years ago. Indeed, the articles of impeachment adoptedagainst Nixon charged that in violation of his constitutional oath to "faithfully execute the Office

of President. ..preser\le, protect, and defend the Constitution. ..and take care that the laws

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be faithfully executed," Nixon had "prevented, obstructed, and impeded the administration of

justice."[283] The Clinton White House, through its interference with the Foster investigation and

the congressional inquiries into campaign finance abuses, has engaged in a comparable course

of conduct.

The responsibility for these acts falls upon the President. Perhaps if these actions were allisolated incidents, rare itl frequency, they could be explained by mistake and poor judgment on

the part of those individuals that committed the actions. However, a pattern of delay,incompetence, and obs1Tuction has arisen throughout the investigations of the Clinton WhiteHouse. The responsibility for this conduct rests upon the President and not upon individual

White House counsels or other staff.

This behavior reflects a failure to faithfully execute the Office of the Presidency and

demonstrates a contempt for the legitimate inquiries of Congress and other law- enforcementofficials. In doing so, the course of conduct impugns the integrity of the Presidency and the manwho took an oath to exe(:ute the duties of that office.

The conduct of the President and the Vice President during the 1996 campaign is astonishing. In

reviewing the evidence, it appears that the President and Vice President perceived the law to be

an obstacle to maneuver around, not something to be dutifully obeyed. Over two centuries ago,

a Constitutional Convention delegate remarked, in support of the inclusion of an impeachmentclause for the President, "If he be not impeachable whilst in office, he will spare no efforts or

means whatever to get himself re- elected."[284] It is apparent that the President or the VicePresident spared any effort or means to win reelection.

By making fund- raising calls from federal facilities, the Vice President and the Presidentviolated 18 U.S.C. § 607 (a). Vice President Gore's involvement in the planning and

orchestration of a Clinton-Gore fund-raiser in a religious temple and his subsequent attempt toabsolve himself of any responsibility disgrace his character and the integrity of the Office of the

Vice President. The evidence strongly suggests, contrary to his repeated denials, that he knewthis was a fund-raiser irl a religious temple and nevertheless participated in its organization, in

possible violation of crirninal tax evasion laws. The Clinton-Gore campaign's circumvention ofthe federal election spending limits is another indication of the President's desire to put votes

above the laws he has taken an oath to faithfully execute.

The Citizenship USA program also evinces this violation of Presidential duty, but it represents

the abuse of office in its ugliest form. In a push to get more Democrat voters, the President andVice President used thl~ir public offices to force a degradation of the normal procedures of

immigration. This slackening of the immigration procedures allowed felons who would have

otherwise been excluded from citizenship to become naturalized citizens. Thus, the Clinton-

Gore Administration pla(;ed its electoral strategy before the safety of the American people, using

its official power for purely political aims. This constitutes a blatant abuse of pOwer.[285]

When confronted with ttle evidence of these abuses, the President and the Vice President havesounded a litany of exclJses about why they are not responsible: they had no knowledge, theywere the victims of staff error, or the law did not apply to them. Too often, the Administration

has been forced to plead incompetence in an attempt to escape responsibility for criminal

conduct. The foregoing analysis reveals these excuses to be devoid of merit. The evidence

indicates that the President and the Vice President and their immediate subordinates were

intimately involved in the abuses that have been examined.

In examining these violations and abuses, to ask the question of whether these the President

and Vice President hav(.~ honored their oaths of office is to answer it. The repeated violations

and evasions fall far short of any effort to faithfully execute their oaths. Where there should be

reverence for the law, there are only repeated evasions and clever schemes to circumvent the

law's requirements. Of (~ourse, it is evident that in many cases the law was not circumvented,but simply ignored. The President and Vice President's abuse of the executive power to addnew Democrat voters before the 1996 election is a subversion of the executive power reflective





of Nixon's misuse of the FBI and CIA to influence his reelection.[286] In sum, the course ofconduct evident in these violations and abuses demonstrates a gross dereliction of duty by thePresident and Vice President. Any integrity that still lingers in the Offices of the Presidency and

Vice Presidency has long since become an empty husk. The same may be said for any public

trust that still remains in the Clinton Administration.

IV. Conclusion

John Locke defined tyratlny as the "exercise of power beyond right."[287] Our Founding Fathersincluded the power of impeachment in the Constitution as a "safeguard of the public trust"against the possibility 1hat the holder of the Presidency, or some other high office, mightexercise powers beyond those given in the Constitution.[288] The power to activate this"safeguard" was assignE~d to Congress, and it is the responsibility of Congress to employ thispower when it becomes apparent that an official has committed "Treason, Bribery, or other highcrimes and misdemeanors."[289]

Amidst the increasing e\/idence of the Clinton Administration's repeated vjolations of campaign

laws, abuse of power, and obstruction of justice, a few calls for action have been raised.[290] In

addition, I have introdu(~ed a resolution into the House calling for the Judiciary Committee to

begin an investigation into the whether grounds exist to impeach the President.[291] It is time forCongress to begin an inl.~uiry into impeachment. This is a prudent step in exercising our duty tosafeguard the public and the Constitution from the abuse of power. Such an inquiry would place

these matters squarely ~Ihere they ought to be: with the House of Representatives.

The conduct discussed herein is, in my view, enough to compel impeachment. Nevertheless, it

is clear that many in thE! House and elsewhere perceive an inquiry into impeachment to be an

inappropriate or unjustified course of action.[292] Here again, Rep. Rodino's (D-N.J.) statementat the start of the Nixon impeachment inquiry is insightful:

We cannot turn aw3y, out of partisanship or convenience, from problems that are now our

responsibility to consider. It would be a violation of our own public trust if we, as the

people's representatives, chose not to inquire, not to consult, not even deliberate, and then

pretend that we had not by default, made choices.[293]

No doubt exists that the actions taken by the Clinton Administration are serious. Are they "high

crimes and misdemeanors"? An independent counsel cannot decide this question. Congress isthe only entity that has ibeen granted the power and the tools to answer it. If we fail to use the

tools entrusted to us expressly for this purpose, we fail the Constitution itself.

* Member. U.S. House of ReDresentatives (7th- GA); United States Attorney, Northern District of

Georgia, 1986-1990.

1. See Lawmaker Seeks Impeachment Inquiry, Chi. Trib., Mar. 15, 1997, at 10; Mark Sherman, Georgia

Lawmaker Urges Impeachr'1ent Inquiry, Atlanta J. and Const., May 19, 1997, at 6A.

2. "The President and all civil Officers of the United States, shall be removed from Office on

Impeachment for, and Col1viction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S.

Const. art. II, § 4.

3. In The Federalist, Ale)ander Hamilton explained as follows: "What, it may be asked, is the true spirit

of the institution [impeachl"1ent] itself? Is it not designed as a method of national inquest into the conduct

of public men? If this be ~he design of it, who can so properly be the inquisitors for the nation as the

representatives of the nation themselves?" The Federalist No.65, at 427 (Alexander Hamilton) (Benjamin

Fletcher Wright ed., 1961 ). Benjamin Franklin expressed similar sentiments: 'What was the practice

before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to

assassination in [which] he was not only deprived of his life but of the opportunity of vindicating his

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character. It [would] be the best way therefore to provide in the Constitution for the regular punishment of

the Executive when his mi-sconduct should deserve it, and for his honorable acquittal when he should be

unjustly accused." 2 Recorljs of the Federal Convention of 1787, at 65 (M. Farrand ed., 1906).

4. 28 U.S.C. §§ 591-599 (1994).

5. See Michael J. Gerhardt, The Constitutional Umits to Impeachment and Its Alternatives, 68 Tex. L.

Rev. l' 55-56 ( 1989); see also Geoffrey M. McNutt, Formal and Functional Approaches to Separation of

Powers: The Political Cost of Checks and Balances in Nixon v. United States and Morrison v. Olson, 2

Geo. Mason L. Rev. 281 (.1995). The Independent Counsel Act was passed in the wake of the Watergatescandal, and it was designed to allow an independent counsel to prosecute senior executive branch

officials. See Gerhardt, supra, at 53 n.232; Julie O'Sullivan, The Independent Counsel Statute: Bad Law,

Bad Policy, 33 Am. Crim. L. Rev. 463, 463 (1996). These officials include the President, the Vice

President, the Attorney General, assistant attorneys general, the director and deputy director of the

Central Intelligence Agency, and the Commissioner of Internal Revenue. See 28 U.S.C. § 591 (b). The Act

requires the appointment of an independent counsel "whenever the Attorney General receives information

sufficient to constitute grolJnds to investigate whether any person described in subsection (b) may have

violated any Federal criminal law." 28 U.S.C. § 591(a).

6. See § 591(c)(1). See a/so Gerhardt, supra note 5, at 53 n. 232.

7. See The Federalist N(). 65, supra note 3, at 427 ("The subjects of its jurisdiction are those offences

which proceed. ..from thEi violation of some public trust.").

8. See Jerry Seper, Pane! Letter Presses Reno for Probe, Wash. Times, Sept. 4, 1997, at A12; see also

Lance Gay, Buddhist Nuns Admit Destroying Documents, Dayton Daily News, Sept. 5, 1997, at 3A.

9. House Comm. on the Judiciary, 93d Cong

1974).

The Impeachment Inquiry: Its Meaning 1 (Comm. Print

10. u.s. Const. art. II, § ,~.

11. See House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential

Impeachment 26 (Comm. ~rint 1974) ("Impeachment is a constitutional remedy addressed to. ..wrongs

that subvert the structure of government, or undermine the integrity of office and even the Constitution

itself.").

12. See, e.g., Gerhardt, :;upra note 5, at 5. Gerhardt notes that "literature on impeachment. ..is, with

few exceptions, unenlightei1ing and unimpressive." Id. However, Gerhardt cites many of those exceptions

and their disagreement on a solution to the impeachment problem, the officials subject to impeachment,

and the standards appropriate for the removal of federal judges. See id. at 5 n.13-14.

James Wilson, Works 426 (G. McClaskey ed. 1967)).3. See id. at 5 (quoting

14. Id. It is Gerhardt's c:ontention that the impeachment clauses "virtually defy systematic analysis'

because of their political nCiture. Id.

15. The English ancestr);' of the impeachment mechanism is well established. See The Federalist No.

65, supra note 3, at 427. See also Raoul Berger, Impeachment: The Constitutional Problems 54 (1973)

("To understand what the Framers had in mind we must begin with English law."); Gerhardt, supra note 5,at 22 (noting that though the Framers deviated from the English impeachment system in many ways, it

was still their blueprint).

16. Gerhardt, supra note 5, at 5.


Impeachment 22-25 (Comlh. Print 1974) ("[I]mpeachable conduct need not be criminal.").

18. Id. at 26.

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Page 22 of 41High Crimes and Misdemeanors

19. Berger, supra note 15, at 98.

20. House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 26

(Comm. Print 1974) (quoting 4 The Debates in the Several States on the Adoption of the Federal

Constitution 74 (Jonathon E~lliot ed., reprint of 2d ed. 1907).

The Records of the Ff3deral Convention 66 (M. Farrand ed. 1911 ).1

1 Annals of Congress 372 (1789).2.

u.s. Const. art. 11, :1.3.

u.s. Const. art. II, § 1, cl. 8.4.

25. u.s. Const. art. I, § 2, cl. 5.

26. See Charles Black, In.'peachment: A Handbook 5 (1974). Each article sets out a particular offense or

charge made against the official, a brief summary of facts related to that offense, and the specific conduct

or activities that constitut~ the offense. For example, Article I of the Nixon Articles of Impeachment

charged Nixon with a

violation of his con~titutional oath faithfully to execute the office of President of the United

States and, to the best of his ability, preserve, protect, and defend the Constitution of the

United States, and in violation of his constitutional duty to take care that the laws be

faithfully executed, I,as prevented, obstructed, and impeded the administration of justice.

The Final Report of the C()mmittee on the Judiciary House of Representatives, Impeachment of Richard

M. Nixon 2 (1975) [hereii1after Nixon Final Report]. The facts listed in the Article stated that Nixon

"engaged personally and through his subordinates and agents, in a course of conduct or plan designed to

delay, impede, and obstruct the investigation of such unlawful entry; to cover up, conceal and protect

those responsible; and to f::onceal the existence and scope of other unlawful covert activities." Id. Finally,

the Article specified the means used by Nixon. See id.

27 u.s. Const. art. 1, § 5, cl. 2.

28. See Jefferson's Marlual and Rules and Practice of the House of Representatives of the United

States, 103d Cong., H.R. Doc. No.103-342 (2d. Sess. 1995).

29. See id. at §§603-06. ~)ee also Michael J. Gerhardt, The Federal Impeachment Procedure 26 (1996).

The Impeachment Inquiry: Its Meaning 3 (Comm.0. See House Comm. on the Judiciary, 93d Cong.

Print 1974).

31. The House authorr:zed an impeachment inquiry on February 6, 1974, directing the Judiciary

Committee to

investigate fully and completely whether sufficient grounds exist for the House of

Representatives to exercise its constitutional power to impeach Richard M. Nixon,

President of the United States of America. The committee shall report to the House of

Representatives such resolutions, articles of impeachment or other recommendations as it

deems proper.

Id. at 3. The Judiciary C"mmittee approved three articles of impeachment in early August, 1974. See

Gerhardt, supra note 29, at 54.

32. Though an indeperldent counsel is given broad power to investigate "all matters related to [the]

subject matter" of the investigation, the investigation is still confined to actions that are felonies only. See

28 U.S.C. § 593(b)(3) (1994).

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Page 2\ff 41igh Crimes and Misdemeanors

See H.R. Doc. No. 10:3-342, § 606. See Gerhardt, supra note 29, at 26.3.

See H.R. Doc. No. 10:3-342, § 6074.

35. U.S. Const. art. I, § 3, cl. 6. The separation of accuser and trier was not an original idea. Our

Founding Fathers borrowed the idea from the English system of impeachment. As Alexander Hamilton

points out in the Federalist No.65, "The model from which the idea of this institution has been borrowed,

pointed out that course to the convention. In Great Britain it is the province of the House of Commons to

prefer the impeachment, and of the House of Lords to decide upon it." The Federalist No.65, supra note

3, at 427.

36. See H.R. Doc. No. 10'3-342, § 607.

37 See id.

38. S. Doc. No. 99- 33, at 2- 8 ( 1st Sess. 1986). See generally, Gerhardt, supra note 29, at 33- 46

( outlining the procedures and difficulties of the trial portion of the impeachment process. ).

39. § 3, cl. 6..s. Const. art.

40. u.s. Const. art. II, § .l

41 u.s. Const. art. II, § .l

42. u.s. Const. art. I, § 3, cl. 7.

43. See supra text accompanying note 35.

44 u.s. Const. art. II, § ,~

45. See Berger, supra note 15, at 61. "In sum, 'high crimes and misdemeanors' appear to be words of

art confined to impeachments, without roots in the ordinary criminal law and which, so far as I could

discover, had no relation to whether an indictment would lie in the particular circumstances." See also

House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 5- 7(Comm. Print 1974). The phrase first appeared in 1386 in the impeachment of the King's Chancellor,

Michael de la Pole, Earl (if Suffolk. See Berger, supra note 15, at 61 n.5. The Earl was charged with

"breaking a promise he Inade to the full Parliament to execute in connection with a parliamentary

ordinance the advice of a (:ommittee of nine lords regarding the improvement of the estate of the King and

the realm." House Comln. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential

Impeachment 5 (Comm. Print 1974) (citing George Burton Adams & H. Morse Stevens, Select Documents

of E.nglish Constitutional HIstory 148 (London 1927)).

46. The Framers believed that treason and bribery alone were too limited to be the only grounds for

impeachment. See House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential

Impeachment 11 (Comm. Print 1974). To capture the scope they desired, the Framers turned to the

English impeachment stal\dard and its "technical meaning." Id. at 12. At English law, the term "high"

denoted a crime against the system of government and not just a serious crime. See 4 William

Blackstone, Commentarie5 *75. According to Blackstone, the "first and principal" high misdemeanor was"mal-administration of such high officers, as are in public trust and employment," and this was punishable

by impeachment. See id. at *121 (emphasis omitted).

47. This was the concluSiion of the Judiciary Committee's report on impeachment during the Watergate

scandal. See House Corhm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential

Impeachment 26 {Comm. Print 1974). Indeed, the weight of legal scholarship supports this view. See

Berger, supra note 15, at ($2 {arguing that the roots of impeachment did not go back to criminal law); see

also Gerhardt, supra note 29, at 103 {'The major disagreement is not over whether impeachable offenses

should be strictly limited tC' indictable crimes, but rather over the range of nonindictable offenses on which

an impeachment may be based." ).

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48. See House Comm on the Judiciary, 93d Cong., Constitutional Grounds for Presidential

Impeachment 26 (Comm. Print 1974). The primary objective of the Committee Report was to repudiate

the notion that an impeachlnent conviction could only be based on criminal conduct. See id.

49. The Federalist No.65, supra note 3, at 426.

50. 116 Gong. Rec. H3113-3114 (daily ed. Apr. 15, 1970) (statement of Rep. Gerald Ford).

51 See e.g., Berger, supra note 15, at 53-54.

52. Gerhardt, supra notel29, at 105-06 (quoting Joseph Story, Commentaries on the Constitution of the

United States § 287 (Ronald D. Rotunda & John E. Novak eds. 1887)).

53. See Gerhardt, supra note 29, at 103 (citing Lawrence Tribe, American Constitutional Law 293-94;

Berger, supra note 15, at 56-57; Black, supra note 26, at 33-35). During the Watergate investigation, the

American Civil Liberties Union issued a series of pamphlets designed to "assist citizens to further their

understanding of the impeachment process." American Civil Liberties Union, High Crimes and

Misdemeanors: What They Are, What They Aren't: The Second Pamphlet for Committees of

Correspondence on the Impeachment of Richard M. Nixon 1 (1974). This pamphlet argued forcefully

against the view that impeachment offenses should be limited to criminal offenses. See id. at 4-5 ("[C]

riminal violations have nevt~r been used as grounds for [impeachment]."). Lawrence Tribe has noted that

The House Judiciary Committee's proposal of the Nixon Impeachment Articles. ..appears

to confirm the view of most commentators: A showing of criminality is neither necessary nor

sufficient for the specification of an impeachable offense. That non-criminal activities may

constitute impeach!1ble offenses is hardly surprising. A deliberate presidential decision to

emasculate our national defenses, or to conduct a private war in circumvention of the

Constitution, would probably violate no criminal code, but it should surely be deemed a

ground for impeachment. ...With respect to the question of criminality, then, Edmund

Burke's opening statement at the impeachment trial of Warren Hastings remains definitive:

"It is by this tribunal that statesmen who abuse their power. ..are tried. ..not upon the

niceties of a narrow [criminal] jurisprudence, but upon the enlarged and solid principles of

morality."

Tribe, supra, at 293-94 (quoting 7 Edmund Burke, Works 11, 14 (1839)) (emphasis added).

54 Berger, supra note 1t;, at 62.


Impeachment 22 (Comm. Print 1974).

56. See Berger, supra noje 15, at 59.

57. See id. at 61. See also text accompanying note 45.

58. See id. at 67. In 1680, Sir Edward Seymour, an English nobleman, was also impeached for high

crimes and misdemeanors related to his misappropriation of funds. See id. at 69.

59. See id. For example, Berger notes that the Duke of Suffolk was convicted of "treason and high

crimes and misdemeanors" for procuring "offices for persons who were unfit and unworthy of them" and

"delayed justice by stopping writs of appeal (private criminal prosecutions) for the deaths of complainants'

husbands." Id.

60. See id. Lord Treasurer Middlesex exhibited this neglect by allowing "the office of Ordinance to go

unrepaired though money was appropriated for that purpose." Id. Peter Pett, Commissioner of the Navy

was convicted of high crimes and misdemeanors for his "negligent preparation for the Dutch invasion" and

the "loss of a ship through neglect to bring it to mooring." Id.

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61 See id. at 73-78; see WSO Gerhardt, supra note 29, at 10.

62. There are important differences between the English and American systems. For example, the

English Parliament had refused to even restrict impeachable offenses to the broad list set out in the

Constitution. See id. Engli~h impeachment was not limited to office holders; anyone, except a member of

the Royal family, could bE\ impeached. See id. To convict, the House of Lords needed only a majority

compared to the two-thirds requirement in the Senate. See id.

63. See Berger, supra note 15, at 74. Initially, the standard was "malpractice or neglect of duty," but this

was substituted for "treas()n [,] bribery [,] or corruption." See id. Then "treason or bribery" became the

standard, but George Mas()n objected to this standard as being too limited. See id. Mason suggested the

addition of "maladministration," but this term was rejected as too vague. See id. Finally, the term "high

crimes and misdemeanors' was substituted for maladministration by Mason. See id.

Constitutional Grounds for Presidential4. See House Gomm. on the Judiciary, 93d Gong.

Impeachment 13 (Gomm. Print 1974).

65. See id.

66. Id. at 11

67. See id. at 22-25.

68. See general/yid. at 11-17,

69. Story, supra note 52 § 803.

70. See Berger, supra note 15, at 79; see also House Comm. on the Judiciary, 93d Cong., Constitutional

Grounds for Presidential In\peachment 24 (Comm. Print 1974).

71. See U.S. Const. art. 1, §3, cl. 7 (". ..the Party convicted shall nevertheless be liable and subject to

Indictment, Trial, Judgment, and Punishment, according to Law.").

72. See House Gomm. on the Judiciary, 93d Gong.Impeachment 24 (Gomm. Print 1974).

Constitutional Grounds for Presidential

73. Id.

74. Id.

See Berger, supra note 15, at 77.5.


Impeachment 19 (Comm. I~rint 1974); see also Gerhardt, supra note 5, at 4 n.11.

77. Story, supra note 52, § 385.

78. See Berger, supra note 15, at 71

79. Id. at 70.

80. Id. Berger derived th~se categories from an analysis of various impeachment proceedings againstofficials in the English government between the Fourteenth and Seventeenth Centuries when the phrase

"high crimes and misdem~anors" developed its meaning. See id. at 67- 71. The Earl of Suffolk, in 1386,

and Sir Edward Seymour, in 1680, were convicted high crimes and misdemeanors for the misapplication

of funds. See id. at 67, 69. The Duke of Suffolk, in 1450; the Duke of Buckingham, in 1626; Justice

Berkely, in 1637; Attorney General Yelverton, in 1621; Viscount Mordaunt, in 1660; and Chief Justice

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Scroggs, in 1680; were all impeached for high crimes and misdemeanors related to the abuse of official

office. See id. at 67-69. The Duke of Buckingham, 1626, and Peter Pett, in 1668, were impeached for the

neglect of their official dutiE!s. See id. at 68. Sir Richard Gurney, in 1642, and Chief Justice North, in 1680,

were impeached for "encroachment on or contempts of Parliament's prerogatives." See id. The Lord

Treasurer Middlesex was charged with corruption for using his position to procure "a lease and estate of

great value." See id. at 70. Buckingham, Sir William Penn, and Seymour, were charged with conversion of

public property. See id. Lord Chancellor Macclesfield was charged with the sale of public offices. See id.

Buckingham was charged with the betrayal of trust for putting valuable ships within the grasp of the

French. See id. Finally, thfi Earl of Strafford, and the Earl of Oxford were charged with "giving pernicious

advice to the Crown." See Id.

Michael Gerhardt has criticized Berger's categories for being "frequently contradicted by the historical

record." See Gerhardt, supra note 5, at 22. Gerhardt believes that any attempt to categorize impeachment

will fail due to the political rlature of the proceeding. See generally Gerhardt, supra note 5.


(Comm. Print 1974). The report defined the sort of conduct that fell within each category by examining the

cases that fell within the category. The impeachments against Senator William Blount in 1797 and

President Andrew Johnson in 1868 fell within the first category of exceeding the constitutional bounds of

power. See id. Senator Blclunt had attempted to incite a number of Indian tribes in Florida and Louisiana

to attack Spanish settlers there in order to capture the territory for the British. See id. The Senator was

charged with "engaging in a conspiracy to compromise the neutrality of the United States, in disregard of

the constitutional provisiol1S for conduct of foreign affairs." Id. President Johnson's impeachment was

based on his violation of the Tenure of Office Act, which took away the President's power to remove hisown cabinet members and specifically made a violation of the Act an impeachable offense. See id.

However, as the Staff Report points out, the real issue between the President and the Congress was the

"constitutional. ..power to make and enforce Reconstruction policy in the South." Id. at 19. The

impeachments against Judge John Pickering in 1803 and Associate Supreme Court Justice Samuel

Chase in 1804 were place'j under the second category. See id. The impeachment against Pickering was

based on his violation of trust and duty as a judge by being intoxicated while on the bench. Justice Chase

was impeached because he had "permitted his partisan views to influence his conduct" during two trials

he held several years e;3rlier as a circuit judge. See id. The third category is evidenced by the

impeachments of Judge James H. Peck in 1826 for charging with contempt a lawyer who had publicly

criticized one of his decisons, imprisoned him, and suspended his license for 18 months. See id. Six

impeachments cited the u~;e of office for personal gain or the appearance of financial impropriety while in

office as grounds for impeachment. See id. This included Secretary of War William K. Belknap who was

impeached for receiving ennual payments for the appointment of a specified post trader at an Indian

Territory military post. See id.

82. See Story, supra note 52, § 287.

83. The Federalist No.6!), supra note 3, at 426.

84. Gerhardt, supra note 5, at 87.


(Comm. Print 1974) (quoting Story, supra note 52, § 764).

Id.

Gerhardt, supra note 5, at 87.

88. The criminal law set!S a standard of minimal conduct, covering only the most serious offenses. See

Paul H. Robinson, Crimina I Law § 1.1 ( 1997).

The Federalist No.70, at 455 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1996).9.

90. See generally Berger, supra note 15, at 94-102. Berger notes the partisan motive behind many of the

American impeachment cases. See id.

91 Id. at 97.

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Page 27 of ;;.1igh Crimes and Misdemeanors

The Federalist No.66, supra note 3, at 426.2


(Comm. Print 1974).

94. See Gerhardt, supra riote 5, at 87.

95. In Federalist No.65, Hamilton espoused the virtues of separating the impeachment power betweenthe House and the Senate. See The Federalist No.65, supra note 3, at 427. Arguing for the placing of the

power to impeach in the House, Hamilton asks, "[W]ho can so properly be the inquisitors for the nation as

the representatives of the nation themselves?" See id. As to the impeachment trial, Hamilton viewed the

Senate as the only tribunal "sufficiently dignified" and "sufficiently independent." Id. The Senate would

have "confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary

impartiality between an ir\dividual accused, and the representatives of the people, his accusers." Id.

(emphasis omitted).

96. The Federalist No. 6~;, supra note 3, at 426.

97. Members of the House of Representatives will ultimately have to answer to the citizenry for their

actions every two years. Tl,us, the desire to stay in office acts as another safeguard against unwarranted

and irresponsible impeachrnents.

98. House Comm. on th~ Judiciary, 93d Cong., The Impeachment Inquiry: Its Meaning 1 (Comm. Print

1974) (quoting Judiciary CI.)mmittee Chairman PeterW. Rodino, Jr. (D-N.J.)).

99. It is a federal offense to obstruct or impede the due and proper administration of the law under

which any congressional iriquiry or investigation is proceeding. See 18 U.S.C. § 1505 (1996). The statute

provides:

Whoever corruptly. .obstructs, or impedes or endeavors to influence, obstruct or impede

the due and proper administration of the law under which any pending proceeding is being

had before any department or agency of the United States, or the due and proper exercise

of the power of inquiry under which any inquiry or investigation is being had by either

House, or any com'1littee of either House or any joint committee of the Congress0/4 Shall be

fined under this titlE\ or imprisoned not more than five years, or both.

18 U.S.C. § 1505 (1996). ihere are three essential elements to obstruction of justice: (1) There must be a

pending proceeding; (2) The defendant must have knowledge that this proceeding was pending; (3) The

def~ndant must corruptly endeavor to influence, obstruct, or impede the due administration of justice. See

United States v. Monus, No. No.95-4326, 1997 U.S. App. LEX'S 28828, at *26 (6th Cir. act. 21, 1997).

"Corruptly endeavor" alleg~s fully and unambiguously that defendant knew a. ..proceeding was pending

and intended to obstruct it." See id. at *29. In Monus, this included the "shredding and causing to be

shredded books, records (}nd other documents" relevant to a Grand Jury subpoena. Id. While this case

concerned the obstruction of justice of judicial proceedings under 18 U.S.C. § 1503 (1996), the "corruptly

endeavors" standard is the same under § 1505.

100. House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment

24 (Comm. Print 1974).

Secretary of Defen~;e James Forrestal took his own life in 1949.01

102. See Final Report ()f the Special Committee to Investigate Whitewater Development Corp. and

Related Matters, S. Rep. t'.Jo. 104-280, at 14 (1996). There is also compelling evidence that Ms. Williams

removed file folders from F:oster's office. See id. The next morning another two individuals were allowed to

enter Foster's office. See hi.

103. See id. at 15. Me."bers of the White House Counsel's office participated in the Park Police

interviews. See id. The Park Police believed they were reporting back to Nussbaum what was being

discussed in the interviews. See id.

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104. See id. at 18. (testimony of Stephen Neurwirth, an associate attorney in the White House Counsel's

office). The Special Comrrlittee concluded that the First Lady played a large role in the decisions being

made to impede the investtgation. See id. at 17.

105. See id. at 15 (statement of Park Police Detective Peter Markland).

106. See id. Evidence also suggests that indices of Foster's files were altered or destroyed after his

death. See id. at 15-16. Ih its findings, the Committee report noted the testimony of Deborah Gorham,

Vince Foster's secretary, that an index for the Clintons' personal documents was missing. See id. at 108.

Three indices were turned over to the Special Committee; two were dated July 22, 1993, and one was last

revised on October 25, 1993. See id. at 108- 09. None of the indices turned over to the Committee

references a Whitewater file known to be in Foster's office at the time. See id. at 109. Ms. Gorham

testified that she had made an index that reflected all the Foster files in April, 1993, and that the

Whitewater file was among the files at that time. See id.

107. Evidence strongly !;uggests that Nussbaum knew about the presence of a torn-up note in Foster's

briefcase well before it wa$ "discovered" on July 26 by Mr. Neuwirth. See id. at 109. Both Clifford Sloan

and Deborah Gorham informed Nussbaum about the presence of yellow paper scraps in Vince Foster's

briefcase. See id. The Committee found that Nussbaum knew about the note as early as July 22, but did

not inform the authorities. :)ee id.

108. See id. at 16

109. See id.

110. See id.

111. See id. at 17. After discovering Nussbaum's concealment of the notebook, Michael Shaheen, the

Director of the Office of Professional Responsibility at the Justice Department, angrily noted, "The fact

that we have just now learrled of the existence of obviously relevant notes written by Foster on the subject

of the FBI report is yet another example of the lack of cooperation and candor we received from the White

House throughout our inquiry." Id. at 17. Relying upon the "consistent" testimony given by career law

enforcement officials, the :3pecial Committee resolved that the White House officials were attempting to

conceal the intimate involvement of Mrs. Clinton in the actions taken following the death of Vince Foster.

See id. at 20-21. In addition, the Committee found that the White House Counsel's office had been grossly

misused as the Clintons' "personal defense law firm." See id. at 21.

112. Under § 1505 it is illegal to obstruct the investigation of any legislative proceeding. See 18 U.S.C.

§ 1505 (1996).

113. S. Rep. No.1 04- 280, at 22. The Department of Justice was beginning an investigation into the

Madison S&L central to the Whitewater inquiry, and Congress's investigation into the Travel Office firings

was imminent. See id.

114. See Exec. Order No. 12,834, 58 Fed. Reg. 5911 (1993) (requiring that all senior executive

appointees take an ethics pledge as "a senior appointee. ..invested with the public trust". See also

Nelson Lund, Lawyers and the Defense of the Presidency, 1995 B.Y.U. L. Rev. 17 (1995) (citing former

White House Counsels C. Boyden Gray and Lloyd Cutler for the proposition that the White House Counsel

represents the office of the President, not the President personally). See generally Jeremy Rabkin, At thePresident's Side: the Role "f the White House Counsel in Constitutional Policy, 56 Law & Contemp. Probs.

63 (1993) (author gives an historical overview of the role of the White House Counsel).

115. In early October, jhe White House Counsel's Office turned over more than 100 videos of the

"coffees" alleged to be fund- raisers. See George Lardner, White House Video Crew Taped Coffees;

Recordings of 44 Gatherings Found Last Week are Given to Campaign Finance Probers, Wash. Post,

Oct. 6, 1997, at A1 (describing the circumstances of the discovery and the subsequent fallout from the

delay in turning over the tapes); George Lardner, Aide Says Agency Didn't Get Request for Coffee Tapes,

Wash. Post, Oct. 13, 1997, at A1 (noting that in addition to the 44 tapes originally turned over, more than

100 more videotapes and cludio tapes will be made public). Requests had been made as early as January,

1997, to turn over documents relating to those coffees. See Lardner, White House Video, supra, at A 1.

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116. White House Counsel Charles F.C. Ruff has said that, in April, 1997, he sent the White House

Communications Agency ("WHCA") a four-page memo listing the documents and information needed to

fulfill the Senate Committee's requests. Lardner, Aide Says, supra note 115, at A 1. The memo referenced

all materials relating to coffees on the first two sheets. See id. Apparently, the WHCA never received the

pages that specifically referred to the coffees. See id. According to the White House, the inadvertent

omission was the fault of tile White House Military Office, which serves as "a way station" for paper traffic

between the Counsel's offi,:e and the WHCA. See id. The WHCA performed a search without looking for

anything related to coffees and sent a memo back to the Counsel's office with six attachments it

considered to be included in the list. See id. Incredibly, the memo that was returned to the Counsel'sOffice included all four paf~es of Ruffs memo. See id. ("Therefore, we had no reason to know, or even

suspect, that the entire do(.:ument hadn't been forwarded to WHCA.") The White House has yet to explain

how this curious circumstctnce occurred. Yet, until October the Counsel's office repeatedly informed the

Committee that no such videotapes existed. See id. In late September, an associate lawyer in the

Counsel's office "discoverE!d" a searchable database for the WHCA files. See id. The lawyer, Michael X.

Imbroscio began searchin~1 the database using keywords and discovered listings for the videotapes. See

id.

117. See 18 U.S.C. § 641 (1996).

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of

another, or without authority, sells, conveys or disposes of any record, voucher, money, or

thing of value of thf~ United States or of any department or agency thereof, or any property

made or being made under contract for the United States or any department or agencythereof; or Whoever receives, conceals, or retains the same with intent to convert it to his

use or gain, knowirlg it to have been embezzled, stolen, purloined or converted% Shall be

fined under this title or imprisoned not more than ten years, or both; but if the value of such

property does not exceed the sum of $ 1,000, he shall be fined under this title or

imprisoned not more than one year, or both.

Id. Using White House property for personal political purposes would clearly violate this statute.

118. The use of the White House for fund-raising purposes is a violation of 18 U.S.C. § 641. This would

include the White House ,,~offees, if they are to be considered fund- raisers, and the use of the Lincoln

Bedroom to raise money.

119. Marc Lacey & David Willman, GOP Attacks White House "Stone Wall, II L.A. Times, Nov. 7, 1997 ,

at A37.

120. See Guy Gugliotta, Lawmaker Suggests Obstruction in Late Delivery of Memo on White House

Database, Wash. Post, Oct. 31' 1997, at AB.

121. Alison Mitchell, W'7ite House Used Database for Campaign, G.O.P. Says, N.Y. Times, Mar. 11,

1997, at A21 (quoting the memo by Marsha Scott, Deputy Assistant to the President). See also Susan

Schmidt, Clinton Aide Sugf7ested Tracking Donors in White House Database, Wash. Post, Mar. 11' 1997 ,

at A6. The memo was written on Nov. l' 1994, to then Deputy Chiefs of Staff Harold Ickes and Erskine

Bowles. See id. The plan outlined in the memo would "'identify by March l' 1995 key financial and political

folks who will work with LiS in '96."' Id. The purpose was to "'recreate the General campaign structure

using the same method ertlployed to recreate the primary campaign in addition to using DNC/Campaign

records." Id.

122. Id.; see also Gugliotta, supra note 120, at AB (noting Toiv's insistence that the database had never

been used for political purrloses).

123. See id.; Edward Walsh, Utility of House Finance Probe Debated, Wash. Post, Nov. 7,1997, at A18;

Lacey & Willman, supra note 119, at A37.

124. Gugliotta, supra n()te 120, at AB. "Harold" refers to then deputy chief of staff Harold Ickes. See id.

Debra Delee is the former lexecutive director of the DNC. See id.

125. Id. ; Walsh, supra note 123, at A 18. "porus" is an acronym for President of the United States.

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126. This statute makes it illegal for any government official to use government property for his own

personal use. See 18 U.S.C; § 641 (1996).

See Lacey & Willmal1, supra note 119, at A37.27.

128. See id.; Walsh, suprn note 123, at A18.

129. See 18 U.S.C. § 1505 (1996). Concealing documents that are the subject of subpoenas constitutesthe specific intent necessary to establish an obstruction of justice charge. See United States v. Laurins,

857 F.2d 529, 537 (9th Cir. 1989).

130. The memo may in and of itself constitute evidence of an attempt to violate 18 U.S.C. § 641.

Perhaps further inquiry will determine whether the White House took any overt act toward merging the

databases.

Nixon Final Report, supra note 26, at 231

132. Id.

cl. 8.33. u.s. Const. art. II, §

134. See 18 U.S.C. § 607(a) (1996).

18 U.S.C. § 607(a) [emphasis added).35.

136. United States v. Th~, 209 U.S. 39, 42 (1908). See also Ruth Marcus, Many Interpretations of

Obscure Law, Wash. Post, Oct. 2, 1997, at A4.

137. Charles R. Babcock, Obscure Statute on Soliciting Funds Might Come Into Play Against Gore,Wash. Post, Mar. 4, 1997, at AB (pointing out that members of Congress have been told for years to

make fund-raising telephol1e calls outside of their offices and at their own party campaign committees);

see also Guy Gugliotta, Lewmakers Agree It's Tough to Comply With Ban on Fund-Raising in Hill Offices,

Wash. Post, Sept. 29, 19!)7, at A4 (pointing out that for years Senate and House members have gone

through "logistical hoops" i'1 order to avoid breaking the solicitation statute).

138. See 18 U.S.C. § 607 (a). "Any person who violates this section shall be fined under this title or

imprisoned not more than three years, or both." Id. Obviously, this statute is not intended to be a "mere"

technicality.

See David A. Price, The Vice President Broke the Law, Wash. Post, Apr. 2, 1997, at A17.39.

140. Id.

141 Id.

142. Id.

143. Before becoming White House Counsel, Abner J. Mikva had been a Circuit Judge for the United

States Court of Appeals for the District of Columbia Circuit. He received his J.D. in 1951 from the

University of Chicago. Mikva was also a member of the 91 st-92d Congress and the 94th-96th Congress.

One can only speculate as to why the Administration would completely ignore the advice of such a

distinguished jurist.

Marcus, supra note 136, at A4; Price, supra note 139, at A17 (emphasis added).44.

145. See Ceci Connolly, Vice President is Thrust Into Unfamiliar Role, Wash. Post, act. 4, 1997, at A1;

John H. Cushman, Jr., Reicords Show Clinton Made White House Calls to Donors, N.Y. Times, act. 24,

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Page 31 of41High Crimes and Misdemeanors

1997, at A28; Sharon LaFraniere & Ruth Marcus, The Undoing of White House Damage Control, Wash.

Post, Apr. 6, 1997, at A1; Oavid A. Price, White House's Quest for Cash, Investor's Business Daily, Mar.

12, 1997, at A1.

146. Transcript of Vice President Gore's News Conference on Campaign Fund-Raising, Wash. Post,

Mar. 4, 1997, at A9.

147. See Don Van Natta, Jr., President Offered to Gall Party Donors, Memo Says, N. V. Times, July 24

1997, at A1.

148. See Leslie Wayne, Gore's Calls to Big Donors Number 86, Papers Show, N.Y. Times, Aug. 27,

1997, at A16.

See Van Natta, Jr., supra note 147, at A149.

150. See Wayne, supra note 148, at A16 (noting the amount billed was $22.40).

See Cushman, Jr., supra note 145, at A28.151

152. See id.

See Van Natta, Jr., ~:upra note 147, at A153

Transcript of Vice President Gore's News Conference, supra note 146, at A9.154.

155. Id.

156. See Marcus, supra note 136, at A4; see David A. Price, Will Gore Avoid a Prosecutor?, Investor's

Business Daily, Sept. 22, 1997, atA1.

See David A. Nordquest, The White House and the Pendleton Act, Wash. Times, act. 3, 1997, at157

A21

158. See id.

159. See id.

160. But see Caminetti v. United States, 242 U.S. 470, 484 (1917) ("It is elementary that the meaning of

the statute must, in the first instance, be sought in the language in which the act is framed, and if that is

plain. ..the sole function of the courts is to enforce it according to its terms.") Id.

See Nordquest, supra note 157, at A2161

Id. (emphasis addecl).62.

163. See 18 U.S.C. § 603(a) (1994). It is an elementary maxim of statutory construction that courts

avoid readings of statute~ that render one of them superfluous. See Connecticut Nat'l v. Germain, 503

U.S. 249, 253 (1992). See also Price, Will Gore Avoid, supra note 156, at A17.

See Marcus, supra note 136, at A4.64.

Nordquest, supra note 157, at A2165.

166. See 3 U.S. Op. Off:. Legal Counsel 31 (Jan. 17, 1979). President Carter's Office of Legal Counsel

made clear that while the solicitation statute and its applicability to the president are in debate, the "better

view" of the solicitation slatute is that the president and vice president were among the persons covered

by the statute. See id. at 38. See also Marcus, supra note 136, at A4.

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167. See Price, White House's Quest, supra note 145, at A1. "Soft money" refers to money that may

indirectly influence federal elections but is raised and spent outside the purview of federal laws. Joseph E.

Cantor, Soft and Hard Money in Contemporary Elections: What Federal Law Does and Does Not

Regulate, Cong. Res. Ser\'., Jan. 10, 1997, at CRS-4. More specifically, soft money contributions are

contributions made to the political parties, ostensibly for "party building" activities. Josh Goldstein, Soft

Money, Real Dollars: Soft Money in the 1992 Elections, Center for Responsive Politics, 1993, at 10, 13.

"Hard money" refers to funds contributed to or expended to express support of candidates. Priv. Ltr. Rul.

85-16-001, act. 22, 1984.

Price, White House'.,; Quest, supra note 145, at A1168.

169.

170.

17' Id.

See Transcript of Vice President Gore's News Conference, supra note 146, at A9172.

Price, White House's Quest, supra note 145, at A1173.

See Wayne, supra note 148, at A16.74.

175. See Transcript of Vic:e President Gore's News Conference, supra note 146, at A9.

176. Id.

177. See Roberto Suro & Bob Woodward, Reno Decides to Expand Investigation of Gore, Wash. Post,

act. 3, 1997, at A1.

See Marcus, supra note 136, at A4. See also Babcock, supra note 137, at AB.178.

179. Indeed, the lack of prosecutions might be because it is such an obvious and well- known law,

contrary to its characteriz~tion as "obscure." The lengths members of Congress go to observing the lawtestify to this point. See id.; Gugliotta, Lawmakers Agree, supra note 137, at A4. Moreover, it is fallacy to

state that no one has ever been prosecuted under the Pendleton Act. In actuality, it is unknown. The basis

of this fallacy is a Congre~\sional Research Service ("CRS") memorandum by CRS attorney Jack Maskell.

See David A. Price, Gore the Phone, and the Law, The Weekly Standard, act. 13, 1997, at 10. In the

memorandum, Maskell declared that the Justice Department has apparently never prosecuted anyone for

a violation of the Pendleton Act. See id. at 12. But, this assertion was based entirely on a search of a

Justice Department manual of reported court cases. See id. The manual "simply gives guidance to Justice

Department lawyers; it dcies not pretend to catalogue past prosecutions- nor does it assert that there

have been no prosecution~ for fund raising calls." Id. The manual includes only a tiny fraction of the cases

that could be found only through a search of the Justice Department's files in Washington and U.S.

attorneys' files across the country. See id. at 11-12. Thus, it is a mistake to allege that no one has ever

been prosecuted under the Pendleton Act.

180. See William Claiborne, Site of Tranquillity in Cash Controversy; Founder of Buddhist Temple aMillionaire Monk, Wash. Post, Oct. 18, 1996, at A36; Rich Connel & Alan C. Miller, DNC Says it Erred by

Holding Fund-Raiser at Buddhist Temple Politics: Gore Event in Hacienda Heights had Brought Party $

140,000. Admission Comf~s Amid Criticism of Donations from Asians, l.A. Times, Oct. 17, 1996, at A15;

Phil Kuntz, Instant Karma: Cash Gets to Democrats Via Buddhist Temple, Wall St. J., Oct. 17, 1996, at

A1; see also Ruth Marcu~ & Ira Chinoy, A Fund-Raising 'Mistake;' DNC Held Event in Buddhist Temple,

Wash. Post, Oct. 17, 1996, at A1 (each article places AI Gore at the Hsi lai Buddhist Temple on April 19,

1996); David E. Sanger & James Sterngold, Politics: The Conduit; Fund-Raiser for Democrats Now Faces

Harsh Spotlight, N.Y. Tim~s, Oct. 21, 1996, atA1.

See 26 U.S.C. § 501(c) (1995); Cal. Rev. & Tax. Code § 23701 d (West 1997) (both statutes provide181

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that a tax exempt organization does not include an organization where a "substantial part of the activities

of which is carrying on of propaganda, or otherwise attempting, to influence legislation. .., [or] any

political campaign on behelf of a candidate (or in opposition to) any candidate for public office"); see also

Regan v. Taxation with Reg;resentation of Wash., 461 U.S. 540, 103 S. Ct. 1997 (1983) (holding that

political restrictions on tax-exempt religious organizations do not violate the Constitution.); see generally

David A. Wimmer, Curtaihng the Political Influence of Section 501 (c) (3) Tax- Exempt Machines, 11 Va.

Tax. Rev. 605 (1992) (gjl/ing a general overview of § 501 (c) (3) regarding its effect on the political

influence of tax-exempt organizations ).

182. This would constitute a violation of 26 U.S.C. § 7201 (1996) and 18 U.S.C. § 371 (1996). Thissection provides that "[a] r,y person who willfully attempts in any manner to evade or defeat any tax

imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty

of a felony. ..." A violation is punishable by up to five years in prison. See id. In assisting the DNC , the

Vice President may have also violated the general federal conspiracy statute. See 18 U.S.C. § 371.

183. See Phil Kuntz, Vice President Says He Wasn't Told About Fund-Raiser, Wall St. J., Oct. 23, 1996,

at B2 ; see also Lena H. Sun & Michael Weisskopf, Gore 'Community Outreach' Touched Wallets at

Temple; April L.A. Event Raised Funds and Questions, Wash. Post, Oct. 25, 1996, at A1 (reporting that

the Vice President describl~d the April 29, 1996, fund-raiser as a "community outreach" event and denies

that it was a politically motivated). See also Brian McGrory, Gore Says He Knew Buddhist Event WasFund-Raiser; He Earlier Cited "Community Outreach, " Bos. Globe, Jan. 15, 1997, at A9.

184. National Public Radio Morning Edition: Gore Discusses Controversial Buddhist Temple Event (NPR

radio broadcast, act. 22, 1996) [hereinafter NPR Broadcast].

185. See Money at the remple, N. Y. Times, Sept. 6, 1997, at A22; see also Marc Lacey & RobertJackson, "Gore in Dark on Temple Event, " Ex-aide Says, L.A. Times, Sept. 6, 1997, at A22.

186.

A22.

See Money at the Temple, supra note 185, at A22; see also Lacey & Jackson, supra note 185, at

187. See Truth in Dribs and Drabs, Wash. Post, Jan. 17, 1997, at A20; see also McGrory, supra note

183, at A9.

188. See id.

189. See Dan Balz, The Inauguration 1997: For Vice President Gore, a Term of Transition, Wash Post,Jan. 20, 1997, at E31.

190. Id.

191. See Susan Schmidt & Anne Farris, DNC Decides Not to Close Records Connected to Huang,

Wash. Post, Dec. 24, 199EI, at A6; see also Ruth Marcus & R.H. Melton, DNC Donor Controversy Widens

as Republicans Step Up Cliticism, Wash. Post, act. 18, 1996, at A 1.

192. See Schmidt & Farris, supra note 191, at A6; see also Marcus & Melton, supra note 191, at A 1

193. See William C. Rempel, Temple Leader Denies Political Purpose to Donations; No Intent to

Influence Policy, Buddhist Master Says in Written Statement to Investigators, Wash. Post, Aug. 17, 1997,

at A10 (noting that Gore traveled to Taiwan as a guest of Hsi lai Temple).

194. See Schmidt & Farris, supra note 191, at A6; see also Marcus & Melton, supra note 191, A 1

195. Sun & Weisskopf, supra note 183, at A1

196. See Hearings on lli vestigations into Fundraising Activities During the 1996 Campaign Before the

Senate Governmental Aff(.iirs Special Investigations Gomm., 105th Gong. (Sept. 5, 1997) (available in

WESTLAW, 1997 WL 545250, at 15, 36) [hereinafter Sept. 5 Hearings]. See also Christopher Drew & Jon

Van Natta, Jr, Early Warnh7gs on Gore's Temple Visit, N.Y. Times, June 12, 1997, at 813; James Rowley,





Nuns: Temple Repaid Donors, Chi. Sun- Times, Sept. 5, 1997, at 26; Eric Schmitt, Former Aide and

Republicans Debate What (~ore Knew, N.Y. Times, Sept. 5, 1997, at 12.

197. See Hearings on Imfestigations into Fundraising Activities During the 1996 Campaign Before the

Senate Governmental Affairs Special Investigations Comm., 105th Gong. (Sept. 4, 1997) (available in

WESTLAW 1997 WL 541197, at 27-29) [hereinafter Sept. 4 Hearings]. See also Peter Baker, White

House Seeks to Protect Gore in Temple Inquiry, Wash. Post, Sept. 3, 1997, at A 1; See Sun & Wiesskopf,

supra note 183, at A 1.

Sept. 5 Hearings, supra note 196, at 30. See also Baker, supra note 197, at A198.

See Sept. 5 Hearings, supra note 196, at 36-41. See also Schmitt, supra note 196, at 12199.

Sept. 5 Hearings, supra note 196, at 74. See also Schmitt, supra note 196, at 12.00.

Sept. 5 Hearings, supra note 196, at 74. See also Drew & Van Natta, Jr., supra note 196, at 813.01

202. See, e.g., Timothy .J. Burger, Gore Wrote to Huang at Federal Address, Legal Times, Mar. 17,

1997, at 1. See also Associated Press, U. S. Hired Fundraiser Huang Without Check of Foreign

Connections, Report Notes Visits to White House, Chi. Trib., act. 31, 1996, at 16 (noting that Huang was

hired on January 171 1997)

203. See Sept. 5 Hearings, supra note 196, at 36-41. See also, Baker, supra note 197, at A1. When

Huang fell short of that goal, he put pressure on the temple authorities to raise an additional $45,000 from

Buddhist nuns who were sworn to poverty. See, e.g., David E. Rosenbaum, Nuns Say Temple Event with

Gore was not a Fund-Raiser, N.Y. Times, Sept. 5, 1997, at A1. See also Marc Lacey, Buddhist Nuns

Admit Misdeeds in Fund-Raising, L.A. Times, Sept. 5, 1997, at A1; Tossing Gore, Wall St. J., Sept. 11,

1997, at A14. Those nuns, in turn, wrote checks to the DNC and were later reimbursed from the temple

treasury. See John Mintz & Lena H. Sun, Senate Republicans Assert that Gore Knew Temple Event was a

Fund-Raiser, Wash. Post, Sept. 6, 1997, at AB. See also Lacey, supra at A1; Rosenbaum, supra at A1.

While there is no evidence that the Vice President knew of this particular evasion of federal tax laws, the

example set by the Vice Pr~sident's apparent disregard for other tax laws most likely set the stage for this

evasion.

See 26 U.S.C. § 501{c) (1996); Cal. Rev. & Tax. Code § 23701 d (West 1997).

205. It is illegal to purpo!)efully evade federal tax laws. See 26 U.S.C. § 7201 (1996). It is also illegal to

conspire to do the same thing. See 18 U.S.C. § 371 (1996).

206. 26 U.S.C. § 9006 (1994) established the Presidential Election Campaign Fund from monies

collected by $3 voluntary ,jesignations of taxpayers on their annual income tax filing. See 26 U.S.C. §

6096 (1994).

207. See 26 U.S.C. § 9003 (1996). To be eligible to receive the funds, a candidate must certify that he

"will not incur qualified campaign expenses in excess of the aggregate payments to which they will be

entitled. ..." Id. at § 9003(b)(1). Section 441a(b) requires that § 9003 candidates limit their expenditures

on the election campaign t() a fixed amount. See id. at § 441a(b)(1)(B).

208. See 26 U.S.C. § 9012(a) (1994). The statute imposes a fine not to exceed $5,000 or imprisonment

not to exceed one year. Se~ § 9012(a)(2).

209. Indeed, the First Arnendment of the Constitutl

party. See Colorado Republican Fed. Campaign C

decision, however, only applied to "independent

candidate's campaign. See id. at 2314-15.

See 2 u.s.c. § 441a(a)(1)(A).

86 Stat. 3, amended by Federal Election Campaign Act Amendments of 1974, 88 Stat. 126311

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ion prohibits the limiting of expenditures by a political

omm. v. FEC, 116 S. Ct. 2309, 2312 (1996). The

expenditures" made without coordination with the



High Crimes and Misdemeanors Page5°:~

'FECA") (codified at 2 U.S.C. §§ 431-55 (1996)).

212. See § 441a(d)(2).

213. See id. The statute requires that a connected expenditure not exceed "an amount equal to two cents

multiplied by the voting ag~ population of the United States." Id. See also Robert Schlesinger, Morris Says

Clinton Advised DNC on his Campaign Ads, The Hill, Sept. 10, 1997, at 1 (quoting Trevor Potter, former

chairman of the Federal EI~ction Committee).

214. The Presidential E:lection Campaign Fund distributes monies under three programs: primary

matching payments, gen~ral election grants, and party convention grants. See Federal Election

Commission, The FEC and the Federal Campaign Finance Law (visited Nov. 19, 1997)

<htto:I/www. fec.govIQagesifecfeca.htm>. The matching fund program provides public funding to

candidates during the Pre'.idential primaries. See id. 2 U.S.C. § 441a(b)(1)(A) set a base limit of $10

million for the fund, but vlith inflation adjustments, the 1996 amount was $30.91 million. See Federal

Election Commission, supra. The general election grants are available to the candidates who win the party

nomination. See 2 U.S.C. § 441a(b)(1)(B). The statute sets a base limit of $20 million for the grant, but

with inflation adjustments, .the 1996 amount was $61.82 million. See Federal Election Commission, supra.

The convention grants provide funds for each party's national convention, $12.36 million in 1996. Id.

215. See 26 U.S.C. § 9003(b).

216. See Bob Woodward, afterword to The Choice 436-37 (1997); see also Dick Morris, Behind the OvalOffice 138-57 (1997) ("In 1996, the Clinton campaign and, at the president's behest, the DNC spent

upwards of eighty-five million dollars on ads. ..."). Dick Morris was President Clinton's top election

strategist for the 1996 campaign. See id. at 18-41.

217. See id. at 139 ("[T]he ads were shaping voters' attitudes, recasting the nation's views of Clinton,

and reshaping its understanding of the budget fight. ..."). See also Woodward, supra note 216, at 437

("Clinton portrayed himself as the government's mature protector. House Speaker Gingrich embodiedradical extremism. As the Senate leader, Dole was Gingrich's partner. The television ads almost always

pictured Gingrich and Dole; together, and the narrator referred to them as almost one person-'Gingrich-

Dole."'). See also Fred Wertheimer, Clinton's Subterfuge is no Technicality, Wash. Post, Nov. 9, 1997, at

C1.

218. See id. In his book, Morris details how he and the President personally selected the agencies that

would produce the ads. Sel~ Morris, supra note 216, at 141-43.

See id.

220. See id. at 143. The President was obsessed with maintaining personal control over the ad

campaign. See id. At one ~Ioint, he asked Morris, "'If you control each aspect of the media and the polling,

how can I control the process? How can I get different options and choices? How do I keep control?"' Id.

Id. at 144

222. See Wertheimer, supra note 217, at C1. Indeed, Morris attempts to couch the ads in terms of their

issue advocacy. See Morris, supra note 216, at 141. Before the start of the campaign, he claims to have

sought legal counsel and was purportedly advised that "the law permitted unlimited expenditures by a

political party for such 'issue-advocacy' ads." Id.

223. See Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309, 2316 (1996) ("We do

not see how a Constitutiorl that grants to individuals, candidates, and ordinary political committees that

right to make unlimited indf~pendent expenditures could deny the same right to political parties.").

224. Id. (emphasis added) (quoting a speech made by Clinton to donors at a fundraiser). Despite

Morris's attempts to preserlt the ads as issue-advocacy, his account reveals the ads for what they really

were: campaign advertisements for Bill Clinton. See Morris, supra note 216, at 139 (describing the ads as

"recasting the nation's Vif!WS of Clinton"). Significantly, Woodward's account observes that the ads

attacked Bob Dole by directly attempting to link him to Speaker Gingrich. See Woodward, supra note 216,

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at 437.

Michael Kelly, Clinton's Legacy, Wash. Post, act. 30, 1997, at A23.25.

226 Id.

227. Id.

228. Philip B. Heymann, Don't Make Gore the Fall Guy, N.Y. Times, Sept. 21, 1997, sec. 4, at 17 ("In1996, access was sold on a scale we haven't seen since 1972.").

229. 424 U.S. 1, 47 (197e).

230. Id.

231. Id. at 46 n.53. Indeed, the FEC has argued that mere contact with the candidate plus ads with only

an "electioneering messa~le" would be sufficient to exclude the ads from being classified as an

"independent expenditure." See generally Clifton v. FEC, 114 F.3d 1309 (1st Cir. 1997).

232. See 2 U.S.C. § 441 a (d) (2). Under § 441a (a) (7) (8) (i), "expenditures made by any person in

cooperation, consultation, clr concert, with, or at the request or suggestion of, a candidate, his authorized

political committees, or th~ir agents, shall be considered to be a contribution to such candidate." ThePresident's involvement with the ad campaign demonstrates the fact that these ads were not independent

expenditures and must be viewed as contributions to the Clinton-Gore campaign. Consequently, they are

subject to § 441a(d)(2)'s cap on expenditures made "in connection" with the presidential campaign. See §

441a(d)(2).

233. The President's comments at the December 7 fund- raiser confirm that he was aware of the

circumvention. See id. "[W] e realized. ..we didn't have to do it all in $1 ,000 contributions, which is

limited by law." Id. ( emphasis added).

234. See id.; Wertheimer supra note 217, at C1. See generally Morris, supra note 216, at 138-57; see

Woodward, supra note 216, at 437.

235. The President has repeatedly used the "defense" that the Dole campaign also financed

questionable ads with soft money. Blaming a "loophole" in the law, the President noted, "I acknowledgethat we all have played a role in bringing down voter confidence," the president said. "But it's the only

system that's out there, and if you don't try to get your communication up and the other side does, they'll

prevail nearly every time." Peter Baker, Clinton Says Campaign Money Undermined Public Confidence,Wash. Post, Nov. 10, 1991', at A23. The President conveniently ignores the fact that his ad blitz began in

1995, well before the Dolf~ campaign began to place ads on the air. See Jill Abramson, Tape Shows

Clinton Involvement in Party-PaidAds, N.Y. Times, act. 21, 1997, atA20. Inexplicably, the President has

also accused the Republicans of pushing "the limits even further." See Baker, supra, at A23. It is unclear

how this could be the case when the Dole campaign spent only $15 million on its ads (which at least

resembles the proper limitl in contrast to the $45 million for the Clinton-Gore campaign. See Abramson,

supra, at A20.

236. See U.S. Const. art 1, § 8, cl. 4. Federal naturalization law is codified in Title 8, Chapter 12 of the

U.S. Code. Applicants for naturalization must demonstrate that they can read, write, and speak English,

that they understand the .American political system, and that they have exhibited "good moral character."

See 8 U.S.C. § 1423(a) (1~j96):

No person except as otherwise provided in this title shall hereafter be naturalized as a

citizen of the United States upon his own application who cannot demonstrate~ (1) an

understanding of the English language, including an ability to read, write, and speak words

in ordinary usage in the English language: Provided, That the requirements of this

paragraph relating to ability to read and write shall be met if the applicant can read or write

simple words and ohrases to the end that a reasonable test of his literacy shall be made

and that no extraordinary or unreasonable condition shall be imposed upon the applicant;

and (2) a knowledge and understanding of the fundamentals of the history, and of the

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principles and form of government, of the United States

Id.

See also 8 U.S.C. § 1427(~\) (1996):

No person. ..shall be naturalized unless such applicant, ...during all the periods referred

to in this subsectio,' has been and still is a person of good moral character, attached to the

principles of the Constitution of the United States, and well disposed to the good order and

happiness of the Ur\ited States.

Id.

See also 8 U.S.C. §1427(e) (1996)"

In determining whether the applicant has sustained the burden of establishing good moral

character and the other qualifications for citizenship specified in subsection (a) of this

section, the Attorney General shall not be limited to the applicant's conduct during the five

years preceding the filing of the petition, but may take into consideration as a basis for

such determination the applicant's conduct and acts at any time prior to that period.

Id. See also 22 A.L.R.2d 244 (1995) (describing what constitutes a showing of "good moral character" on

the part of an applicant for naturalization).

237. See u.s. Const. art. II, § 3

238. "This program calleld Citizenship USA has turned into Criminal USA. It does not take Karnak the

Magnificent to figure it out." 143 Cong. Rec. H2097 (daily ed. May 1, 1997) (statement of Mr. Traficant).

See also, William Branigirl, INS Accused of Giving in to Politics; White House Pressure Tied to Clinton

Push, Wash. Post, Mar. 4, 1997. at A 1; David Jackson, Give Us Your Tired, Your Poor, Your Votes: Drive

for New Citizens Creates New Democrats, Chi. Trib. , Aug. 27, 1996, at A 1.

239. See Sara Fritz, New Citizens Hid Past Crimes, INS Agent Says Immigration Agency Disputes Claims

that about 5,000 Naturaliz~)d in L.A. Ceremonies Concealed their Records, L.A. Times, Sept. 24, 1996, at

A 1. See also Jackson, sup,..a note 238, at A 1.

240. See David Jackson, U.S. Tightens Rules on Immigrant Citizenship, Chi. Trib., Dec. 5, 1996, at 3.

See also Jackson, supra m)te 238, at A 1.

241. See, e.g., Sara Frit!, Gore Immigrant Program Role Draws Fire Politics: GOP Sees Naturalization

Effort as Attempt to Add Democrats to Voter Rolls in Key States. House Committee Cites Memos as

Proof, L.A. Times, Oct. 6, 1996, at A24. See also, e.g., Branigin, supra note 238, at A1; Sara Fritz, GOP

Claims Gore Eased Citizenship to Recruit Voters, Chi. Sun- Times, Oct. 7, 1996, at 19.

242. See Improper Granting of U.S. Citizenship Without Conducting Criminal Background Checks: Joint

Hearing Before the Subcor'1m. on National Security, International Affairs and Criminal Justice of the Comm.

on Government Reform a/1d Oversight and the Subcomm. on Immigration and Claims of the Comm. on the

Judiciary House of Repre:)entatives, 105th Cong. 30 (Mar. 5, 1997) (statement of Stephen R. Colgate,

Assistant Att'y Gen., Justice Management Div., Dept. of Justice) [hereinafter Citizenship Hearings]. Seealso Private Accounting Firm to Overhaul Naturalization System, San Diego Union- Trib., Mar. 21, 1997, at

A14 ("Of the 1,049,872 immigrants who were naturalized[,] ...thorough checks were not completed on

113,216.").

243. "Clearly, the standards of citizenship were bent and broken for political purposes." 143 Cong. Rec.

82396 (daily ed. Mar. 18, 1997) (statement of 8en. Daniel Coats (R-IN)).

244. See Jackson, supra note 238, at A1

245. See id.

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246. See Branigin, supra note 238, at A 1. See also Fritz, Gore Immigrant Program, supra note 241, at

A24; Linda Chayez, INS Eat:es way for Voters, Deny. Post, Mar. 12, 1997, at B7.

247. See Branigin, supra note 238, at A1. See also Jackson, supra note 238, at A1

248. 143 Gong. Rec. S23~16. See also Branigin, supra note 238, at A1

249. 'We know that in a later message to the Vice President, Mr. Farbrother said that the Immigrationand Naturalization Service was not doing enough to produce a million new citizens before election day."

143 Cong. Rec. 52396.

250. Branigin, supra note 238, at A1

251 Id.

252. See Jackson, supra note 238, at A1; see also William E. Gibson, New Citizens, New Voters;

Democrats, GOP Tap into Immigrant Influx, Sun Sentinel, June 18, 1997, at 1A. One e-mail from Doug

Farbrother, who worked for the National Performance Review staff at the White House, complained to

Vice President AI Gore that the pumped-up citizenship process was still not moving fast enough. See id.

Farbrother wrote, "I could go on, but the point is that, unless we blast INS headquarters loose from their

grip on the frontline manag'3rs, we are going to have way too many people still waiting for citizenship in

November." Id. Cf. Branigin, supra note 238, at A1 (reporting that a Gore staff member defended the

election-day deadline, stating, "The reason people apply for citizenship is so they can vote.").

253 See Branigin, supra note 238, at A1

254. See id.

See id. See also Chavez, supra note 246, at B7

256. See Branigin, supra note 238, at A 1. In fact, the President was able to get a letter to the new

citizens. For example, Jose Enciso, a newly naturalized citizen held his handsome letter of congratulations

from President Clinton and !$tated, "I was waiting for this time to vote because I want to elect the best man

for the country ...I think Clinton's going to be my choice." Jackson, supra note 238, at A 1.

257. See Citizenship Hearings, supra note 242, at 30 (statement of Mr. Colgate).

See id.

259. See Eric Schmitt, La)jty Charged in Citizenship Granting- 2 GOP Lawmakers Charge 180,000 were

Approved Before Completic'n of Criminal Checks, Pitt. Post- Gazette, Mar. 2, 1997, at A14. See also

Chavez, supra note 246, at 87; Linda Chavez, Politics Unusual the Second Term Around. Lowering the

Standards for Citizenship, Cf,i. Trib., Mar. 12, 1997, at 23.

See Branigin, supra note 238, at A 1. See also Chavez, supra note 259, at 23.

See Jackson, supra note 238, at A1

262. See id.

263. See id.

264. See id.

265. See id.





266. See id.

267. See Jackson, supra 11ote 238, at A1

See id.

269. See, e.g., Eric Schm\tt, INS Plans to Strip Close to 5,000 of Citizenship, San Diego Union- Trib., May

24, 1997, at A12. There have been a number of Supreme Court cases on the per se unconstitutionalnature of involuntarily revoking citizenship. See, e.g., Vance v. Terrazas, 444 U.S. 252 (1980) (holding

that the loss of citizenship required proof by the government that an "expatriating act was accompanied by

an intent to terminate United States citizenship."). Undoubtedly, as the revocation process begins there

will be hundreds of suits filed to resist revocation.

See 2 U.S.C. § 441e (1994). Section 441e provides

It shall be unlawful for a foreign national directly or through any other person to make any

contribution of money or other thing of value, or to promise expressly or impliedly to make

any such contributi()n, in connection with an election to any political office or in connection

with any primary election, convention, or caucus held to select candidates for any political

office: or for any p~!rson to solicit, accept, or receive any such contribution from a foreign

national.

Id. See also Bruce D. Brown, Alien Donors: The Participation of Non- Citizens in the U.S. Campaign

Finance System, 15 Yale L. & Pol'y Rev. 503 (1997).

271. There have also been reports concerning illegal foreign campaign contributions. See Dan Balz &

Peter Baker, DNC Bars Foreign Donations; Criticized for 1996 Fund-Raising, Party Umits "Soft Money,"

Wash. Post, Jan. 22, 1997, at A1. On February 13, 1997, the Washington Post reported that the

Department of Justice had obtained intelligence information that the government of the People's Republic

of China had sought to dir~ct contributions from foreign sources to the DNC before the 1996 presidential

campaign. See Bob Wood'Nard & Brian Duffy, Chinese Embasssy Role in Contributions Probed, Planning

of Foreign Donations to DNC Indicated, Wash. Post, Feb. 13, 1997, at A1. Tim Weiner, F.B.I. Looks at

Whether China Funneled Al1oney to Democrats, N. Y. Times, Feb. 14, 1997, at A21. Further reports have

indicated that these directions came from the highest levels of the government of the People's Republic of

China and that the schem'3 is ongoing. See Bob Woodward, Top Chinese Unked to Plan to Buy Favor,

FBI Evidence Indicates Ongoing Effort in U. S. , Wash. Post, Apr. 25, 1997, at A 1.

272. The key players include John Huang, a DNC fund- raiser and a former senior official in the

commerce department who has been investigated for soliciting over $1 million in questionable donations.

See Neil A. Lewis, F.B.I. ;)eizes Documents at U.S.-Thai Group Tied to Democratic Fund, N.Y. Times,

Feb. 28, 1997, A27. Mr. 1-1uang was a former employee of Lippo conglomerate principal James Riady.

See id. Mr. Riady, a longtime friend of the President, has also been the subject of investigation for his

involvement in the laundered campaign contributions made by Arief Wiriadinata. See Alan C. Miller &

Glen F. Bunting, IndonesiCins Contradict Democrats on Donations Inquiry, L.A. Times, act. 27, 1997, at

A1. Arief Wiriadinata is an Indonesian landscaper who was used to funnel $500,000 contributions from his

father- in-Iaw, Hashim Nir\g, to the DNC. See id. Mr. Ning was a close business partner with James

Riady's father, the patriarch of the Lippo conglomerate. See id. Mr. Wiriadinata's relationship with James

Riady was made clear from one of the White House "coffee" videos in which Mr. Wiriadinata tells the

President, "James Riady sent me." Id. There is also Yah Lin "Charlie" Trie, another longtime Clinton

friend, who according to a DNC official, helped a Chinese arms dealer get a White House coffee invitation.See Susan Schmidt, A Bal~kstage Look at Fund-Raising, Wash. Post, act. 18, 1997, at A8. Among some

of the other individuals su~;pected of campaign abuses are Johnny Chung and Pauline Kanchanalak. See

id.

A violation is punist1able by up to one year in prison. See 18 U.S.C. § 641 (1996).73.

274. See infra pp. 25-28.

275. See Robert Suro & (,eorge Lardner, Jr., Counsel Probe of Babbitt Ukely, Officials Say, Wash. Post,

Nov. 17, 1997, at A1.





276.

277.

278. See id. Secretary of Interior Bruce Babbitt testified before Congress that the decision to deny the

permit was not based on ,Iny contribution made to the DNC or the Clinton-Gore campaign by the tribes

opposed to the permit. See Edward Walsh, Old Friends at Odds Over Indian Casino; Senate Panel Hears

Babbitt, Ex-co/1eague, Wash. Post, Oct. 31, 1997, at A1. However, Babbitt's colleague and former lawschool classmate, Paul F. Eckstein, contradicted Babbitt's testimony when he stated that Babbitt had told

him of being pressured by the White House. See id. According to Eckstein, Babbitt expressed concern

about being pressured by Harold Ickes to make a decision on the permit. See id. Eckstein also testified

that Babbitt had informed t1im of how much the Indian tribes opposing the permit had contributed. See id.

The extent of President C;linton's involvement in this matter is unclear, but a memorandum by Ann

Jablonski, a lobbyist for ol.'e of the opposing tribes, noted that the President was "aware of the Hudson

dog track issue." See Guy Gugliotta & George Lardner, Jr., White House Releases More Taps of Political

Events; One Shows Fund-raiser a Day Before Administration's Controversial Rejection of Indian Casino,

Wash. Post, Nov. 21' 1997, at A4. The memorandum also confirmed that the President had discussed the

matter with two chief lobbyists for the opposing tribes, and that top Clinton- aide Bruce Lindsey had

directed Harold Ickes to "te\ke care of' it. See id. If the evidence reveals this to be a direct quid pro quo or

act of bribery, it would be a clear violation of 18 U.S.C. § 201 with a maximum penalty of up to fifteen

years in prison. See U.S.C. § 201 (1996).

279. See House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Pre$idential

Impeachment 21 (Comm. Print 1974) ("Less than one-third of the eighty-three articles the House has

adopted have explicitly charged the violation of a criminal statute or used the word 'criminal' or 'crime' to

describe the conduct alleged. ...").

280. Id.

281 Id.

282. See id. "Some of the individual articles seem to have alleged conduct that, taken alone, would not

have been considered serious, such as two articles in the impeachment of Justice Chase that merely

alleged procedural errors a~ trial." Id.

283. Nixon Final Report, supra note 26, at 2.

284. 2 The Records of the Federal Convention 64 (M. Farrand ed. 1911) (quoting a statement made by

William Davie of North Carolina). For Davie, impeachment was "an essential security for the good

behavior of the Executive." Id.

285. Article III brought against Richard Nixon charged that he "knowingly misused the executive power

by interfering with agencie~; of the executive branch." Nixon Final Report, supra note 26, at 8 (emphasis

added).

286. See id. at 3.

287. John Locke, Secorid Treatise of Government 101 (C. B. Macpherson ed., Hackett Pub. 1980)

(1690).

288. House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment

6 (Comm. Print 1974).

289. u.s. Const. art. II, § 4

290. See Bruce Fein, Adoquate Imperatives for the Big 1?, Wash. Times, Sept. 30, 1997, at A18; Mark

Helprin, Impeach, Wall St. .J., act. 10, 1997, at A22.

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H.R. Res. 305, 10151. Gong. (1997). The resolutions states:91

Whereas considerable evidence has been developed from a broad array of crediblesources that Willian' Jefferson Clinton. President of the United States. has engaged in a

systematic effort to obstruct. undermine, and compromise the legitimate and proper

functions and proce!;ses of the executive branch: Now, therefore. be it

Resolved, That the ':;ommittee on the Judiciary is directed to investigate and report to the

House whether grounds exist to impeach William Jefferson Clinton, President of the UnitedStates. Upon compl~tion of such investigation, that Committee shall report to the House its

recommendations with respect thereto, including, if the Committee so determines, a

resolution of impeachment.

Id.

292. See, e.g., Laura Ingraham, The Folly of Impeachment Chic; Invoking the 'I' Word Only Hurts the

GOP, Wash. Post, Oct. 26, 1997, at C1.

293. House Comm. on the Judiciary, 93d Cong., The Impeachment Inquiry: Its Meaning 1 (Comm. Print

1974).

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