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High Crimes and Misdemeanors

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HIGH CRIMES )~ND MISDEMEANORS:

THE CLINTON-GORE IMPEACHMENT


Bob Barr*

SCANDALS AND THE QUESTION OF

Table of Contents

I II

III

IV V

Introduction What is Impe~lchment? A. In trodu(:,tion B. The Pur])ose of Impeachment C. The Impeachment Procedure D. The Scope of Impeachment 1. The Criminality Issue 2. The Contours of Impeachment 3. Problems with the Scope of Impeachment E. A Stznunary of Impeachment Impeachable Offenses by the Clinton Administration A. Delay, Incompetence, and Obstruction: A Course of 1. Vin(:e Foster I s Documents 2. The "Coffee" videos 3. The White House Data Base {"WhoDB"} Memo B. Impeach~lble Offenses During the 1996 Campaign 1. IllE~gal Solicitations in the White House 2. IllE~gal Fund-Raising Outside the White House 3. Conflpiracy to Circumvent Spending Limits 4. Abufle of the Immigration Process 5. OthE~r Possible Impeachable Offenses Impeachment: The Remedy Conclusion

Conduct

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 could appropriately 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 and Vice examine explored: press reports (;ontinue to document the gravity of how the integrity of the Presidency Presidency ha~; been compromised, the House of Representatives has only begun to these scandal~5 in the fashion that the Founding Fathers intended that they be through the mechanism of impeachment.[3] implications of this sordid pattern of abuse. Most

Confusion abounds about the constitutional


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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 the closed, sterile environment of lawyers arguing fine points of law. What I see, however, from the vantage 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 ought to 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 breach of 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 felony statutes 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 of constitutional impeachm(~nt. Second, the analysis will review some of the "overwhelming and widely available" evidence by examining several ~)f the more grievous and fully developed instances 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 high Crimes 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 ] The impeachment 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 "political punishments."[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 integrity of 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 President and his sheltered

to be a "safety valve, a security against an oppressive or corrupt 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 that the 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 security for the good behavior of the public officers. "[22] Our Founding Fathers conceived of impeachment as a device to preserve constitutional government, designed to address actions by 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--"to faithfully execute the Office of President of the United States" and to "preserve, protect and defend 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 is instituted by written acclJsations, termed !lArticles of Impeachment,!I which state the offenses charged.[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 special rules 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 direct impeachment 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 of Representatives 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 detail below, 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 House has 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 and Practice in the Senate \'1/hen Sitting on Impeachment Trials.[38] A conviction requires a twothirds 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 consequences for 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 clear in 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 and Misdemeanors."[44] The phrase "high crimes and misdemeanors" was an English term of ari that denoted political crimes against the state,[45] and the choice of this phrase was a deliberate and considered 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 Alexander Hamilton observed, these political offenses include breaches of the public trust that a president assumes 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, in other words, from the abuse or violation of some public trust. They are of a nature which may with 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 be at 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 been criticized,[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; as Supreme 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 legislation would 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 criminal law 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 and misdemeanors" 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 the adoption 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 other offenses considered to be "high crimes and misdemeanors" were the placement in office of unfit or incompetent officials[Ei9] and the neglect of duties related to the office.[60] Impeachment was used 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 and misdemeanors," which came at the end of a thorough debate over the scope of impeachment,[63] confirms this view. By adopting this term of art, our Founding Fathers intended 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 standard would "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 history of the term "high crimes and misdemeanorS,"[68] but it also examined the fundamental differences between impeachment and criminal law. First, the report noted the different purposes served by impE!achment and the criminal law. Impeachment is "not so much designed to 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 made criminal 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 affirmative duties imposed. ..by the Constitution"[73] or an entire "course of conduct more than individual acts that have a tendency to subvert constitutional government."[74] Indeed, the decision not to codify 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 at least 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 are committed by public men in violation of their public trust and duties. Those duties are, in many cases, political. ...Stlictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character."[77] Congress has a constitutional duty to the 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 only paying 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 offenses exceeds 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 legal scholarship to provide ~)ome boundaries or contours to the scope of impeachment. These principles 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 Founding Fathers 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 or contempts of Parliament's prerogatives," "corruption," the "conversion of public property," "the sale 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 "high crimes 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 crime and misdemeanor."
In contrast, proceedings the 1974 Judiciary Committee Report examined the thirteen American impeachment 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, albeit with 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'the public trust, and the corruption of the integrity of public office. The English 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 fact is 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 relate chiefly 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, address whether 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-bycase basis, according to the circumstances of the offense and the "collective political judgment of Congress."[84]
In 1974, the Judiciary Committee Story to explain impeachment: Repor1 on the Nixon impeachment quoted the view of Justice

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 which extenuate 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 the highest 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 desire is 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 in such a manner as to remjer him unworthy of being any longer trusted, than in such a manner as to 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 United States. 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 is inherent 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 and other 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 both impeach and remove.[95] Second, the two-thirds conviction requirement provides an additional braking 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 on base 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 the authority 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's representative, 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 impeachment may 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 impeachment process, 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 current analysis of each allegati:Jn difficult, if not impossible. Despite this difficulty, the seriousness of the 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 production of 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 of Whitewater 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 Counsel Bernard 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 of the 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 the discovery of the note ar1d the assertions made by Foster contained in the note.[109] Foster had asserted that the FBI hsd lied in their report to the Attorney General on Travelgate.[110] Any evidence 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 suggests that 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 of Foster'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 legislative inquiries 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 that trust and, perhaps, violated 18 U.S.C. 1505. However, far from being an isolated incident, the delay 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 to blame for the delay in producing the tapes. However, the non-production of another key item in the 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 the impropriety of the Clinton-Gore campaign's fund-raising efforts have concentrated on possible violations 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 House database]."[119] The WhoDB is a $1.7 million taxpayer-financed database used to keep track of the 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 produced by 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 minimize the 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 supporters of 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 with apolitical DNC database.[123] The memo reads, "Harold and Debra Delee want to make sure

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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 merging of 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 this memo has only recently been produced even though it was clearly responsive to a Committee subpoena of documents is inexcusable. The Committee unambiguously demanded "all communications" 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 not regarded the memo as being responsive to the subpoena, but she could not recall the reasoning used 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 justice appears 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 that exceeds 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 impugns the 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 inquires into 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 execute the 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 in his 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 foreign campaign contributions, and the illegal conversion of federal property for political purposes reveal 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 tile 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 of the 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 have been 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 prohibition on soliciting campaign funds from federal property.

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Adhering to the plain language of the law, former White House Counsel Bernard Nussbaum circulated 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 in Federal 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 House Counsel 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 House or any other federal building."[144] The revelations of the hundreds of telephone calls the President and Vice President placed to solicit 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 some telephone calls from [his] office in the White House" that were charged to a "DNC credit card."[146] In fact, the solicitations were numerous and of significant importance to the ClintonGore campaign. The DtJC asked the Vice President to place at least 140 calls to Democrat donors thought willing to give at least $25,000 each.[147] Records show that Vice President Gore 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" in his 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 that President Clinton also made fund-raising telephone calls from the White House.[151] The calls include 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 he offered 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 and appropriate."[154] After all, he claimed, "there is no controlling legal authority" holding that his campaign 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, the statute merely prohibits <:ampaign solicitations aimed at individuals who themselves are located in 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 to protect 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 was intended 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 Congress wanted 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 employees specifically mentioned ill the law, and not to himself or President Clinton.[164] Again, Vice President Gore's theory fails when considered in light of Hawley's guidance. Because the law applies to "any person ir the world,"[165] the suggestion that the application of the statute does not 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, it seems, is supported neitller by authority nor common sense. Amazingly, the Vice President's defenders seek refuge in yet another artificial 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, donations to a specific candidate.[168] Thus, soft money donations, or unregulated contributions to a political party, are not the focus of the statute.[169] This conclusion is based on the fact that the law 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 the White 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 Vice President 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 and keep 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, prompting the 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 the relative antiquity of the law and its supposed lack of use. Generally, the vintage of a law is not determinative 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. Such defense 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 in Hacienda 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 violated both 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 the tax 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 cJtthe 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~(the Senate Governmental Affairs Committee and statements made by members of the Clinton Administration now expose, however, that the Vice President did more than 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 "financerelated,"[188] but he accepted responsibility only for his attendance at the event.[189] Shamelessly shifting resoonsibility, Gore blamed the DNC, criticizing them for having arranged the 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 White House.[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 Vice President, 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 Huang was 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 Southern California."[200] In the memo, Huang stated that arrangements had been made for this lunch to occur 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 merely attending 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 the event 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, 1996 would 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 he noted 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 in the 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 the Vice President's role in planning it strongly suggest a more sinister intention. In any event, his actions 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 of integrity 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 Candidates for President of the United States have personal funds and whatever funds they might be they can opt to receive public funding for campaign funds, they are required to limit the amount campaign.[207] Once the choice to accept public exceed the cap.[208] Spending Limits

a choice. They can elect to devote their own able to raise from individual Americans, or efforts.[206] If they choose to receive public of money raised and spent during the funds is made, it is a criminal violation to

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 run advertisements 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 can make "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 aspect of 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 like the thirty-second speeches he had written to convey his views to 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 President Clinton 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 does not 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 paid ads 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]e realized 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 concludes that 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 are coordinated 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 section 441 a (d) (2), these expenditures are subject to a $12 million limit.[232] Thus, the $45 million ad campaign 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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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 "soft money."[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] The executive branch has the duty to faithfully execute those naturalization procedures.[237] There is abundant evidence that 1he Clinton Administration seriously abused the naturalization process in an 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 be a 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 in disregard 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 greater concern 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 Chicagobased Latino advocacy group, met with President Clinton at a fund- raiser.[244] After the two men discussed Solis's plans for naturalization and registration of new citizens, Clinton instructed Solis 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 USA came 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 applicants in 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 officials could "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 provide the 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 of immigrants 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 prospective citizens' 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 1992 elections, until the INS !Jeneral counsel ruled that using volunteer organizations such as UNO was 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' "green cards" 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 people eligible to vote and reg'stered. It's just a rush for numbers."[266] The deportation officer also stated 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 naturalized under Citizenship USA can never be reimbursed. In shor1, American any cost. American Citizenship U:3A was a success for the Clinton campaign and a disaster for the people. The VVhite House appears to have adopted a policy of getting new voters at The Clinton campaign added over 1,000,000 voters in Democrat strongholds, while the 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 owe to those citizens, but the! actions taken by the President and Vice President through Citizenship USA have the potential to harm citizens in the most fundamental way. The disregard for INS procedures 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 in the 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 of the 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 that there 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 Interior denied 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 evidence that 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 the President'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 sufficient account 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 articles brought 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 more on 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 or the 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 own political gain? The answer to these difficult questions is, of course, uncertain. However, the answers to these questions are not essential to the propriety of impeachment; a conviction of criminal conduct would I.::ertainly warrant impeachment, but it is not necessary .The real issue that 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 of Office? 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 adopted against 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 all isolated 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 White House. 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- enforcement officials. In doing so, the course of conduct impugns the integrity of the Presidency and the man who 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 impeachment clause 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 Vice President spared any effort or means to win reelection. By making fund- raising calls from federal facilities, the Vice President and the President violated 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 to absolve 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 knew this 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 of the 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 and Vice 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 ClintonGore 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 have sounded a litany of exclJses about why they are not responsible: they had no knowledge, they were 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 add new Democrat voters before the 1996 election is a subversion of the executive power reflective

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of Nixon's misuse of the FBI and CIA to influence his reelection.[286] In sum, the course of conduct evident in these violations and abuses demonstrates a gross dereliction of duty by the President 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 Fathers included 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, might exercise 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 this power when it becomes apparent that an official has committed "Treason, Bribery, or other high crimes 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 for Congress to begin an inl.~uiry into impeachment. This is a prudent step in exercising our duty to safeguard 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.) statement at 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 is the 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 Watergate scandal, 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 which proceed. ..from thEi violation of some public trust.").

are those offences

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 The Impeachment Inquiry: Its Meaning 1 (Comm. Print

1974).

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. 13.
See id. at 5 (quoting

James

Wilson,

Works

426 (G. McClaskey

ed. 1967)).

14. Id. It is Gerhardt's c:ontention that the impeachment because of their political nCiture. Id.

clauses

"virtually

defy systematic

analysis'

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.

17. See House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Impeachment 22-25 (Comlh. Print 1974) ("[I]mpeachable conduct need not be criminal."). 18. Id. at 26.

Presidential

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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). 21 22. 23. 24. 25.
26.

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


1 Annals of Congress 372 (1789).

u.s. Const. art. 11, :1. u.s. Const. art. II, 1, cl. 8.
u.s. Const. art. I, 2, cl. 5. Black, In.'peachment: A Handbook 5 (1974). Each article sets out a particular offense or

See Charles

charge made against the official, or activities that constitut~ the charged Nixon with a

a brief summary of facts related to that offense, and the specific conduct offense. For example, Article I of the Nixon Articles of Impeachment

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 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 on the Judiciary, 93d Cong.
The Impeachment Inquiry:

of the United

Procedure 26 (1996).
Its Meaning 3 (Comm.

30. See House Comm. Print 1974). 31. The House Committee to

authorr:zed

an impeachment

inquiry

on February

6, 1974,

directing

the Judiciary

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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33. 34.

See H.R.

Doc. No. 10:3-342,

606.

See Gerhardt,

supra

note 29, at 26.

See

H.R.

Doc.

No.

10:3-342,

607

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. See id.

37

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.

u.s. Const. art.


u.s. Const.

3,

cl.

6.

40.
41

art. II, .l

u.s.

Const.

art. II, .l

42. 43.

u.s. Const. art. I, 3, cl. 7.


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. 50.
51 The Federalist No.65, supra note 3, at 426.

116 Gong. Rec. H3113-3114


See e.g., Berger, supra note

(daily ed. Apr. 15, 1970) (statement


15, at 53-54.

of Rep. Gerald Ford).

52. Gerhardt, supra notel29, at 105-06 (quoting Joseph Story, Commentaries United States 287 (Ronald D. Rotunda & John E. Novak eds. 1887)).

on the Constitution

of the

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. 93d Cong., Constitutional Grounds for Presidential

55. See House Comm. on the Judiciary, Impeachment 22 (Comm. Print 1974). 56. See Berger, supra noje 15, at 59.
See id. at 61. See also text accompanying

57.

note 45.

58. See id. at 67. In 1680, Sir Edward Seymour, an English nobleman, was also impeached crimes and misdemeanors related to his misappropriation of funds. See id. at 69.

for high

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. 64. See House Gomm. on the Judiciary, Impeachment 13 (Gomm. Print 1974). 65.
66.

93d

Gong.

Constitutional

Grounds

for

Presidential

See id.
Id. at 11

67. See id. at 22-25.


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

69.

Story, supra note 52 803. 93d Cong., Constitutional

70. See Berger, supra note 15, at 79; see also House Comm. on the Judiciary, Grounds for Presidential In\peachment 24 (Comm. Print 1974). 71. See U.S. Const. art. 1, 3, cl. 7 (". ..the Party convicted shall nevertheless Indictment, Trial, Judgment, and Punishment, according to Law."). 72. See House Gomm. on the Judiciary, Impeachment 24 (Gomm. Print 1974). 93d Gong. Constitutional

be liable and subject to

Grounds

for

Presidential

73. 74.
75.

Id.

Id.

See Berger,

supra

note

15, at 77.

76. See House Comm. on the Judiciary, 93d Cong., Constitutional Grounds Impeachment 19 (Comm. I~rint 1974); see also Gerhardt, supra note 5, at 4 n.11. 77. Story, supra note 52, 385.
See Berger, supra note 15, at 71

for

Presidential

78.

79. Id. at 70.


80. Id. Berger derived th~se categories from an analysis of various impeachment proceedings against officials 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. 81. House Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 18 (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 his own 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. 83. 84.
See Story, supra note 52, 287.

The Federalist

No.6!),

supra

note 3, at 426.

Gerhardt,

supra

note 5, at 87.

85. House Comm. on the Judiciary, 93d Cong., Constitutional (Comm. Print 1974) (quoting Story, supra note 52, 764).
Id.

Grounds for Presidential

Impeachment

16

Gerhardt, supra note 5, at 87.


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

Paul H. Robinson,

I Law 1.1 ( 1997).

89.

The Federalist No.70,

at 455 (Alexander Hamilton)

(Benjamin

Fletcher Wright ed., 1996).

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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92

The Federalist

No.66,

supra

note 3, at 426.

93. House Comm. on the Judiciary, (Comm. Print 1974). 94.


See Gerhardt, supra riote 5, at 87.

93d Cong., Constitutional

Grounds for Presidential

Impeachment

95. In Federalist No.65, Hamilton espoused the virtues of separating the impeachment power between the 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 96. omitted).

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, 24 (Comm. Print 1974).
101

93d Cong., Constitutional

Grounds for Presidential

Impeachment

Secretary of Defen~;e James Forrestal took his own life in 1949. ()f the Special Committee to Investigate Whitewater Development Corp. and t'.Jo. 104-280, at 14 (1996). There is also compelling evidence that Ms. Williams F:oster's office. See id. The next morning another two individuals were allowed to hi.

102. See Final Report Related Matters, S. Rep. removed file folders from enter Foster's office. See

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 1505 (1996). of any legislative proceeding. See 18 U.S.C.

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 the President'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's Office 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 agency thereof; 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. at A37. Marc Lacey & David Willman, GOP Attacks White House "Stone Wall, II L.A. Times, Nov. 7, 1997 ,

120.

See

Guy Wash.

Gugliotta, Post, Oct.

Lawmaker 31' 1997,

Suggests at AB.

Obstruction

in Late

Delivery

of Memo

on White

House

Database,

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, Lacey & Willman, supra note 119, at A37. at A18;

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).

127.
128.

See

Lacey

& Willmal1,

supra

note

119,

at A37.

See id.; Walsh,

suprn

note 123, at A18.

129. See 18 U.S.C. 1505 (1996). Concealing documents that are the subject of subpoenas constitutes the 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.
131 Nixon Final Report, supra note 26, at 2

132. 133.

Id.

u.s. Const. art. II,


See 18 U.S.C. 607(a)

cl.

8.

134.
135.

(1996).

18 U.S.C. 607(a) [emphasis

added). of

136. United States v. Th~, 209 U.S. 39, 42 (1908). See also Ruth Marcus, Many Interpretations 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. 139. 140.
141 See David A. Price, The Vice President Broke the Law, Wash. Post, Apr. 2, 1997, at A17.

Id.

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. added).

144.

Marcus, supra note 136, at A4; Price, supra note 139, at A17 (emphasis

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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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. 149. 150.


See Van Natta, Jr., supra note 147, at A1

See Wayne, supra note 148, at A16 (noting the amount billed was $22.40).
See Cushman, Jr., supra note 145, at A28.

151

152. 153 154.

See

id.

See Van Natta,

Jr., ~:upra note 147, at A1

Transcript of Vice President Gore's News Conference,

supra note 146, at A9.

155.
156.

Id.

See Marcus, supra note 136, at A4; see David A. Price, Will Gore Avoid a Prosecutor?,

Investor's

Business Daily, Sept. 22, 1997, atA1.


157 A21 See David A. Nordquest, The White House and the Pendleton Act, Wash. Times, act. 3, 1997, at

158. 159.

See id.
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 A21

161

162.

Id.

(emphasis

addecl).

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. 164. 165.
See Marcus, supra note 136, at A4.

Nordquest, supra note 157, at A21

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, 168. 169. act. 22, 1984.

Price, White House'.,; Quest, supra note 145, at A1

170.
17'
Id.

172. See Transcript of Vice President Gore's News Conference, supra note 146, at A9
173. Price, White House's Quest, supra note 145, at A1
See Wayne, See Transcript supra note 148, at A16. Gore's News Conference, supra note 146, at A9.

174.
175.

of Vic:e President

176.
177.

Id.

See Roberto Suro & Bob Woodward,

Reno Decides to Expand Investigation

of Gore, Wash. Post,

act. 3, 1997, at A1. 178.


See Marcus, supra note 136, at A4. See also Babcock, supra note 137, at AB.

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 law testify 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 prosecutionsnor 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 a Millionaire 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.
181 See 26 U.S.C. 501(c) (1995); Cal. Rev. & Tax. Code 23701 d (West 1997) (both statutes provide

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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). This section 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 Was Fund-Raiser; He Earlier Cited "Community Outreach, " Bos. Globe, Jan. 15, 1997, at A9.

184. radio

National broadcast,

Public act.

Radio

Morning

Edition:

Gore NPR

Discusses

Controversial

Buddhist

Temple

Event

(NPR

22, 1996)

[hereinafter

Broadcast].

185. See Money at the remple, N. Y. Times, Sept. 6, 1997, at A22; see also Marc Lacey & Robert Jackson, "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. 183, at A9. 188. See id.

Post, Jan. 17, 1997, at A20; see also McGrory, supra note

189. See Dan Balz, The Inauguration Jan. 20, 1997, at E31.

1997: For Vice President

Gore, a Term of Transition, Wash Post,

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 Influence Policy, Buddhist Master Says in Written Statement to Investigators, 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,

to Donations; No Intent to Wash. Post, Aug. 17, 1997,

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,

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Nuns: Temple Repaid Donors, Chi. Sun- Times, Sept. 5, 1997, at 26; Eric Schmitt, Republicans Debate What (~ore Knew, N.Y. Times, Sept. 5, 1997, at 12.

Former Aide and

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. 198. 199. 200. 201
Sept. 5 Hearings, supra note 196, at 30. See also Baker, supra note 197, at A1

See Sept.

5 Hearings,

supra

note 196, at 36-41.

See also Schmitt,

supra

note 196, at 12

Sept. 5 Hearings, supra note 196, at 74. See also Schmitt, supra note 196, at 12. Sept. 5 Hearings, supra note 196, at 74. See also Drew & Van Natta, Jr., supra note 196, at 813.

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 "will not incur entitled. ..." on the election U.S.C. 9003 (1996). To be eligible to receive the funds, a candidate must certify that he qualified campaign expenses in excess of the aggregate payments to which they will be Id. at 9003(b)(1). Section 441a(b) requires that 9003 candidates limit their expenditures 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 ion prohibits the limiting of expenditures by a political party. See Colorado Republican Fed. Campaign C omm. v. FEC, 116 S. Ct. 2309, 2312 (1996). The expenditures" made without coordination with the decision, however, only applied to "independent candidate's campaign. See id. at 2314-15.
See 2 u.s.c. 441a(a)(1)(A).

211

86 Stat. 3, amended

by Federal

Election

Campaign

Act Amendments

of 1974, 88 Stat. 1263

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'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 Oval Office 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 embodied radical 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-'GingrichDole."'). 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 would produce the ads. Sel~ Morris, supra note 216, at 141-43. selected the agencies that

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.

225.

Michael Kelly, Clinton's Legacy, Wash. Post, act. 30, 1997, at A23.
Id.

226
227.

Id.

228. Philip B. Heymann, Don't Make Gore the Fall Guy, N.Y. Times, Sept. 21, 1997, sec. 4, at 17 ("In 1996, access was sold on a scale we haven't seen since 1972."). 229. 230. 424 U.S. 1, 47 (197e).
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." The President'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 acknowledge that 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

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 the part of an applicant for naturalization). what constitutes a showing of "good moral character" on

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 See also Jackson, supra m)te 238, at A 1. Citizenship, Chi. Trib., Dec. 5, 1996, at 3.

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]. See also 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." 82396 (daily ed. Mar. 18, 1997) (statement of 8en. Daniel Coats (R-IN)). 143 Cong. Rec.

244. 245.

See Jackson,

supra

note 238,

at A1

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.
248.

See Branigin,

supra

note 238, at A1. See also Jackson,

supra

note 238,

at A1

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 Immigration and Naturalization Service was not doing enough to produce a million new citizens before election day." 143 Cong. Rec. 52396. 250. 251 Branigin, supra note 238, at A1
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.

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266.

See id.
See Jackson, supra 11ote 238, at A1

267.

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 unconstitutional nature 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 Finance System, 15 Yale L. & Pol'y Rev. 503 (1997). of Non- Citizens in the U.S. Campaign

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.

273. 274.

A violation

is punist1able

by up to one year in prison.

See 18 U.S.C.

641 (1996).

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.

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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 law school 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. 281
Id.

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. 287. (1690). 288. House Comm. on the Judiciary, 6 (Comm. Print 1974). 289. u.s. Const. art. II, 4 93d Cong., Constitutional Grounds for Presidential Impeachment
See id. at 3.

John Locke, Secorid Treatise

of Government

101 (C. B. Macpherson

ed., Hackett Pub. 1980)

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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291

H.R. Res. 305, 10151. Gong. (1997). The resolutions

states:

Whereas considerable evidence has been developed from a broad array of credible sources 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 United States. 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. GOP,

See, Wash.

e.g., Post,

Laura

Ingraham,

The Folly at C1.

of Impeachment

Chic;

Invoking

the

'I' Word

Only

Hurts

the

Oct. 26, 1997,

293. 1974).

House Comm. on the Judiciary,

93d Cong., The Impeachment

Inquiry: Its Meaning 1 (Comm. Print

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