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67 Geo. Wash. L. Rev. 666 (1998-1999)
Would George Washington Have Wanted Bill Clinton Impeached

handle is hein.journals/gwlr67 and id is 676 raw text is: Would George Washington Have Wanted Bill Clinton Impeached? Stephen B. Presser* -L Introduction: Impeachment as a Guarantor of Virtue This comment explores the history of impeachment and the meaning of the constitutional phrase high Crimes and Misdemeanors. I conclude that if the charges lodged by Ken Starr and House Judiciary Committee Chief Investigator David Schippers are true, then the impeachment and removal of President Clinton is called for by the original understanding of those who framed the impeachment provisions of the Constitution. The Constitution provides in Article II, Section 4, that The President, Vice 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 Misdemeanors.' I am a practicing legal historian and much of my research, writing, and teaching has concerned the late-eight- eenth-century period when the federal Constitution was drafted and first im- plemented.2 When I testified recently before the House subcommittee,3 I sought to examine the question of what Treason, Bribery, or other high Crimes and Misdemeanors means by asking what the phrase would have meant to the Constitution's Framers. I pursue that inquiry here as well. In order to answer this question we need to place the impeachment remedy in the context of the Framers' assumptions about how the Constitution would work and what would make it work best. The first important thing to understand is that the federal Constitution came about because of a belief on the part of most of the Framers that fol- lowing independence, the newly created state legislatures were behaving in a manner that was inimical to the success of our Republic. These state legisla- * Raoul Berger Professor of Legal History, Northwestern University School of Law. Most of this comment is drawn from my testimony given before the Subcommittee on the Con- stitution, U.S. House of Representatives Committee on the Judiciary, November 9, 1998. In the preparation of that testimony, I consulted on a piece soon to be published in Volume 8 (Winter 1998-99) of the journal Law and Courts, written by Scott D. Gerber, Would the Framers Im- peach President Clinton? Mr. Gerber was kind enough to share with me a pre-publication draft, and I am indebted to him for some of the analysis made here, particularly that regarding The Federalist and the debates in Philadelphia. I also wish to thank ArLynn Leiber Presser, Elisabeth Catherine Presser, and Douglas W. Kmiec for helpful comments on drafts of the testi- mony. This revision of the testimony also benefitted from discussions with my fellow witness before the subcommittee, Gary McDowell. 1 U.S. CONST. art. II, § 4. 2 See, e.g., STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (studying the jurispru- dence of England and America in the late eighteenth century); STEPHEN B. PRESSER, RECAP- TURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (applying the Framers' constitutional theory to the resolution of current constitutional problems. 3 See note 0. March 1999 Vol. 67 No. 3

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