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Ending the Clinton Crisis

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from: James Hamilton
to: William Kristol

Posted Thursday, Nov. 19, 1998, at 3:30 AM ET

Bill:

Last week, several constitutional scholars testified before the House Judiciary Committee that it must be impeachment or nothing. In other words, they contended that the president can be sanctioned only through the impeachment process and that a censure resolution would be unconstitutional. This notion, as I understand it, is based on the fact that the censure option is not specified by the Constitution.
As I previously have said, I think this position is simply wrong.
Let me begin by noting that Congress has various inherent powers that are not expressly set forth in the Constitution--for example, the power to investigate and issue subpoenas. In a famous 1957 case regarding the so-called loyalty investigations, the Supreme Court said, "The power of Congress to conduct investigations is inherent in the legislative process. That power is broad [and] comprehends probes into departments of the federal government to expose corruption, inefficiency or waste."
Even earlier, in a 1927 decision relating to the Teapot Dome scandal, the Supreme Court recognized that implicit in the grant of "legislative powers" to Congress is the authority to require production of information by subpoena. The court said, "[T]he power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function."
Consequently, the fact that authority for Congress to take some action is not explicitly set forth in the Constitution does not necessarily mean that taking such action would be unconstitutional. A legislative body has various innate powers.
Early American legislators plainly believed they had authority to enact resolutions expressing their opinions about various issues. Thomas Jefferson was vice president, and thus president of the Senate, from 1797 to 1801. To assist him in his Senate duties, he wrote the Manual of Parliamentary Practice, which set forth various rules for the governance of legislative bodies. In 1837, the House decided that various provisions of the Manual should govern its activities.
In his Manual, Jefferson wrote that the "principles ... opinions and purposes" of a legislative body could be "expressed in the form of resolutions." The current House Rules Manual states, "In the modern practice concurrent resolutions have been developed as a means of expressing ... principles, opinions and purposes of the two Houses."
The noted constitutional scholar Charles Black, in his Impeachment: A Handbook, includes a chapter on ways of dealing with presidential misconduct short of impeachment. He writes:

Or take the possible use of the concurrent resolution, not subject to veto, as a means of expressing formally both the convictions and the intentions of Congress. I have already mentioned how such a resolution, though without force as law, might have destroyed the moral basis for the Viet Nam war. Might it not in other cases be used to censure ... actions of the president? Is it conceivable that such censure, by a Congress to which the president must look for support, would have no effect?

In fact, according to a recent Congressional Research Service study, three presidents effectively have been censured--President Jackson by the Senate and Presidents Buchanan and Tyler by the House.
Some scholars contend that a censure resolution would be an unconstitutional bill of attainder. But a bill of attainder is a piece of legislation that requires the president's signature to become law. The type of concurrent resolution at issue is not legislation; it would be passed only by the two houses and would not need the president's signature. Raising the bill of attainder "boogeyman" is thus way off base.
Bill, please pardon this perhaps overly legal discourse on congressional history and powers. (I wrote a book about this stuff and thus just can't help regurgitating it.) But the upshot is that a concurrent resolution of censure would be fully constitutional.
And isn't this the right way to resolve this mess? The impeachment train in the House Judiciary Committee keeps chugging along but in desultory fashion to an uncertain end.
Let's resolve this matter now in an appropriate constitutional way that would impose a sanction on the president proportional to the gravity of his conduct.

dialogues
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from: James Hamilton
to: William Kristol

Posted Thursday, Nov. 19, 1998, at 3:30 AM ET
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James Hamilton is a partner at the law firm of Swidler, Berlin, Shereff, and Friedman. He was assistant chief counsel of the Senate Watergate committee and recently defended the continuance of Vincent Foster's attorney-client privilege before the Supreme Court. William Kristol is editor and publisher of the Weekly Standard. He is a regular guest on ABC's This Week With Sam Donaldson and Cokie Roberts.
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