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In September, the Yale University Press published a new edition of the classic handbook, incorporating a new preface and new material by constitutional theorist Philip Bobbitt. In this re-publication, the Journal worked with Bobbitt to present his chapters with extensive notes in order to provide a resource for students, scholars, lawyers, journalists, and public officials. Black, Jr. As the midterm elections approached, there was some anxiety—and no doubt, in some quarters, hope—that impeachment might again be undertaken.

As it happened, I was teaching the Handbook in my Legal Methods class at Columbia as an exquisite demonstration of the forms of constitutional argument. My students complained that the book had been published before any definitive action was taken to remove President Nixon, and they chafed to know how Black would have dealt with the ificant questions of the Lady wants nsa Yale then and now.

The Handbook would instruct them how to think. It laid out clearly and concisely the methods by which a legal answer could be derived from the text, history, structure, doctrine, practicality, and ethos of the Constitution, and it showed rather elegantly how to apply these six fundamental methods. This remains, I hate to say, a continuing problem for the field. It was enough that I was foolishly prepared to put my own stolid texts next to his poet-perfect prose.

Since then, we have experienced several other tremors of varying force in the landscape of impeachment. Doctrinal arguments in constitutional law are developed case by case, following rules laid down in precedents. The impeachment and acquittal of President Bill Clinton carries more authority than the abortive attempt by a state legislature in to bring about impeachment proceedings against President George W. Bush, 14 even though the latter is more recent. And what is the ificance, if any, of the attempted impeachments against Presidents Ronald Reagan and Barack Obama? Can we infer that the legal bases for these indictments—respectively, the creation of a secret, privately funded covert action capability 15 and the refusal to enforce congressional mandates regarding narcotics and immigration 16 —were constitutionally inadequate?

There is something to be learned from the doctrinal history of presidential impeachments since17 but perhaps the most important development has been the transfer of influence from the organs of governmental decision-making to the public. What has changed is ourselves: we no longer have the confidence in the leadership of Congress that we had in the Nixon era, and impeachment is a supremely congressional action indeed one reason we have lost that confidence is the fiasco of the Clinton impeachment by the House.

Moreover, owing to the zeal of some and perhaps the self-absorption of otherswe have compromised the habits of decorum, fastidious withholding of judgment, impartial procedures, detachment from partisanship, and insistence on fundamental fairness that Black thought necessary to the due process of impeachment. There remains, however, this hope: that our people come to believe, even more than they believe the superiority of their own opinions, that the best means of realizing their preferences, and of preserving the values on which they believe their preferences to be based, lies in the working of legal institutions whose legitimacy depends on shared understandings, not sheer partisan political power.

When the special prosecutor pressed for unedited transcripts and additional conversations, 22 the White House refused 23 on grounds that the recordings were protected from compelled disclosure by executive privilege. On July 24, however, the Supreme Court ordered the president to comply with the subpoena.

The pace quickened. On July 27, 29, Lady wants nsa Yale 30, the committee approved three proposed Articles of Impeachment and sent them to the full House.

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What is the scope of that precedent? Is it coextensive with the charges in the Bill of Impeachment?

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At a minimum, we can dismiss two proposed counts that were not referred to the full House: one charging the president with misleading the Congress regarding the secret bombing of Cambodia, and one alleging a failure to pay appropriate income taxes. It was Lady wants nsa Yale not clear whether a particular bombing campaign within a larger, authorized war might be within the prerogatives of the commander in chief, at least in the absence of congressional action to the contrary. The three Articles of Impeachment sent to the House charged that the president obstructed the investigation of the Watergate burglary adopted by a committee vote of ; that he engaged in a pattern of conduct that violated various rights of individual citizens adopted ; and that he refused to cooperate with the committee by providing materials when requested adopted Moreover, and more decisively, we know from multiple sources that by August 5,following the release of incriminating conversations recorded in the Oval Office, more than two-thirds of the Senate votes needed for conviction were committed against the president.

That leaves Articles 1 and 2, both of which charged Nixon with having violated his oath of office and the requirement of Article II of the Constitution that he faithfully execute the laws. The support for Articles 2 and 3 was less definitive. For the increasingly fraught relationship between Congress and the president today, the Watergate affair is the gift that keeps on giving. By the s, US covert operations faced a funding cutoff in Central America 40 and risked exposure there and elsewhere from congressional committees that were, by law, required to be informed of these secret plans.

The Reagan administration struggled to secure the release of hostages, 45 several of whom were tortured and killed. When the Senate select committee appointed to investigate the affair began its work in early50 the public and the Congress believed they already had a relatively clear picture of the facts in the Iran-Contra scandal.

The question of the hour was: Did the president know about this diversion? They seized on the diversion as the most promising basis for such a charge. If the president had contrived to misappropriate funds that properly belonged to the Treasury by authorizing that the profits from the sale of US war materiel be sent to the Contras, then proof of this would serve as the predicate for his removal from office.

The House majority staff conducted an investigation that appeared to be based on these assumptions. They believed that the president would not have paid much attention to what was little more than an ing method. In fact, the constitutional violation was far more profound than the diversion. The more serious offense lay in the development of a quasi-private covert action capability of which the diversion was merely a minor side effect.

A privatized, off-the-books covert action agency offered the administration several important advantages. First, the outsourced agency could manage the Contra insurgency, fulfilling the oversight role played by the CIA before its funding and participation were curtailed through a series of statutes. Thus it might recapture the Lady wants nsa Yale that the United States seemed to have surrendered to terrorist groups.

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Statutes adopted in the late s required that the president verify in writing the necessity of each covert operation and inform congressional oversight committees about them. There was, however, a fundamental constitutional problem with this bright idea. Article I provides the link between government operations and the democratic mandate by requiring that all funding take place by statute, 57 that is, by the actions of elected officials who can be turned out by the voters every biennium.

Article I provides the check on the actions of the federal government provided by the biennial election of members of the House. This error in attempting to use nonappropriated funds is compounded by the solicitation of operating funds from foreign governments with whom the federal government alone has institutional economic, security, and diplomatic relations. Moreover, the United States can become subject to blackmail when the donating regime threatens to expose the scheme. The Federalist Papers do not treat this exotic subject directly, but a relevant discussion can be found there.

This seems to underscore the centrality of the appropriations process, even and perhaps especially in the arena of national security. In the event, nothing happened. The president went on television and vaguely apologized for not appreciating that his scheme to release American hostages could be perceived as a ransom.

Without some appreciation of what was at stake, the idea of impeachment faded with the inability to prove the president had himself directed the diversion. A tree had fallen in the forest, but even those that heard it did not recognize it as such. Moreover, nothing compelled the Congress to go further.

A decade later, some members of Congress would argue that the Constitution gave the House no discretion not to impeach the president Lady wants nsa Yale he had committed high crimes and misdemeanors, 62 but this erroneous insight lay in the future.

While there is no doctrinal precedent to be inferred from this travesty, it would be idle to suppose that the secret privatizing of federal functions ended with the Iran-Contra affair. It waits, hidden in the groundcover of constitutional misapprehension, and will no doubt stir again as market mechanisms replace agency regulations as a preferred means of governmental operations.

What is the scope of the precedent created by the Clinton impeachment if, as in the Andrew Johnson impeachment, the Senate refused to convict? Does the refusal to convict cast doubt on the legal sufficiency of the indictment, given that the principal facts were not really at issue? Had either strand played out on legal grounds, there might never have been an impeachment proceeding.

It was only when these two lines of attack were studiedly brought into intersection that a trap could be laid for the president, tempting him into false testimony that might conceivably serve, it was thought, as a predicate for impeachment. The Whitewater scandal erupted into the national consciousness when a New York Times story 66 —which did not charge the Clintons with anything unlawful—was suddenly supercharged by the suicide, in late July67 of a deputy White House counsel and former law partner of the first lady in Little Rock. Republicans in the Congress pressed for the appointment of an independent counsel to investigate Whitewater and its relationship to this death.

Because the statute authorizing the office of the independent counsel had expired, 69 she Lady wants nsa Yale the appointment on the basis of her authority as head of the Justice Department, choosing a prominent Republican lawyer, Robert Fiske. After Congress reauthorized the independent counsel statute, a three-judge panel appointed Kenneth Starr, a respected former solicitor general, to go over the same ground. Instead, he offered the of a lengthy investigation into charges of sexual misconduct by the president.

A former White House employee, who befriended a former White House intern and became her confidante, began secretly taping their conversations at the suggestion of a literary agent who was prominent among anti-Clinton partisans. This picture changed in early Januarywhen a former law school classmate of one of the members of the group financing the Jones suit went to work for the independent counsel. That report itself was without precedent and, especially in light of the ultimate resolution by the Senate, should not serve as a model for future reports by either independent counsels authorized by statute or special counsels appointed by the Department of Justice.

Leon Jaworski, when he was a special prosecutor in the Watergate matter, scrupulously sent to the House only a few factual files on President Nixon, accompanied by no recommendations whatsoever. The full House considered four charges.

The bases of these charges were that the president had 1 abused his office by using staff to facilitate sexual liaisons with other personnel, 2 used his office to buy silence by offering jobs or threatening to embarrass others, and 3 lied under oath and given false statements to the public to cover up his misconduct and thus to obstruct the pursuit of a lawful investigation and prosecution which supported two of the charges. In their summations, neither counsel for the president nor counsel for the House managers addressed the issue of whether the president had committed a constitutional crime: whether a nexus had been shown between his official duty to uphold the Constitution and a concerted effort by him to imperil the country through acts that undermined his unique duties as president.

It may well be that, two decades later, in the atmosphere of public outrage over sexual misconduct by powerful men, Bill Clinton would have been driven from office by his own party. Does that mean that the constitutional law of impeachment has changed? Does greater sensitivity to rather crass and manipulative sexual behavior elevate that behavior to a crime against the perpetuation of the order and ethos of the State, even accepting that such predations have enormous political and cultural consequences?

The Senate, however, is not a board of directors, and it does not appoint the president. If we know little about how the Framers and ratifiers of Article II would answer this corporatist question, we know this: they decisively rejected removal of the president for simple maladministration, and they rejected also the subordination of the president to the Congress that such a power would imply. Or should that consciousness be reflected in elections rather than in prosecutions and trials conducted by the Congress?

The aggressive change to more confrontational tactics between the branches of government initiated and championed by Lady wants nsa Yale Speaker of the House at the time of the Clinton impeachment is still with us, even to a heightened degree.

But the Democrats who rallied around the president then would be in a very different position today.

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It is true that they protected the presidency from a fortuitous conspiracy that would have changed the balance of constitutional power between the branches. Starr even wanted to make the exercise of executive privilege an impeachable offense—as did the equally aggressive members of the Judiciary Committee during Watergate.

Perhaps the Democrats were at fault for failing to find common ground Lady wants nsa Yale their Republican colleagues by forcing a reation—as the Republicans did to Nixon—especially since there was a competent vice-president in the wings who had also Lady wants nsa Yale elected by the American people. If the answer to the wrong question is not a wrong answer but no answer at all, then the questions put to the Senate by the prosecution established no rules for the future.

There is a cautionary tale here, but its lessons are largely negative. They urge us not to repeat this disgraceful episode. If, for example, the president were knowingly to make bombastic and false statements in public, or in private to his subordinates, that were neither crimes in themselves nor related to his performance in office, he should not be entrapped by federal officials asking him whether he knew the statements to be untrue or be forced to reiterate them in sworn testimony.

Only if the false statement is part of a concerted effort to commit an impeachable offense—that is, a constitutional crime—can such deceits serve as the predicate for impeachment. There are, however, less substantive issues as to which the Clinton impeachment did provide precedents. One was whether a Bill of Impeachment adopted by the House of one Congress is sufficient to trigger a trial in the Senate after a new Congress has convened—or whether a new bill must be voted by the House.

In the ordinary course of legislation, if a bill passes only one house before a Congress ends, it must be reenacted by both houses of a new Congress in order to be sent to the president for ing. In the Clinton case, a new Congress might have made a difference, as the new House had more Democrats, and the second Article of Impeachment barely passed the old House—although in the event the new House continued to back the impeachment managers. Inthe Senate amended these rules to include what is now Rule XI, which provides:. That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine.

During the Clinton impeachment trial, evidence was presented to the whole Senate, not to a Rule XI committee, and so it is probably correct to say that the constitutionality of such committees—at least where the presidency is at stake—remains untested. The Senate may well be the final determinant of its own rules, but its recent practice suggests some ambivalence about employing Rule XI procedures in a presidential impeachment. The impeachment and acquittal of Bill Clinton in are the only comprehensive precedents for the impeachment process since the impeachment and acquittal of Andrew Johnson inwhich was itself the first impeachment of the president since the creation of the office of the presidency in Accordingly, the Clinton debacle, from which no one walked away unscathed, will shape the development of the impeachment clauses more than any other events to date, including the Nixon reation.

This development gives reason for concern, for it reflects the effects of concerted attempts to criminalize American politics, weaponizing our legal processes by evading or even discarding the constitutional bases of those processes.

Bush and his vice-president, on charges that included Lady wants nsa Yale the United States to war against Iraq. The New Hampshire proceedings appear to have arisen from several embedded confusions. He published them as a single work, intended for future vice-presidents, in ; a second edition with added material was printed in The general course is to pass a resolution containing a criminal charge against the supposed delinquent, and then to direct some member to impeach them by oral accusation, at the bar of the House of Lords, in the name of the Commons.

A resolution introduced by a Member and referred to a committee. Furthermore, no rule of the House could possibly force the House to commence impeachment proceedings. This would be a mistake. Two developments—the appearance of cities and states that refuse to cooperate with federal immigration officials, and the legalization of marijuana by many states despite federal narcotics laws criminalizing its use—are harbingers of a deeper change in the constitutional order of the American State, to which I alluded in the preceding section.

The increasing polarization and paralysis of Congress only speeds this change. What if the president, unable to push his reform agenda through the Congress, simply refused to enforce the laws he could not get repealed? Would that constitute an impeachable offense? One of the proposed charges drafted by the House Judiciary Committee at the time of the Nixon impeachment was the claim that the president had refused to spend appropriated funds for projects and operations to which he was opposed on grounds of policy but that had been passed over his opposition and sometimes his veto.

It was not uncommon for presidents to decline to spend funds authorized by the Congress; Thomas Jefferson had done so inand the power was generally regarded as inherent in the executive. He had tried to impound funds for an environmental project that he had opposed and then vetoed, and to which his veto had been overridden. Later, in Train v. City of New Yorkthe Supreme Court held that the impoundment power cannot be used as a kind of irrefutable veto. For my part, I believed at the time that impoundment could provide a strong predicate for impeachment when the president used his discretionary power over expenditures for the purpose of dismantling or crippling programs regularly enacted in lawful form.

Moreover, Black noted, many appropriation statutes authorize but do not mandate spending. Anticipating Trainhe concluded that the president might believe that by impounding funds he was merely referring a doubtful matter to the courts.

The Obama presidency was criticized for a not dissimilar tactic: using its prosecutorial discretion to decline to enforce statutes with which the president disagreed. Finally, the history of the adoption of the Take Care Clause at Philadelphia further supports the view that this clause requires the president to enforce the laws adopted by Congress regardless of his view of their merits excepting constitutionality.

None of this is to deny that an ineradicable element of the executive function is discretion and the prerogative to carry out the purpose of statutes as effectively as possible. As with impoundment, however, it is a matter of intent.

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If the president concludes that a lack of available personnel, or contradictory directions from Congress, or changed circumstances compel him to give priority to the enforcement of some provisions and not others, that is one thing.

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