PARDONGATE: Another Impeachment After The Investigations Conclude?

By VICTOR WILLIAMS

Tuesday, Feb. 27, 2001
[pardons]

But after the investigations are concluded, what should be done? I have one suggestion, rooted in the Constitution: A second impeachment trial could occur, with the goal not of removing Clinton from office (since he is already gone), but rather of disqualifying him from holding federal office in the future.

Investigation Is Merited

U.S. Attorney Mary Jo White (or her Bush-appointed replacement) should continue a full criminal investigation into the Marc Rich pardon. Similar Department of Justice investigative actions across the nation may also be merited – headed by Attorney General John Ashcroft, who may also need to appoint an independent counsel.

The pardons tainted by the flavor of political payback are just as troubling as that of Marc Rich. The pardons of four men from a Hasidic community that almost unanimously backed Hillary Clinton in her Senate race are one example. Another example is the pardon of William Borders.

Borders went to prison rather than testify against then-federal judge Alcee Hastings in a bribery scandal. Hastings was acquitted, with the help of Borders' silence, but later impeached and convicted, so that he lost his judgeship. The Senate failed, however, to disqualify him from holding future office.

Later, as a Representative, Hastings passionately defended Bill Clinton during the president's own impeachment saga. Was the Borders pardon a thank-you? Hastings has denied involvement, but the parallel to the thank-you pardon Clinton granted to the similarly silent Susan McDougal is hard to miss.

Even more unpalatable – and possibly criminal – is Hillary Clinton's brother Hugh Rodham's successful attempt to secure pardons– including one for a big-time drug trafficker. For his trouble, Rodham received $400,000 in attorney fees, half of which was apparently paid to him, in a contingency arrangement, only if the pardon was granted. Rodham has now promised sister Hillary to return the money, but giving it back won't erase the original crime, if the money was part of a quid pro quo for the pardon.

Investigations, Hearings – And Then What?

What should be done after the investigations conclude? To begin, the Constitution should not be amended, nor should Congress attempt to regulate Presidents' use of the pardon, as some have recently proposed.

Some legislators have threatened to punish Clinton with rebuke, censure, or pension reduction. But that, too, would offend the Constitution. The legislature may not punish the President, apart from the impeachment process. Nor can it create special punishments for particular individuals ("bills of attainder").

A Second Impeachment?

During his first impeachment and trial, Clinton defenders argued that only public acts of a constitutional proportion could give rise to impeachment removal. The pardon controversies appear to meet that very high test. And that's significant – for even ex-Presidents can be impeached.

While contemporary impeachment actions have targeted only sitting officials, the history and text of the Constitution, as well as early constitutional practice, envision and allow impeachments that occur even after an official leaves office. Indeed, certain early state constitutions followed longstanding English practice by only allowing post-officeholding impeachments.

In 1787, for example, the English Parliament began its famed impeachment action against Warren Hastings for misconduct occurring while he was governor-general of India – two years after Hastings left that post. During the same year, in Philadelphia, delegates to the Constitutional Convention debated whether to allowed impeachment during the official's tenure in office, or only afterwards. The Framers decided to allow both. And Congress has explicitly affirmed its jurisdiction to institute impeachment proceeding against an ex-official.

An Invitation to Impeach

At least one ex-president actually went so far as to demand that he be impeached. Former President John Quincy Adams was subsequently elected to the U.S. House of Representatives. Confounding chamber critics of his presidency, Quincy announced from the House floor: "I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held public office."

Quincy Adams knew that the Constitution established two separate impeachment penalties – not only removal from office, but "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." Disqualification is a real penalty, even to former officials, but Quincy Adams was willing to gamble with it to defend his legacy.

We've come a long way since Clinton laughingly asked the press on his farewell Air Force One trip to Arkansas, "You got anybody you want to pardon?" The pardons were to be part of Clinton's overall legacy and parting spin – sending a message of solidarity, perhaps, with others wrongly pursued by prosecutors, as Clinton felt he had been. Now that legacy is threatened, and the spin undermined. Clinton might hope to change that.

Also, by demanding his day in Impeachment Court, Clinton might effectively end the broader ramifications of the pardon troubles for the Democrats as a party – and for Hillary Clinton as a Senator. Of course, Clinton could also end up being convicted and disqualified from holding future federal office. Only the truth will tell.

Unfortunately, Clinton should not expect that Republicans will be eager to join a second impeachment movement – which could provide a podium for Democrats to try to vindicate the Clinton legacy. Republicans should, instead, prefer investigation alone, whatever the Democrats may prefer. Bipartisanship has its limits, although the pardon power has none.


Victor Williams, a FindLaw contributor, teaches law at Catholic UniversityÎs School of Law in Washington, D.C., and is an adjunct professor at the University of Virginia's Northern Campus. He holds a J.D. from the University of California Hastings, and an LL.M. from Columbia University Law School. Professor Williams can be reached at victorkeithwilliams@yahoo.com.

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