Impeachment

The scene is almost beyond imagining. The dignitaries of the Senate taking a special oath and functioning as a 100-member jury, presided over by the Chief Justice. The Senate chamber jammed with extra seats for observers from the House. A team of prosecutors chosen by and from the members of the House, squared off against a team of lawyers retained by the defendant--the President of the U.S.

Impeachment is the most talked-about and shied-away-from of the possibilities arising out of the Watergate crisis. A month ago, when California's Democratic Congressman John Moss suggested a House inquiry into the matter, he was told by party leaders that the move was "premature." The Library of Congress, however, has a waiting list of people who want to inspect its materials on impeachment.

There is plenty to think about, for the Constitution is not entirely clear, and precedents are few. Impeachment first appeared in England in 1386 as a way of reaching the King's advisers (the King was considered incapable of wrong), and it has often been a political procedure rather than a judicial one. Said Alexander Hamilton in The Federalist: "There will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt."

Two Thirds. The impeachment of a President (or any other federal official) starts with unexpected ease. All that is necessary is for a Congressman to introduce an appropriate resolution.

In fact, such a resolution was introduced last year against Richard Nixon because of his conduct of the war in Viet Nam.

Similar resolutions have been offered against Truman, Hoover (twice), Cleveland, Andrew Johnson and Tyler.

If a House committee approves, then the full House, calling itself "the grand inquest of the nation," decides by a simple majority whether to impeach, the equivalent of an indictment. If it does, the Senate becomes "the high court of impeachment," and conducts the trial; it can convict by a two-thirds majority of those present. Andrew Johnson, the lone President to be impeached, escaped conviction by one vote (35-19) after he attempted to fire his popular Secretary of War in defiance of a new law that forbade it.

Much as in a criminal trial, evidence is presented and witnesses are cross-examined. The defendant may or may not appear in person. Any questions a Senator may have must be written out and submitted to the Chief Justice, who then asks them. The Chief Justice makes procedural rulings, like any trial judge, but a majority of the Senators can overrule him, deciding, for instance, to admit or exclude a particular piece of evidence. The Senators, unlike ordinary jurors, are also free to wander in and out or even to confer with outsiders.

One key question in an impeachment is whether the alleged offense must be an actual crime. Only four men have ever been impeached and convicted by Congress, all of them federal judges, and two of them for judicial improprieties that were not formally criminal. Indeed the Constitution specifies that impeachment can result only in removal from office, although the same acts can result in a later criminal trial. In any event, the Constitution is not clear as to what is an impeachable offense, listing only "treason, bribery or other high crimes and misdemeanors."

Three years ago. House G.O.P.

Leader Gerald Ford, seeking to impeach Justice William O. Douglas, argued that "an impeachable offense is whatever a majority of the House of Representatives considers it to be." Nixon's former Attorney General Richard Kleindienst has argued similarly that "you don't need facts to impeach a President," just votes.

Harvard Law Historian Raoul Berger, 72, writes persuasively that the definition was meant to be narrower. Berger is the author of a timely new book, which he hears is being photocopied all over Washington--Impeachment: The Constitutional Problems (Harvard University Press; $14.95). "Maladministration," he found, was proposed by one of the Framers as grounds for impeachment, but was dropped after James Madison complained that "so vague a term will be equivalent to a tenure during the pleasure of the Senate." Instead, the term "high crimes and misdemeanors" was substituted, and Berger shows that its meaning at the time did not include poor management, but did include, according to two of the Constitution's backers, "acts of great injury to the community" or "great misdemeanors against the public."

Is Congress itself the final arbiter of such matters? Impeachment convictions have long been considered unappealable, but Berger argues that "the President, no less than the lowliest felon, is entitled to due process of law."

He contends that the Supreme Court's 1969 voiding of the House's exclusion of Adam Clayton Powell announced the principle that Congress was not immune from judicial review in its handling of an individual.

Who Succeeds? The newly suggested possibility of an appeal wildly complicates the issue of succession. Would the President remain in office pending the Supreme Court's final determination? Even if he were removed, or if he resigned, would the Vice President take over? Constitutionalists have taken belated note of a provision of the 25th Amendment, ratified six years ago after Lyndon Johnson, having succeeded the murdered John Kennedy, served without a Vice President. The amendment states that if the vice presidency is vacant, the President can appoint a new Vice President, with the concurrence of both houses. The clause is now being cited as a way to install a thoroughly untainted caretaker President. Under this scenario, the caretaker would be appointed to the vice, presidency--made vacant by accession or resignation; when the new Vice President was confirmed, the President would then resign by prearrangement, turning the government over to the new man.

The impeachment procedure has not been fully used since 1936, and there are many who consider it both too partisan and too inefficient for the settlement of a crisis. Berger reminds, however, that "we tend to view the President with awe; when the Framers were setting things up, they viewed him with apprehension." Still, he says, "impeachment of the President should be a last resort." Indeed some early advice on the subject endures. "The power of impeachment," said the English Solicitor General in 1691, "ought to be, like Goliath's sword, kept in the temple, and not used but on great occasions."

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