Tuesday, December 7th, 1998 -- There was no finer speaker at the Henry Hyde Witch Trial coven than Judge Leon Higginbotham, Jr. who stunned the committee -- especially Rep. Bob Barr, who walked out in grief, as he later said.

Higginbotham made it simple: there are gradations of perjury, some serious, some not, and the President of the United States is not guilty of serious perjury which might rise to the level of requiring impeachment.

Read his statement for yourselves, and then read the Starr Report again (if you can stomach it) in the context of Judge Higginbotham's erudite remarks to the House Judiciary Committee.

Only a fool would remain convinced that Bill Clinton should be mpeached.

-- Mac MacArthur

"THOUGHT COMES BEFORE SPEECH"

Mr. Chairman, it is a coveted and extremely challenging honor to speak to this distinguished Committee. Each Member of this Committee is at a critical fork in the road of constitutional inquiry. I cannot think of any judgment that will, in the long run, have more profound significance to the future of our country and to our citizens than your decision as to whether, on the evidence before you, Articles of Impeachment should or should not be filed against the President of the United States. Although on several occasions Congress has declared war, this is only the third time that the Committee on the Judiciary has seriously considered whether Articles of Impeachment should be issued against an American President. By the very infrequency that such proceedings have been initiated, and the polarization such proceedings could cause, we are confronted with a situation that requires the Judiciary Committee to be ever mindful of the potentially harmful consequences of any process that may have only a minuscule rationality.

My approach to this momentous problem is what a leader of the Lakota tribe named Luther Standing Bear once said: "Thought comes before speech."

NO VALID BASIS TO VOTE FOR ARTICLES OF IMPEACHMENT

You have received a plethora of comments by premier scholars on the issue as to whether, after a fair reading of Article II of the U.S. Constitution,(2) the facts on the present record warrant the filing of Articles of Impeachment. I agree generally with the comments of Professors Matthew Holden, Jr., Cass R. Sunstein, Arthur M. Schlesinger, and Father Robert F. Drinan, who have testified before you, and I do not believe that, on the present record, there is a valid basis to vote Articles of Impeachment.

THE CONSTITUTIONAL BASIS FOR IMPEACHMENT

I recognize that there is intensive debate as to whether the record establishes that actual perjury was committed by the President. For the purpose of my analysis before this Committee, I will assume, arguendo, that the record has a prima facie basis for statutory perjury. But, even with a "finding" of criminal liability for perjury, a more relevant question remains unresolved -- that is whether this case of statutory perjury constitutes a basis for impeachment of the President. It is my understanding that the Committee -- or at least a majority of the Committee -- has categorized the topic for discussion today as "The Consequences of Perjury and Related Crimes." I submit that a discussion of perjury in the abstract is not adequate to form a wise judgment on the more complex issue as to whether the President of the United States should be impeached, pursuant to Article II.

From my view, Professor Sunstein framed the issue flawlessly when he wrote:

"... with respect to the President, the principal goal of the impeachment clause is to allow impeachment for a narrow category of egregious or large-scale abuses of authority that come from the exercise of distinctly presidential powers. On this view, a criminal violation is neither a necessary nor a sufficient condition for impeaching the President. What is generally necessary is an egregious abuse of power that the President has by virtue of being President.... Impeachment is generally foreign to our traditions and prohibited by the Constitution. Outside of [a special] category of cases, the appropriate course for any crimes is not impeachment, but a prosecutorial judgment after the President has left office, whether indictment is appropriate.

There are grave systemic dangers in resorting to impeachment except in the most extreme cases. The prospect of impeachment can be highly destabilizing to government, and in an era in which the opposing party and the mass media are likely to be aligned in accusing political opponents of criminality, there is a continuing risk that impeachment proceedings will become routine rather than exceptional. This risk is all the more serious in light of the central modern role of the American President, both domestically and internationally."(3)

WOULD ALL ACTS OF PERJURY CONSTITUTE A BASIS FOR IMPEACHMENT, REGARDLESS OF THE FACTUAL CONTEXT?

My discussion today will address three questions. The first question is the sine qua non issue for this Committee's consideration: whether all acts of perjury, regardless of the factual context, warrant a Congressional committee voting for an Article of Impeachment. In other words, is any incident of perjury, on any matter, on any subject, per se, in and of itself, a basis for impeachment of a President? The second question for consideration is: if some acts of perjury by a President can rise to the level of impeachable offenses and other acts of perjury do not, then, what is the limiting principle that differentiates the two types of perjury? The final question is: if the perjury of which the President has been charged is not impeachable under the Constitution, as I argue, then, what, if any, permissible responses remain for addressing the President's behavior?

The first question is whether all types of perjury by a President are per se impeachable offenses. Let us examine the concept of per se perjury by setting up a factually specific hypothetical. Suppose that in either January or August 1998(4) President Clinton testified under oath, but in this hypothetical, he was not asked about sexual matters, but was questioned about his driving record. Let us assume that the President, at some point before giving his testimony, was cited for driving his car at a speed of 55 miles-per-hour in a 50-mile-per-hour speed zone. Suppose further that, when the President was questioned, again under oath, he falsely testified that he was only driving 49 miles-per-hour on the date in issue. Would that false statement about the speed of his car constitute a valid constitutional basis for this Committee to issue a proposed Article of Impeachment? I submit to you that it would be grossly improper to impeach a President under such a factual scenario, because perjury regarding a 55-mile-per-hour traffic offense does not rise to the level of "Treason, Bribery, or other high Crimes and Misdemeanors" about which the framers were concerned when they drafted Article II. Is perjury about a traffic offense different than perjury about a sexual matter involving consenting adults? I submit that as to impeachment purposes, there is not a significant substantive difference between the hypothetical traffic offense and the actual sexual incident in this matter. The alleged perjurious statements denying a sexual relationship between the President of the United States and another consenting adult do not rise to the level of constitutional egregiousness that triggers the impeachment clause of Article II.

ARE THERE GRADATIONS OF PERJURY?

If perjury is not per se impeachable, the purist might demand that we draw a bright line that clearly delineates between impeachable and non-impeachable perjury. However, as Justice Holmes said on two different occasions: "Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law. Day and night, youth and age are only types"; (5) and "I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized." (6)

As serious a crime as perjury is, there exists a spectrum of gravity with regard to false statements. As judges, we follow Congress' instructions -- your instructions -- to recognize this spectrum every time we sentence an individual for perjury under the United States Sentencing Guidelines (the "Guidelines"). Section 2J1.3 of the Guidelines mandates that we increase the base offense level, and therefore the sentence, of a defendant convicted of perjury by different degrees depending on the harm caused by the false statement.

Section (b)(1) requires us to increase the offense level by 8 if the offense "involved causing or threatening to cause physical injury to a person, or property damage, in order to suborn perjury."

Section (b)(2) requires us to increase the offense level by 3 if the perjury "resulted in substantial interference with the administration of justice."

Section (c)(1) provides that "if the offense involved perjury in respect to a criminal offense," we must use the offense level for an accessory after the fact if that offense level would be higher.

At one end of the spectrum are examples of clearly impeachable perjury, such as providing false testimony that causes grave injury to the country. For example, if the President had committed treason by selling nuclear secrets to a foreign agent, it could cause grave injury to the country and it would be an impeachable offense -- and it would also be an impeachable offense if he lied about his treason.

At the other end of the spectrum are examples of perjury that clearly do not merit impeachment under the high constitutional standard. (7) I provided one such example earlier. If the President had lied about the commission of a traffic violation, I submit that his false testimony would not cause anywhere near sufficient injury to the nation to warrant impeachment.

To my mind, President Clinton's alleged perjury regarding consensual sexual relations clearly falls on the end of the spectrum with my example of perjury regarding a traffic violation. Assuming his statements were false and material, they did not cause anywhere near the gravity of injury required by the Constitution for impeachment.

I cannot in the abstract articulate exactly where the line between impeachable and non-impeachable perjury does fall. Instead, I can only urge that you allow yourselves to be guided by a principle of restraint in interpreting an ambiguous area of constitutional inquiry, particularly where the failure to exercise such restraint could result in the nullification of the will of the majority of the electorate, not to mention the profound weakening of the institution of the presidency.

THE ALLEGED DOUBLE STANDARD ISSUE

Judge Bowman stated in his Eighth Circuit opinion in Jones v. Clinton, (8) that "[t]he President of the United States, like all other government officials, is subject to the same laws that apply to all other members of our society." Some persons make the deceptive contention that there is a double standard at work, in that the President is being treated differently than "everyone else." They assert that if the President is not impeached, he will not be held responsible for an act for which an ordinary citizen would be sanctioned.

It is my understanding that the Committee has invited two persons to testify who have been convicted of perjury in federal court. I presume that the inference that some seek to make is that President Clinton should be treated the same as they were, and that he should not get some "special privilege." However, in reality, the President is not receiving any "special privilege." The Justice Department may prosecute Mr. Clinton for perjury in 2001 or earlier, (9) just as Ms. Barbara Battalion and Ms. Pam Parsons were prosecuted. President Clinton is subject to the exact same criminal penalties to which Ms. Battalion and Ms. Parsons were subject. Reliance on the duality "problem" as a basis to initiate an impeachment of the President is fallacious and unconstitutional. It reminds me of what Samuel Johnson once said: that we should avoid arguments that are "too foolish for buffoonery and too wild for madness." (10)

Right now, the issue before the Committee is whether or not President Clinton should be impeached. The testimony provided by Ms. Battalino and Ms. Parsons is wholly irrelevant to this inquiry because this alleged differential treatment goes to the realities of maintaining a federal government on a stable and rational basis. Ms. Battalino and Ms. Parsons did not receive 379 electoral votes and 47,401,054 (49.3%) of the popular vote to put them in office as the President of the United States. Their immediate prosecution would not raise the destabilizing impact that a prosecution of the President might. Their testimony has limited probative value as to the appropriateness of an impeachment inquiry against President Clinton. I urge the Committee to remain focused, and not to be swayed by the irrelevant testimony of Ms. Battalino and Ms. Parsons.

THE "ABUSE OF POWER" ISSUE IN THE NIXON AND CLINTON PROCEEDINGS -- ARE THEY THE SAME?

One of the "related crimes" about which I have been asked to testify is "abuse of power." As an initial matter, I observe that there is no federal crime of "abuse of power" or "misuse of power." The words do not appear in any criminal statute of which I am aware.

To the extent that the Office of the Independent Counsel ("OIC") relies upon similar language in Article II of the Articles of Impeachment filed against President Richard M. Nixon, the two matters concern starkly different behavior. The conduct of President Nixon consisted of a continuous and systematic attempt to deprive citizens, deemed by the President to be his political enemies, of their liberty, by bringing to bear the awesome power of various agencies of the federal government. The allegations against President Nixon evince an abuse of distinctly Presidential powers in an attempt to oppress political enemies and other private citizens.

Using the Internal Revenue Service ("IRS") to engage in improper tax audits and investigations of political enemies.

Attempting to obtain confidential information maintained by the IRS concerning political enemies.

Using the Federal Bureau of Investigation ("FBI"), the Secret Service and other executive personnel to undertake improper electronic surveillance and other investigatory techniques with regard to political enemies, and permitting improper use of materials obtained thereby.

Creating and maintaining a secret investigative unit within the Office of the President, which utilized the resources of the Central Intelligence Agency ("CIA"), engaged in covert and illegal activities, and attempted to prejudice the constitutional rights of an individual to a fair trial.

Failing to act when subordinates impeded the investigation into the break-in of the headquarters of the Democratic National Committee.

Interfering with executive branch agencies, including the FBI, CIA and Department of Justice.

The charges by the OIC against President Clinton are not comparable to those leveled against President Nixon. First, the charges against President Clinton are based on the weakest of evidence, as revealed by the phraseology used by the Independent Counsel in his testimony before this Committee. For example, each charge relating to the alleged abuse of power by the President is prefaced by the words "the evidence suggests."

Moreover, the allegations against President Clinton, even if true, do not reveal the kind of systematic and repeated abuse of distinctly Presidential power, in derogation of the constitutional rights of citizens of the United States, exemplified by the charges against President Nixon. Rather, they relate to the purely private matter of the Jones v. Clinton case, his relationship with Ms. Lewinsky and their sequelae.

THE OBSTRUCTION OF JUSTICE ISSUE

The obstruction of justice charge levied against President Nixon was based on actions that were far more serious than those which President Clinton allegedly committed. President Nixon was accused of obstructing the investigation of the unlawful entry into the headquarters of the Democratic National Committee in order to secure political intelligence. As part of this obstruction, President Nixon allegedly made false statements to investigators, withheld material evidence, counseled witnesses to give misleading statements, and condoned secret payments intended to influence the testimony of key witnesses.

President Clinton is being accused of obstruction of justice because he allegedly lied under oath about a private relationship between two consenting adults. (11) Quite simply, even if one assumes that the President lied about the relationship between him and Ms. Lewinsky, such a lie does not rise to the level of egregious conduct which is required to support an impeachment inquiry against a President. Mr. Starr alleges that President Clinton asserted legally baseless privileges to conceal relevant information from the grand jury. However, it is worth noting that Justices Ginsburg and Breyer both argued, in dissent, that the Supreme Court should have heard the issue of whether or not there is a Secret Service evidentiary privilege. Thus, that asserted privilege is clearly not baseless. (12)

ARE THERE DIFFERENT CRITERIA IN PRESIDENTIAL AND JUDICIAL IMPEACHMENT?

As a matter of constitutional law, there is a higher threshold the House must meet in order to impeach a President as compared to its constitutional authority to impeach a federal judge.

Looking at the text of the Constitution, one finds that judges are subject to the "good behavior" clause of Article III, Section 1, while the President, Vice President and other civil officers are not. While constitutional scholars disagree on whether this language lowers the threshold for the impeachment of judges, it certainly ought to give one pause before applying the same impeachment standards to the President that one would apply to a federal judge.

In addition, and more importantly, there are structural, functional and pragmatic differences between the presidential and judicial impeachment processes.

First, the President is one of only two civil officers of the United States popularly elected (for all intents and purposes) by a national constituency. Judges are appointed for life by the President and the Senate, and can claim the support of no constituency, national or local.

The President is subject to political checks and balances other than impeachment -- the requirement of running for re-election after four years, the constant interaction between the legislative and executive branch (on legislation, appointments, legislative oversight, etc.), the President's concern for his own party in the next Congressional and Presidential election, and so on. The only checks on a federal judge are one's conscience and the threat of impeachment.

The President can be ousted from office by the people after his current term ends, or in the case of a second-term President such as President Clinton, is automatically disentitled to serve another term by virtue of the Twenty-Second Amendment. Judges hold office for life. The need is far more pressing in these circumstances, therefore, to remove a judge who is dangerous, corrupt or a criminal than to remove a President with similar attributes. It would be especially damaging to the nation for a federal officer to draw a salary from the federal government while in prison, and then, what is worse, to countenance his or her returning to office after prison. Such concerns exist with regard to federal judges -- indeed, both Judges Claiborne and Nixon were impeached after having been sentenced to prison -- but not the President.

As Justice Breyer has said, and few can disagree, the President is the "sole indispensable [person] in government." (13) There are more than 1100 federal judges. To remove a sitting President is to decapitate an equal and co-ordinate branch of government with one fell swoop.

The application of a different standard to the impeachment of the President than the impeachment of federal judges is also not without precedent in this body. The House Judiciary Committee in 1974 declined to file an Article of Impeachment against President Nixon based on the allegations that he filed false tax returns from 1969 through 1972. The Committee's decision was based largely on its determination that an instance of private misconduct, even if criminal, did not amount to an impeachable offense, as opposed to an extreme abuse of distinctly Presidential authority. By contrast, the Committee filed Articles of Impeachment against Judges Claiborne, Nixon and Hastings alleging similar conduct. The "common law of impeachment" has thus forged a distinction between a President and federal judges for impeachment purposes.

YOUR VOTE AND AMERICA'S RENDEZVOUS WITH DESTINY

I do not believe that perjury is a trivial matter and, as I have noted in several opinions while serving on the U.S. Court of Appeals for the Third Circuit, perjury is a serious offense. (14)

But, I submit that the impeachment clause was not intended to give unlimited options to either an unrestrained committee of Congress or a super-aggressive Office of the Independent Counsel seeking to use the label of perjury to prosecute a President for what primarily was a dereliction of sexual morals, where the underlying sexual acts did not constitute a grave injury to the country.

I submit that your individual vote will have a profound impact on the entire history and future of the United States of America. I would remind you once again of the incisive words of Luther Standing Bear: "Thought comes before speech." I pray that this Committee will, in a non-partisan way, rise to its highest potential of statesmanship by giving this issue its calm and insightful thought before speaking and casting a vote that will affect America's rendezvous with destiny.

I wish to acknowledge the valuable contributions of my colleagues Tiffany S. Bingham, Carol Derby, Michael J. Mannheimer, Joanne L. Monteavaro, Shaun M. Palmer, Joseph Sansone, Amy B. Vernick and Linda Y. Yueh.

A. Leon Higginbotham, Jr.