SUSAN LOW BLOCH [*]
Now that we have lived through one of the most unusual events in American history--the impeachment and trial of the President of the United States--it is appropriate, indeed essential, that we assess how the process worked and learn what we can from it. Specifically, I want to address two questions: First, how well did the impeachment process work? In good academic fashion, I will grade each of the governmental institutions involved-- giving them, if you will, a report card. Second, what did we learn from the experience to guide us if, in the future, we face the impeachment of a President?
Let me start by saying that President Clinton's misbehavior was inexcusable. Had he been more disciplined, the nation would have been spared a year of agony. But his "inappropriate"  relationship with Monica Lewinsky was neither criminal nor impeachable.  Had he been more forthright when confronted in January 1998, we probably also would have been spared the year of torture. However, the $64,000 question is whether his efforts to spare himself, his family, and Monica Lewinsky the embarrassment of disclosure were impeachable offenses.
Before beginning the evaluation, I would like to disclose my personal connection with the saga. I first became involved when Paula Jones sued the President in 1994. I argued, in an op-ed, that a private damage action against a sitting President must wait until the President is out of office, unless the plaintiff can show irreparable harm from such a delay.  After the Supreme Court ultimately rejected that argument  and Independent Counsel Ken Starr  sent his referral to the House of Representatives, I urged members of the House not to impeach.  I was also one of the law professors who drafted and circulated the letter arguing that the President's actions did not warrant impeachment.  Furthermore, I was one of the nineteen constitutional scholars who testified before the House Judiciary Committee on impeachment.  After the House voted to impeach the President, I counseled members of the Senate on their role in the President's trial. In short, I am not unbiased but believe I can be fair in ev aluating the performance of the various institutions involved, giving a grade to each of them.
THE INDEPENDENT COUNSEL STATUTE
Any critique of the impeachment process should begin with the independent counsel statute. The statute, at least as it has been constituted to date, gets an "F," and we are fortunate that Congress allowed the law to expire last June.  To say that we are well rid of the statute is not to say that Starr misused it. Indeed, it is important to note that he seems to have been vindicated by the court for the wrong-doings of which he was accused.  In fact, as Professor Gerhardt points out, one of the problems faced by independent counsels is their somewhat unique vulnerability to criticism from their targets.  Our recent experiences under the statute have shown the wisdom of those such as Justice Scalia who questioned its constitutionality from its inception.  The statute's name emphasized the need for independence, but that independence came at a significant price: the loss of accountability. In effect, independent counsels were not accountable to anyone. They had unlimited time, an unlimited budget , and a singular focus, or target. Judgment was not built into the statute. While the Attorney General could theoretically dismiss an independent counsel "for cause,"  in reality, dismissal was politically impossible. In fact, no independent counsel was ever fired by the Attorney General nor had his investigation terminated by the Special Division.  This tension between accountability and independence was not simply a design defect; in constructing such a statute, there is an unavoidable trade-off between independence and accountability. Both are valuable attributes, but given the inevitability of a trade-off, our recent experiences demonstrate that accountability is more important than independence, and that independence can be achieved without a special statute.
The Independent Counsel statute was first enacted in the wake of Watergate's Saturday night massacre when President Nixon ordered that then-Special Prosecutor Archibald Cox be fired.  Congress sought to make it more difficult for future Presidents to replicate Nixon's actions,  but we tend to forget that President Nixon was held accountable for firing Cox. The public was so outraged by Cox's firing that President Nixon was politically compelled to appoint a new special prosecutor, Leon Jaworski.  Thus, Watergate was successfully investigated--and successfully resolved--without an independent counsel statute. Moreover, after the most recent statute expired in June 1999, Attorney General Janet Reno appointed former Senator John Danforth to investigate the Waco incident, making it clear that we do not need a special independent counsel statute to get independent investigations.  In hindsight, with the wisdom imparted by some of the excessive prosecutions in the last two decades, I was glad to se e the statute expire. 
The worst feature of the independent counsel statute and the one that caused the most mischief during the Clinton impeachment was section 595(c), which required the independent counsel to report to the House of Representatives if he finds "any substantial and credible information ... that may constitute grounds for an impeachment."  This delegation of congressional authority to the independent counsel was constitutionally suspect.  The provision delegated too much of the House's constitutional responsibility to decide whether to initiate an impeachment inquiry to an unelected and unaccountable individual.  When Ken Starr publicly delivered his thirty-six boxes of "evidence," it was practically impossible for the House to decide not to initiate an impeachment inquiry. That distorts the impeachment process, which is carefully designed to be a dispute between the two elected branches--Congress and the President. It is no accident the Constitution vests "the sole power" to impeach in the branch most accountable to the people--the House of Representatives whose members face the electorate every two years.  The intervention of an unaccountable intermediary transforms and grossly distorts the process.  A decision to initiate an impeachment inquiry should be a more difficult and more carefully thought-out process than what occurred in 1998.  For these reasons, I am confident the independent counsel statute deserves an "F," and we are well rid of it. 
THE HOUSE OF REPRESENTATIVES
The House of Representatives also earns a failing grade on the impeachment report card. Once Independent Counsel Starr dramatically delivered his evidence to the steps of the House, deciding to initiate an impeachment inquiry was virtually a forgone conclusion. Therefore, the House should not be faulted for that decision. However, thereafter, virtually every decision the House made was poorly reasoned, partisan, and wrong. The nation witnessed a series of missed opportunities and bad judgments.
The House should have started the inquiry by exploring the nature of an impeachable offense and whether the alleged actions of the President amounted to such an offense.  As only the third impeachment inquiry of a President in our history, the House had a valuable opportunity to debate and decide what constitutes an impeachable offense by a President. Unfortunately, the House never seriously engaged in such an inquiry. Instead, the Representatives voted immediately to put the Starr Report online without even reading it--even though they had been warned by Starr that it contained salacious details.  Even Ken Starr was surprised--and disappointed--by that precipitous action.  Critical of the House's decision, former Representative Peter Rodino, Chairman of the House Judiciary Committee that voted to impeach Richard Nixon in 1974, observed, "The release... caused positions to harden early along partisan lines before complex issues could be digested." 
Finally, two months into the inquiry, a Subcommittee of the House Judiciary Committee agreed to explore the question of what constitutes an impeachable offense.  On November 9, 1998, in a marathon hearing,  the Subcommittee on the Constitution heard from nineteen constitutional experts.  The experts clearly disagreed on some things, but there was substantial agreement on several essential points. Most of us agreed that, to be impeachable, the actions of the President must seriously undermine the government and compromise his ability to continue governing.  Moreover, most of us also agreed that even if the House thought the President's actions could be classified as "high crimes and misdemeanors," the House has the discretion not to impeach him.  The principal point on which we disagreed was whether his actions warranted impeachment. On this point, we were divided roughly in half. 
Unfortunately, neither the full Judiciary Committee nor the House as a whole ever articulated or agreed on a general standard.  More significantly, the experts' consensus regarding the House's discretion was overlooked or disregarded. The Representatives truly misunderstood their role. The responsibility of the House in deciding whether to impeach is greater than a grand jury's decision whether to indict. The question should not simply be whether there is probable cause that the accused committed an impeachable offense; rather, a responsible representative should vote to impeach only if he or she believes that the accusations warrant removal from office.  Representative Bill McCullom's suggestion that impeachment should be used to "brand" President Clinton with a "scarlet letter"  is clearly wrong. Impeachment is an extreme remedy by which the legislature can remove an official who should no longer remain in office. It is not a punishment and should not be invoked lightly.  The public had the right approach. As Professor Tribe observed, "[t]o treat what the [P]resident is alleged to have done as though it spells a national emergency requiring the second presidential impeachment in as many centuries seems ridiculous to the broad public beyond the Beltway .... On the wide screen that the public views, nothing could feel more disproportionate." 
The question of whether the House should have called witnesses or done any independent fact-finding is difficult to assess. Its decision not to do so and to rely entirely on the facts alleged in the Starr Report was, as Michael Gerhardt observed, "unusual"  and made the process vulnerable to being attacked as "partisan or unfair."  At the same time, it must be noted that the Democrats were clearly urging the House to act quickly and to set a short timetable. 
On the much-discussed question of censure, the House missed an important opportunity to responsibly debate and decide the constitutionality of such a measure. Representative William Delahunt of Massachusetts conducted an informal inquiry of the nineteen experts who had testified on November 9, 1998, and learned that a majority believed that a resolution of disapproval was clearly constitutional.  As one of those queried by Representative Delahunt, I responded that the House (and the Senate) may assert its opinion on anything it wants, including its belief that the President engaged in inappropriate behavior.  While I believe members of Congress should exercise this power cautiously, there is nothing in the Constitution, including the prohibition against bills of attainder, that precludes such a resolution.  As long as the censure resolution does not impose a fine or punishment, but merely states the opinion of the members of the legislative body, it is difficult to see how the bill of attainder c lause is a bar.  Indeed, the spirit of both the First Amendment  and the Speech or Debate Clause  suggests the value of such a resolution.
But the House did not openly debate and decide this issue.  Instead, it proceeded directly to vote on the four articles proposed by the Judiciary Committee, adopting two and rejecting two. Specifically, the House adopted the article that accused the President of lying to the grand jury in August 1998, and the article that accused him of obstructing justice in the Paula Jones case.  These became Articles I and II that were sent to the Senate.
The majority's decision not to allow a discussion or vote on a resolution of censure ever--either before or after the vote on the articles--was unfortunate and probably led to the somewhat surprising letter written by four House Republicans to the Senate, in which they said, after voting to impeach, "We are not convinced, and do not want our votes interpreted to mean that we view removal from office as the only reasonable conclusion of this case."  That letter suggested that their vote to impeach was irresponsible. If a member of the House does not believe that removal is warranted, he should vote against impeachment. Voting to impeach and send the case to the Senate, while hoping that the Senate will acquit, is inappropriate and irresponsible. 
The House vote sent the case to the Senate, where, fortunately, the senators acted more responsibly, although not flawlessly. Because it was only the second time the Senate had tried a President, the first time it had tried an elected President, and the first trial of a President in which there were factual disputes, there were many unanswered procedural questions. The Senate answered some explicitly and others only implicitly. On balance, I would give the Senate a B+, or perhaps an A-, for their conscientious effort to conduct this process with the Constitution intact. 
One of the first questions the senators had to address was the meaning of the constitutional provision giving the Senate "the sole power to try all impeachments."  The Senate had previously adopted some general rules, but there were still many unanswered questions. Under the existing rules, the Senate must receive the House Managers' presentation of the articles, "proceed to the consideration of such articles," and "continue in session from day to day ... after the trial shall commence... until final judgment shall be rendered."  Thus, it was clear that the Senate could not ignore the House's articles of impeachment, and nothing suggests that the Senate ever seriously contemplated such action. However, the rules do not specify exactly how the Senate should "proceed to consider" the articles. Thus, the Senate had to decide whether it was required to have a full-blown trial, whether it could consider a motion to dismiss, and, if so, when it could do so. It also had to decide whether to adopt a uniform burden of proof or to continue the prior practice of allowing each senator to decide for himself or herself what the appropriate burden should be.
On January 9, 1999, the Senate unanimously adopted Senate Resolution 16, which outlined the specific procedures the Senate was to follow in the Clinton trial.  Under the …