On February 12, 1999, the United States Senate voted not to convict President William Jefferson Clinton of two articles of impeachment passed against him in the House of Representatives.1 The first article alleged that President Clinton was guilty of perjury before a federal grand jury convened as part of the independent counsel's investigation of the President's conduct.2 The second alleged that President Clinton was guilty of obstruction of justice.3 The impeachment proceedings in the House and Senate sparked a national dialogue about the Constitution, the use of legalisms,4 and the role of the media and of personal investigation of public figures. While the Senate's vote effectively concluded those proceedings, it did not bring closure to the national debate about these important issues.5
In an attempt to facilitate a further airing of the public debate of the issues presented by the Clinton impeachment proceedings and Senate trial, the Brigham Young University Chapter of the Federalist Society sponsored a discussion by a panel of four of the prominent players in the proceedings. The panel, convened at Brigham Young University's J. Reuben Clark Law School on April 2, 1999, consisted of four individuals who performed frontline roles in the Clinton trial: Senator Robert Bennett of Utah, who sat in judgment of the President during the Senate trial; Congressman Chris Cannon of Utah, who prosecuted the President as one of the House Managers in the Senate trial; Attorney Gregory Craig, who was retained as Special White House Impeachment Counsel shortly before the House impeached the President and who headed up the President's defense team during the Senate trial; and Senate Legal Counsel Thomas Griffith, who helped moderate and establish the trial procedures used by the Senate in the trial.
The transcript of the panel discussion follows in its original form in Part II below, with only minor editing and revisions. The transcript includes discussion of several issues that divided legal scholars throughout the impeachment trial and continue to do so today, including the following: (1) the proper scope of the impeachable offenses set forth in the Constitution; (2) whether the standard for impeachable offenses by the President should be parallel to the standard for impeachable offenses by federal judges; (3) the constitutionality of alternatives to impeachment, such as censure; and (4) the role that partisanship should play in the impeachment process. As an introduction to the legal issues addressed by the panel, Part I offers a brief description of the state of current legal scholarship on these issues with an eye toward providing context for evaluating the contribution of the panel discussion.
A. Impeachable Offenses
Article II, Section 4 of the Constitution provides that "Whe President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."6 Much of the debate surrounding the Clinton impeachment centered on the proper scope of the offenses described in this provision, particularly on the intent of the phrase "other high Crimes and Misdemeanors."7 Various interpretive approaches were expressed during the course of the Clinton impeachment proceedings. Some constitutional scholars relied primarily on original intent and history as a guide to interpreting impeachment clause language,8 while others cited pragmatic political concerns9 or relied on the plain language of the Constitution.10
1. The Impeachment Clause and the Convention debates
Some of those who looked to the Constitutional Convention for guidance suggested that the Convention debates indicated a sharply limited notion of impeachment-one that was limited to abuses of "public trust" or of the "executive power," such as procuring office by unlawful means or using presidential authority for ends that are treasonous. …