WASHINGTON -- With Congress moving toward an impeachment inquiry of William Jefferson Clinton, the threshold question for lawmakers today is the same one House members faced nearly a quarter-century ago in considering the fate of President Richard M. Nixon: What should Congress deem an impeachable offense?

Already, there is sharp disagreement about whether President Clinton's behavior in the Monica Lewinsky scandal rises to the level loosely defined by the framers of the Constitution as "Treason, Bribery, or other high Crimes and Misdemeanors."

Clinton has been accused by independent counsel Kenneth W. Starr of lying under oath about his relationship with Lewinsky, of encouraging others to lie about it, of trying to hide gifts he gave her and of improperly using government lawyers to raise privilege claims.

Starr maintains the offenses amount to perjury, obstruction of justice and abuse of presidential power.

The White House, in stressing the private nature of Clinton's transgressions, has argued that impeachment was designed to protect the country against a president's "injury to the state," reserved for the "gravest wrongs -- offenses against the Constitution itself."

Some lawmakers, however, strongly disagree.

"The heart of the matter goes to allegations of perjury before the grand jury," said freshman Republican Rep. Asa Hutchinson of Arkansas. "It's the hallmark of our justice system. If the integrity of the grand jury is diminished, then our whole justice system will be weakened."

An impeachable offense, said Senate Majority Leader Trent Lott of Mississippi, "can be abuse of the public trust."

Chief Justice William H. Rehnquist, who would preside at a Senate trial of Clinton if Congress takes the process that far, seems to be in the middle on the definition.

In his book about the history of impeachment, Rehnquist says the charges should amount to "flagrant abuse of office," but goes on to list as examples: "perjury, bribery, and the like."

The nation has little experience with presidential impeachment, now being considered for only the third time.

Only one president, Andrew Johnson, was impeached. But the Senate, in 1868, fell one vote short of the two-thirds majority needed to convict, and he remained in office. President Richard M. Nixon resigned in 1974, shortly after the House Judiciary Committee voted to send three articles of impeachment to the full House.

Political process

With such ambiguous parameters, borrowed by the framers from English law, the presidential impeachment process has always been a political rather than legal process. As Gerald R. Ford, then a congressman, quipped in an oft-quoted 1970 House speech, "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."

In fact, interpretations of wrongdoing and even the standard for burden of proof are left to each individual member of Congress to decide for himself or herself.

"It's a different brand of law than we're used to," says John R. Labovitz, a Democratic lawyer on the House Watergate impeachment inquiry staff and author of a book on presidential impeachment.

"It is Congress establishing what the law is. It's hard for people to grasp asking politicians to behave as prosecutors and judges and create law. But that's really what the game is."

Labovitz and a promising 26-year-old lawyer fresh out of Yale Law School named Hillary Rodham were among those on the 43-member staff who worked on an initial background report during Watergate that laid out the grounds for impeachment.

The February 1974 report, "Constitutional Grounds for Presidential Impeachment," was based on reviews of past impeachments, English precedents, study of the drafting and ratification of the Constitution as well as input from legal scholars and historians. The so-called "grounds memo" has become the road map for subsequent impeachment debates.

California Rep. Zoe Lofgren, in a letter sent to Republicans on Friday and signed by all House Judiciary Committee Democrats, insisted that the Watergate guidelines be adopted today. "We must apply the same standards the Congress and Judiciary Committee members used when considering the conduct of the president in 1974," the Democrat wrote. "For if we do not, then our conduct, rather than fair and consistent, will appear instead to be arbitrary and partisan."

Whether an impeachable offense had to be a crime was the main question before the Watergate staff. The staff concluded it did not. For instance, if a president decided to move to Saudi Arabia so he could have four wives, he would not be breaking the law as long as his passport was in order, Yale University Law School Professor Charles L. Black Jr. theorized in a book on impeachment written around the time of Watergate. But that clearly would be grounds for removal from office.

Conversely, lawyers concluded that an indictable crime does not necessarily translate into an impeachable offense.

"It's pretty clear 'high crimes and misdemeanors' meant a political offense as opposed to a criminal offense," says Fred H. Altshuler, a San Francisco lawyer and Democrat who also served on the Watergate impeachment inquiry.

The Watergate staff decided that impeachment should be used to address "serious offenses against the system of government," with an emphasis on the effects of the conduct in question, such as "undermining the integrity of the office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government."

But the staff added a second requirement -- that of "substantiality."

"It's not only constitutional wrongdoing," says Labovitz, the Watergate staff lawyer. "It has to be serious enough to warrant the only remedy that exists."

Not serious enough

He, for one, does not believe the allegations against Clinton meet those criteria. "They're neither sufficiently related to his office, nor do I deem them serious enough to warrant removal from office."

Altshuler, too, believes Clinton's acts "may be wrong, may be criminal," but do not rise to the level of an offense against the Constitution.

"Impeachment should not be seen as a substitute for a popularity contest or a moral evaluation," he said. "It's a monumental step in government originally intended as a remedy for serious attacks on governance itself.

"It's not enough that a president loses effectiveness or political stature or the ability to get programs through. Presidents lose their credibility for all kinds of reasons."

A Republican alumnus of the Watergate impeachment staff, former Massachusetts Gov. William F. Weld, believes resignation may be the "path of duty" Clinton should consider if it appears the nation is no longer taking him seriously.

But Weld, who failed to win Senate confirmation as Clinton's nominee to be ambassador to Mexico, does not believe the charges against the president "measure up" to those required for impeachment.

Another Watergate veteran strongly disagrees, however.

Former Maryland Rep. Lawrence Hogan, a member of the House Judiciary Committee who shocked the Nixon White House when he became the first conservative Republican to vote in favor of impeachment, believes Clinton's actions clearly amount to perjury and obstruction of justice -- even if they do relate to sex.

Equal to Watergate

"People are saying this is not as serious as Watergate. Baloney! It's equally serious," says Hogan, now an instructor of law and public policy at the National Emergency Training Center in Emmitsburg. "Perjury is perjury. I don't care what it's about. Certainly, perjury is an impeachable offense. It's thwarting our judicial process, which is the foundation of our system of government."

Michael Gerhardt, a professor of law at the College of William and Mary and author of a 1996 book on impeachment, says the charges against Clinton may be particularly difficult to deal with -- and open to individual interpretation -- because "our understanding of impeachment has evolved."

For instance, he points to two post-Watergate cases of judicial impeachment in which judges were removed from office for acts that did not relate directly to their official acts.

In 1986, U.S. District Judge Harry E. Claiborne of Nevada was impeached for income tax evasion. Three years later, U.S. District Judge Walter L. Nixon Jr. of Mississippi was removed from office for perjury -- specifically, making false statements to a grand jury in a criminal case against the son of a Nixon business partner.

But Gerhardt warns that the impeachment of a judge may not be a relevant precedent for presidential impeachment, primarily because federal judges are appointed, not elected.

Rutgers University Law professor N. E. H. Hull, co-author of "Impeachment in America," says the framers were reluctant to include in the Constitution a provision for presidential impeachment, precisely because they feared that overturning an election could change the balance of power and give Congress too much strength.

But ultimately, she said, they decided it was a necessary safety valve, to be used as a last resort against an incumbent too dangerous to be left in power until the next election.

"Systems that don't have impeachment have assassinations and coup d'etats," Hull says. "It's good that we have it, but we have to be circumspect in how we use it. We have to be careful."

Pub Date: 9/24/98