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Radical GOP setting dangerous precedent

THE BALTIMORE SUN

NEW YORK -- What's it all about, this brawl in Washington? Some think it is about punishing an adulterous and mendacious president. Others think it is about protecting the democratic process against a vengeful attempt to undo a presidential election. Perhaps a historical perspective may have its uses -- not that historians are wiser than anybody else (they aren't), but they are more professionally inclined to look at the long-term impact on our constitutional order.

The Framers reserved impeachment for officials charged with "Treason, Bribery, or other high Crimes and Misdemeanors." By this they meant grave and momentous public offenses against the Constitution and the state. The theory of impeachment presented by independent counsel Kenneth Starr and Judiciary Committee Chairman Henry Hyde would lower the bar to impeachment by extending impeachable offenses to private misbehavior. This is a novel theory. A mere 17 years after the Constitutional Convention, Vice President Aaron Burr was indicted by the state of New Jersey for murder. But there was no move to impeach him.

But the constitutional question was this: Can a president be removed from office for policy disagreements? The Radical Republicans of 1867 set Andrew Johnson up by seeking through a Tenure of Office Act, later declared unconstitutional by the Supreme Court, to prevent the president from firing Radical Republicans in his administration. When Johnson fired his secretary of war, the Radical Republicans charged him with high crimes and misdemeanors.

Another impeachment

Had the Johnson impeachment succeeded, had the threshold for removing a president been lowered, the constitutional separation of powers would have been drastically altered, lowering the bar to impeachment. The presidential system would have moved toward a quasi-parliamentary regime in which, as James Madison had warned in the Constitutional Convention, the presidential term would be "equivalent to a tenure during the pleasure of the Senate." The presidency would have been permanently weakened and our polity permanently changed.

As Sen. James Dixon of Connecticut summarized the issue, "Whether Andrew Johnson should be removed from office, justly or unjustly, was comparatively of little consequence -- but whether an example [should be] sent which would surely, in the end, utterly overthrow our institutions was a matter of vast consequence."

The impeachment drive of 1868 departed from the Framers not only in seeking to lower the bar to impeachment but also in its totally partisan character. The Framers had been fearful of political manipulation of the impeachment process.

"There will always be the greatest danger," Alexander Hamilton wrote in the 65th Federalist, "that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt."

One member of the Constitutional Convention, Charles Pinckney, even questioned the idea of the Senate as the court of impeachment, warning presciently that Congress might "under the influence of heat and faction, throw him [the president] out of office."

The Framers believed that, if impeachment is to acquire legitimacy, the charges must be so grave and the evidence so weighty that members of both parties would agree on the necessity of removal from office.

Domination of the impeachment process by what Hamilton called "the demon of faction" would deny the process legitimacy. The impeachment of Johnson failed the legitimacy test, and the Senate acquitted Johnson by a single vote.

Johnson's acquittal made it more certain than ever that, as the Framers had wished, impeachment would be used against presidents only for major offenses against the constitutional order.

James G. Blaine, the most formidable Republican leader in the later 19th century, had voted for Johnson's impeachment. But, reflecting 20 years after, Blaine wrote that the success of the drive to impeach Johnson "would have resulted in greater injury to free institutions than Andrew Johnson in his utmost endeavor was able to inflict."

And even the failed impeachment of Andrew Johnson had serious consequences for the constitutional order. The aftermath bound and confined the presidency for the rest of the century. A brilliant young political scientist at Johns Hopkins University (his name was Woodrow Wilson) concluded that Congress had become "the central and predominant power of the system" and called his influential book of 1885 "Congressional Government."

The republic had no really effective president till a third of a century after the impeachment of Andrew Johnson when Theodore Roosevelt, by the accident of William McKinley's assassination, reached the White House.

Today the Starr-Hyde theory of impeachment is a new Radical Republican attempt to lower the bar against impeachment of presidents. The current impeachment drive, characterized by strict party-line votes and by defiance of midterm election returns, represents the "demon of faction" and obviously fails the TTC legitimacy test.

The success of the Starr-Hyde theory would make it easy for Congress to get rid of presidents. Even the failure of the Starr-Hyde theory to command two-thirds of the Senate might have the same destructive effects for the presidency that the failed impeachment of Andrew Johnson had in the 19th century.

Superpower responsibilities

The republic could afford an interlude of congressional government in the 19th century when the United States was only a marginal actor on the world stage. Today the United States, the world's only superpower, is irrevocably involved in international affairs.

Our executive government must take the lead in preventing the testing and dissemination of nuclear weapons, in combating environmental pollution, terrorism, drugs, poverty and disease, in containing the global consequences of economic collapse in East Asia and elsewhere. In such a time, we cannot afford the enfeebled and intimidated presidency that the lowered bar to impeachment would produce.

The Starr-Hyde theory of impeachment is a revolutionary theory that would alter the fundamental balance of the Constitution. It would create a baleful precedent for future harassment of presidents. Opposition to lowering the constitutional threshold is not a pro-Clinton move; it is a pro-Constitution move. The principle involved should appeal to conservatives as well as to liberals if my friends on the right expect to see one of their own in the White House ever again.

The triumph of the Radical Republicans of 1998 would result, to adapt the language of James G. Blaine, in greater injury to free institutions than Mr. Clinton in his utmost endeavor would be able to inflict.

Historian Arthur Schlesinger Jr. was an aide to President John F. Kennedy and is a Pulitzer Prize-winning author of numerous books, including his latest work, "The Disuniting of America." He wrote this for the Los Angeles Times Syndicate.

Pub Date: 12/18/98

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