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Committee on Federal Legislation

In August 1994, Kenneth W. Starr was named Independent Counsel with authority to investigate allegations concerning President Clinton’s Whitewater real estate investment, which predated his election. In January 1998, the scope of Independent Counsel Starr’s investigations was expanded to include allegations of efforts to conceal a personal and sexual relationship between President Clinton and a former White House intern. On September 9, 1998, Independent Counsel Starr delivered to the House of Representatives a report on his investigation of those allegations. The report contains a lengthy narrative and then sets forth eleven grounds for impeachment, as to all of which the report states "[t]here is substantial and credible information." On October 8, 1998, the House of Representatives directed its Judiciary Committee to conduct an investigation and to report its recommendation for possible action, including impeachment. That investigation is proceeding as of this writing. On December 9, 1998, members of the Judiciary Committee released working drafts of an impeachment resolution and of a censure resolution.

In one of the rarest and most grave events in the history of the Republic, the United States House of Representatives is now considering the impeachment of a President. These proceedings have arisen from allegations that President Clinton carried on a sexual relationship with a White House intern and that he sought to cover it up by lying in a civil deposition, lying to a grand jury, tampering with witnesses, and otherwise obstructing justice. Some in Congress have argued that such conduct amounts to "high crimes and misdemeanors" warranting the President’s impeachment. Others take the view that the President’s alleged misconduct, while deserving of condemnation, does not merit his removal from office, and call for some lesser sanction. Still others believe the entire matter to be a contrivance for partisan political advantage that warrants no response whatever.

These events raise two fundamental questions. First, what conduct merits impeachment of a sitting President? Second, may Congress, if it chooses, respond to allegations of Presidential misconduct with some less drastic alternative to impeachment and, upon conviction, removal from office? The Association’s view as to the first issue is set forth in a Watergate-era report of this Committee, "The Law of Presidential Impeachment."1 In this report, we address the latter question.

Some advocates of impeachment have argued that any lesser sanction than impeachment and removal from office is unconstitutional or extra-constitutional and that the impeachment power is Congress’s sole means to address Presidential misconduct. Other authorities have concluded that the Constitution is sufficiently flexible to permit congressional responses short of impeachment and that such lesser remedies may best serve the interests of the Nation by providing an official public condemnation of the President—perhaps tied to some tangible penalty—while avoiding the drastic step of removing from office a duly elected President.

The Committee on Federal Legislation concludes that Congress may, indeed, constitutionally respond to alleged Presidential misconduct by means other than the impeachment process. Either House of Congress, or both, may pass a resolution condemning or disapproving presidential conduct. (This report will adopt the term "censure" to describe such resolutions generically, although Congress need not use that term.) We believe Congress may censure Presidential misconduct irrespective of whether such conduct would, in fact, merit impeachment. Such censure, by itself, of course carries only the moral weight of expressed congressional condemnation, however heavy that weight may be.

The Constitution’s prohibition against bills of attainder would bar Congress from unilaterally imposing any punitive or other legal consequence. The President may, however, agree to accept some form of additional personal sanction or penalty. Congress may, consistent with its constitutional duties, agree to forbear from, or to terminate, impeachment proceedings in recognition of the President’s commitment. Such a "censure plus" outcome would not be subject to judicial review because the Constitution leaves the manner of executing the impeachment power exclusively to Congress. The President’s compliance could be enforced, as a practical matter, only by the threat of resumed impeachment proceedings.

We express no opinion about whether such an arrangement would, in a particular instance, be good for the country. It is the sense of the Committee that such judgments cannot be made without consideration of the context in which they are made, and we are in no position to assess the merits of the current impeachment inquiry. There is a further question whether such a "censure plus" arrangement, at any time and under any circumstances, would have detrimental consequences for the separation of powers between Congress and the Presidency that would outweigh the utility of resolving a particular crisis. The Committee embraces multiple views on this question, but is in agreement that there may be no single "correct" answer outside a specific factual context. We would urge that any such arrangement be crafted with an acute sense of constitutional restraint and respect for the principle of the separation of governmental powers.

Section I of this report will examine the text of those provisions of the Constitution that inform this inquiry. Section II will examine the history of congressional censure as it has been applied to past charges of misconduct by Presidents and other civil officers. Section III will elaborate upon the Committee’s view that remedies short of impeachment and removal from office are constitutionally permissible.

I. Textual Analysis

Consideration of the constitutional propriety of proposed congressional actions must take into account three factors. First, what congressional powers or actions does the Constitution expressly authorize? Second, what actions does the Constitution expressly prohibit? Finally, what additional actions might Congress take within these boundaries?

A. The Power of Impeachment

The Constitution provides that the House of Representatives "shall have the sole Power of Impeachment"2 and that the Senate "shall have the sole Power to try all Impeachments."3 The scope of the impeachment power is limited to offenses of "Treason, Bribery, or other high Crimes and Misdemeanors."4 Although the House may impeach by a vote of a simple majority, conviction in the Senate requires a two-thirds vote of the members present. The Senate may impose no penalties other than removal from office and disqualification from holding a future office.5

B. The Prohibition Against Bills of Attainder

The Constitution provides that "[n]o Bill of Attainder or ex post facto law shall be passed."6 As the United States Supreme Court has interpreted this provision, a bill of attainder has three elements: (i) punishment inflicted by a legislative enactment, (ii) against individuals or readily ascertainable members of a group, (iii) without a judicial trial.7 The key question is whether congressional action inflicts "punishment." 8

At its core, an enactment is a bill of attainder if "Congress was intent on encroaching on the judicial function of punishing an individual for blameworthy offenses."9 In considering what the Constitution prohibits as legislative punishment, the Supreme Court has rejected a "narrow historical reading" in favor of a "functional test,"10 under which punishment may consist of deprivation "of any rights, civil or political, previously enjoyed."11 For example, in addition to deprivation of liberty through incarceration or property through a fine, Congress may not impair an individual’s ability to engage in gainful employment.12 Congress, thus, is not permitted to respond to misconduct of an executive branch officer by imposing individual punishment.13

II. The Historical Uses of Censure

The authority of the Houses of Congress to adopt resolutions for the expression of "facts, principles, and their own opinions and purposes" is as old as Congress itself.14 That authority has been exercised continuously in innumerable ways. Resolutions may be adopted by the Senate or the House of Representatives individually, by both concurrently,15 or by both jointly.16 Each House has used resolutions as a device to state its opinion, not infrequently to condemn policies or individual conduct of which it disapproves. Censure, as a stern rebuke or condemnatory judgment,17 is one form such resolutions may take. Such a resolution may or may not adopt a specific phrasing; it might "censure," "rebuke," "reprimand," or "condemn," using those terms expressly or not at all.18

The use of resolutions to condemn individual misconduct is most formalized in the processes by which each House may discipline its own members. The Constitution grants each House of Congress the authority to discipline its own members.19 Although the Senate and House of Representatives each have adopted individual rules governing such procedures, for the sake of brevity we describe here only the procedures in the Senate.20

In the Senate, "censure" is the term used to describe a formal action adopting by majority vote a resolution conveying disapproval of a Senator’s conduct. A censure resolution does not necessarily entail the loss of any right or privilege.21 The word "censure" need not be expressly used in a resolution adopted by the full Senate.22 In the cases of Thomas Pickering in 1811 and Benjamin Tappan in 1844, the Senate merely stated its finding that the two Senators had violated the rules of the Senate without using any specific term of disapproval.23 Other words used in recent decades have been "denounce," "condemn," "reprimand," and "rebuke."24

A. Congressional Resolutions Critical Of Presidential Policies

It is not unusual for one or both houses of Congress—separately or concurrently—to adopt resolutions that criticize presidential actions or policies. Recent examples abound:

  • The House of Representatives this year expressed its disapproval of President Clinton purportedly utilizing resources of the White House Counsel’s Office for personal legal matters.25
  • The House of Representatives passed a joint resolution last year disapproving the certification by President Clinton, pursuant to section 490(b) of the Foreign Assistance Act, with respect to assistance to Mexico.26
  • The House of Representatives passed a concurrent resolution in 1996 criticizing public remarks of President Clinton that the House viewed as conveying an impression that he might pardon James McDougal, Susan McDougal and Jim Guy Tucker.27

Expressions of congressional sentiment or judgment on executive policy or individual actions, including those of the President, are neither without precedent nor even especially uncommon.28

B. Congressional Censure of Presidents

Congressional resolutions of disapproval aimed at a particular executive branch official generally are referred to as "censure" or "rebuke" resolutions. Any condemnatory resolution passed by one or both Houses of Congress has the same effect upon the subject of the resolution—it is neither more nor less than a public expression of legislative sentiment that condemns as wrongful certain conduct of the executive branch official.

On no fewer than four occasions, the object of Congress’s condemnation resolution has been the President himself. On each occasion, this "censure" or equivalent resolution has condemned the President for acts in violation of the United States Constitution.

The most frequently cited "censure" of a President is that of President Andrew Jackson. In 1834, the Senate, then under Whig control, passed a resolution criticizing the President for his role in removing funds from the Second Bank of the United States. Jackson had earlier vetoed the re-chartering of the Bank, and after winning re-election sought to remove all federal deposits from it. The President had no statutory authority, however, to do so; only the Secretary of the Treasury possessed that authority. When Jackson’s Secretary of Treasury William J. Duane refused to remove the deposits, Jackson dismissed him and appointed Roger Brooke Taney as acting secretary. The Whigs, asserting that the President could not remove the secretary because the Treasury was responsible to Congress, introduced a resolution that stated: "Resolved, that the President, in the late Executive proceedings in relation to the public revenue, had assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both."29 The resolution passed in the Senate by a vote of 26 to 20.30

Although Jacksonian "censure" is often cited, the word "censure" is not found anywhere in the text of the Senate resolution. Nor does the resolution attempt to impose any sanctions or call for any action by the President to remedy his alleged wrongdoing. In January 1837, after Jackson’s Democrats regained control of the Senate from the Whigs, the resolution was "expunged" from the "Senate Journal."31

Similar resolutions, citing the President for committing unconstitutional acts, have been passed on three other occasions.

In 1842, the House of Representatives approved and adopted, by a vote of 100 to 80, a report issued by a select committee that found President John Tyler had abused his constitutional powers. The select committee had been convened to report on President Tyler’s veto of numerous bills passed by the opposition Whig party and after Tyler had pledged to certain congressmen that he would support one particular bill, only to veto it after it was passed by Congress.32 The select committee’s report charged that Tyler’s numerous vetoes nullified the "whole action of the Legislative authority of this Union," and that he had further violated his pledge to support one particular bill. The report not only criticized Tyler’s "anomalies of character and conduct rarely seen upon earth," but further found that Tyler’s vetoes had "deprived the people of self-government" and constituted an "abusive exercise of the constitutional power of the President."33 The report found that although Tyler’s actions merited invocation of the impeachment process, impeachment was not recommended because "in the present state of public affairs, [it would] prove abortive."34

President James K. Polk, in 1848, was charged with starting a war in violation of the Constitution. The House of Representatives debated a resolution to praise Major General Zachary Taylor for his success in the battle of Buena Vista in the Mexican War. That resolution was adopted, but with an amendment offered by Whig opponents of the war, describing it as "unnecessarily and unconstitutionally begun by the President of the United States."35

In 1864, the Senate passed a resolution that condemned President Abraham Lincoln and Secretary of War Edwin Stanton for alleged unconstitutional actions. The resolution, introduced by Senator Garrett Davis of Kentucky, concerned the agreement of President Lincoln and Secretary Stanton to allow Francis P. Blair, Jr., to hold commissions in the Army while also serving as an elected member of the House of Representatives. The agreement permitted Blair to resign his commission temporarily and thereupon take his seat in the House, with an understanding that he could revoke his resignation and return to the field at any time. The resolution condemned the agreement as one that "was in derogation of the Constitution of the United States and not with the power of the President and the Secretary of War or either of them to make."36 The Senate voted in favor of the resolution, 24 to 12, and referred it to a special committee for further investigation.37

C. Congressional Censure of Other Civil Officers

Congress first considered adopting a condemnatory resolution against executive branch officials during the administration of George Washington. Alexander Hamilton, Washington’s Secretary of the Treasury, had become the focal point in a partisan battle over creation of a national bank. To discredit Hamilton, Representative William Branch Giles introduced nine resolutions in 1793 to condemn Hamilton’s alleged improper handling of two congressionally authorized loans.38 The moneys from the loans, one to pay a foreign debt, the second to pay for domestic operations, were commingled by Hamilton despite Congress’s instruction that they be kept separate. Although ultimately defeated, the proposed resolutions to censure Hamilton established a precedent.

Congress has exercised its prerogative to criticize other officers of the executive branch by resolutions of censure. In 1822, during the Monroe administration, the House "censured" Major Christopher Van Deventer, the War Department’s Chief Clerk, for awarding a construction contract to his brother-in-law, Elijah Mix, who in turn sold a quarter interest in the contract back to Van Deventer.39

Since 1822, one or both Houses of Congress has attempted on numerous occasions, with varying degrees of success, to express its disapproval of the actions of executive branch officials. Some examples are:

  • In 1849, during the administration of President Zachary Taylor, the House added various legislative amendments that criticized Secretary of the Treasury Meredith and Attorney General Johnson for approving the payment of interest on a loan in which Secretary of War Crawford had a direct interest. In addition to the amendments, the House also approved three separate resolutions that found that the interest award was improper.40
  • In 1859, a House investigation of graft in dispensation of Navy contracts exculpated President James Buchanan’s Secretary of Navy, Isaac Toucey. A minority of the investigating committee, however, believed that both Buchanan and Toucey deserved the "reproof" of the House and further recommended censure of Toucey for sanctioning gross favoritism.41
  • During the administration of President Abraham Lincoln, in 1862, the House censured Secretary of War Simon Cameron for alleged graft and for entrusting public money to his lieutenant, Alexander Cummings, who authorized spending $21,000 of government money on straw hats, linen pantaloons, and the purchase of "army supplies" such as scotch ale and selected herring.42
  • President Ulysses S. Grant’s Secretary of Treasury, William A. Richardson, was the subject of a censure resolution brought to the floor of the House in 1874 by Representative Charles Foster of Ohio. Richardson was accused of negligent supervision of an alleged corrupt tax collector, John Sanborn. Richardson resigned, however, and the resolution was never voted upon.43
  • In 1889, a Senate committee found evidence of neglect of duty and abuse of power by local Department of Interior officials who were personally profiting from rulings made under William F. Vilas, the Secretary of Interior for President Grover Cleveland. The Senate report found that the Secretary was "fully responsible" and "censurable" for his subordinate’s conduct.44
  • In 1892, during the administration of President Benjamin Harrison, a House committee found that the head of the Bureau of Pensions, Green B. Raum, had prostituted his office for private gain and should be removed.45
  • In 1924, the Senate passed a resolution calling for the resignation of Calvin Coolidge’s Secretary of the Navy, Edwin Denby, who had allegedly agreed to permit the Secretary of the Interior to take charge of certain oil reserves implicated in the Teapot Dome scandal.46

III. Sanctions Involving the Agreement of the President

Because Congress cannot unilaterally impose a substantive penalty upon the President short of impeachment without running afoul of the Constitution’s bill of attainder proscription, several commentators have advocated a negotiated "settlement" involving the President and Congress that could effectively side-step the bill of attainder problem that would be presented by Congress’s unilateral enactment of such a measure.47 A negotiated agreement, the argument goes, would save the country, not to mention Congress and the President, the burden and expense of a drawn-out inquiry where many would be tarnished but little accomplished.48

Perhaps the most frequently mentioned arrangement involves a "censure plus" agreement.49 The President would agree to apologize publicly for certain alleged acts of misconduct in return for Congress’s passage of a resolution that reprimands, rebukes, or censures the President or otherwise expresses disapproval of his misconduct. To emphasize the severity of the matter, the President might agree to pay a fine, to reimburse the Government for a portion of the costs of the investigation, or to make a suitable donation to a charity. Such an arrangement could be evidenced by a written agreement or, though perhaps unlikely, even be the subject of legislation presented to the President for signature.

There is no precedent for such an agreement. In the absence of some form of escrow arrangement (and perhaps even then), enforcement by the Judiciary of the commitment of either Congress or the President would be unlikely. The Supreme Court has declined to review, as non-justiciable, questions concerning impeachment procedures.50 It would seem no more likely that the courts would arbitrate a dispute between coordinate branches on an arrangement so closely related to the impeachment power.51

It is, no doubt, in no small part due to frustration with these complexities that some commentators conclude that if impeachment is not pursued, Congress should attempt no other remedy.52

IV. Conclusions of the Committee

The first question that presents itself is whether Congress is permitted any flexibility in its response to an "impeachable offense." Some commentators have expressed the view that, if confronted with credible evidence of such an offense, the House of Representatives is compelled to impeach.53 We believe that view is incorrect, and agree instead with those who suggest that the Constitution’s conferral of the "sole power of impeachment" on the House of Representatives, and the inherent nature of that process, convey a latitude for the exercise of political, as well as constitutional, judgment. If the House of Representatives concludes that a President has engaged in impeachable conduct, it has wide discretion to determine whether it would best serve the national interest to impeach; the Senate likewise has discretion to proceed, or not, with a subsequent trial.54 The manner in which either House of Congress exercises its discretion under the impeachment power is not reviewable by the courts.55

The arguments against any Congressional action other than impeachment begin with the strict constructionist view that, on all matters, Congress’s powers are and must be limited to those enumerated in the Constitution, and censure of a President is not among them.56 Other scholars, no less intent to explicate the original intent of the Framers, have reached contrary conclusions.57 Even some who do not take such an absolute view, however, argue that allowing Congress to censure or otherwise take action against a President without the limits and procedures associated with impeachment would weaken the office of the Presidency. The threat of such action, the argument goes, would give unscrupulous members of Congress an unacceptable degree of leverage to impose their will on the President.58 Implicit in this argument may be a sense that the framers deliberately chose impeachment as Congress’s only option, and they made impeachment and conviction difficult in order to maintain a balance of power among the three branches of government.

Many who support the idea that Congress may act against a President other than by impeachment note that Congress frequently expresses its views—both approval and disapproval—on all manner of subjects, including the President’s actions and policies.59 Moreover, the historical record reflects that Congress has several times expressed as a body its disapproval of at least two Presidents and a number of other Executive Branch employees without going as far as impeachment.60 The thrust of the argument is that, by making impeachment a limited and procedurally difficult remedy, the Framers did not necessarily mean to limit Congress with respect to other options that would not result in the President’s removal.61 Indeed, a public expression of disapproval by Congress may well be appropriate in circumstances in which Congress, as the surrogate of the people, believes that removal from office is not warranted or desirable.

The question remains whether the Bill of Attainder Clause is offended by a resolution of censure that finds blameworthiness, but imposes no tangible punishment. There are at least two reasons to believe it would not. First, to the extent the individual target of censure may be said to be punished, the injury is solely to reputation. Although it may be keenly felt, an injury to reputation alone is not one that implicates any liberty or property interest sufficient to invoke the constitutional protection of due process.62 Second, of the substantial number of congressional censures of executive branch officers,63 none has been invalidated as a bill of attainder. As an expression of opinion, however strongly worded, on the policy or conduct of an executive branch officer, a censure resolution does not violate the Bill of Attainder Clause.

Congress actually constrains the executive branch, at least formally, through its enumerated powers, such as the power to impeach and remove civil officers, to withhold approval of Presidential appointments, and to disapprove treaties.64 As the historical examples make clear, expressions of congressional censure alone have quite limited, if any, punitive or even historical significance. The examples of Presidents Jackson and Tyler are illustrative. Other than eliciting written protests, there is little evidence of any direct effect on the executive branch. Indeed, the censure of Jackson was physically struck from the congressional record.

It does not follow that congressional resolutions of censure lack real consequences. Presidents Jackson and Tyler each were sufficiently exercised and, presumably, concerned about popular and political reactions to censure to launch vehement responses. To the extent that presidential power rests upon public acceptance of authority in the "bully pulpit," public censure by Congress may have lasting effects on policy as well as reputation. The absence of formal legal or constitutional sanctions does not remove from censure its serious potential political consequences.

On the basis of the text of the Constitution and the historical record, the Committee concludes that the adoption by either House of Congress (or both) of a resolution that censures the President is permitted under the Constitution.

The more difficult question arises in connection with what we refer to as "censure plus": any arrangement by which, in addition to censure, the President assumes some obligation or makes some gesture of atonement. Such actions could take a variety of forms. such as the payment of money to reimburse investigative expenses, payment of money to a charity, or an agreement to do or refrain from doing a particular thing. The Committee believes that any such arrangement requires the agreement of the President to satisfy constitutional concerns. Any effort by Congress to impose a "censure plus" arrangement on the President without his consent would violate the Bill of Attainder clause.

Assuming Presidential agreement, however, it is the view of the Committee that the Constitution does not, as a general matter, preclude such an arrangement. As we have previously opined: "Congress may properly impeach and remove a President only for conduct amounting to a gross breach of trust or serious abuse of power, and only if it would be prepared to take the same action against any President who engaged in comparable conduct in similar circumstances."65 Therefore, Congress should not use the threat of impeachment proceedings, or the termination of proceedings already begun, to induce the President to agree to, or to comply with the terms of, any "censure plus" arrangement unless there appears to be a reasonable basis to launch an impeachment inquiry.

This is not to say that "censure plus" is acceptable only where impeachment also would be warranted. Circumstances may arise which permit reasonable differences of opinion within Congress as to whether particular allegations of misconduct constitute "high crimes and misdemeanors." Alternatively, in the course of a Congressional impeachment inquiry, facts may come to light demonstrating presidential misconduct that, although not rising to the level of an "impeachable offense," reflects a disregard for law, civil liberties, the security of the Republic, or other constitutional values. Under such circumstances, Congress might conclude that such conduct warrants condemnation that hopefully will deter similar presidential misconduct in the future. The Committee believes that the Constitution does not forbid resolution of such crises through a voluntary "censure plus" arrangement in these circumstances.

The nature of the Presidential concession Congress may require as part of a "censure plus" arrangement is another issue. The Committee sees no constitutional prohibition against an agreement by the President to reimburse the government for expenses incurred, or to pay money to a particular fund, or otherwise to redress, in his personal capacity, the fallout from his actions.

A more difficult question arises where the censure plus arrangement involves agreement by the President to do or refrain from doing some act that would otherwise be within the normal prerogative of the Executive. May Congress require, and the President agree, that the President will sign a particular bill without change? Or nominate or appoint only a particular person or category of persons to federal office? Or command the armed forces to undertake or to discontinue a particular mission?

It is the sense of some on the Committee that such an arrangement could effectively require the President, in order to avoid impeachment, to abdicate the duties of his office and to deprive the Republic of its Chief Executive, thereby offending the Constitution’s mandate of the separation of powers. Others on the Committee do not share this concern. They argue that the normal give and take of politics permits Congress to use any of its powers, including the power to appropriate funds and the power to override a veto, to extract Presidential concessions. The threat of impeachment, where it would be merited, is an additional device the Constitution grants to Congress to check the President.66 They argue that, so long as the Presidential participation in a "censure plus" arrangement is voluntary, separation of powers concerns are not presented. The President, they contend, may always refuse to enter into any censure plus arrangement and invite Congress to impeach if it can.

There is no clear consensus within the Committee as to the resolution of this theoretical debate. It is our sense, however, that Congress should, as a prudential if not a constitutional matter,67 craft any "censure plus" arrangement with a sense of restraint and respect for the respective roles of the branches of government.

The Committee concludes that the Constitution does not prohibit either the censure of Presidential misconduct or an arrangement between Congress and the President described as "censure plus." In the absence of constitutional restrictions, the use of these sanctions necessarily is governed only by the judgments of constitutional officials in the exercise of their offices. Censure of a President has been an extraordinary and rare event and should remain so. As the historical record indicates, Congress has censured the President only where it believed that the President’s conduct was an abuse of office in ways that would constitute grounds for impeachment. Far from trivial or toothless, Congress’s censure of a President is an extremely serious measure. It should be reserved for conduct where impeachment is at least debatably a justifiable alternative. Even more so, "censure plus" as a device should be reserved for events unresolvable in any other way short of impeachment.

December 10, 1998

Committee On Federal Legislation

Louis A. Craco, Jr., Chair **
Paul B. Sweeney, Secretary **

Derek J.T. Adler
Antonia M. Apps
Joy C. Barson *
Marjorie E. Berman
Ross Brady
Douglas D. Broadwater
Stacey B. Chervin
Stuart M. Cobert
Jeffrey W. Davis
Marla Eisland
Thomas R. Fallati
Charles W. Fournier **
Leon Friedman **
Rita W. Gordon
Jennifer L. Gray *
Gregory L. Harris ** +
Richard K. Hayes
Monique K. Lapointe
Cornelius P. McCarthy *
Eileen P. McCarthy
Francine Miller
Andrew N. Musicus
Edmund M. O’Toole *
James F. Parver
David A. Proshan
Risa M. Rosenberg *
Theodore Ruthizer
Adrienne L. Saldaņa *
Lawrence M. Solan **
Chantal Thomas
Diane S. Wilner

** Primary authors of this report
* Members of Subcommittee on Lesser Remedies
+ Chair, Subcommittee on Lesser Remedies


1See Association of the Bar of the City of New York, Committee on Federal Legislation, The Law of Presidential Impeachment, 29 The Record 154 (1974). There, this Committee opined that "Congress may properly impeach and remove a President only for conduct amounting to a gross breach of trust or serious abuse of power, and only if it would be prepared to take the same action against any President who engaged in comparable conduct in similar circumstances. Although the responsibility for giving content to the constitutional grounds for impeachment is, in our opinion, solely that of Congress, our conclusion is that Congress should exercise these powers subject to a firm sense of constitutional restraint." Id. at 156. The Committee further opined that "it is fair to conclude that the Framers had in mind [that] only conduct which in some broad fashion injures the interests of the country as a political entity [should] be the basis for impeachment and removal." Id. at 160-61.

2Art. I, Sec. 2.

3Art. I, Sec. 3.

4Art. III, Sec. 4.

5Art. I, Sec. 3.

6Art. I, Sec. 9. The subject of impeachment is treated authoritatively in a number of treatises. See, e.g., Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis (1996); Raoul Berger, Impeachment: The Constitutional Problems (1974); John R. Labovitz, Presidential Impeachment (1978); Charles Lund Black, Impeachment: A Handbook (1974); see also Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, Occasional Papers from the Law School of the University of Chicago No. 39 (1998).

7Nixon v. Administrator of General Services, 433 U.S. 425, 468-69 (1977); United States v. Lovett, 328 U.S. 303, 315 (1946).

8Nixon, 433 U.S. at 472-73.

9Nixon, 433 U.S. at 479.

10United States v. Brown, 381 U.S. 437, 475-76 (1965).

11Id. at 448. Even where such a deprivation may occur, congressional action does not fail this test if, "viewed in terms of the type and severity of burdens imposed, [the action] reasonably can be said to further nonpunitive legislative purposes." Id. at 475-76 (footnote and citations omitted).

12See, e.g., Brown, 381 U.S. 437 (invalidating statute barring Communist Party members from serving as officers or employees of a labor union).

13An additional limitation, directly applicable only to the President, is that his compensation may not be reduced during his elected term. Art. II, Sec. 1.

14See Jefferson’s Manual of Parliamentary Practice § XXI; House Rules Manual § 395, H. Doc. No. 104-272 at 190 (1996). "Jefferson’s Manual" is the name given to the rules of parliamentary procedure compiled by then-Vice President Thomas Jefferson for his own use as President of the Senate from 1797-1801. Adopted by the House of Representatives in 1837, to the extent not inconsistent with other standing rules, and revised in 1880, Jefferson’s Manual comprises today a substantial portion of the House’s rules. See House Rules Manual § 284, H. Doc. No. 104-272 at 117 n.1.

15"A concurrent resolution is binding on neither House until agreed to by both, and, since not legislative in nature, is not sent to the President for approval." Id. § 396, H. Doc. No. 104-272 at 190 (citations omitted).

16A joint resolution "is a bill so far as the processes of the Congress in relation to it are concerned. With the exception of joint resolutions proposing amendments to the Constitution, all these resolutions are sent to the President for approval and have the full force of law." Id. § 397, H. Doc. No. 104-272 at 191 (citations omitted).

17See, e.g., Merriam Webster Collegiate Dictionary (10th ed.) ("a judgment involving condemnation[,] the act of blaming or condemning sternly[,] an official reprimand").

18The draft resolution of censure proposed by members of the House Judiciary Committee on December 9, 1998 states:

It is the sense of Congress that —

On January 20, 1993, William Jefferson Clinton took the oath, prescribed by the Constitution of the United States, faithfully to execute the Office of President; implicit in that oath is the obligation that the President set an example of high moral standards and conduct himself in a manner that fosters respect for the truth; and William Jefferson Clinton has egregiously failed in this obligation, and through his actions has violated the trust of the American people, lessened their esteem for the office of President and dishonored the office which they have entrusted to him.

Be it resolved that:

1. The President made false statements concerning his reprehensible conduct with a subordinate;

2. The President wrongly took steps to delay discovery of the truth;

3. No person is above the law, and the President remains subject to criminal and civil penalties for this conduct;

4. William Jefferson Clinton, the President of the United States, by his conduct has brought upon himself and fully deserves the censure and condemnation of the American people and the Congress; and by his signature on this joint resolution, the President acknowledges this censure.

N.Y. Times, Dec. 10, 1998

19Art. I, Sec. 5, cl. 2 ("Each House may determine the Rules of its Proceedings, punish its members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member.").

20S. Res. 338, 88th Cong., 2d Sess. (1964) (establishing the Senate Select Committee on Ethics, with the power to investigate allegations of senatorial misconduct); House Rule XLIII, Code of Official Conduct, H. Doc. No. 104-272 at 804-809; see generally Laura Krugman Ray, Discipline Through Delegation: Solving the Problem of Congressional Housecleaning, 55 U. Pitt. L. Rev. 389 (1994); Jack Maskell, Expulsion and Censure Actions Taken by the Full Senate Against Members, Congressional Research Service ("CRS") Report for Congress, Sept. 17, 1993, at CRS-1. For Senate precedents before 1972, see Senate Election, Expulsion and Censure Cases from 1793 to 1972, S. Doc. No. 92-7, 92d Cong., 1st Sess. (1972).

21Pursuant to its rules the Senate Select Committee on Ethics may recommend disciplinary action to the full Senate "including, but not limited to . . . censure, expulsion, or recommendation to the appropriate party conference regarding such Member’s seniority or positions of responsibility." Rules of Procedure of the Senate Select Committee on Ethics § 2(a)(2).

22Maskell, supra note 20, at CRS 10.


24In the twentieth century, the Senate has "censured" Senator Dodd (1967); "condemned" Senators Bingham (1929) and McCarthy (1954); and "denounced" Senators Talmadge (1979) and Durenberger (1990). Senators Cranston, Hatfield, and D’Amato were "rebuked" by the Senate Ethics Committee without action by the full Senate. See Maskell, supra note 20, at CRS 10-18.

25H. Res. 397, 105th Congress, 2d Sess. (1998).

26H.J. Res. 58, 105th Congress, 1st Sess. (1997).

27The resolution stated that the President "should categorically disavow any intention" of granting such pardons. H. Con. Res. 218, 104th Congress, 2d Sess. (1996).

28Congress has also included the judiciary as the target of such resolutions. See, e.g., H. Res. 186, 100th Congress, 1st Sess. (1989) (expressing "profound concern" over the Supreme Court’s decision declaring that flag-burning is constitutional); H. Res. 591, 105th Congress, 2d Sess. (1998) (resolution introduced expressing dissatisfaction with Supreme Court’s hiring practices with respect to minority judicial clerks).

29Senate Journal, 23rd Cong., 1st Sess., 197.

30The House never voted on the resolution.

31Jackson issued a protest two weeks after his censure. He argued that the censure was unconstitutional because the resolution indicated he had committed a high crime, and if that were true, he asserted, he must be impeached, which is the only way provided in the Constitution for Congress to call the chief executive to account, and which would have given him an opportunity to defend himself in the Senate. The Senate refused to "accept" the protest. III J.D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789-1897, at 69-93 (1900) (hereinafter Richardson, Compilation of Messages).

32Woodward, Responses of the Presidents 64.

33House Journal, 27th Cong., 2d Sess., 1343-1352.

34Like Jackson, President Tyler issued a formal protest and argued that the House could not charge him with an impeachable offense and then not impeach him. President Tyler asserted that if the charges against him were true, then he should be impeached. But they were not true, he argued, and he must be afforded the right to defend himself in a trial before the Senate. The House refused to accept Tyler’s protest or to put it into the House record. IV Richardson, Compilation of Messages 190-193.

35Congressional Globe, 30th Cong., 1st 8ess., 95.

36Congressional Globe, 38th Cong., 1st Sess., 2218; J.G. Randall and Richard N. Current, Lincoln the President 181-82 (1955).

37Congressional Globe, 38th Cong., 1st Sess., 2275-78. After an investigation of the arrangement by the House of Representatives, Blair’s opponents succeeded in unseating him before the end of the session. Randall and Current, supra note 36, at 182.

38VIII Paul L. Ford, ed., The Writings of Thomas Jefferson 222-23 (1892); id. Vol. IX at 40- 41; C. Vann Woodward, ed., The Responses of the Presidents to Charges of Misconduct 10 (1974) (hereinafter Woodward, Responses of the Presidents).

39Woodward, Responses of the Presidents 41; House Report 79, 17th Cong., lst Sess.

40Woodward, Responses of the Presidents 77-78; Congressional Globe, 31st Cong., lst Sess., 1340-1360.

41House Report 184, 35th Cong. 2d Sess.; Woodward, Responses of the Presidents 93; Leonard D. White, The Jacksonians: A Study in Administrative History 1829-1861, at 219-221 (1965).

42Congressional Globe, 37th Cong. 2d Sess., 1840-1841, 1888.

43II Allan Nevins, Hamilton Fish: The Inner History of the Grant Administration 708-709, 714 (1936); Woodward, Responses of the Presidents 130.

44Senate Report 2710, 50th Cong., 2d Sess., ser. 2624.

45Woodward, Responses of the Presidents 168; House Report 3732, 51st Cong., 2d Sess., ser. 2887 at i-xix; House Report 1868, 52nd Cong. 1st Sess., ser. 3049-3050 at xxxix.

46Congressional Record, 68th Cong., 1st Sess., 2055-68, 2245; Burl Noggle, Teapot Dome: Oil and Politics in the 1920s, at 108-l10 (1962).

47See, e.g., Gerald R. Ford, The Path Back to Dignity, N.Y. Times, Oct. 4, 1998; Democratic Roundtable Discussion on the Impeachment Process, Oct. 15, 1998 (Federal Document Clearing House) (hereinafter Democratic Roundtable), Remarks of Laurence R. Tribe (censure as verdict of legislative trial would be constitutionally problematic, but constitution permits both censure as a resolution condemning conduct and, within limits, a "cooperative arrangement"); id., Remarks of Susan Low Bloch (independent resolutions of either House of Congress censuring conduct are permitted by Constitution).

48It might be suggested that such an arrangement would necessarily be forbidden by the constitutional doctrine of the separation of powers. As a constitutional matter, we think this is not true. See Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977) ("In determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U.S. 683, 711-12 (1974). Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.")

49See Ford, supra note 47 (proposing that the President submit to public censure in the Well of the House of Representatives); House Judiciary Committee, Hearing on Impeachment, Dec. 9, 1998, Testimony of William Weld (suggesting, in addition to censure, a detailed written report of findings by the Judiciary Committee, a written acknowledgment by the President, and the President’s agreement to pay a fine).

50Nixon v. United States, 506 U.S. 224 (1993); see The Law of Presidential Impeachment, supra note 1, at 167-71.

51In the context of any such arrangement, additional issues arise with respect to potential criminal prosecution of the President following his term in office. Whether Congress could lawfully limit such exposure is beyond the scope of this report.

52See, e.g., Dan Quayle, Censure Is Not An Option, N.Y. Times, Nov. 16, 1998; Arlen Spector, Instead of Impeachment, N.Y. Times, Nov. 11, 1998.

53See, e.g., House Judiciary Committee Subcommittee on the Constitution, Hearing on the Background and History of Impeachment, Nov. 9, 1998 (hereinafter History of Impeachment Hearing), Testimony of Stephen B. Presser ("Once [the House of Representatives] determines that impeachable acts have been committed, you have no choice—if the Constitution is to function as the framers understood—you must impeach, leaving the decision on removal to the Senate."); Quayle, supra note 52.

54Richard Fallon, Three Questions Deserve Consideration, Boston Globe, Sept. 12, 1998 ("Impeachment is a constitutionally available remedy for presidential abuse of office, but impeaching the president is not a constitutional requirement in every case that fits the definition."); Laurence R. Tribe, How to Bring Clinton to Justice Without Punishing the Nation, Boston Globe, Sept. 16, 1998 ("the House is not obligated to bring impeachment proceedings simply because presidential conduct might fit within the class of offenses for which impeachment is constitutionally authorized"); History of Impeachment Hearing, Testimony of Matthew Holden, Jr.; Testimony of Cass R. Sunstein; Testimony of Richard D. Parker; Testimony of William Van Alstyne; Testimony of Arthur M. Schlesinger, Jr.; Testimony of Michael J. Gerhardt; Democratic Roundtable, Remarks of Susan Low Bloch (House of Representatives has discretion whether to pursue impeachment); id., Remarks of Laurence R. Tribe (same).

55See supra notes 50-51 and accompanying text.

56See supra notes 52-53.

57See Isenbergh, supra note 6, at 33-34 ("Impeachment lies for a broad range of crimes and, when the crime aims at the state, removal from office is mandatory upon conviction. When the crime aims elsewhere, removal is also possible, but not mandatory, and other penalties, such as censure, or suspension from office, are available.").

58Lowell Weicker, Let the Process Go Forward, N.Y. Times, Oct.6, 1998 ("an open invitation for political mischief to be visited on future Presidents whenever Congress disagrees with their policies").

59See supra, note 54.

60See supra, Part II.

61Isenbergh, supra note 6, at 39 n.1 ("Censure is a possible outcome of an impeachment trial . . ., but Congress can also express disapproval less formally. Or, censure that the President did not contest could be understood as a form of settlement of impeachment proceedings.").

62Paul v. Davis, 424 U.S. 693, 701-10 (1976).

63See supra, Part II.

64Art. I, Secs.2, 4. Informally, of course, Congress may affect executive policy either through actions threatened as a consequence of continuation of or change in Presidential policy or through negotiations centered on individual legislative measures.

65The Law of Presidential Impeachment, supra note 1, at 156.

66See Federalist No. 77 (concluding his review of the office of the President, its powers, and protections from abuse, Hamilton observes that, in addition to formal limitations, the President always would be subject to the control of Congress).

67In the words of one commentator, "constitutional law explicates what is permissible, but politics dictates what should be done." Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis (1996) at 177.