Presidential queries

Legal historian Peter Hoffer is Research Professor of History and the author of numerous books, most dealing with 18th-century American history. He and his wife, historian Natalie Hull of Rutgers University, are also the authors of Impeachment in America, 1635-1805, published in 1984 by Yale University Press. A paperback reprint of the book should be out in late spring from the University of Chicago Press.
Columns spoke with Hoffer about the historical background of impeachment and how it might affect any upcoming hearings on President Clinton.

Columns: Was impeachment discussed early in the formation of our government or was it something of an afterthought?

Hoffer: Impeachment by name was first discussed in the American colonies at the end of the
17th century. Impeachment in England goes all the way back to the 14th century. There are some significant differences. In England, you can impeach anyone--it doesn’t have to be an office holder--for any offense. And the penalty after trial and conviction in the House of Lords could be anything, including death.
In the American colonies, a very different tradition developed. You could not put royal office holders to death in the colonies. You had to send them back to England. So impeachment and trial in the colonial legislatures became limited to office holders for official malfeasance--for something very important. It could have been neglect of duties, but usually it was for financial corruption. By the time you get to the first state constitutions, almost all of which have impeachment provisions, they don’t resemble English impeachment provisions at all.

Columns: How did they settle on the language for the federal Constitution?

Hoffer: The language comes from the state constitutions, and the people who wrote it were either those who wrote the state constitutions or those who faced impeachment threats. The language--“high crimes, misdemeanors, treason and bribery”--was the result of a very long and complex debate. The original language was “misconduct and malfeasance”--even more general, giving more discretion to the lower house in finding offenses where someone was abusing power, either in a corrupt way by taking money or in a political way to gain power.

Columns: Treason, high crimes and misdemeanors seem obvious. Why was bribery mentioned specifically?

Hoffer: Almost all the state cases between 1776 and 1787 had to do with extortion or bribery, most often by justices of the peace or sitting judges. Only a handful of executive leaders were subject to impeachment. One of them, by the way, in Virginia in 1781, was Thomas Jefferson. He was faced with an impeachment threat in the state legislature and only barely escaped. Virginia was invaded [during the Revolution], and the leader of the invading troops was none other than Benedict Arnold. Jefferson heard about the attack and he fled. But as governor of Virginia, he was supposed to be in command of the Virginia militia. Jefferson headed for Char-lottesville to pack up and leave! That was a kind of neglect of duty, an impeachable offense.

Columns: We have used impeachment of a president in this country extremely rarely. Was that the intention, in your judgment, of those who wrote the Constitution?

Hoffer: Absolutely.

Columns: Other than Presidents Andrew Johnson and Richard Nixon, have there been other serious efforts to impeach a president in the United States?

Hoffer: No serious efforts. But Theodore Roosevelt, for example, said, “If they don’t like what I’m doing, let them impeach me.” If you go through the records, you will see the words “this is impeachable” used over and over again. It’s not really a legal threat.

Columns: How much of impeachment is “legal” and how much is “political”?

Hoffer: I’d say half and half. Remember, courts are bound by certain rules of evidence. No one has written the rules of evidence for the House of Representatives. Thomas Jefferson wrote a manual of impeachment when he was vice president and presiding over the Senate. Two-thirds of the people sitting in our Congress are lawyers, trained in the rules of evidence. But is there a bar to hearsay and rumors? Not unless they want to raise one.

Columns: Are the standards for impeachment in the House and trial in the Senate different?

Hoffer: The Senate is actually doing the trying, and the House is doing the prosecuting. So the Senate can allow in or shut out whatever it wants. It’s the Senate that’s laying down the rules because it’s the Senate that holds the trial. If there is a trial, presiding over it will be William Rehnquist, the chief justice, and he sure knows the rules of evidence. So you’d have much tighter standards for evidence in the Senate than you would in the House.

Columns: Would you consider lying before a Grand Jury indictable?

Hoffer: Lying before a grand jury, in a civil matter, you’d never get an indictment--nor would anybody ever look for an indictment. Everyone agrees that if this was going through the regular courts, no charges of any kind would be brought against the president. The question is whether this is malfeasance in office--not a criminally indictable offense. It’s clear that it has become a political question, strictly along party lines. And there’s no question you can’t get an impeachment conviction unless you have some degree of bipartisanship.