A Squishy Standard for Impeachment

House panel begins to tussle over meaning of 'high crimes and misdemeanors.'

At least in theory, moral turpitude - and nothing more - could be grounds for impeaching a president. So, too, could misleading the public, although lying by public officials is not a crime.

As lawmakers on Capitol Hill begin the task of deciding what constitutes an impeachable offense, they are guided by four not-so-little words in the United States Constitution - "high crimes and misdemeanors."

The trouble is, this phrase was never defined by the framers of the Constitution - and history and precedent offer limited additional help. As a result, the definition is somewhat organic, experts say, evolving over time and leaving President Clinton in a gray area of vulnerability.

"Every generation and every Congress must define 'high crimes and misdemeanors' according to their own standard," says Jonathan Turley, a law professor at George Washington University here.

How the 36 lawmakers on the House Judiciary Committee settle the question - and whether they vote to hold impeachment hearings - is likely to settle the future of the Clinton presidency. Independent counsel Kenneth Starr has outlined 11 offenses he insists qualify, such as perjury, obstruction of justice, and abuse of power.

The president's lawyers, meanwhile, insist Mr. Clinton's wrongs fall far short of impeachable offenses. They deride Mr. Starr's investigation as principally an attempt to "embarrass" the president and "titillate" the public with a "pornographic" report.

"In some senses, we are in uncharted waters," having to wrestle with a report from an independent counsel whose very function is new, having grown out of Watergate, House Rules Committee chairman Gerald Solomon (R) of New York said last week. "However, we are guided by precedent and history," he concluded.

This was echoed by Judiciary Committee chairman Henry Hyde (R) of Illinois, and, in an interview with the Monitor, Judiciary member Zoe Lofgren (D) of California.

Representative Lofgren has been studying the 1974 Watergate Judiciary report, which explores the nature of an impeachable offense back to its British origin. She posted the report on her Web site, and in her own paper copy, circled the last paragraph. It begins: "Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement - substantiality." That, says Lofgren, means you have to ask the "so what" question: "Even if A, B, and C are true, so what?" After studying the 1974 report, her sense is that high crimes and misdemeanors are about "undercutting or destroying the form of government, the system, so that's the standard" by which to measure the Clinton case, she says.

In waves of rebuttal over the past few days, Clinton's lawyers have hammered just that point, that the standard for impeachment is "injury to the state," and that the president's behavior, while wrong, is far from that threshold.

But some Judiciary Committee members see it differently. They are especially disturbed by the case Starr makes for the president's lying under oath about whether he had sexual relations with former intern Monica Lewinsky.

The report details sexual encounters between Ms. Lewinsky and the president that contradict his understanding of the definition of "sexual relations," and it maintains Clinton lied about this and other matters in his deposition in the Paula Jones sexual-harassment suit and before the Starr grand jury Aug. 17.

"It's not about sex, it's about lying under oath," House Judiciary member Bill McCollum (R) of Florida said. He considers perjury to be an impeachable offense, because it undermines the rule of law. In American history, two federal judges have been impeached and removed from the bench for committing perjury - both in 1989.

Since its first proceeding in 1797, the full House has voted to impeach only 16 federal officials - most of them judges. The one president who was impeached by the House, Andrew Johnson in 1868, was acquitted when the Senate fell one vote short of the two-thirds necessary to convict him.

In the other obvious precedent - the Watergate scandal - misleading the public was one reason the House Judiciary Committee recommended in 1974 that President Nixon be impeached.

While misleading the public is not a crime, the Starr report deems it an abuse of constitutional authority. Clinton's eight months of misleading the public, lawmakers, and the independent counsel, the report says, is therefore grounds for removal.

MANY legal historians and political analysts, as well as the White House, point out that Watergate was more serious than the Clinton case. It involved a political, not a personal, matter. And Nixon's abuse of power, in which he involved agencies such as the CIA, FBI, and IRS, is more far-reaching than the abuses cited by Starr of a president who sought protection under executive privilege and attorney-client privilege or who refused six invitations to testify before the grand jury.

As lawmakers on the Hill proceed, they will be constrained by another constitutional player: the American public. Most recognize they cannot overturn two presidential elections on a whim. That's why they are listening so closely to their constituents.

So far, Clinton's job-approval ratings are holding relatively steady. Almost 2 in 3 Americans say Clinton should not be impeached, and a similar number say he should not resign now, according to a new CNN/Gallup poll. But for the first time, a majority - 58 percent - says he should be censured by Congress. If that's what happens, says former Clinton chief of staff Leon Panetta, "the president ought to kiss the ground."