The crucial issue of impeachment and whether or not historical precedent should be an important consideration was the subject of a debate last week at the University of Minnesota the speakers were history Professor Paul L Murphy and Professor Clyde W Summers of the Yale law school Murphy argue the past history should have a direct bearing on impending proceedings against Mr. Nixon while Summers contended that history doesn't matter since current circumstances are unique first Professor Paula Murphy. When president-elect Peter McGraw was visiting the campus during the recent presidential search. I made it a point to check out his various books among others his basic textbook on American government, which is widely used in this country and reading through what I came across an interesting statement that and I'm quoting as a result of the Andrew Johnson impeachment Fiasco impeachment as a viable constitutional device was demonstrated to be a rusty Blunderbuss, which will never be used again. I said to mr. McGrath when he was here as a professor of government that statement shows that you know a lot more about history than about political science. And his response was well at least political scientists can learn from history, and I've already revised that section for the next Edition. Certainly when Mr. McGraw's book was published in 1965 originally serious possibility of impeaching a president was the first highly remote. How are one of the most impressive aspects of our constitutional history? I think has been the amazing. foresightful array of tools which our founding fathers put in the Constitutional toolbox for later generations to to work with and while some of these tools do indeed get arrested from 9 news from time to time the historical circumstances for which they were collected do have a way of recurring historic purpose of impeachment and of the impeachment to Liz I think I quite player and if it's used to fulfil that historic purpose, I think there's no question that our constitutional system can be put back into good working order. However, I am disturbed by current temps to twist that instrument or blunt the tool or for that matter break the two of which Mr. Nixon's lawyers especially seem to be somewhat deliberately to do. Has missed connections activities have become clear to the American people in recent months people have become scrambling as you know, only too well to find what history shows us regarding that device. Unfortunately, some people have already begun scrambling to try to twist history in order to achieve certain kinds of partisan and thus forth from that particular process. But it seems to me remains to be seen is whether an accurate application of historical principles is ultimately adhered to or whether modern lawyers or Congressman or Senators, ultimately twist history and the meaning and intent of historical processes to accomplish a modern and which to them is more immediately self-serving. in this regard one is not terribly impressed by The Nixons advisors and for that matter his colleagues in recent months because there seems to be a distressing attitude that if history some way gets in the way things to do is either to ignore it or Twisted in such a way that it serves your n One example might be thrown out here at the outset during the Watergate hearings many of you will recall Mr. Ehrlichman was on the stand. Senator Talmadge was talking about the historic right of privacy protection against unreasonable search and seizure in the concept that every man's home is his castle. Particularly the concept of Pitt the Elder British Statesman made very clear that this was a fundamental historical guarantee making clear how important it was that the right of the individual should be protected against arbitrary power of the executive. Minister berlocq man who at the time was casually and Lively defending the right to break into and burglarized Daniel Ellsberg psychiatrist office. Retarded. Well that old Doctrine has certainly been considerably eroded over the years has if not this respect for history. I must say distress is a professional historian very greatly. Further in connection with various aspects of the preparation of the defense of Miss Nixon by his attorneys. We again got some developments which I find are in many respects threatening and dangerous. It's just a player whose name, you know, very well. Prepared not too long ago a 61-page analysis. Of the Constitutional standards, which are supposed to be used in the forthcoming impeachment process. He whines up with a series of conclusions, which I can only describe as remarkable. Including such as the following quotes the use of a predetermined criminal standard for in the impeachment. The president is supported by history logic legal precedent and a sound and sensible public policy which demands stability in our form of government. He goes on to say later in that's long document get impeachment of President should only be resorted to four cases of the gravest kind and that the commission of a crime is essential for impeachment can even receive a present. He said may only be impeached for indictable crimes and he also indicates that the founding fathers meant when they said reason High crimes and misdemeanors sole criminal offenses and wound up with a statement which still somewhat shakes make that a broader interpretation would require lifting historical precedents out of context disregarding the plain meaning and accept the definition of technical legal terms and reading constitutional authority to selectively Which I would submit is exactly what mr. Sinclair and his team did in preparing this absolutely remarkable and totally a historical document. We can possibly give slightly higher grades to the house judicial committee this year a committee whose bipartisan team lawyers did indeed prepare a 49-page advisory report someone on the same subject. I do think interest checking through their report that their history is far more sound and the conclusions that they come to his much more easily sustainable by the historical record three things that they stated I think are well worth our consideration. Play indicates that limiting impeachable offenses to can criminal conduct would be incompatible with the history of impeachment and the intense of the Constitution's author's position, which I feel is Justified. They argue also that the extreme experience with impeachment itself reflects the principle that impeachable condict need not be criminal and you do a detailed analysis of the 13 impeachment switch of occured through American history. And wind up with an interesting statement in which they notes. That's the Constitution really holds the president accountable when he takes office. Do the people in a variety of ways and they state that among these waves are that he is under constitutional obligation to quotes take care of that. The laws be Faithfully executed on quotes to Faithfully execute the office of President of the United States and to preserve protect and defend the Constitution of the United States to the best of his ability. Clearly they argue if he is not carrying out his constitutional functions. It is really the house has responsibilities to see why if he clearly violates his constitutional oath or his constitutional obligations this up to the house to challenge him on those subjects. Again, suggesting I think clearly that's the kind of behavior. We are talking about need not in any respect. We can find Criminal bag. I'd like to look at one other aspect of this situation and give you some ideas of how indeed history has been Twisted in the process. Let me take a particular point of Law and arrow one one which I've done some detailed probing and show you. What is Baxley been happening in this area? Part of this connections defense rests upon a curiously circular argument. That only indictable crimes are impeachable. Or as St. Clara says a president may only be impeached for indictable crimes and then arguing that's indictments. Must follow impeachment. Which says that until you can prove that the present is susceptible to indictable Crime you can impeach him but you got to impeach him before you indicted. Which is a nice way, I must say to get off the hook in the process. The historically speaking. I would submit that that argument has very little basis. But is it is interesting? I think to see how this particular position was developed. The Constitution makes fairly clear Article 1 Section 3 Clause 7 chapter and verse That's the Senate shall have the power to try all impeachments goes on to say that judgment in cases of impeachment shall not extend further than to the removal from Office disqualification to hold and enjoy any office of Honor Trust of prophets in the United States, but the party convicted shall nevertheless be liable and subject to indictment trial judgment and Punishment. You read that again fairly carefully, you will notice that the term nevertheless is used and where is he may be impeached but the party convicted shall nevertheless be liable and subject to indictment etcetera. But certainly there is no indication that there is any sequence that is involved. Nevertheless is a transition word terms the subject to criminal indictment. It certainly does not suggest any order in the process. More more over this was this was carefully debated during the Constitutional Convention. And from what again we can tell from all of the record anytime the term nevertheless came in and every draft that came in for the convention. It was clear that this word was not in any sense being used in that fashion. How can you then build a case for the opposite? If you do look at the historic situation, you find that Alexander Hamilton who was one of the early. Leaders of the Republic would certainly have liked to have made impeachment prerequisite to indictment. In fact, he insisted this should be argue. Further. Mr. Hamilton was at the Constitutional Convention and toward the end of the convention. He handed to the Madison Paper, which he said he wished Madison would introduce he then went off to New York in a bit of a house and did not stay to participate in the final four seating. Under mr. Hamilton suggestion. The president would have been elected for life. He would have been essentially of Royal character. In fact Hamilton uses the run abdicates in one section instead of resign, but in terms of the other problem The immunity of the royal president from legal processes Hamilton did agree that he could be impeached and the impeachment and deed was a proper remedy and if convicted he are you he should then be afterwards quotes on clothes tried and punished in the ordinary course of love. The fact remains that historically none of this happened and Hamilton's plan receive no support in the Constitutional Convention and his suggestion about sequence was rejected. Nonetheless. Mr. Hamilton was a hard loser as you may recall and Hamilton undertook when he was writing The Federalist Papers a few years later to try to slip into those what he had been unsuccessful in getting into the Constitution itself. So we read in Federalist Paper number 69. The president is subject to impeachment and what afterwards be liable to prosecution and Punishment in the ordinary course. Again, this is a misreading of the record and is certainly a Corruption of what actually happened in Philadelphia. Okay that I think historically can be justified. Yeah, let's see what happened when this got into the hands of White House lawyers. In the White House brief, it was filed before the district courts, Washington on August 7th 1973 connection with the Watergate tapes connections attorneys build a whole case on Hamilton's position president States. The brief is liable to prosecution and Punishment in the ordinary course of law for crimes. He has committed but only after he has been impeached convicted and removed from office. Three historical citations are given Article 1 Section 3, which says nothing about after Hamilton's Miss quoted statement from the Federalists, which again is totally out of context and a victim from a Supreme Court decision in 1838 Kendall versus the United States, which merely States the executive power is this vested in a president and so far is his powers are derived from the Constitution. He is beyond the reach of any other department except in the mood prescribed by the Constitution through the impeachment power. That's a heck in a hard one to use. I think to defend this. However, apparently feeling the other historical evidence was necessary the White House brief. Also quoted an argument made by attorney general Henry stanbury. Before The Supreme Court's in the late 1860's. In which she stated in good old spread eagle oratory style so long as the president isn't office. He is above the process of any courts, except the Quasi Korat the tries impeachment after he has been dealt with in that chamber and stripped of the Robes of office so that he can no longer stand is the representative of the government then for any wrong. He is done by any individual for any murder or any crime and he soared what she is committed as president then and not till then can he be subjected to the jurisdiction of the Courts? It's an interesting argument. And so I'm always with the present as long as he's an office apparently can commit any kind of crime with complete abandon until he is impeached. He is completely scot-free. Report problem. However with throwing this into this particular brief was that Mr. Stanbury's Case was lost and the courts completely dismissed his argument in the process. In touch with them that impeachment must proceed indictments has again been put forward in recent days in another interesting episode. During the legal Maneuvers preceding the resignation of Vice President Agnew October 1973. On September 25th, the former vice president requested an inquiry by the house and two charges that were being investigated by the district court in Baltimore, Mr. Agnew contended that the constitution bars a criminal proceeding of any kind federal or state county or town against the president or vice-president when he holds office. Again, somewhat the same argument Mister Stanberry been making a hundred years before. After the denial of this request commencement of the presentation of evidence to the grand jury agnew's attorneys asked the US District Court of Maryland to help the judge and jury proceedings on the grounds The Constitution forbids that the vice president be indicted or tried in any Criminal Court. Has a citation that used Alexander Hamilton's Federalist Paper 69, which again has very little if anything to do with this point. United States Department of Justice then took over justice department opposed agnew's notion and on October 5th, the solicitor-general mr. Bork file with the court of memorandum for the United States concerning the vice president's claims that constitutional immunity which argued that only the president is immune to indictment in a criminal prosecution while in office. The memorandum makes two very interesting concessions. The first admits that the only explicit immunity in the constitution is limited. Two congressmen and moreover that the natural inference is that no immunity exist for none is mentioned both of which I agree with and secondly that the Clause of the Constitution which provides that the party convicted is none the less subject to criminal punishment was intended not to establish the sequence of the two processes, but solely to establish the conviction upon impeachment does not raise a double jeopardy defense in the criminal trial. On the basis of this reading of the Constitution the memorandum unhesitatingly asserts that it is clear that the framers and their contemporaries understood that lesser impeachable officers. That is all except. The president are subject to criminal process. That's an interesting ruling also in many ways. then the Mariah memorandum must tackle the formidable problem of establishing that the president exception for which there is no historical basis really as near as anyone can see No appeal to the written Constitution is really possible because the document does not in any get any any instance give the present. So lacking any historical bass liking any legal bass, what do you turn to? Well, obviously you turn the history and you find the sum presidents that you can use here with the present. Hamilton statement in federal 69 the unreliability of which we've already discussed. incidental statement from another of Hamilton's Federalist Papers simply quoting what he said in 69 A statement on the same incident made by Google near Morris one of the founding fathers which concludes a conclusive reason reason for making the Senate instead of the Supreme Court. The judge of impeachment was that the latter was to try the president after the trial of the impeachment. A similar statement from James Wilson, which says pardon is necessary for cases of treason in his best place in the hands of the executive if he be himself at party to the guilty can be impeached and prosecuted and I see nothing there speaking to him and finally a debates in the convention July 20th, 1787 in which the question of making the president while in office was discussed pro and con with no conclusive results. Rarely, I submit has an important constitutional Doctrine been submitted by such flimsy historical evidence. And I would go on to say that it makes me angry because during the. Of six months in which all of this legal defense was being afforded the present $290,413 of our taxpayers money was was used to develop this kind of historical defend. All right. This is an example of what I protest against let me look at for just a few moments of what I was really feel is is is actually relevant Real History honest history to this situation. Seems to me that the real historical intended purpose of the impeachment Clause is not mysterious and then he says one merely has to do a little historical research. State constitutions before the Federal Constitution was adopted all had impeachment Clauses which included a variety of charges including such things as now Administration corruption or other means Delaware Constitution Administration office, Massachusetts, New Hampshire demeanor or defaults, Connecticut Constitution, so I can the process is understood and the terms also are pretty clearly understood. As to its necessity in regard to the president's we get these statements from the founding fathers who were in indeed putting all of this into the Constitution George Mason when great crimes are committed I am for punishing the principal as well as the coadjutor has any man be above Justice Above All Shall that man be above his who can commit the most expensive Injustice. William r-davie a delegate from North Carolina quotes impeachment is an essential security for the good behavior of the executive or if not impeachable while in office, he will spare no efforts or means whatever to get himself re-elected. Edmund Randolph impeachment is necessary because the executive would have great opportunities for the abusive power, especially the power to wage war. James Madison some provision should be made for defending the community against the incapacity negligence or perfidy of the chief magistrate. He might provide his administration into a scheme of population, which is an old 18th century word meaning misappropriation of money or appropriate r r depression. Alexander Hamilton in a different context States the subject of impeachment jurisdiction are those offences which proceed from the misconduct of public man or another words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be dominated political as they chiefly relate chiefly to injuries done immediately to the society itself. The impeachment process was designed as a method of national inquest into the con duct of public man. Ask the definition of impeachable offenses again. I think history is clear and the intent of the framers is equally clear. George Mason Phelps that's treason and bribery would be too narrow and would not reach many great and dangerous offences which ought to be impeachable such as attempted to subvert the Constitution. He then proposed to add the term maladministration as an impeachable Char Madison said no that's too big a term would be equivalent to providing 10-year during the pleasure in the Senate and proposed somewhat, ironically. I think the term other high crimes and misdemeanors in the Constitution adopted the suggestion the problem, of course was that at the time if you turn to Blackstone who is the chief English and other high crimes and misdemeanors as being maladministration and office, so we're back again to where we were There's also the kind of interesting question as to whether or not the President is responsible for the behavior of those who are beneath him and here again, the father's I think we're perfectly clear. Madison and discussing this particular question a few years later during turning around and events in the question whether or not present could and should be able to dismiss appointees without consent of the Senate says it may perhaps on some occasion to be found necessary to impeach the president himself surely there for it may happen to a subordinate officer who's bad actions maybe connived at are overlooked by the president. I think it absolutely necessary that the President should have the power of removing a point to use for my office will make him and it peculiar manner responsible for their condo and subject to impeachment himself if he suffers them to perpetuate with impunity High crimes or misdemeanors against the United States or neglects to superintend aircon Duck Sauce to check their excesses on the constitutionality of the Declaration. I have no matter no It comes also to the further question really of whether or not we can more precisely Define impeachable crimes outside of the area of indictable crimes here. Again, it seems to me an important distinction needs to be drawn many people say but if you're not going to charge the present with an indictable crying what can you charge him with unpopular opinions and popular behavior? Is this merely a partisan matter is it merely is Gerald Ford once said a question of whether or not she know you can get enough votes in the house to be able to get the personnel. I think it is not in deed at all this and here again is one reason why Congress has a special obligation in this regard. Impeachment is really to deal with the irresponsible use. It does not mean using power in violation of constitutional restrictions. Both of those actions can be checked by the courts. The courts have perfectly good ways of handling this kind of an abused. What we're really talking about. I think is the abuse of discretionary Authority or the Imposter irresponsible use of discretionary Authority here again, you have action with your nuts just issue a ball that is do what the courts cannot themselves find ways to check in this respect. Certainly. It is not so difficult. I think to Define really what is irresponsible abuse of discretionary Authority. My parting shot with simply be this the time of the constitution convention in 1787. There was taking place in England one of the most historic Trials of the latter years certainly of the eighteenth-century trial of Warren Hastings. Who was a British civil servant who had served in India? And we've been brought back to England and was charged really was just exactly this irresponsible abuse of discretionary Authority in the process of this trial the information which came very clearly to the founding fathers and which they read with Grace interest Edmund Burke who was draw a highly conservative English leader of the time made several statements, which I know the founding fathers red since it turns up basically in their writing and letters to break said it is by this tribunal meaning Parliament Statesman who abused their power or Accused by by Statesman. Not upon the niceties of an arrow jurisprudence, but upon the enlarged and solid principles of State morality. It is here that those who by the abuse of power have violated the spirit of law can ever hope for protection from any of its forms. It is here that those who have refused to conform themselves to its protections can never hope to escape through any of its defects and I think there's really no reason to shrink from that particular position the power to impeach a faithless minister was not to break a dangerous power was absolutely essential power in facts in mr. Brooks words. It was the great guardian of the purity of the Constitution itself. I submit them that we really need to get back in this country to some of those historic first principles than impeachments is the historic and proper routes to take and that if good history is turned to has the guide not Twisted Law Office history. We can begin getting our constitutional machinery and hopefully our nation generally functioning properly again, that was Professor Paula Murphy of the University of Minnesota Department of History taking the view that historical precedent was not relevant to the Nixon situation was Yale law school Professor Clyde wi Summers if I understand if I understand Professor Murphy's Point correctly it is that bad history provides misguidance good history provides guidance. The question I suppose then remains whose history is the good history and whose history is the bad history. Now. I realize that this is a matter that's easy for historians to resolve in view of the fact that they do not these days turn out any controversial works. It's all perfectly agree. I would say that from a lawyer's then point and in a sense, we're talking about illegal problem though. Not much of a legal problem in legal terms. But I think that the criticism of the presidents lawyers in mr. Sinclair is to some degree it misdirected in that what is being criticized is that these man are behaving just like lawyers and just like good lawyers. That is there that they are serving as advocates another Scholars. They're being paid to defend the man not to find the truth. I didn't I didn't that respect. It seems to me they are behaving in the best way possible. For a lawyer given the assignment and the professional responsibility was which they're charged. No, the question might come why is there this resort to history? Why is it that mr. Saint Clair and the presidents lawyers began to go back and prove their case by appeals to history and his Professor Murphy says distorting his spray twisting it and all I would want to make clear is that if the if the question is choosing between mr. Sinclair has history and mr. Murphy's his Professor. I have no doubt about whose correct and that is I think that mr. Sinclair is an excellent lawyer but a poor his start in this situation must be quite clear that the historical material really is quite scanty. It really is quite long ago. Really does not respond directly to our problems. Why is it resort to history while I was in particular? Why does mr. Sinclair resort to history when the history is all against him? I would suggest that there are two reasons. In the first place the appeal to history as a method of justifying a conclusion to which one is compelled to come having accepted a particular side for client. Does that appeal to history is because there and it provides a kind of a disguise for an Advocates presentation of a point of view? As if if we're not simply The Advocate point of view or the point of view he is paid to present. It provides a kind of an appearance of Detachment as if there were no independent judgment being exercised and the appealed historical documents gives one the feeling that somehow they are rediscovering the tablets handed down for my Mount Sinai and therefore they know now, what is the truth to be applied in this day? Well, I suppose if in the caves in Palestine we can find the proper Papyrus rolls to find out what the ancient ruins was. We might find more security for our or are solutions to our problems at least if they agreed with us. But I would suggest. I would suggest that we are here confronted with a very serious problem. It's not. Mr. Madison's problem. It's not. Mr. Randolph problem. It's not mr. Hamilton's problem. It's our problem. An our problem is for us to solve and it is for us to saw with as much Sense and Sensibility as we can. And therefore we are to confront as a problem and ask ourselves. What is the best solution given the most of the judgments and wisdom we can muster for the occasion? No, I would suggested we approach the problems in that fight. We might find that the answers are much simpler. Then one would find in some circumstances from history in some circumstances on some problems. We might find they are much more difficult. indeed unresolvable in terms of real security that we know for sure what we are doing but it was a sense of having Florida through having committed to a position and the thing that must be done to go ahead and do it with a best of judgment we have let me take for example one problem with Professor Murphy mentions and that is can you indict a president before you impeach him? Well, if you read the words of the Constitution Day will live you leave you a bit up in the air. Even when you go back to ask what the historical meaning of those words might have been a hundred nearly 200 years ago now. If you go back to trace the history, otherwise, you may find some conflicting evidence come to a particular conclusion, but I would suggest there is another way of solving that problem and I don't find it a difficult problem at all. Show me indict a president while he sits as a president then what happens if he's indicted he shall be tried. If used to be tried, where shall he be try of course in a courtroom and who shall be the ones who sit in determination of whether he has committed a crime $12 a man who are been selected because I don't know anything about any of the problems. Indeed if we are taking the Mitchell stands trial The major portion of the drawers in the Mitchell stands. Trial didn't even know who met Mr. Mitchell and who messed his fans were. I suppose that we can find your a man who may not even know who mr. Nixon is so that's why. But now suppose you choose your 12 men tried and true a jury of his peers. That's the common law phrase. I don't know what that leads you to. But now just a match. Now just imagine you're going to sit in the courtroom and 12 common citizen are going to sit and pass on whether a man should be removed from the presidency of the United States. Is that the way you want to make the decision Pick 12 people off the street and make the most momentous decision that the country can make People showing at chosen at random for their non knowledge for their lack of for their lack of conviction or interest in the problem. Ice and I submit to you you don't need history to answer that question. You don't indict us a president until after you and beat you because you couldn't tolerate the results, which it would otherwise lead you to And if the people draft drafted the Constitution had some different idea it's because they don't know our present problems. I'm couldn't now let's take another example. Shaw you indict at can you impeach a president for non criminal conduct must there be crime. I didn't dateable offense now, you can go back and face this and when I trace the history, I arrive at work Professor Murphy does the khans historically there was no notion that it had to be an indictable offence and the term High crimes and misdemeanors was a term that came out of a total different setting them than criminal law as we know it. But I suggest that we can answer that question quite simply is the test whether it's an indictable crime will first let me say all you have to do is look at the United States criminal code and see how many things are crimes. How easy it is commit a crime. How multitude they are how sometimes inconsequential they are how sometimes technical they are. And you have the feeling the fact that a man has committed an indictable offense is no standard as to whether I should be removed as president for there are of course indictable offenses that we would be out of our mind to remove a president for committee committee. If that's already done takes manslaughter, for example with Reckless operation of an automobile suppose. We had a president who drove his own. any speed as President Johnson dick and instead of hitting a cow. He hits a child. So it's an indictable offence. You going to throw him out of office? I would suggest subject suggest that's not the test. Let's look at it from the other side. Let's suppose that the car that the president announces that he's not going to enforce. The Civil Rights Act. Congress can pass all the Civil Rights actually want but he won't enforce them. I don't know that that's an indictable offense, but I have no doubt that with president who did that ought to be removed from office. Suppose a president announces that any of his appointees in ounces in advance that any of his appointees who are convicted of a crime. He will pardon them come the next Christmas. I don't know that that's a crime. I don't have to know that it will Alexa cry such a present and it seems to me needs to be removed. What I could go on and on as I it seems to me that any person with about 5 minutes reflection can themselves make a catalog of at least a half-a-dozen reason for which a president might be removed from office what you're not indictable offences and it seems to me that history doesn't we don't need history to answer those questions. Then comes the question will how shall we know? What is an what is an impeachable offense? How shall we know whether to impeach a president? And I think we have to look at it in terms of the setting of our time not the setting of 175 years ago. We have to see it in the context of our governmental structure not the governmental structure as it was envisioned by a man who have not yet even seen the first day of its operation. But could only project into the future what the hell they thought it might work when the time came let me suggest that at the root of the problem of impeachment is a very fundamental governmental problem. Which we have to confront. The satisfy ourselves and when we do what has to be done. We're on our way. Did the right thing? At the root of the problem is a doctrine of separation of powers not just separation of powers because the separation of powers has as its corollary the principle of checks and balances. Three departments of government degree independent, but two degree checked by each other. That means that one of the values one of the concerns must be the preservation of the presidency as an institution of government effective capable of standing on its own serving its purpose as an as a as a viable independent branch of government. so that we must be concerned that we do not turn the instrument of impeachment into a device to convert what is essentially a presidential legislative executive division of government into essentially a parliamentary type of government in which presidents are removed simply because they have lost their political appeal or are confronted by a congress which is against On the other hand, we have to be concerned that the president and the presidency is subject to the checks intended by the Constitution. So the Wizards independence with its role as a as a fundamental instrument of government. It is still not Beyond being checked whenever it goes astray. There are various checks, which are available. Of course Congress can override a presidential veto Congress has the power of the purse, but there are some things that presidents may do I think has done Which are not subject to those kinds of checks. And so there is the ultimate instrument designed as a check by Congress on the president and that is impeachment. And so we're clock was this problem of preserving the independence of the presidency as a as a viable third part of the government making that subject to a congressional check. That's a hard balance to strike at the Hard judgment to make And from the historical standpoint, let me suggest that there that we ought to consider certain things and which things have now changed would agree with me to change the character of our judgment on this. First it seems to me we must take into account. The powers and the statues of the presidents have greatly changed in the hundred and seventy-five years. The president now has an enormous amount of power much greater than ever conceived by the drafters of the Constitution. Much of this power is necessary because of the functions of government carries out the necessity for the president to exercise control over the administration to execute the laws to get the job done. But as a part of that increased power of the president, the president has accumulated devices which enable him to influence congressional action. By deciding where to put the where to spend money by deciding how to do certain things by passing out favors the congressman and various other things so that the president has accumulated power not only power generally, but power over the Congress to a degree. The increase of power has given him an increased potential for abuse of power which means we must do a certain degree be more careful about how a president behaves now going 275 years ago because the president's and did not have the potentiality. for abuse and that whenever there is the potential for the abuse of power there then comes to the people a sense of fear that power will be abused and as a consequence we may have more need now than we ever had in the past or a sense of confidence in the people that when power is vested in a man this kind of power that it will not be abused that we need not even look closely for the assurance that it has not been abused. Let me suggest also a difference in the character of the presidency and daddy is particularly in the last 20 years the increase the increased sense of the presidency as symbolic. In our structure of government and in our society to a certain extent this was created by the language the myths of Camelot. It was perpetuated by the appeals to the presidency and the institution of the presidency of the president come. What is true regardless of its source is that the president stands as a symbol in our society? And I think that is considered to stand by many people as symbolizing a kind of political moral nearly spiritual leadership. Through which we look or we would like to look. To a certain extent we have we are hemmed that I think there is much in our society. Is that once to look to a president and tends to look to a president as symbolizing what we hope is the best in us and because we are created this symbol or it has come upon us and this sense of the symbol of the presidency. It means that we have a stake in the maintaining of that symbol to serve the purpose. To provide that kind of purpose rather than the opposite. Let me suggest a second change in the situation. And that is we must take into account that and 175 years government itself has grown much larger much more pervasive. encompassing touching controlling much more of Our Lives listening means it seems to me that if our society is to hold together if government is to perform what we wanted to perform then there must be a very deep and abiding sense of confidence in the government a credibility in the government. I sense that the government can be trusted. As we increasingly common a complex society to do problems that only government can solve the private activity cannot solve if we only think of the of more immediate environment pollution of energy crisis. These are things that private parties going to solve government must solve them or they will not be so and the potential for abuse as we know it now in government is less from the bad laws. It passes then the good laws, which it maladminister. Where what are the natures of the nature of the abuse? They are the building of small business loan. Do I want to help people engage in competition but favoring those who are the political friends? It is the matter of denying privileges job position government contract do those who do not provide political support. It is the potentialities for spy 40 years dropping. The problems of our government in terms of its potential abuse as Government gets larger is less in the laws which Congress passes then in the administration of the laws charged with the other president of the United States impeachment process itself is the last desperate. Why? Can you imagine what we now confront? Month or two months of hearing by a committee debate in the house of Congress months of trial before a senate and if you think that's trial before the Senate can be completed before January. You are an optimist. It seems to me for that reason we must weigh carefully what we are about. Before we enter last after we had her we begin to feel we may have been wrong. When the founding fathers wrote the Constitution it seems to me from reading history, and I know I'm not supposed to look back to history tonight. But it does seem to me they had a rather casual notion about impeachment of the president gets out of the house votes in the Senate. You know what to even with President Johnson. It didn't take very long. It was a very simple case as a matter of fact for practical purposes. He plead guilty and just plain that the statue tea with dried with violating was unconstitutional. You need Witnesses for that bad, sir? It's not that kind of a simple thing in our day in our time and our circumstance. the desperateness of the device of impeachment Is match in my judgement by the desperateness of the situation? What are the fundamental principle which we are concerned about is the preservation of the institutions of government of having viable three viable branches of government. It is perfectly clear that at the present time one branch of government is not vile. The presidency for the time being as an institution of government has been destroy. If no longer exist as an operating institution of government, it is no law. It is no more now than a defense table. built into the White House The executive branch is paralyzed and it is paralyzed not because it has been attacked but because it has been vulgarized. It has been abused. It has been misused. I'm in such a gross fashion. That's scarcely a person in the United States can fail to recognize it. And it no longer exists as a working instrument of government. and in my judgment there is no way of restoring the presidency even as an operating institution then to change the name of the man who had And for that purpose, I would say almost any name would do. But no notice beyond that if the presidency is to be a symbol what has the presidency become a symbol of? Not the best of us not what we would like ourselves to think we would like to be or want to be or hope to be it has come to represent the worst that we feared we might become. It has come to be the epitome. the activation of political corruption vulgarity misuse we no longer have that symbol that too has been destroyed. If there is not impeachment in my judgment the alternative the consequence then will be to destroy the second branch of government as an effective check and that is due will be a confession that Congress lacks the capacity to serve its constitutional function of maintaining a check on the presidency. The only way to say you the structure of government as we know it in even its formal sense. It seems to me is that Congress must discharge its constitutional responsibility the only Last Resort the only way of correcting the situation. and by the replacement of the presidents how goes the presidency and a legislative branch that they deserve and plain the respect of the society? There is no way to restore that credibility and confidence short of taking the desperate action that is required for what shall we say of our shell? What shall we say of our government? What shall we claim for our process if having seen what we have seen we say we are on equal to the task of doing that which is necessary to declare that the government shall deserve respect. There's some ink stamp one might say that the failure of the president to pay his income taxes is a rather minor sword. The large amount but that's just because he's managed to accumulate a lot of money. How do I supposed to a certain degree we sometimes think will maybe we wish we could get away with that much on our income tax? But notice what is involved? President doesn't pay his income taxes. How can the government expect? The largest most fruitful self-assess tax system in the world to continue to function. Why should anybody feel an obligation to pay their taxes if the president does not? If the president's agents can commit fraud by Miss dating a deed. The only mystery year and a month. Strange the only needed to miss it by a year. But if nothing is done about that. Then where shall we have confidence in government? How can government perform its function. I would only see it is from these the standpoint. It seems to me that the appeals to his stray are lawyers arguments. They are lawyers arguments meant the match each other apart because of some sense of appeal to them seems to me our problems are too serious to look backward to history somebody to find me wants his story and was a dead duck flying backward. I don't think that I don't I think the description of the appropriate what to do our problems are today and it seems to me you are amazed. You're the gravity of our problems today. And we have if we make a judgment of what we must do to make our system function for the next twenty fifty or a hundred years. It seems to me there is no question of what must be done. Yale law school Professor Clyde Elliott summers in a debate with Professor Paul Murphy at the University of Minnesota last week.