Above all - what is in the national interest?

Impeachment is a contradictory process. It is both political and judicial. At times, the impeachment trial of CJ Renato Corona swings from one mode to the other confusing the public. When it is judicial, it seems clear that the prosecutors-legislators have done a bad job. When it is political, it is about counting the numbers among the senator-judges. We have seen senator-judges from both sides acting out their partisanship.

I have heard people who have watched the proceeding carefully say that if it were solely a judicial process then the Chief Justice would win hands down. The prosecution has not proved its case according to the rules of evidence. But they add, we don’t know what methods of persuasion will be applied when the votes of the senator-judges are counted.

Between these polarities, what should guide us as citizens? All things considered, the decision must be — what is in the national interest.

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During the impeachment of American president William Clinton, the same dilemma faced the American Senate. I have excerpted some paragraphs from the statement of Senator Lieberman that I believe relevant to the impeachment of Chief Justice Renato Corona. These excerpts, although concerned with the impeachment of a President, applies to the institution of impeachment in general. I have crossed out the word president from the excerpts so it would be easier for the reader to draw his or her own interpretation of the comparison.

Lieberman opens his statement thus:

Mr. Chief Justice, throughout the history of this great country, we have endured trials that have strained the sinews of our democracy and sometimes even threatened to tear apart our unparalleled experiment in self-government. Each time the nation has returned to the Constitution as our common lodestar, trusting in its vision, its values and its ultimate verity. Each time we have emerged from these tests stronger, more resilient, more certain of Daniel Webster’s claim of ‘one country, one constitution, one destiny.’

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The public examination of these difficult questions — about private and public morality, about the role of the Independent Counsel, and about our expectations of xxxxxx conduct — has been a wrenching, dispiriting and at times unseemly process for the nation. It has divided us as parties and as a people, reaching its nadir in the partisan bickering and badgering that unfortunately defined the impeachment vote in the House of Representatives and compromised the legitimacy of this process in the eyes of many Americans.

It has set off a frenzy in the news media that has degraded and devalued our public discourse and badly eroded the traditional boundaries between public and private life, leaving a pornographer to assume the role or arbiter of our political mores.

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But after much reflection and review of the extensive evidence before us, of the meaning of the term ‘High Crimes and Misdemeanors,’ and, most importantly, of the best interests of the nation, I have concluded that the facts do not meet the high standard the Founders established for conviction and removal.

I will therefore vote against both Articles of Impeachment.

First, the Framers saw impeachment as an extreme remedy meant to respond to only a limited universe of offenses. They took great care to ensure that their chosen substantive standard did not have the effect of providing Congress so much discretion over the xxxxx fate that it could use its power to infringe on the xxxxx independence. It was for this precise reason that Madison successfully argued against allowing for removal for ‘maladministration,’ for fear that ‘so vague’ a term will be equivalent to a tenure during pleasure of the Senate.

Second, pervading the Framers’ discussions — and the Constitutional language they ultimately adopted — was the view that impeachment was intended to protect the nation and the national interest and not to provide the legislature an alternative to the criminal justice system for holding accountable the xxxxx or any other violator of the nation’s criminal laws.

It is this linguistically-driven irony — that the Constitution’s impeachment clauses employ the language of criminal law to authorize a process entirely outside of and distinct from the criminal justice system — that has created so much confusion over our precise task here. The House Managers often appear to suggest that if they show that the xxxxx committed a crime, then they have met their burden, because it is our responsibility to hold accountable a xxxxxx who violates the law and to send a message that the xxxxxx is not above the law.

But as Professor Charles Black so well explained in Impeachment: A Handbook, criminality in and of itself is neither a necessary nor a sufficient basis for concluding that a xxxxxx has committed a high crime or misdemeanor, because our goal is to protect the nation’s interests, not to punish a xxxxx for violating the criminal law.

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If the purpose of impeachment was to ensure that the xxxxxx is held accountable for violating the law, then the Framers would have authorized Congress to impeach and remove, not just for high crimes but for any crimes. They did not do that.

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That is why I conclude that the appropriate question for each of us to ask is not whether the xxxxxx committed perjury or obstruction of justice, but whether he committed a high crime or misdemeanor — a term I understand from the history to encompass two categories of offenses.

The first includes those that are like treason or bribery in that they represent a gross misuse of official power to directly injure the State or its people.

Before evaluating the charges against the xxxx and determining whether his misconduct in fact meets the high threshold the Constitution establishes for removal, each of us had to resolve the important question of what standard of proof should be used for judging the evidence against the xxxxx.

It is widely agreed that the House Managers have the burden of convincing Members of the Senate that the xxxx has committed a high crime or misdemeanor, but there are differences of opinion on the level of certainty each of us in the Senate must reach before we can conclude that the House has met its burden.

The Managers have failed to convince me with the evidence they have presented that his misbehavior, as charged in the articles of impeachment, makes him a threat to the national interest, and that we can no longer expect the xxxxxxx free of corruption in the nation’s best interests.