The High Crime of Perjury
The Weekly Standard
January 4/January 11, 1998 David Lowenthal
The Weekly Standard
IN THE END, THE CENTRAL QUESTION in the House debate over the impeachment of President Clinton was whether perjury or lying under oath is an impeachable offense. There are two ways of approaching this matter. One is historical: What did the Founders mean when they wrote in the Constitution that a president could be impeached for "treason, bribery, or other high crimes and misdemeanors"? And what does our constitutional tradition indicate? The second approach is to analyze the importance of perjury to our political system. The House Democrats--following the lead of some 400 historians who publicly declared their opposition to impeachment--depended primarily on the first of these, returning, as they think, to the words of the Constitutional convention. The Republicans relied primarily on the second approach, applying political common sense to the problem of perjury.
The historical argument is far from confirming the Democrats' exclusion of perjury as an impeachable offense. Hamilton in Federalist No. 65 identified impeachable offenses as those "which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust." Perjury by the chief executive certainly falls within Hamilton's ambit. Nor is it possible to deny the strength of the Republican argument about the fundamental importance of truth-telling to our judicial system. Instead, the Democrats evaded the point by insisting that perjury is not included in what the Founders meant by "high crimes and misdemeanors" because, unlike treason and bribery, it is not a direct attack on the state. Perjury, the Democrats said, just doesn't measure up.
In so arguing, the Democrats implicitly admitted that if one could prove perjury to be of equal gravity with either treason or bribery, perjury would be an impeachable offense. Indeed, several Republicans on the Judiciary Committee asserted just such a connection: They called perjury the twin brother of bribery, noting that the federal penalties for perjury exceed those for bribery. But they might have gone further, for it can be demonstrated, beyond a shadow of a doubt, that perjury is exactly the same sort of thing as bribery--or even worse.
Of the two grounds for impeachment specified in the Constitution, the first--treason--is defined elsewhere in the document (Article III, sect. 3) and needs no further explanation. It is obviously the greatest danger to the state and the whole society. But the second--bribery--does require explanation. First, it does not seem to be on the same level as treason, which suggests that high crimes and misdemeanors vary in their rank or importance. Also, bribes can be either given or taken, and since neither type is specified in the Constitution, both must be considered impeachable. Nor is the amount or man-ner of the bribery stipulated: Evidently, that is left to the judgment of the House and Senate.
What is it that is dangerous about bribery? When a public official takes a bribe, he agrees not to perform his duties honestly and properly. That is the reason for bribing him: to keep him from doing something he might otherwise do, or to get him to do something he might otherwise not do. Imagine, for a moment, that the president had tried to bribe Judge Susan Webber Wright, or a member of the grand jury or a member of Congress. He would have done so in order to get the person or persons bribed to act in his favor, regardless of the evidence. If he had done this, all would agree on his deserving impeachment. The president would have no defense.
Now assume, instead, that he had committed perjury in each of these three settings. His perjury in the civil suit against him would have been designed, like bribery, to thwart that suit. His perjury before the grand jury would have been an effort, like bribery to thwart the grand jury investigation. His perjury before Congress would have aimed at thwarting Congress's investigation. In all three cases, perjury functions in exactly the same way as bribery. In fact, perjury is worse than bribery: To preserve secrecy, bribes are usually given to only a small number of people, whereas perjury, or lying under oath, is an effort to deceive many people--in this instance, judges, juries, and the American people themselves. Perjury is bribery consummate, using false words instead of money or other things of value to pervert the course of justice.
The conclusion is inescapable that perjury is as much a high crime or misdemeanor as bribery. No doubt instances of perjury, as of bribery, can range from the petty to the grand, but clearly, for the president, the chief executive officer, to lie under oath in a civil-rights suit against himself before a federal judge, thwarting a court-ordered deposition for the plaintiff, must be impeachable--exactly as an attempt to bribe the judge would be. Add perjury before both the grand jury and Congress, and the case becomes ironclad. If bribery is impeachable, perjury is even more so.
By singling out for mention the two quite different crimes of treason and bribery, the Founders invited us to think about them and the dangers they pose as we determine the meaning of "high crimes and misdemeanors." This reflection is essential. The House Republicans, having reflected, were unwilling to make exceptions or bend words for the sake of the chief executive.
Henceforth let no one call their effort "partisan" or charge them, as Democrats did, with attempting a "coup d'etat." Knowing full well that accepting their constitutional responsibilities might injure them politically, they chose the right path and stood firm under rancorous attack. They refused either to bend or to respond in kind, thus preserving the memory and prospect of civility even when it was not being accorded to them.
Americans must hope that the Democrats in the Senate will think carefully about impeachment and that the Senate as a whole, Democrats and Republicans alike, will not fritter away the hard-won accomplishments of the House Republicans. For it will still be a partial victory for an unrighteous and dangerous cause if the Senate fails to convict a president who lied under oath.
David Lowenthal, professor emeritus of political science at Boston College, is the author of No Liberty for License: The Forgotten Logic of the First Amendment.