Zoe Lofgren

Next month, the Judiciary Committee of the House of Representatives will begin hearings on whether to recommend that President Bill Clinton be impeached. Initially, the committee voted for an essentially unrestricted inquiry, one that might run for months, include subjects unmentioned in the infamous Starr report and even force Monica S. Lewinsky to reenact her grand-jury testimony in what would surely be an excruciating nationally televised spectacle. Last week, however, committee leaders retreated toward a plan for more limited hearings. Now, it appears likely that only the charges against Clinton will be consolidated, the inquiry will have an end-of-the-year time limit and Lewinsky will not testify. Polls continue to show the public’s dissatisfaction with Congress’ handling of the scandal investigation, and observers assume that House Republicans are now streamlining inquiry plans in order to blunt the perception of partisan overkill.

This means that Rep. Zoe Lofgren’s position is winning. Lofgren, a Northern California Democrat and member of the Judiciary Committee, has argued for streamlined hearings since the House decided to debate impeachment. Last month, Lofgren joined other Judiciary Committee Democrats in calling for an inquiry that would be rapid and tightly focused on legal questions, not lascivious sexual details.

Lofgren, who represents the district around San Jose, is a 50-year-old attorney who as a law student at Santa Clara University outside San Jose served on the staff of now-retired Rep. Don Edwards. From this position she helped Edwards, who was also a Judiciary Committee member, to prepare for the 1974 impeachment hearings against President Richard M. Nixon. Later, Lofgren became a member of the Santa Clara County Board of Supervisors, and in 1994 she ran for Congress, winning the seat Edwards once held.

As a congresswoman, Lofgren has specialized in intellectual-property rights, a keenly felt issue for a district adjoining Silicon Valley, while taking mainly liberal stands on such issues as abortion, environmental protection and children’s rights. Lately, she has been handing out to House colleagues a 1974 Judiciary Committee report on the history of impeachment law that supports the idea that only grave offenses are grounds for removal from office.

Born in Palo Alto, Lofgren has two children and describes herself as “a boring, middle-aged woman who’s been married for 20 years to the same man.” Her demeanor is slightly professorial. Lofgren spoke to the Times in her Washington office.

Question: Is it now certain that the Judiciary Committee’s Republican leadership will move in your direction, toward a streamlined hearing?

Answer: The committee leadership tells [committee Democrats] so little, we find things out by watching CNN. [Last week] committee Chairman Henry Hyde issued a press release to clarify reports that he would pare down the hearings, but he certainly didn’t send any of the Democrats a copy. I hope that our argument for streamlining the hearings will eventually be accepted. But what Chairman Hyde does not appear to be doing is preparing for the necessary first step of constitutional arguments about what constitutes an impeachable offense. That is the most important first question, and right now it’s not on the committee table at all.

Q: You have said that on constitutional grounds, only grave offenses can justify impeachment. Why?

A: The question is what George Mason and James Madison thought they were doing back there in September of 1787 [when they wrote the Constitution’s impeachment clause]. If you look at the evolution of their drafts, it’s pretty clear that the intention of the founders was that an impeachable “high crime or misdemeanor” means conduct that destroys the constitutional form of government. What this means is the gist of the issue here. I don’t understand why the majority on the committee would not want to address that issue as soon as possible, rather than delaying the constitutional issue.

Q: Some committee members have said they want to hold evidentiary hearings--put people on the stand to be grilled about basic facts--even though there are already thousands of pages of facts in the Starr report. Will this happen?

A: Some of the Republicans have been saying that the Democrats will want to put Monica Lewinsky on the stand to assess her credibility. Not us, we don’t have a witness list. I don’t see why anyone would want to put her, or the country, through that. After all we’ve already heard from Monica, to sit listening to her testify would be like fingernails on the blackboard.

Q: If hearings turn into a free-for-all, isn’t it inevitable that independent counsel Kenneth W. Starr will be called and roasted?

A: It would be so much better if we started by examining the law and the Constitution. But if the committee insists on starting with some kind of evidentiary phase, then, sure, questions have been raised about the propriety of some of Starr’s actions. For example, it seems there almost had to have been contact between Starr’s office and the [Paula] Jones legal team during the period when Mr. Starr says there was none. So, we’d have to take evidence on that. Do we really want to go through this?

Q: Which questions should the committee hear first?

A: The first proper question for the House is whether the president has committed treason, bribery or “high crimes and misdemeanors.” The first two are out. “High crimes and misdemeanors” is now archaic language, but the phrase had a highly specific meaning when it was first used 200 years ago. [“Misdemeanors” then meant, roughly, “felonies.”] The first draft of this sentence said “high crimes and misdemeanors against the state.” That meant behavior that fundamentally undermined constitutional government or caused great injury to the American people. That was the basis of the three charges of impeachment against Richard Nixon in 1974: subversion of the constitutional form of government.

Remember, there was evidence in 1974 that Nixon had committed both fraud and perjury on his income-tax returns. But that count was dropped by the Judiciary Committee 24 years ago on the grounds that private misdeeds like that don’t threaten our form of government. The phrase the committee used then was that Nixon was subject to impeachment because he had caused “manifest injury to the people of the United States.” Can we really say this has happened here? That is the first question the hearings should address.

Q: When you hark back to the constitutional point, is it just whether, even seen in the worst light, the charges against Clinton could justify impeachment?

A: That, and what to make of the independent counsel itself. When the Supreme Court ruled the independent-counsel statute legal, Justice Antonin Scalia wrote a very thoughtful dissent, warning that an unaccountable independent counsel could cause all kinds of mischief and blur many constitutional lines. The unfolding of events have shown that Justice Scalia was exactly right. I don’t agree with him politically on many things, but no one has ever accused him of not being extremely smart.

Q: There are always two questions in constitutional thought: what the framers intended and how their words should be understood today. Some argue that even if the framers intended that impeachment be confined to grave crimes, Congress is free today to interpret any crime at all as impeachable.

A: The framers did not say this, and they were very careful about the way they used words. Impeachment is such a rare procedure--in more than two centuries of American history, this has only happened twice, and the one president who was impeached [Andrew Johnson in 1868] was acquitted in the Senate, anyway. So, it’s very clear that for 200 years, members of Congress have not believed that presidents can be impeached for any offense. To think that now, you have to think that Congress is free to convert ours into a parliamentary system, in which an elected chief executive can be thrown out simply because the legislature decides not to like him.

Q: Regardless of what these hearings conclude, will they establish a new standard that presidents can be hauled before Congress for any error or misjudgment?

A: That’s what the constitutional historians are worried about. If Congress decides that a “high crime and misdemeanor” is whatever Congress says it is, that means that the president will from now on serve at the pleasure of Congress. The founders considered that system and specifically rejected it; that would turn the country into a parliamentary system.

We’ve got the best country in the world. Why is the United States so successful? One reason is that we have a standard of political stability. In each election somebody wins the presidency, and it doesn’t matter whether or not we like the guy, we live with him till the next election. This brings political and economic stability and allows the president of the United States to do things in the world that other, less secure leaders cannot do. Italy, which has parliamentary government, just installed, I believe, its 55th prime minister since World War II. How strong and successful do you think the United States would be today if we’d had 55 presidents since World War II?

Q: If the standard had been that any lie or legal offense justifies impeachment, surely President Reagan could have been impeached over Iran-Contra.

A: If the issue is not telling the truth to the American people, then President Clinton clearly was not honest. But President Eisenhower stood before the American people and swore that Francis Gary Powers was not flying an American U-2 airplane. President Reagan swore before the people that there was no Iran arms swap. Should they both have been impeached?

Q: Given the simple fact that the majority of the Judiciary Committee is Republican, is a House vote to impeach Clinton, and thus trigger a trial in the Senate, inevitable?

A: I would say that right now, impeachment is a foregone conclusion. I am hoping that the committee can get a grip and step back from that precipice.

Q: Do you assume that if the November election is clearly pro-Republican or pro-Democrat, this will alter the course of the impeachment hearings?

A: I assume it may, but it shouldn’t. What we do here will affect the country for decades. It is far more important than polls or elections. After Andrew Johnson was impeached, even though he was acquitted in the Senate, the office of the presidency was fundamentally weakened for the rest of the 19th century. I think many people today think the impeachment process ought to be about punishing Bill Clinton, whose behavior clearly was unsavory. I haven’t met a single person yet who approves of Clinton’s actions regarding Monica. But the key question isn’t what do about our disapproval, it’s what to do with the country. The purpose of impeachment is to protect the interests of the country, and impeaching a president over minor offenses may harm that interest.

Q: What about the option of censure? It’s not in the Constitution, but it’s clearly out there.

A: When Madison and Mason were discussing what activities would justify impeachment, they eliminated Mason’s term “maladministration” and replaced it with Madison’s specific “high crimes and misdemeanors.” They did that in the context of discussing bills of attainder, which were then legal in British law but [which] the framers soundly rejected for American law. [A bill of attainder occurs when the legislature acts to penalize one specific person, rather than passing laws involving everyone generally.] So, there’s a good constitutional reason why Congress should not be passing bills to censure or judge specific individuals. Judging individuals is for the court system. If Congress were to censure or fine the president, you would really be blurring a constitutional line.

Q: But there’s a chance the president would simply accept a congressional censure, rendering moot any constitutional issues.

A: He might. But we also need to think not about this president but about all the others who will follow. What we ought to be thinking about here most is the presidency, not the president. To protect our system and our Constitution, we need to be cautious. And right now caution doesn’t seem to be the order of the day.*

*

“To protect our system and our Constitution, we need to be cautious. And right now, caution doesn’t seem to be the order of the day.”

“In each election somebody wins the presidency, and it doesn’t matter whether or not we llike the guy, we live with him till the next election.”

“Right now, impeachment is a foregone conclusion. I am hoping that the committee can get a grip and step back from that precipice.”