Le gouvernement japonais, qui ne semble bénéficier que d’un faible crédit de la part des marchés, a continué à semer le doute. Le nouveau ministre de la Poste a en effet déclaré hier que les fonds postaux pourraient arrêter de soutenir la Bourse de Tokyo, semant le trouble chez les investisseurs. Résultat, le Nikkei a reculé hier de 1,31%. A Hongkong, l’announce des chiffres de la croissance, montrant une contraction du PIB de 2,8% au premier trimestre, a fait plonger la Bourse de 4,8%. Le reflux des places asiatiques a incité les investisseurs à prendre leurs bénéfices à  Wall Street et en Europe.

The Constitution provides that a president and other civil officers shall be removed from office through impeachment for “conviction of treason, bribery, or other high crimes and misdemeanors”. Did President Clinton commit high crimes and misdemeanors? The constitutional text uses criminal law terms. Yet, for some, such as Gerald Ford, the terms mean whatever Congress wants them to mean. No doubt Congress is motivated by partisan politics in exercising its powers. But the interpretation of its powers is a legal act, not a political one.

The historical evidence argues against converting our president into a prime minister serving at the whim of Congress. At the constitutional convention, George Mason wanted impeachment to include “maladministration” because treason and bribery were too narrow. His fellow Virginian, James Madison, objected that “maladministration” was so vague that Congress would control the president. Mason then settled for high crimes and misdemeanors, which the convention adopted without further debate.  Madison’s objection was right on target. If the term high crimes and misdemeanors allows Congress to remove Clinton for not being a good president, then we risk becoming a parliamentary form of government in which the prime minister serves the legislative will. But, because the Constitution requires a two-thirds vote for Senate conviction in a trial presided over by the chief justice of the Supreme Court, the framers obviously thought the process something more serious than a no-confidence vote.

William Blackstone, an English jurist relied on by the framers, thought that impeachment involved a “prosecution of the already known and established law”. Furthermore, our president may grant pardons for “offenses” against the United States except in cases of impeachment. This implies that if the exception had not been created, impeachment grounds could be pardoned like any other crime. And if impeachment is not criminal in nature, why did the framers of the Constitution provide that an impeached person could be tried in criminal court? Apparently, the framers did not want an impeached defendant to raise double jeopardy as a criminal defense in a later criminal action. This again indicates the close constitutional association between impeachment and the criminal law.

Article III says federal judges should hold office “during good behavior”, which practically has come to mean lifetime tenure. Although the framers were especially concerned about impeachments of presidents, the fact is that almost all impeachments reaching Senate trial have involved federal judges. Thus, the broad impeachment standard of ‘good behavior’ expressly applies only to judges - not presidents.

The framers resoundingly defeated a convention motion to have the president serve “during good behavior”. In leading the charge against this motion, Madison deplored the tendency to throw all power “into the Legislative vortex”. State governors, he said, were “little more than ciphers” and legislatures “omnipotent”.

Originally, private citizens had to persuade the English crown to bring impeachment actions against its own officers who were above the jurisdiction of ordinary courts. The Huse of Commons wrested from the crown the power to bring impeachment actions in the House of Lords. The House of Commons broadened the impeachment power to include ministerial maladministration and bad advice largely as a ruse to indirectly control the king politically by controlling his ministers. That led to a parliamentary form of government which is not our form of government.

High crimes and misdemeanors should be limited to crimes of a political or public nature. This would exclude petty offenses that are either not misdemeanors, such as jaywalking, or if misdemeanors, too minor or too private to be considered sufficiently serious political or public crimes. Unless expressly amended, high crimes and misdemeanors should be interpreted narrowly to avoid impairing the separation of federal powers.