Witnesses for the defense

What would the Constitution's authors say?

National Interests by Gary Griffith

President Clinton's lawyers spelled out their basic defense in their initial filing in the Senate trial: the charges on which he was impeached, even if true, "do not rise to the level of 'high crimes and misdemeanors' as contemplated by the Founding Fathers."

Whether the Founding Fathers, or anyone else, will become witnesses remains to be seen. But it seems that they should at least be interviewed. So I fired up the DeLorean and drove out to 18th-century Virginia to talk to the two men who'd had the most to say about impeachment when the Constitution was written.

"I'm the guy who argued that 'treason and bribery' were not grounds enough," George Mason told me, sitting at the parlor table at Gunston Hall, his impressive home in Fairfax County.

A hefty fellow and the richest planter in Virginia, Mason was one of the five most frequent speakers at the Constitutional Convention of 1787.

"I wanted to add the word maladministration," he continued, "because I thought 'bribery and treason' didn't cover enough."

"So exactly what did you have in mind?" I asked.

"Well," he said, "as I pointed out at the September 8 session, Hastings had not committed treason."

"Hastings?" I asked.

"Warren Hastings," Mason said, "the head of the British East India Company. It was a big story in England, and we all followed it. He was being impeached by Parliament for using military force to shake down Indian rajas for tribute. That wasn't bribery. It was extortion."

"I see," I said, as an attractive African-American girl brought us a couple of mugs of the yeasty beer that was made on the premises.

"Hastings also had a certain maharaja hanged. That wasn't treason, but judicial murder," Mason said. "So I thought maladministration would cover that sort of stuff. But Madison talked me out of it."

He paused to look out the window as a carriage drove up his long driveway. A tall black man in green livery was driving. "And here he is now!" Mason exclaimed.

James Madison was shorter than I expected. He alighted from his carriage, apologized for being late, and complained about the bad roads in Albemarle County. Mason filled him in on our conversation, and Madison picked up the story.

"It was beastly hot in Philadelphia that summer," he said. "I argued with George that maladministration was too broad a term and that the result would amount to presidential tenure at the pleasure of the Senate. We made the Senate the trial court, you know."

"I noticed," I said.

"That's when I suggested the words other high crimes and misdemeanors against the state," Mason chimed in. "The words against the state got cut in the final draft."

"Well, let me tell you why this has become important," I said, and explained the Clinton case as best I could, leaving out a few things like phone sex, which I didn't think they would understand. They also had a hard time with the concept of a sexual-harassment suit, since the Constitution they wrote didn't assume that women had the same rights as men. "But in this case as you understand it," I asked, "would lying under oath fit your definition of 'high crimes and misdemeanors'?"

Madison and Mason looked at each other as if I were daft.

"Pish," said Mason.

"A gentleman is permitted to lie about les affaires de coeur," Madison explained. "In fact, it is a point of honor not to kiss and tell. I'm afraid we would have lost some good men if we impeached officials for keeping their love affairs secret."

"Oh yes," said Mason. "Franklin, Hamilton, Jefferson. . . . "

"You can stop there, George," said Madison.

"When I suggested the language," Mason said, "I guess I had in mind high crimes and misdemeanors like re-establishing the monarchy, or having the army kill your creditors. That sort of thing."

As I finished my beer and said my good-byes, it seemed clear to me that these two Founding Fathers -- the very ones who added the impeachment language to the Constitution -- would make excellent witnesses for the president. But I felt a little uneasy about the field hands I saw, and the liveried men hanging around Madison's carriage.

"One more question," I said as I was walking out the door. "What if the president kidnapped some people, confined them, forced them to work against their will, and deprived them of every liberty? Would that be an impeachable offense, assuming the people were of African ancestry?"

Mason and Madison looked at each other again.

"Definitely not," said Mason. "It's quite acceptable, and an economic necessity."

"And the Constitution allows it," Madison explained. "For purposes of the census, we count slaves as three-fifths of a person." He paused a minute, and added, "George and I worked on that language, too!"

Gary Griffith is a long-time Boston journalist now based in Washington.