July 6, 1998
THE RULE OF LAW
Why Clinton Wants
To Be Impeached
By JONATHAN TURLEY
Close advisers to President Clinton have been signaling a new strategy in
dealing with the independent counsel's investigation: Trigger the impeachment
process to force the allegations against the president into a political, rather
than a legal, realm. Mr. Clinton now appears to prefer the impeachment
process to an appearance before the grand jury. It is an extraordinary shift in
strategy both legally and personally. It is also a strategy that may trigger a
dangerous game of constitutional chicken with a presidency in the balance.
On every television network, presidential advisers have been calling for
Independent Counsel Kenneth Starr to take the charges against Mr. Clinton
to Congress rather than wait for testimony from the president. White House
Counsel Charles Ruff stressed that the president has already said everything
he needs to say on the charges. Echoing other White House confidants giving
virtually identical statements, former White House Counsel Jack Quinn stated:
"I'm advising that Mr. Starr should send his report to the House, and, if
[Congress] so chooses, to start those proceedings."
The president's silence in the face of serious allegations of criminal conduct
has created a circumstance unanticipated by the drafters of the Constitution
when they debated the impeachment clause. The drafters assumed that,
faced with allegations of high crimes or misdemeanors, any president who
wished to stay in office would rush to fully and publicly answer the allegations
raised against him, not to leave them uncontradicted.
Consider the two prior presidents subjected to impeachment procedures. In
1868, President Andrew Johnson publicly admitted violating a federal law that
he viewed as unconstitutional. (Congress had prohibited Johnson from
replacing Secretary of War Edwin Stanton, an anti-Johnson cabinet member,
without its approval.) He was impeached but not convicted. In 1974,
President Richard Nixon had a choice between answering the charges and
resigning; he chose to resign. In contrast, Mr. Clinton has signaled for the
start of impeachment proceedings. He has refused to answer the charges
publicly and has declined several invitations by Mr. Starr to deny the
allegations under oath before the grand jury.
In his new strategy, Mr. Clinton appears to be adopting the Susan McDougal
defense: He will not testify because he does not approve of the prosecutor.
Ms. McDougal was rightfully held in contempt for her silence and sent to jail.
The same fate does not await the president. Rather, our system expects
presidents to answer criminal charges. Upon taking office, the president takes
an oath to uphold and enforce the laws of the United States. For this reason,
any president must be prepared to answer serious allegations of crimes under
oath as a minimal requirement of office. A president who is not willing to
answer allegations under oath can, like Nixon, resign.
Mr. Starr could settle the issue by issuing a subpoena to compel the
president's testimony. In the highly unlikely case that Mr. Clinton exercised
his Fifth Amendment right against self-incrimination, Mr. Starr could compel
his testimony by granting him immunity. This would be immunity from the use
of the testimony in a prosecution, not a later impeachment proceeding. Thus,
the testimony could be submitted to Congress to establish the president's
sworn position on the allegations.
Mr. Starr would need the permission of Judge Norma Holloway Johnson to
disclose grand jury information to the House, including testimony of the
president. Such a request would not be unprecedented since grand jury
transcripts have been used in the impeachment of a judge.
While Mr. Starr has discretion about whether to subpoena the president to
testify, he has no choice about whether to report to the House. Under Section
595(c) of the Independent Counsel Act, Mr. Starr is required to "advise the
House of Representatives of any substantial and credible information" of
conduct that "may constitute grounds for impeachment." If Mr. Clinton
remains silent, the allegations supported by witnesses in the grand jury will be
uncontradicted by the president under oath. In such a case, Mr. Starr would
be legally required to report charges such as perjury to the House as
supported by "substantial and credible information."
It's important to note that the House doesn't sit in judgment on the merits in
such disputes. Rather, under the Constitution the House is charged with
determining whether there is sufficient basis for trial in the Senate. It is
required to review the evidence much like a grand jury and vote to approve or
reject the articles of impeachment. A simple majority is required.
The president's silence would make it extremely difficult for the House to
avoid drafting articles of impeachment. House Judiciary Chairman Henry
Hyde can be expected to invite the president to testify upon examination, but
such an invitation would likely be declined. Without the president's sworn
testimony refuting the charges, the House wouldn't have a legitimate basis on
which to refuse to submit the matter to the Senate.
If the absence of the president's testimony before the grand jury or the House
Judiciary Committee, the House's only basis for rejecting the articles of
impeachment would be to formally exclude such crimes as perjury and
obstruction of justice as grounds for impeachment. This would be as
unprecedented as it would be dangerous for the country. Perjury may be the
most threatening of potential crimes since it is the crime that shields all other
crimes or misconduct from the public. Perjury and obstruction of justice
clearly fall within "high crimes or misdemeanors." Since the House decides
only whether the underlying crimes (if proven) would merit impeachment, the
Constitution requires that the question of guilt be given to the Senate.
If impeached, the president would be called to testify before the Senate with
Chief Justice William Rehnquist sitting as the presiding judge. This would be
the last opportunity for the president to testify. Even if he were not convicted
by the required two-thirds of voting members, impeachment would be no
small cost for a president hoping for a positive legacy. Rather than joining the
ranks of Lincoln and Jefferson, Mr. Clinton now appears willing to join
Johnson and Nixon in history simply to avoid testifying under oath. It is, of
course, the president's choice to trigger these events. In taking such a course,
however, the president stands on the wrong side of history.
Mr. Turley is a professor at George Washington University Law School
in Washington, D.C.
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