December 18, 1998
The Rule of Law
The Case for Impeachment
Especially with President Clinton's attack on Iraq adding a new note of
confusion, it would be wise to pause for a moment and reflect on precisely
why the House of Representatives will Friday debate whether to impeach
the President. It's especially instructive to reflect on the meanings of the
trite-seeming statement that impeachment is a political act.
It means, to begin with, that a House vote won't send anyone to jail.
Impeachment is not some dread punishment, as much of the public believes.
What is in fact at issue is whether someone should continue in a position of
high public trust. It very well may be that a prosecutor would not bring a
perjury case against an ordinary citizen on the basis of Mr. Clinton's lies and
distortions, as some experts called by Democrats told the Judiciary
Committee. That is, even if prosecutors saw a technical perjury, they would
not seek to put the perpetrator in jail. But if the same perpetrator were a
judge, sworn to uphold the rule of law, a prosecutor would very likely
proceed, at least until the judge resigned. And if a perjurious judge refuses
to resign, impeachment is the next recourse.
That impeachment is political, too, means it is likely to be partisan. The
Founding Fathers were far too wise to repair to lofty judgments by
high-minded and nonpartisan sages. They assumed that factions, as they
called them, would always be with us, and constructed our system of
government accordingly. The whole idea is that factions police each other,
with limits set by public embarrassment and ultimately the ballot box. The
White House routinely accuses the President's critics of "partisanship," but
the defense is equally partisan if not more so. In Watergate, of course, some
Republicans joined Democrats in moving impeachment against a GOP
President. But does that mean that Republicans are more partisan today
than they were then, or that Democrats then and now have more partisan
loyalty than Republicans? A political matter being partisan is as surprising as
the sun rising in the east.
***
That impeachment is a political judgment means, most importantly, that
jurors are allowed to read the newspapers. Members of Congress are
asked whether the incumbent has committed "high crimes or
misdemeanors," a phrase with a certain deliberate ambiguity. It would no
doubt be applied to a President or judge guilty of murder and nothing more.
But its core meaning is an offense against the system of government itself,
rendering the incumbent unfit to discharge his duties to the public. By its
very nature, this requires a broad political judgment, drawing not on
courtroom formalities, but on a wide range of evidence and experience.
The Watergate experience is instructive. President Nixon was not forced
out of office over a "third-rate burglary." He did not commit the burglary
and there is no evidence he had foreknowledge of it. He certainly did not
personally commit perjury before a grand jury. His crime was obstruction of
justice, using the powers of his office to mobilize a coverup, which
corrupted the administration of justice. Two attorneys general were
convicted in court. And, as the articles of impeachment explicitly said, he
and his agents made false statements "for the purpose of deceiving the
people of the United States." Even though he'd won a landslide re-election
in 1972, by 1974 the revelation of his systematic lies broke his bond with
the people, leaving him unable to conduct the Presidency in any adequate
fashion. He defended himself vigorously, as befits a President, but ultimately
he had the patriotism to resign.
The Clinton case is remarkably similar, except that the President was
personally involved in the original third-rate misdeed. His sexual liaison with
a young intern itself raises a serious issue, since in today's society similar
offenses have repeatedly been grounds for removing executives and military
officers from positions of responsibility. This was compounded by his
personal court and grand jury testimony. While the President and his
lawyers argue it is not technically perjury, clearly it was a mockery of the
judicial process. Lies to his Cabinet and associates spread confusion, as did
using government lawyers in appeals of frivolous privilege claims. And of
course, seven months of now-admitted lies to the American people cost the
President dearly in credibility, to the point where Topic A in discussing the
bombing raid is not Saddam's villainy, but the President's motives.
In enumerating the President's duties, the Constitution specifies that "he shall
take Care that the Laws be faithfully executed." As he is commander in
chief, that is, he is also our chief law enforcement officer. The system of
justice he heads is built on the principle that oaths are serious, that testimony
will be truthful, that subpoenas will be honored. Now the President
personally gives testimony that mocks these principles, then asks to escape
any serious sanction in the one forum that can hold him responsible. His
defenders agree that his behavior has been contemptible and his testimony,
in the words of his own counsel, "maddening." But they argue that because
his position is so important he should be above the law. If the man at the top
gets a pass from Congress, the administration of justice will be shaken, and
start to erode root and branch. The fundamental case for impeachment, for
Mr. Clinton as it was for Nixon, is that the President's actions have
undermined the rule of law.
***
Perjury and obstruction of justice would be serious enough as an isolated
incident, but in reaching its broad judgment Congress is entitled, indeed
obligated, to consider the entire record of the Clinton Presidency. The
record in fact shows a systematic disrespect for the institutions of Justice,
and frequent efforts to co-opt them for trivial and often personal ends. No
other single incident meets the semen-stain standard of evidence and some
are not even criminal. Yet the Lewinsky perjury is anything but surprising
given the tone and ethos flowing from the top of this Administration.
Take something as simple as his appointment of an Attorney General. This
is the most politically sensitive post in an Administration, and any President
wants a loyalist--in the case of John F. Kennedy, a brother. President
Clinton, with his wife no doubt laying a heavy hand on the process, insisted
first of all on a woman. This led to a series of embarrassments, and finally to
the appointment of Janet Reno, a county prosecutor whose
reputation-making child-abuse case has since been reversed. Suffering a
chronic illness, Ms. Reno is manifestly over her head in her present
capacity.
This was an ideal appointment from the White House standpoint, since
consummate loyalist Webster Hubbell was sent over to Justice to tend the
Attorney General. He turned out to be a crook, as the Clintons must have
known from Arkansas. With his resignation and conviction, the job of top
Janet-tender now falls to Robert Litt, a former partner of the President's
personal lawyer David Kendall. Mr. Litt's nomination as head of the
Criminal Division was quietly blocked by Judiciary Chairman Orrin Hatch,
but the withdrawn nominee now turns up at Justice in the highest possible
position not subject to Senate confirmation.
The pattern includes a whole series of legal gaucheries detailed in these
columns in the past. Mr. Hubbell's first attention-grabbing exploit at Justice
was brokering a meeting that led to the reversal of a Justice position in an
ongoing political corruption trial. The investigator probing Madison Savings
and Loan, the Whitewater S&L, was yanked off the case and testified that
she had experienced a "concerted effort to obstruct, hamper and
manipulate" her work. Justice investigators were refused access to Vincent
Foster's office after his suicide. The tax return Mr. Foster prepared for the
Clintons did not list as income Jim McDougal's assumption of the Clinton
share of Whitewater debts. Travel Office Chief Billy Dale was prosecuted
by Justice but quickly acquitted by a D.C. jury.
Under pressure to cooperate with the independent counsel, Mr. Hubbell
received some $700,000 in payments for mostly fictitious legal work for
friends of the President, including Indonesia's Riady family. Susan
McDougal went to jail rather than answer questions about whether the
President committed perjury at her trial. Witnesses such as Kathleen Willey
report they have been threatened. Mr. Clinton's Palladino-Lenzner
detectives look a lot like Richard Nixon's plumbers. And, of course, Ms.
Reno dismisses the recommendation of the head of the FBI and her own
handpicked investigator in refusing to appoint an independent counsel to
investigate a possible conspiracy to collect illegal foreign contributions
crucial to the President's 1996 re-election.
***
The Lewinsky perjury and obstruction, that is, is anything but an isolated
incident. It is distinguished by irrefutable proof of direct Presidential
involvement, but a broad, common-sense judgment has to be that it reflects
a much more general pattern. Allowing the legal mores of the Clinton
Administration to set precedents for future Presidencies is dangerous to our
system of justice and the individual liberties it protects. It is to preserve the
rule of law that the House should impeach the President, and in our view,
that the Senate should remove him from office.
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