December 28, 1998
No responsible federal prosecutor would refrain from bringing felony
charges in the president's case.
THE RULE OF LAW
Censure? The Perjurer-in-Chief
Deserves Jail
By Andrew C. McCarthy, an attorney in Connecticut who formerly
served as chief trial counsel at the U.S. Attorney's Office in Manhattan
and was the lead prosecutor in one of the World Trade Center
bombing cases.
Over the past few weeks a boundless number of made-for-media
pro-Clinton lawyers, all brandished by their TV hosts as "former federal
prosecutors," have harangued viewers with the latest theme in their
campaign to stave off the president's removal from office: the asserted need
for "proportionality." As they see it, proportionality is the concept that the
punishment prescribed by law should be ignored because it seems too
severe under the circumstances. Specifically, Mr. Clinton's defenders argue
that it would be disproportionate to remove him "merely" because he
subverted the judicial proceedings he is sworn to preserve, protect and
defend.
In fact, no responsible federal prosecutor would refrain from bringing felony
charges in the president's case. Moreover, to the extent it might honestly be
said that removal would not be a "proportional" punishment, that is true only
insofar as it might be deemed inadequate. For the president, removal would
simply deprive him of a trust he has profoundly betrayed. Any other citizen
(and certainly any other public official) in the U.S. would go to jail for what
the president has done.
This is not to say that there isn't a genuine need for proportionality in the
administration of criminal justice. Federal prosecutors have traditionally
enjoyed broad discretion in determining when, and against whom, charges
should be levied--a practice that sensibly allows scarce resources to be
allocated by those best positioned to gauge their appropriate use.
Nevertheless, proportionality has never been what the president's
myrmidons would have Americans believe. It is not, as they suggest,
episodic justice for the individual considered in isolation; rather, it must take
social impact into account. If society decides it is a good thing to turn loutish
behavior into a civil tort like sexual harassment, it no longer has the liberty to
turn a blind eye when a particular case--especially a high-profile one such
as Mr. Clinton's--turns out to be "private" and embarrassing. If the rule of
law is to prevail, individual consequences must take a back seat to social
ones. Circumstance and sympathy do not change that.
The idea of proportionality also comes with an important caveat:
Law-enforcement officials who break the law must be subject to harsher
punishment than ordinary citizens. The reasons are obvious. Such positions
are public trusts, invested in those who take solemn oaths. When the trustee
acts criminally, he does more than merely break the law; he also betrays the
trust. A punishment that reflects only the lawbreaking is not proportionate to
the harm that is done. Proportionality demands that the trustee be held to a
stricter standard.
None of this is new. In fact, it is so firmly established that when the U.S.
Sentencing Guidelines went into effect in 1987--creating a formula based on
criminal history and various material aspects of the defendant's conduct in
an effort to bring uniformity to federal sentencing--the Sentencing
Commission enacted an "enhancement" called "Abuse of Position of Trust."
So how does proportionality apply to Mr. Clinton's situation? Unlike most
defendants, who may cost the government a few thousand dollars, the
president's obdurate lying and stonewalling have cost us several million
dollars. He has torn asunder the sexual harassment laws. He has made it
exponentially more difficult for the government to justify prosecuting those
who lie under oath. And his behavior raises the specter of a compliant
Justice Department redefining the legal definition of perjury to suit the
administration's interests.
Taken together, Mr. Clinton's actions could easily justify several charges
aggregating to well over 15 years of potential jail time. But let's confine the
accusation to a single count of grand-jury perjury, an offense carrying a
statutory maximum of five years' imprisonment. The guidelines that control
federal sentencing initially compute this at "level 12," which translates to a
jail sentence of 10 to 16 months for a first offender.
The guidelines, however, also tell us to add three levels if the perjury
resulted in a "substantial interference with the administration of justice" and
two levels if the defendant abused his position of trust. This moves us up on
the sentencing grid to "level 17," which calls for a prison term of between 24
and 30 months. And mind you, for the sake of proportionality our
prosecutor has ignored other possible guideline enhancements (such as
obstruction of justice and an "aggravating role" in the offense) that could
drive the sentence much closer to the five-year maximum.
Mr. Clinton would almost surely be headed to jail were it not for that small
matter of being president. Would it really be "disproportionate" to remove
him from office? Common sense says the White House should not impede
the way to the jail house, especially when the crimes are an assault on the
very justice system the president has sworn to protect. How in good
conscience does the Senate allow such a person to fill vacancies on the
federal bench? In the Justice Department? At the federal law-enforcement
agencies?
But perhaps the most fundamental point is this: The trust that is the U.S.
presidency is not a right of Bill Clinton's; it is a benefit he is accorded as
president. Rights are not grants of government, and government may deny
them only by a compelling demonstration of need--as the right of freedom is
removed only by proof beyond a reasonable doubt of criminal guilt.
Benefits, on the other hand, are creatures of the state, privileges that
organized society confers--or takes away--for its overall betterment.
The constitutional process of impeachment and removal is not to be
undertaken lightly, Serious people must conscientiously weigh all the
circumstances applying to the president's case. Proportionality, however, is
not a persuasive contention for Mr. Clinton's apologists, for it is the very
soul of proportionality to withdraw a benefit whose conferral now brings
only discredit to government and its laws.
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