Sir you are to be commended, as your position indicates an attempt to reason that is perhaps as great as or greater than anyone here on your side of the divide has ever attempted.
Nevertheless, though I am nearly certain our unprincipled Congress will eventually come to embrace your position, I am persuaded that reason would yet compel thinking men to reject it. They must rejected it in that 1.) it by no means is as objectively determinable as you present it to be (especially its contention that Mr. Clinton's use of perjury as a defense to deny justice to another American is merely a low crime), and 2.) it falsely claims impeachable crimes are limited by the Constitution exclusively to those crimes related explicitly and directly to the Office of the President, and that the Federalists clearly supported this view. In that these premises are false, and given that your argument against impeachment of the President rests upon them, your argument is therefore logically powerless.
A Thrust Against the First Premise of Near Objectivity
Contrary to your position, the Constitution is not "quite clear that the President is not to be impeached for committing a mere crime" because the Constitution makes no distinction between "mere" crimes and high crimes. The Constitution is only clear that the President can be impeached for committing "high Crimes and misdemeanors", and herein lies the difficulty. The terms "high Crimes and misdemeanors" are not objectively determinable. There exists no ultimate definition for them to which we all can refer and with which we all can firmly agree. This is not to declare the terms "high Crimes and misdemeanors" meaningless, but rather that in themselves and apart from historical context they are indeed meaningless. One man's high crime in 1788, is another man's low crime in 1998, and so the inherent nebulousness of these definitions ultimately leaves it to Congress to distinguish between high crimes and low ones. This is why many Americans accurately claim Congress has ultimate authority to determine what classifies as an impeachable offense. You err when you claim the Constitution gives clear direction as to what classifies as "high" or "mere" crimes. This is certifiably untrue.
If Congress should declare the President's lies to be high crimes, we cannot claim Congress is acting in an unregulated, and unconstitutional manner. Congress, by its inherent construct is regulated in the matter of impeachment, and while even its determinations arguably are not objective, it yet has authority to make determinations of what constitutes an impeachable offense. (I should add here that it is true, your implication that Congress incessantly uses public sentiment to arrive at its conclusions, but knowledgeable men do not claim this is necessarily supported constitutionally. Indeed, Hamilton in Federalist #71 claims that appointed officials have the duty to protect the interests of the public, this, even against the wishes of the public (and even at the risk of political destruction) in cases where the public fails to exercise good judgement. That Congress incessantly votes with its wet finger to the wind is likely a mere component of its collective lack of principle, and unbridled hunger for power.) In Federalist #65 Hamilton very cogently describes how Congress's size and nature (its likelihood of containing conflicting political philosophies) inherently distributes power in such a way that makes it the best tribunal to determine the means and structure of the impeachment process. Your contention then that an unregulated Congress is unconstitutional is correct only inasmuch as it simply points to the requirement for some sort of regulation. Only in cases of criminal collusion within Congress-- an inappropriate consolidation of power on the part of a group that would short-circuit the electoral process-- will you have a legitimate point here.
Certainly the notion that most prosecutors would fail to process the charge of perjury against an ordinary citizen is irrelevant to whether such perjury constitutes "high" crimes. Ordinary citizens are not typically in position to abuse the public trust in the way a President can. But laying this aside, merely because prosecutors would generally fail to prosecute does not establish as fact that they should fail to prosecute. Many in our legal system fail to do things they should do, but this does not mean the things they fail to do are doctrinally incorrect.
The determination of "high" verses "mere" crimes is not nearly as objectively determined as you have presented it, and to mitigate the inherent nebulousness of these determinations, the framers of the Constitution have stipulated that they occur via a process that while at its core is not objective, arguably renders an objective collective judgement. It is true that the Constitution gives examples of high crimes, but this in no way makes it self evident that the use of perjury as a defense to deny justice to another American does not constitute such a crime. Indeed, Congress is arguably compelled by logic to consider that such perjury represents a flagrant and direct affront to the rule of law, and thereby is a direct assault upon the American public.
A Thrust Against the Second Premise of the Exclusivity of a High Crime
This view of classifying Mr. Clinton's perjury as a "high" crime is supported by two facts, one of which is the fact that the Constitution does not merely claim the President may be impeached for "high Crimes and misdemeanors" but that the "President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors". This is important because a review of the circumstances of impeachment for "civil Officers of the United States" who have been deposed for crimes, reveals that some of them were deposed for perjury. If then one claims the President should not be deposed for perjury, then one must maintain these others were falsely deposed.
The second support for classifying Mr. Clinton's perjury as a "high" crime can be found in Federalist #65 and #77. In these, Hamilton gives a rather detailed analysis of impeachment wherein he says the President is always liable for impeachment, this, not merely for technical violations of law, but also for abusing the powers of his office and violations of public trust. This suggests that the scope of impeachment is quite broad. Hamilton writes:
>A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.<
Again, when a President flagrant affronts the law, and abuses the public trust as has Mr. Clinton, he assaults society directly. This is why the Supreme Court is adamant that perjury not be tolerated. Mr. Clinton, not only owes a debt to society just as does any common criminal, but he should be rejected as President for having violated public trust. Hamilton, in Federalist #77, continues to speak as to the anticipated societal reaction to such violations. He states:
>The prosecution of [the offenses], for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.<
A danger indeed. Mr. Clinton's offenses meet Hamilton's descriptions almost to the letter, even to the point where the decision for or against Mr. Clinton will likely result not from a real `demonstration of innocence or guilt' (common sense would suggest to us that these are really quite well determined), but rather "by the comparative strength" (and I might add spinelessness) "of parties."
Presumably the constitutional authors wanted to protect the President and other officials from frivolous political attacks based on their committing crimes that do not offend general public sentiment or public trust. Likely this is why the Constitution specifically mentions "High" crimes and misdemeanors, as opposed to "mere" crimes and misdemeanors. Clinton's crime most certainly violated the public, and to my way of thinking Starr has made a remarkably compelling case that Clinton also abused his office for personal gain (the acquisition of protection from the law, being just one instance).
It is really quite absurd to require the President's impeachable offenses be directly related to the functioning of his official duties. By this "logic", the President can abuse society, remain unpunished for years, perhaps paying his debt to society only after he leaves office. If one embraces this faulty doctrine, one will be doctrinally compelled to demonstrate that a murder by the President is directly related to a dereliction of specific presidential duty in order to impeach him. Had the Federalists maintained this was the case, they never would have been able to pass the Constitution. Before the passing of the Constitution the public was already fearful of establishing even a quasi monarchy. To allay their fears, the Federalists made sure to inform them that the President (or chief magistrate) was certainly no more above the law than any other official or governor. One might today claim it obvious that murder is grounds for impeachment of an official, but no doubt once very many Americans believed flagrant perjury was also obvious grounds for impeachment.
Your point of protection for the President is well taken, but you misapply it to Mr. Clinton. Mr. Clinton's sexual adultery with Miss Lewinsky is not an impeachable offense in that this offense injured merely his family. While someone may want to impeach him for this admittedly sad act, they would be powerless to do so based on the intent of the Constitution's framers. But when the American courts compelled him to tell the truth about his adultery and instead of doing so he lied both to the public and to those courts (this, to deny justice to another) he violated public trust and directly assaulted society. According to the framers of the Constitution, Bill Clinton has committed impeachable offenses, namely "those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."
It is my no doubt profoundly vain hope that congressional officials will uphold the rule of law to impeach the President, even at the risk of their own political destruction, this, to protect the interests of American society. Otherwise, Congress will merely establish that a President is something of a monarch, capable of violating the public trust, denying justice to others by use of trickery, twists of the English language and plain bald-faced lies. This is precisely against reason, democracy and the wishes of the Fathers of our country. |
