Dwight,
RE: It's not about sex, it's about perjury, which our U.S. Supreme Court has deemed "intolerable".
I am posting this from another thread. If you haven't read it yet, you should. It is very long, and very brilliant. And, I believe it addresses your concerns about perjury... much more eloquently than I can.
B.
From: +dougjn Reply # of 191
A Constitutional discussion of the current crisis. A rather
considered one, I hope.
(I'm an Independent who as voted for Republicans, including both
Reagan and Bush, and for Democrats, including Clinton.)
The public discussion of our current crisis often tends to assume
we are in completely uncharted waters. That is not completely
true.
Much of the underlying logic of the talking heads calling for
Clinton's impeachment is that his status as the chief law
enforcement officer of the land requires that he be removed for
even relatively minor illegal acts. Even if ordinarily his alleged
crimes would never be prosecuted. Alternatively, they argue that a
President should be removed if he can no longer serve as a moral
leader whom all fully respect.
We hear comparisons to the military codes of justice, and are told
that if military officers can be and are thrown out of office for
adultery, or sex with a subordinate, then surely the commander in
chief should be held to no lower a standard.
The problem with both these lines of reasoning, and many others
like them, is the little matter of our Constitution. It disagrees.
And it is law that controls this case. (Perhaps the military codes
of justice should also be somewhat adjusted, but that is another
topic.)
Despite what Bob or Bay Buchanan, Gloria Tensig, Ariana
Huffington, or myriads of others have to say, our Constitution is
quite clear that the President is not to be impeached for
committing a mere crime, or for setting a bad moral example. He
can only be impeached for committing a High Crime.
It is also clear that the President's high office does not
automatically convert any crime he might commit into a High Crime.
If that were so, why would the Constitution limit the crimes for
which a President, specifically, can be impeached to High Crimes
and High Misdemeanors?
Those who argue, glibly, that an impeachable offense is anything
that Congress, guided by public opinion, says it is, are simply
wrong. If Congress were to act in such an unregulated manner, it
would be acting unconstitutionally. It would be committing a far
more serious offense against our nation than anything the
President is alleged to have done. It is true that the
Constitution does not define, precisely, what is and what is not
impeachable. But the phrase "treason, bribery and other High
Crimes and Misdemeanors" is not meaningless either. Congress has
not been handed a blank page.
And no, the Constitution is not merely excluding impeachment for
minor violations, like speeding, or for minor misdemeanors. It is
not only violations which are excluded, but also many crimes. No
matter how magnified some may view the import of any crime
committed by the President.
Drunken driving for example, no matter how reprehensible, is not a
High Crime, and is not an impeachable offense. It has nothing to
do with the discharge of his duties of office. This is true even
though some would claim that leaving a President "unpunished" for
something others have gone to jail for is setting a terrible
example. Indict him after he leaves office if you must. But don't
use it as a pretext for removing the other party's President. At
least don't do so until you have passed the necessary
Constitutional amendment.
The word "Misdemeanor" as used in the Constitution does not mean a
small crime as it generally does in legal parlance today. It's
meaning in the Constitution is derived from the preceding English
law, and refers to misuse of office. The Federalist Papers, a sort
of legislative history of the Constitution, make that clear. So a
High, or very serious, misuse of office, or a High Crime like, but
not limited to treason or bribery, is required.
There were reasons for this. Although some might argue that our
President should be above reproach, and therefore removable for
any crime and any misuse of office, our founding fathers felt
there were other considerations. If any crime could be grounds for
impeachment, Presidents might be subject to endless prosecution
and endless attempts to remove them by their enemies, particularly
if those enemies held a majority of Congress. It could be all too
easy to find some plausible crime, or some misuse of office, to
use as a pretext for removal. Our Founding Fathers did not want
the President to serve at the pleasure of Congress, or of
transitory public opinion, but rather to be a co-equal and stable
branch of the American government.
Now its true that the Federalist Papers and other contemporary
evidence do not reveal any precise definition of a High Crime or a
High Misdemeanor. The boundaries were argued at the time. There is
room for lots of Congressional interpretation and judgment. But
not, as is often wrongly said by the talking heads of both
parties, complete discretion. The Congress is not permitted under
our Constitution to impeach a President for just anything they
find reprehensible. Or for just any crime.
If a President or Supreme Court Justice could be impeached for
whatever offence Congress thought appropriate, we would have a
very different form of government. A more fluid and less stable
form. Congress would reign supreme.
Jerry Ford was just plain wrong when he said (in his campaign to
remove Supreme Court Justice William O. Douglass for such sins of
evident immorality as 3 times marrying much, much younger women)
that an impeachable offense was anything a majority of the House
said it was. There were many at the time (and since) who felt
Congress's real problems with Douglass were his immorally liberal
Supreme Court opinions. Undoubtedly most of Congress at the time
thought Douglass should go, and that his judgment was indeed
suspect, not to be respected, not trusted. Fortunately, the
Constitutional arguments won out.
Unlike Prime Ministers in most Parliamentary systems, the
President does not serve at the pleasure of the Congress. Under
the British Parliamentary system, if the Prime Minister looses a
vote of confidence, he is out of office. Not so our President. He
doesn't even serve at the pleasure of the people, measured day by
day. He is elected once every four years and that is that until
the next election. Unless he can be proven to have committed an
extraordinary High Crime or High Misdemeanor.
We hear that the President has lost the confidence and respect of
much of the public. We hear that because he is crippled by this
scandal and has lost power, he should go for the good of the
country. I say he should stay for the good of the country.
Harry Truman had lost the confidence of much of the country when
the communist North invaded South Korea. He lost even more of the
country's confidence when he repeatedly clashed with the vastly
more popular General Douglas McCarthur over the conduct of the
war. McCarthur clearly did pull off a brilliant tactical stroke
through his end run landing near the North Korean border. So when
not long after that Truman summarily fired McCarthur for
disregarding Truman's orders to stop pursing the enemy well short
of the Chinese border, and to stop holding independent press
conferences to rally the public around McCarthur's view of foreign
policy, probably most Americans thought it was Truman that should
go. (That's what the polls said.) The battle against communism was
then in its earliest, and most fearful days. It was no small
matter. The outcome was not clear. And to many eyes Truman was
incompetent. His judgment could not be trusted. He had lost the
country's confidence. McCarthur was a hero of WWII, and an
obviously brilliant commander in Korea as well. And he properly
understood how to deal with the communists, with relentless, and
overwhelming strength, many felt.
Thankfully, respect for our Constitution won out over the seeming
policy imperatives of the moment. Truman survived. And now most
historians believe he was broadly right, and McCarthur was wrong.
Millions of Chinese did stand on the other side of that border,
armed to fight a very long, and very, very bloody war. Land wars
in Asia have proved to be rather difficult, especially when they
are protracted.
The real point here is this. If we had a parliamentary form of
government, Truman almost certainly would have fallen right then
and there. If not before. Actually, if we had a parliamentary form
of government, even a President with Truman's backbone might well
not have dared to fire McCarthur.
If we impeach Clinton for this manifestly low, rather than High,
crime, we will be moving much, much closer to a parliamentary form
of government. I don't think that is merely a theory. I think it
is reality. This impeachment would certainly be precedent, and the
standard would become whatever the Congress felt it should be.
Calls would go up to remove from office any President who had lost
the confidence of large segments of the population. Or any
President who could be discovered by his enemies to have ever
committed adultery, or otherwise acted "immorally".
Perjury and obstruction of justice clearly could, under certain
circumstances, and perhaps most circumstances, constitute High
Crimes and Misdemeanors. Perjury or obstruction of justice by a
President to cover up a political bribery conspiracy engaged in by
one of his friends or subordinates, even if the President were not
himself otherwise involved, would certainly be a High Crime and
Misdemeanor. Perjury and obstruction of justice to cover up a vast
conspiracy of illegal acts aimed at giving the President's party
an illegal election advantage would clearly be a High Crime and
Misdemeanor as well. That, and lots more, was Watergate. There can
hardly be a worse High Crime and Misdemeanor than illegally
subverting the very process of democratic election itself.
But perjury in a civil case to cover up an embarrassing and
politically damaging, but legal, adulterous affair is certainly
not a High Crime. The lying may well have been a crime, but under
these circumstances, it was clearly not a High Crime. Hints and
subtle suggestions by the President to Lewinsky that continuing to
cover up their affair would be appreciated, doesn't amount to a
High Crime either. Whether or not it would technically qualify as
obstruction of justice. Offering a judge a higher appointment to
avoid disclosing the President's adultery, on the other hand,
would have been an entirely different matter. That would indeed
have involved the criminal misuse of his office.
No, not all perjury is the same. Not all obstruction of justice is
the same. Both might always be at least technically a crime. But
not necessarily impeachable High Crimes. And for ordinary
Americans, the penalties meted out for perjury or obstruction of
justice, if any, very extremely widely depending upon the
circumstances.
Indeed, perjury in a civil case, with resect to a line of
questioning the judge subsequently ruled was not material, that
involved only consensual sexual activity, in a case that was
subsequently dismissed, could hardly be a more minor instance of
perjury. That is, if the President's intentionally misleading
statements technically constituted perjury at all. Clearly he
struggled to avoid technical perjury, while trying to mislead and
avoid revealing activity that would immediately be leaked to his
great political damage.
If committed by someone other than the President, the
circumstances and the underlying conduct behind the perjury and
obstruction of justice would make a huge difference in sentencing.
They would also indeed make a huge difference in whether a
normally motivated prosecutor would ever decide to even prosecute
the offense.
It is abundantly clear to me that a crime which virtually no
prosecutor would ordinarily pursue if committed by an ordinary
citizen, does not constitute a High Crime simply because it is
committed by the President. The American people, most of them,
know this in their gut, without all this high falluting legal and
historical argument. And they are right.
The American people know this in their gut because they know a
President should not be removed from office for doing just some
little wrong. It's got to be really big. And sex lies just are not
really big. No matter how much the moral decay crowd argues the
need for moral leadership in our President, or how much the
Washington crowd talks ominously about crippled power and the
dangers of diminished leadership.
I also think that when the bulk of the American people say they
don't think the President should not be removed from office
because he has done a good job, they are not simply cynically
counting their current material good fortune, and saying to heck
with moral leadership. I think it's because they realize that
there is very little, and perhaps no, correlation between improper
sexual conduct, and even lying about it, and leadership on
virtually all other issues.
Remarkably, the American people have held to the belief that
Clinton is a good, and even a very good, President despite month
after month of a single minded attention to this scandal by the
media that rivals, I think, what a state propaganda machine could
produce. The media is not of course part of any vast right wing
conspiracy (though I think those behind the Paula Jones lawsuit
knew how to bait and enlist the media in their crusade). The media
is motivated by the apparently irresistible twin pulls of tabloid
rating riches, and the quest for the same professional trophies
that were won a generation ago by Woodward and Bernstein. But the
end result to my mind almost amounts to propaganda.
Most of the American people also know in their guts that there is
little or no correspondence between personal sexual probity or
morality, and the ability to provide leadership, and even moral
leadership in most other areas. President Kennedy energized a
generation to work toward moral and social uplift, and not merely
selfish material gain. Yet by all accounts he had far more affairs
while in the White House than even the wildest claims against
Clinton. (Perhaps before the White House they were neck and neck.)
Martin Luther King, at the very time he was helping change the
course of our history through his stirring oratory and attendant
claims on the nation's conscience, was having multiple affairs. As
was well documented by an FBI director who thought he might use it
to bring King down. Consider also President Carter, whose personal
sexual and moral behavior is generally thought exemplary, but who
is also generally considered to have been a very weak President,
with little ability to lead once in office.
So I hope, and actually expect, that the impeachment hearings will
be concluded a lot more rapidly than most now think. Without
removing the President from office.
One final thought. If the President escapes impeachment, his power
and authority will return to a much greater degree, and a lot more
rapidly, than most now expect. Its like the change in mood that
occurs after the market stops going down 1000 points, and heads
back up more than 300. Things suddenly look and feel very
different. Washington is very much about power. And if the
President has escaped impeachment in part because of continuing
pubic support, despite the incredibly relentless media and
Washington insider assault, he will be seen as having a lot of
power. And the ability to lead. (Not perhaps in a campaign to wipe
the Blue Laws completely off the statute books, or to ease the
military's prejudicial treatment of homosexuals. He won't be able
to lead in anything that touches upon sexual morality.) Most of
the rest of the world (despite a few conservatively owned British
tabloids) think America is thoroughly nuts to make such a big deal
about a head of state covering up his affairs.
Those that really hate him will never stop doing so. Their ability
to persuade others will quickly diminish, and be marginalized.
After Reagan escaped impeachment over Iran-Contra, his ability to
lead largely returned. This was despite the fact that he was then
becoming physically able to lead really only through proxies, due
to his deteriorating mental acuity.
For the sake of our nation, let us never again investigate a
President, while he is in office, for offenses which would not, if
true, clearly and unambiguously rise to the level of High Crimes
and Misdemeanors. And let us no longer pursue impeachment in this
case for any offenses alleged by Starr that do not rise to that
level. Which is all of them, when the alleged underling facts are
considered.
Doug |
