Yes, well, I have no one to blame but myself. <gg>
Perhaps these will interest you: (I can't find my link from the post of a number of days ago, so I'll post in full. It was before the GJ testimony and even before the actual release of the Starr report, which makes me think no showing of perjury can even be made. But it remains very relevant on the larger issues. Very foolish person that I am.)
A Constitutional discussion of the current crisis. A rather considered one, I hope.
(I'm an Independent who has 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 the 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 feel 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 it's 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 woman) 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 were indeed suspect, not to be respected, and not to be 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 was 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". And then we might go downward from there.
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, vary extremely widely depending upon the circumstances.
Indeed, perjury in a civil case, with resect to a clearly collateral line of questioning, remote from Paula Jones, that the judge subsequently ruled was not material, that involved only consensual sexual activity, in a case frivolous cased funded and directed by Clinton's zealous enemies, 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 and Misdemeanor simply because it is committed by the President. Unless, that is, the conduct really did involve a high or serious misused of his powers of office. 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 covering up adultery just is 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 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 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. These are complex issues, not well articulated in our contemporary moral discourse, and little discussed by our most articulate moral leaders.
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 initially 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, with a breathless lack of balance, for the most part.
Most of the American people also know in their gut 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 stock 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 thinks America is thoroughly nuts to make such a big deal about a head of state covering up his sexual affairs. This time they are right. And at all times it is worthwhile checking our views against the arguments of those in other countries far removed from our immediate moral or political standoffs.
Those that really hate Clinton 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 only through proxies, with occasional personal speeches, due to his deteriorating mental acuity. The public believe in the vision of the man, and the policies he stood for.
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
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