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Politics : Bill Clinton Scandal - SANITY CHECK -- Ignore unavailable to you. Want to Upgrade?

To: Daniel Schuh who wrote (7668)	10/7/1998 2:27:00 PM
From: Zoltan!	Respond to of 67261

Here's a serious commentator: Law Professor Jonathan Turley is one of the most incisive and eloquent scandal commentators. Yesterday he talked to NR at length about perjury, impeachable offenses, and where the scandal is headed. October 7, 1998 NR:What did you think of the committee's action Monday? Turley: The committee's decision was the world's most predictable vote. The impeachment process has a natural tendency to polarize members along party lines. It's become very popular to refer to the bipartisan atmosphere that was present during the Watergate period but there was little evidence of that in the record. When one looks back at the Watergate votes, the committee largely operated along sharp party lines for most of the proceedings, even with rather compelling evidence of impeachable offenses. For their part, the drafters often acknowledged the polarizing effects of impeachment questions. The anticipation of some of the drafters was that the public would run home to their relative political bases upon an impeachment allegation. It may be too much to expect from Members to break from the party line this early in the process. NR: Do you think they may break later? Turley: Impeachment questions have a rather unpredictable element. This President has clearly committed crimes in office, in my view. He clearly lied under oath and lied again to the federal grand jury. The President's greatest problems may be found in the cases of average citizens who were prosecuted for similar offenses. Democratic Members may find it increasingly difficult to vote against impeachment when average citizens have been prosecuted, even jailed for conduct highly analogous to the President's. Ultimately, any impeachment vote will be influenced by the hearings and testimony given before the committee. The American public will very likely watch those hearings with considerable interest, despite the general view that this scandal should be brought to a rapid end, most of the indicators from television ratings suggest that the public retains a keen interest in these proceedings. Certainly any hearings with live testimony will produce considerable public attention and may produce a considerable change in public opinion. NR: What's the House's role in this? What should the hearings look like? Turley: The Constitution is quite clear as to some aspects of impeachment and quite ambiguous as to others. The houses have clearly distinct functions that are not redundant and are stated concretely in the Impeachment Clause. The House under Article One functions as a type of grand jury in defining and approving articles of impeachment. Articles of impeachment operate much like indictments in a conventional criminal case. It is precisely not the function of the House to reach the merits of these questions or to impose the penalty. Article One states expressly that it is the Senate's sole responsibility to determine guilt in any impeachment allegation. The House role therefore is much more abbreviated than many of the members have indicated in their public statements. It is also probably more abbreviated than was evident in the Nixon hearings. NR: Because Starr has done a lot of the initial work? Turley:Right. And also the Nixon hearings at times seem to have the House committee functioning in a way that is more appropriately left to the Senate. The Nixon judiciary committee hearings seemed to be operating like a trial with a large number of witnesses and subpoenas involved in a comprehensive investigation. The Members appear to be reaching the merits of the allegations and rendering a final decision on guilt. That is not necessarily the best model for these proceedings. Clearly the House judiciary committee must be satisfied that the evidence collected by the independent counsel is credible and reliable. The House then must simply decide whether lying before a Federal grand jury and the other allegations constitute impeachable offenses. When the House approves articles of impeachment they are not removing the President. They are simply establishing that this is conduct for which a president could be removed from office if he is found guilty in the Senate and such a penalty is imposed by two-thirds of its Members. NR: So the House would determine that there's credible evidence that the President committed perjury, and that is the kind of offense for which he can be removed, and then they send it up to the Senate to decide? Turley: Right. And I believe that there's a danger in the House concluding that possible perjury before a federal grand jury is not sufficient to submit the issue to the Senate. Before this Administration I would have thought that lying before a federal grand jury was a rather clear and obvious impeachable offense. All citizens much reach their own conclusions as to what constitutes "high Crimes and Misdemeanors". But perjury before a federal grand jury should in my view be a rather easy question to answer. NR: There's an argument that's being bandied about, as in the Cass Sunstein piece in Sunday's Washington Post Outlook section , that it really has to rise to some serious constitutional offense against the state---like taking a bribe from China. Turley: With all due respect to Professor Sunstein, the idea that "high Crimes and Misdemeanors" have to be connected to some official or constitutional abuse is rather curious. If President Clinton walked down the street from the White House and robbed Riggs bank, the criminal act would not be any extension of his office or constitutional violation, it would however be an act for which I hope he would be removed from office. There are a great variety of offenses that a President may commit for a great variety of different reasons which would be incompatible with his office. There is no basis to suggest that the drafters clearly confined "High Crimes and Misdemeanors" to such a narrow category, quite to the contrary. "high Crimes and Misdemeanors" in England had a much broader definition, and many of the drafters wanted the term understood as maladministration, during the debate. The term "high Crimes and Misdemeanors" first appeared in 1386 in the impeachment of the Earl of Suffolk. After the impeachment of the Earl of Suffolk, "high Crimes and Misdemeanors" was used to impeach a great variety of public officials including one admiral who was impeached for failing to moor a warship properly. And another minister was impeached for giving poor advice to the crown. This does not mean that it is clear what "high Crimes and Misdemeanors" is in the Constitution. Quite to the contrary. The drafters wisely left the definition of that term to each generation to define in each specific context. It is unfortunate when commentators suggest that there is a clear answer within the record of the drafters. That does little to advance the debate but it is also insupportable in my view. We have all read the same material, from the Federalist Papers and the ratification debate. There is simply no conclusive definition. We can debate whether Madison's view or Hamilton's view or Franklin's view should be given the greater weight in these debates. It's not a very profitable discussion, however. NR: We're now hearing the from White House defenders that Linda Tripp was leading on Monica Lewinsky and somehow trying to entrap her and that Lucianne Goldberg may have somehow given Starr a week heads up--that this whole investigation is fruit from a poison tree. Is this just blowing smoke or should we be uncomfortable with the origins of all this at all? Turley: At some point in this process, the White House will have to cease the credibility and character attacks and address the content of the evidence against the President. This President committed crimes in office, and he can hardly claim that those criminal acts were caused by anyone other than himself. If the public or Congress is angry at the Independent Counsel, they may take various steps to display their anger. Congress can even investigate the Independent counsel. It is dangerous, however, to allow this level of distraction. Ken Starr will have to answer for any acts that he took in the matter. The President, however, must also answer for the specific acts that he committed. Ultimately the motivations or the popularity of any individuals is completely immaterial to judging the President's conduct. NR: It's conventional wisdom in Washington that the abuse of power count that Starr included is the weakest---that the President was just trying to defend himself. What do you think? Turley: To a certain extent I think it is the weakest count, but it's not something that would have been easily left out of the report. The President was engaging in eight months of false denials and delays. The President was aware that his staff was attacking the credibility of witnesses who, it now appears were telling the truth about the relationship with Miss Lewinsky. During that same abusive period, the White House clearly supported unprecedented claims of privilege. Past presidents have waived legitimate privilege claims in order to facilitate proceedings, or assist in a conclusion of national questions. Those presidents in waiving the privileges did no damage to the privilege simply because they limited the effect of the waiver. President Clinton could have done the same thing with his staff, without creating any binding precedent. He chose not to at a time he was making false statements to the public, to the Cabinet, and to his staff. It would have been strange for that allegation not to be placed within the universe of misconduct by the Administration. NR: You said a while ago that you thought the most likely result was that Clinton would get impeached in the House and probably not convicted in the Senate. Do you still think that will be the outcome? Turley: I still think that there is a slightly better than average chance of that result. It's a close question. The White House has succeeded in marshaling the Democratic forces in a way that is quite impressive, given the allegations and evidence. Nevertheless, I do not believe that this President will be removed from office. However, I do believe that there is a benefit to having the President answer for his conduct in the well of the Senate. nationalreview.com