PRESIDENT CLINTON’S “REBUTTAL” to the Starr report denies there are grounds for impeachment because the report fails to provide unambiguous evidence of perjury. Any members of the House inclined to take the word of David Kendall and Charles Ruff, the lawyers who penned the rebuttal, will want first to consult one of their colleagues, Rep. Alcee Hastings. The Florida Democrat is Congress’s resident expert on impeachment, and his expertise is hard-won: Hastings is the only congressman who has himself been impeached. And his story, his own political preferences notwithstanding — Hastings lately called for the impeachment of independent counsel Kenneth Starr — is unrelievedly grim for the president.
Hastings, then a federal judge, was impeached 426-3 by the House in August 1988 for taking bribes from the bench and committing perjury. Appointed by Jimmy Carter in 1979, Hastings was the first black district-court judge in Florida. But early in his tenure, Hastings got into trouble. One of the first cases he was assigned was the trial of Tom and Frank Romano, who were accused of bleeding a Teamsters pension fund. The two were convicted of racketeering, facing serious jail time, and the court seized from them $ 1 million in ill-gotten gains.
Enter William A. Borders Jr., Washington attorney and an old friend of Hastings. Borders met with one of the Romano brothers and suggested that, for the right price, his pal the judge could fix the case. Frank Romano agreed to give Borders $ 150,000; in exchange, the brothers would be released on probation and get back their forfeited $ 1 million. Borders collected a down payment on the $ 150,000; Hastings returned more than $ 800,000 to the Romanos; and Borders then collected the balance due, taking a suitcase full of cash from Romano. And then Borders was arrested: It wasn’t Frank Romano he had been conspiring with, but Paul Rico, an undercover FBI agent.
Borders was convicted of conspiracy and sentenced to five years in jail. Not so Hastings, against whom the case was much less solid. Borders was the one who offered the deal; Borders was the one who picked up the cash; Borders was the one caught red-handed. But there was no direct evidence that Hastings was actually part of the plot. There were phone conversations between Borders and Hastings that the FBI had recorded — but none in which a bribery deal was explicitly discussed. Prosecutors argued (none too convincingly) that the recordings showed Borders and Hastings conspiring in a mysterious code language. The key piece of circumstantial evidence was somewhat more persuasive: Hastings returned the forfeited cash just as Borders had promised he would. Pure coincidence, Hastings argued. And Hasting’s arguments proved compelling enough that a jury acquitted him of all charges in 1983.
What with the Constitution’s protection against double jeopardy, Hastings had every reason to believe that his acquittal had ended the matter. It hadn’t. Several years later, a panel of federal judges complained to Congress that Hastings had lied at his trial and manufactured phony evidence to exculpate himself. Under the Judicial Conduct and Disability Act, the judges asked the House to impeach Hastings. It did, and that’s how judge Alcee Hastings ended up before a Senate impeachment committee in the summer of 1989, being tried on the very charges of which a jury had already acquitted him.
“What we’re doing here is impeaching a jury verdict,” Hastings said at the time. “A fair trial for Alcee Hastings is no trial.” Hastings sought to have the articles of impeachment dismissed by a federal court. No go. “It is an acquittal that cannot be overturned,” said Rep. John Bryant, acting as “prosecutor” in Hastings’s trial by the Senate. The Texas Democrat explained that “Judge Hastings cannot be prosecuted again. But he can be removed from office.”
On what grounds could Hastings be removed from office? The Senate, after all, wasn’t looking at much of anything new in the way of evidence. By definition, the judge was being impeached on evidence that had not met the criminal standard of proof. If the evidence didn’t prove Hastings’s guilt “beyond a reasonable doubt,” then what standard were senators using when they voted on the charges against Hastings? Some of the senators hewed to the criminal standard and voted “not guilty”; some looked to the civil standard, “a preponderance of the evidence,” and voted to convict; others chose the middle ground — “clear and convincing evidence” — and split on whether that standard had been met. When the Senate voted in October 1989, it was a close thing. The votes of two-thirds of those present are needed for a conviction. Hastings was removed from office for conspiracy and perjury by a vote of 69 to 26.
Hastings did not slink away. As he declared on the Capitol steps, “My momma had a man.” The disrobed judge returned to Florida, where he had become a celebrity in the black community — an icon of how the system railroads African-Americans. After a failed bid for governor, Hastings had the last laugh on Congress. He ran for the House in a predominantly black district in 1992 and won. The Senate had removed him from the bench, but it had never ruled that he couldn’t hold another high office. Judge Hastings became Representative Hastings.
The Hastings precedent does not bode well for Clinton. Alcee Hastings maintained his innocence at a criminal trial and was acquitted. But because the Senate suspected he had been guilty, it decided his protestations of innocence under oath had to be perjury. Such a standard for proving perjury is one the president cannot possibly survive. Clinton makes much of the fact that his current agonies stem from a civil case — Fones v. Clinton — that has been dismissed; but Hastings had a much stronger claim: The underlying criminal case against him had been disposed of when the jury had found him not guilty. Hastings was never caught in a demonstrable lie; Clinton’s sworn lies, by contrast, have been extensively catalogued.
Then there is the Supreme Court precedent to contend with. Hastings wasn’t the only federal judge to be impeached and convicted by the Senate in 1989: There was also the inauspiciously named Walter Nixon, who — unlike Hastings — was removed from office after being convicted of perjury in a criminal trial. But Nixon’s impeachment trial, like Hastings’s, was conducted before a 12-member special committee instead of the full Senate. Nixon challenged his impeachment in court, arguing that, since most of the senators voting against him had not sat through the presentation of the evidence, he had been denied due process. He won in a lower court, and the impeachment was overturned. Hastings then asked for his impeachment to be overturned as well. The U.S. District Court in Washington reinstated Hastings, but it was a short-lived victory.
Soon Nixon’s case was before the Supreme Court — and it’s here that things start to get really ugly for Clinton. The Nixon case gave the justices an opportunity to rule on this fundamental constitutional question: Can the courts second-guess Congress when it comes to impeachment? Nixon’s lawyers argued that the courts could enforce due process and evidentiary standards; the solicitor general argued to the contrary that the Constitution couldn’t be more clear when it declares that “the Senate has the sole power of trying impeachment cases.” The justices ruled 7-2 that the Senate’s “sole power of trying impeachment” means the courts cannot interfere. Nixon’s conviction stood. And so too the impeachment and conviction of Alcee Hastings.
That is why, once the Starr report was delivered to Congress, the president’s lawyers lost any right to challenge its findings in court. It is Congress, not the courts, that determines the admissibility of evidence for impeachment; it is Congress, not the courts, that determines whether the evidence is strong enough to prove perjury. And no doubt the Office of Independent Counsel had the Hastings and Nixon cases in mind when preparing its report to Congress. No doubt, because the solicitor general who convinced the high court not to meddle in impeachment was none other than Kenneth Starr.
Eric Felten, a Washington writer, wrote for THE WEEKLY STANDARD about CNN’s nerve-gas smear.
