CERTAIN THINGS WE CAN NOW FORECAST with as much certainty as politics ever allows. The president will be acquitted and will continue in office. For reasons this magazine has exhaustively detailed — all of which arguments, as the lawyers say, are incorporated here by reference — Clinton’s acquittal will be an awful result. And if it remains the only official result of the Lewinsky scandal, it will leave a great many Americans dissatisfied.
Those convinced of the justice of his impeachment will feel cheated not to see some permanent brand of dishonor on the president’s forehead. And even many of those unwilling to brook Clinton’s expulsion from the White House will be unsettled by a stand-alone not-guilty verdict. That an ultimate declaration of the president’s technical innocence not be interpreted as absolution of his behavior is a near-universal concern. No one, the Clinton impeachment doxology has it, wants to “defend the indefensible.”
Indeed. Which is why, as the indefensible becomes inevitable, there is now — again — such a bipartisan fever in the Senate to place an asterisk on the whole affair. If Clinton is to remain president, some Republicans propose, he should nevertheless first be judged (more or less) guilty of his crimes as charged. If Clinton is to remain president, many Democrats counter, he should nevertheless also be condemned as personally disgraceful, quite apart from the question whether he broke the law.
This is not your father’s Oldsmobile. This is the old-fashioned, black-and-white clarity of impeachment modernized to include a variety of day-glo colors and option packages. And unfortunately, it is no improvement. The hunt for a more palatable Clinton acquittal can only make “the process” more, not less, incoherent and unprincipled. Alas, the very best the Senate probably now can do — bad as it will be — is find the president not guilty. And then leave him entirely alone.
Did Clinton do what the House of Representatives says he did? Republican senator Susan Collins of Maine wants a rule-by-simple-majority roll call on the question, taken in advance of a final vote on conviction or acquittal. She got this idea from a 59-page treatise on impeachment by law professor Joseph Isenbergh of the University of Chicago. Which is more than a tad ironic, since it turns out that Isenbergh is located at the farthest extreme of anti-anti-Clintonism.
Isenbergh believes that the president’s current troubles are “grotesque,” “perverse,” and “idiotic.” He says the scandal was “orchestrated by political opponents” from the start. Isenbergh thinks these “ghouls” asked Clinton questions about Monica Lewinsky that would be suitable only in a “theocratic state with an official religion and religious courts.” He is pleased that the president responded with lies, because “a civilized person is not supposed to kiss and tell.” And to the suggestion that some authoritative inquiry into those lies might be necessary to vindicate the rule of law, Isenbergh responds with the back of his hand. “Pablum,” he sniffs. “Nonsense.”
In fact, Joseph Isenbergh is so contemptuous of the president’s critics that he is prepared to concede Clinton’s crimes and invite the Senate to convict him. The professor feels free to make such mockery of the controversy because, by a highly eccentric reading of the founding documents and early precedents, he believes the Senate has authority to find a president guilty of an impeachable offense — but still choose to retain that president in office.
Needless to say, this is not the basic Republican mood at the moment. Nor is it anything but an outlandish interpretation of the Constitution’s impeachment provision. Just the same, Susan Collins and her colleagues are intrigued by the possibility that the Framers’ design might have just a tiny bit of useful give in it. Surely, they believe, every GOP senator (and maybe even a few Democrats) would be prepared to approve a resolution endorsing the factual basis of the House impeachment, if not its practical implications. That way, in the “best case” scenario, a majority of the Senate could officially imply that Clinton is guilty — while, at almost exactly the same time, a super-majority of the Senate could officially assert that he is . . . well, innocent.
But what would that mean, and how would it help the nation “resolve” this “agonizing” crisis?
Much the same question could be asked of the preferred Democratic alternative, a resolution of censure against Bill Clinton, the language of which evades all judgment on the president’s specific crimes. With the very vagueness of this censure — again, a rule-by-majority measure — Senator Daschle and his caucus hope to grease a closing deal: a maximum number of votes to repudiate the president in exchange for a maximum number of votes to preserve him. What would that mean?
The Constitution is quite careful to delineate what the three branches of our government may and may not do, by themselves and to one another. Outside its specified adjudicatory function in an impeachment trial — up or down, in or out, nothing more or less — may the Senate make a determination of (quasi) criminal guilt on anyone but its own members? No, it may not; such stuff is for the judiciary to take care of. Is there any constitutional provision for the Senate effectively to sanction a president by less than the two-thirds majority required in an impeachment proceeding? No, there is not. (And if the sanction isn’t effective — as censure wouldn’t be effective in the present circumstance — then really: Why bother?)
But “why bother” doesn’t do the ugliness of these asterisked-impeachment proposals full justice. For even if the votes were unanimous in both houses, and public opinion were running 100-1 against him, the Framers would have been appalled at any such rebuke to a sitting president. And here we approach the nub of the problem that still confronts the nation.
There is a standard bromide attached to impeachment: “Not all impeachable offenses are felonies, and not all felonies are impeachable.” We have heard that so many times, from partisans of every conceivable stripe, that it no longer registers, and its truth is accepted on faith. As it happens, though, this phrase is not a truth at all, but a poison. Look at it carefully. Think about its second clause: “Not all felonies are impeachable.” And ask yourself: Which freebie felonies are these, precisely, that a president may commit without forfeiting his job? Or, put another way, outside the realm of criminal law: Just how bad a man can you be, and still remain a qualified chief executive?
This is a question the Constitution does not want our government — ever — to answer in an explicit, official voice. There must be “energy in the executive,” Hamilton wrote. But this energy must be harnessed in the interests of democracy, so the institution of the presidency must be widely respected. Impeachment is our life-insurance policy on the presidency’s necessary reputation. In the test of a Senate trial, a chief executive judged dishonorable is removed from his office at once, lest he stain it. Acquittal, alternately, means this particular president can stay.
But that is all acquittal means per se, in isolation. There have been less than respectable presidents, of course. A few wretched presidents, even. Andrew Johnson was a drunkard who deliberately failed to enforce the Fourteenth Amendment. He was impeached. He was acquitted.
Did the outcome of the Johnson impeachment establish a precedent, in principle, that a drunkard who deliberately fails to enforce the Fourteenth Amendment is a worthy president? No — because the Senate did not say that he was a drunken enemy of the Constitution. It said only that he was “not guilty,” minimally worthy.
In 1999, the Senate will likewise acquit Bill Clinton and deem him minimally worthy. But the Senate may also, at the very same moment, through a “finding of fact” or “censure,” formally identify Clinton as a contemptible man or even an outright felon. A contemptible felon is a worthy president? By act of Congress? Are we to assault the standards of presidential integrity so directly and unequivocally? Please, please: no.
Better that the meaning of the Clinton impeachment trial be left some fig leaf of ambiguity. Better that he be acquitted and nothing more. Yes, Bill Clinton’s acquittal will bother a lot of people. All to the good. It should bother every one of us.
David Tell is opinion editor of THE WEEKLY STANDARD.
