At a December 1 House Judiciary Committee hearing on the consequences of dishonest legal testimony, Judge Leon Higginbotham Jr., appearing for the committee’s Democrats, suggested that a “per se perjury” trigger for presidential impeachment would be preposterously extreme. What if President Clinton had been pulled over by a policeman for driving slightly faster than a posted 50 mile-per-hour limit, Higginbotham asked the committee? What if Clinton had then perjured himself with false statements that he was only going 49? It would be “grossly improper to impeach a president under such a factual scenario,” the judge concluded. And “as to impeachment purposes, there is not a significant substantive difference between the hypothetical traffic offense and the actual sexual incident in this matter” with Monica Lewinsky.
Judge Higginbotham offers an interesting analogy. It deserves to be further developed and refined.
Suppose the president is subject to a civil negligence suit in which his driving record is ruled relevant for discovery. The plaintiff’s attorneys catch wind of the fact that Clinton has lately been in the habit of high-speed joy riding with a White House employee, and they announce their intention to question him about it. In response, the president develops a plan to suppress the evidence and lie about this speeding. He discusses such a plan with his employee-passenger, whom he is contemporaneously attempting to place in an out-of-town job, and both of them then carry it out, under oath.
Whereupon — just supposing — this constellation of crimes comes to the attention of a federal grand jury. But in the midst of a resulting national uproar, Bill Clinton angrily denies all allegations of wrongdoing, including the underlying traffic infraction. And then, for seven long months, he falls obstinately silent about the controversy. During which time the president’s White House staffers repeat his lies to the grand jury and publicly slander the prosecutors — and Clinton’s Justice and Treasury departments impede the investigation’s search for truth by litigating unprecedented privilege assertions in the federal district, appeals, and Supreme courts.
Finally, the essential facts established beyond a shadow of a doubt, the president vaguely “apologizes” to the country as a whole, and then falls obstinately silent again — while his lawyers and aides continue tortuously to dispute every serious legal charge against him.
This would clearly be no ordinary “traffic offense.” Just as the Lewinsky scandal is no ordinary lie “about sex.” Many private citizens have been harshly sentenced by the courts for much less, even for perjuries that are just uncomplicated lies about sex. Indeed, shortly before Judge Higginbotham’s testimony, the Judiciary Committee had heard from two such convicted perjurers, former University of South Carolina women’s basketball coach Pam Parsons and former Veterans Administration staff psychiatrist Barbara Battalino. But Higginbotham pronounced their stories “wholly irrelevant” to a proper judgment about Bill Clinton. “You cannot equate the presidency of the United States with a basketball coach from South Carolina,” after all; “Ms. Battalino and Ms. Parsons did not receive 379 electoral votes and 47,401,054 (49.3 percent) of the popular vote” for the highest office in the land.
Ah, yes, the genuine case against impeachment in its irreducible, skeletal form: the notion that, because his job is simply too important, the country cannot afford to hold its president strictly accountable either to the law or to previously unquestioned broader standards of official integrity — in other words, that the nation must bend because the president refuses to. With its aroma of royalism, this is a rank and dangerous idea, to be sure. But, alas, many people seem to believe it. And it does make, at least, for a coherent argument. In fact, at this point, neo-royalism is the only coherent argument still available in the president’s defense.
And yet it is the one argument that almost none of Bill Clinton’s defenders has dared to make in any formal setting. They prefer sophistry instead.
The president, needless to say, is sophistry personified. In his sworn, written response to the Judiciary Committee’s request for 81 stipulations of fact and evidence, Bill Clinton gives not one inch to objective reality. He declines to acknowledge without equivocation that he is the chief law-enforcement officer of the United States. He reaffirms that he has history’s most convenient memory: It fails him still about what happened in crucial conversations he had with Lewinsky and Betty Currie — except that he is sure he said nothing legally incriminating. The president once more insists that he does not believe oral sex is sex. The president reminds the committee that until August he never publicly claimed his relationship with Lewinsky “was not” improper; his previous denials, he proudly points out, were always carefully constructed in the present tense.
And so on. We will presumably hear more such stuff this week from Clinton’s attorneys as they make a final presentation to the Judiciary Committee in advance of its impeachment recommendation to the full House of Representatives. The committee’s Democrats will no doubt repeat themselves, as well. Ludicrously.
“There is not a shred of evidence anywhere indicating that the president committed any violation of law,” ranking minority member John Conyers says. In fact, according to Rep. Jerrold Nadler, there is “no evidence before the committee” at all — none worthy of consideration, that is, since their only information comes from the tainted Kenneth Starr. Rep. Bobby Scott suggests that Clinton may not actually have violated his promise to tell the truth before the grand jury because . . . the testimonial oath was administered by a prosecutor, not by a juror, and it therefore didn’t count.
All of this is nonsense. As is the now ritualistic Democratic averral that the president, though innocent of impeachable offenses, is nevertheless guilty of some (always unspecified) lesser misdeed, something sufficiently “indefensible” and “absolutely wrong” as to warrant an extra-constitutional “censure” by Congress. Democrats cannot actually believe Bill Clinton’s behavior has been “indefensible,” else they would not be so maniacally defending it. They cannot believe he has done anything of public consequence that is “absolutely wrong,” else they would be supporting the only commensurate public sanction: impeachment.
And if Clinton is not legitimately subject to impeachment — if his worthiness to exercise the authority of a co-equal branch of government is not seriously in question — then Congress, as another co-equal branch of government, has no business institutionally rebuking him in any fashion. If, in their wisdom, the House and Senate determine that Bill Clinton should not be removed from the White House, then they must leave him entirely alone, and instead get on with “more pressing” matters of state, as the saying goes.
Except that there are no more pressing matters of state, because Bill Clinton’s worthiness as president is very much in question. The presidency is the sun around which our day-to-day public life and discourse revolve. And this president has not just been caught speeding; he has behaved like a decadent king. Bill Clinton, by his actions in 1998, has demonstrated a bottomless contempt for our written law and common language alike. If he is not impeached by the House and convicted by the Senate, Congress will have voiced a shocking formal judgment that it is acceptable to have such rot at the center of the nation’s collective enterprise. The inheritance of American politics and government should never be sold so cheap.
David Tell, for the Editors
