United States senators — following the lead of the 101st senator, the New York Times editorial page — are scrambling to fashion a “deal” for the “censure” of William Jefferson Clinton. The deal is proposed in the gravest possible tone of voice. Its advocates claim to be acting only with the noblest of aims: in practice, to “spare” the nation any further, drawn-out “agony” over the Lewinsky affair — and, in principle, to “protect the presidency” from any future, similarly “unwarranted” encroachment by the congressional impeachment power.
The “agony” business hardly merits comment. It is mere rhetorical bloat meant to give the plan an extra measure of urgency. Americans could hardly be less “agonized” by this year’s scandal. Anesthetized would be a better word for it. And as the president’s poll numbers climb higher and higher, there seems little chance that a Senate trial could do anything much more painful than wake the country up a bit. All to the good. We thank the “agonized” hand-wringers for their sympathy, but we politely decline to accept it.
And what of their suggestion that a congressional censure of the president — now, in lieu of a Senate impeachment trial, or ever — might somehow serve the institutional interests of the executive branch? This we cannot treat politely. Because the censure prescription that now grips the attention of our political establishment is not just a piece of insincerity. It is a piece of dangerous, anti-constitutional ignorance.
The Framers were not fools. Certain contingencies they were able to make provision for even without advice from the sages of Manhattan’s West 43rd Street. Those risks to the presidency posed by unscrupulous or too-casual congressional impeachments did not go unconsidered at the Philadelphia convention. Neither were they left unaddressed by the Constitution.
Groundless impeachment convictions were made extremely unlikely by the two-thirds vote requirement imposed on the Senate. Unpopular impeachments were still more forcefully deterred — by the electoral system the Framers embraced. A House and Senate that removed some president against the nation’s wishes would shortly face the wrath of voters, whose democratic vengeance would serve as an awesome threat against any such legislative “coup d’etat.”
But what if it weren’t a “coup d’etat” at all? What if a genuinely unworthy man occupied the presidency and nevertheless, through effective demagoguery, continued to enjoy the approval of his fellow citizens? This possibility — the one that seems least to concern today’s censure-mongers — worried the Framers most of all. In fact, it was against the chance of such an emergency, more than anything else, that they designed the impeachment device in the first place. Justice Joseph Story’s magisterial 1833 Commentaries on the Constitution explained the Framers’ thinking:
Under those Confederation-era state constitutions that lacked an impeachment mechanism, Story observed, “the only redress” to executive abuses “lay in the elective power, followed up by prosecutions after the party had ceased to hold his office.” And since “a momentary delusion might induce a majority of the people to reelect a corrupt chief magistrate,” this remedy was “at once distant and uncertain.” Too distant and too uncertain for the Framers. So their new federal Constitution adopted means for impeachment, which ever after held out “a deep and immediate responsibility, as a check upon arbitrary power,” and compelled “the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws.”
And what would compel the House and Senate, in the face of uncooperative Gallup Poll numbers, to make a miscreant president bend this way? Alexander Hamilton called it “republican principle.” When “the interests of the people are at variance with their inclinations,” he wrote in Federalist No. 71, then it becomes “the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion.” In their Congress, Hamilton insisted, Americans deserve men and women with “the courage and magnanimity to serve them at the peril of their displeasure.” On December 19, 1998, the House of Representatives bravely made good on Hamilton’s challenge — by impeaching a hideously irresponsible though still-popular president.
But now, hardly a week later, the Senate stands poised to flee pell-mell its own obligations of republican principle. Public opinion appears unfriendly to what the House has done, and the Republicans are overawed. But public opinion also appears unwilling to see Clinton get off scot-free, and the Democrats are overawed. To square this impossible circle, both parties’ Senate caucuses seem eager to lunge for the convenience of a censure resolution against Clinton — what they evidently view as an exquisitely calibrated, compromise alternative to impeachment.
Except that censure is not a legitimate alternative to impeachment. And the Constitution is not designed for the convenience of nervously careerist politicians. By censuring Clinton, Congress would retain the power of impeachment — “to doom to honour or to infamy,” in Story’s words, “the most confidential and the most distinguished characters of the community.” (Even the mildest of the censures now being floated around Capitol Hill, remember, scores our president for having “egregiously failed” his constitutional oath, “violated” the public trust, and “dishonored” his office.) But censure would also, at the same time, abandon the constitutional form and effect of impeachment — and thereby subvert its purpose.
Impeachment is intended to keep the presidency clean of disgrace. If impeachment ends in acquittal by the Senate, then the president’s good name is confirmed and he remains a worthy embodiment of the nation’s highest office. If impeachment ends in conviction, then the offender is swept from view and the office is similarly preserved from taint. Censure, by contrast, formally identifies a dishonor to the office, but leaves the dishonorable man in place. It thereby announces, for all the world to hear, that the American presidency is nothing but another job, a fit work-place even for an infamous and criminal rogue.
Censure, in short, is a gob of spit attached to the presidency’s reputation by a craven legislature. That such a proposal could now pass for statesmanship would be laughable, were it not so thoughtlessly damaging.
Bill Clinton, to be sure, would welcome the insult — and sooner rather than later, before the solemnity of a Senate trial kicks in, the better to delegitimize what the House has just done and thus get the Lewinsky troubles safely behind him. Words are just playthings to this president. The day after his impeachment, in a chance interview with the Los Angeles Times, he is caught laughing at that result: “Not bad,” the “unexpectedly cheery” Clinton concludes. What is the verbal rebuke of simple censure to such a man? He is impervious to shame.
But is the rest of Washington impervious, as well? Is there no one else in town who has read The Federalist? Is there no one else who remembers how to love the government — particularly the presidency — its authors bequeathed us?
If the Senate fails to convict and remove Bill Clinton from the White House, as now appears likely, it will have made an awful mistake. But is it fails even to consider seriously the charges now lodged against Clinton by the House of Representatives, and short-circuits that constitutional process with a censure resolution, the Senate will be guilty of something worse than a mistake. Censure would be a travesty of the constitutional idea. It must not happen.
David Tell, for the Editors
