In marathon sessions all day Tuesday and Wednesday morning of last week, the House Judiciary Committee allowed the White House to summon 14 uninterrupted expert witnesses in a final defense of the president. Few of these witnesses said anything even remotely notable.
Former Johnson administration attorney general Nicholas Katzenbach gave explicit voice to one of the nastier subtexts of the impeachment debate: the implicit contention of the president’s defenders that our government is no longer republican in form, even under the severest of tests, but has become a pure, plebiscitary democracy instead. Removal from office would be warranted only “if the president was extremely unpopular,” Katzenbach announced, without the slightest equivocation. But Bill Clinton remains popular, so his impeachment is a fortiori without “any constitutional basis.” Screw the Founders.
And screw the facts, as well. Bruce Ackerman of Yale was visibly overcome with pleasure at his own egghead ingenuity. The committee’s current deliberations, he proudly announced, were pointless, even illegitimate — because a House impeachment report produced in an expired session of Congress (as this session is about to become) is technically invalid for trial by a succeeding Congress’s Senate. Prof. Ackerman’s startling discovery sent everyone briefly scrambling for his copy of Jefferson’s Manual and the Twentieth Amendment. It turned out — oops — that Ackerman was wrong.
Summing up the rebuttal testimony Thursday morning, the Judiciary Democrats’ investigative counsel, Abbe Lowell, rolled his eyes and rubbed his mouth in mock exasperation and astonishment. The evidence against Bill Clinton is “slight,” he contended. And what “very little evidence that actually exists” points at best to “insignificant offenses.” You propose to impeach the president, he told the committee’s Republicans, “for acting as anyone would” under the circumstances. With his body language and tone of voice, if not his argument, Lowell clearly intended to indicate that the whole controversy was patently absurd.
Which was patently absurd itself. The Judiciary majority was not impressed, and as their work drew to a close, chairman Henry Hyde and his colleagues prepared to approve an impeachment resolution for consideration by the full House this week. Official debate over the Lewinsky scandal will continue, it appears, unchanged in any essential particular.
Any essential particular, that is, but one. For what the Clinton White House said last week on its own behalf inadvertently indicts and convicts the president as nothing else has all year long.
Late Tuesday evening, hours after it had been distributed to the news media, Clinton’s public and private counsel delivered a nearly 200-page document to the Judiciary Committee. The submission purports to address, directly and comprehensively, every single charge now leveled against the president. Here at last, after eleven months of agonizing delay, is the long-sought, exculpatory “alternative theory” of the case. But for anyone knowledgeable about the law and familiar with the evidentiary record of the Lewinsky investigation, this alternative theory is a devastating failure — a tissue of evasions and dishonesty.
It is his lawyers’ position that the sincerity of Bill Clinton’s sworn testimony in the Paula Jones litigation and before the Starr grand jury must be stipulated. So long as he can retrospectively reinterpret the questions he was asked in such a fashion as to make his answers literally — if narrowly — true, then he is innocent of any lie. The White House says it bluntly: Any witness who can explain away his past remarks this way, as Bill Clinton is always able to, “cannot commit perjury.”
As a matter of law, this is arrant nonsense. And as a matter of fact, it is altogether beside the point. The president’s attorneys angrily and at great length reject an accusation that he falsely denied ever being alone with Monica Lewinsky. Except that no such accusation is lodged against him. On December 28, 1997, Clinton and Lewinsky met for the final time, discussed the cover story she would maintain in response to her Paula Jones subpoena, and then shared a “passionate” kiss in an Oval Office doorway — while the president kept his eyes open, over her shoulder, to ensure they could not be seen. Twenty days later, at his Jones deposition on January 17, Clinton allowed the possibility, but claimed not to remember any specific private encounter he’d ever had with the young woman. That claim was perjury; the White House nowhere even attempts to prove otherwise.
Clinton’s lawyers similarly sidestep — and even complicate — those of his lies related to still graver charges of witness tampering. Under questioning on January 17, according to the latest White House revisionism, the president freely admitted that he had knowledge of Lewinsky’s subpoena “by the time of the deposition.”
Here again, that is not the issue; Clinton was asked whether he was aware of the subpoena by the time of his last conversation with her, and that he did quite obviously and dishonestly deny. But in their eagerness to knock down their straw-man version of this perjury, the president’s attorneys, apparently without realizing it, confess something much, much worse. In his grand jury testimony last August, Clinton insisted that he and Lewinsky only ever discussed concealment of their relationship “in a non-legal context.” Last Tuesday, in writing, the White House conceded that this was false. The president “discussed with her the possibility that she would have to testify.” The president had “a conversation with Ms. Lewinsky about potential testimony.”
The president, in other words, obstructed justice. As he obstructed justice in the second of his infamous “We were never alone, right?” interchanges with his secretary, Betty Currie. In her first interview with the FBI, on January 24, Currie reported that the president had called her at home one recent evening, “possibly after midnight,” to ask whether she’d seen the latest news about Lewinsky. The news in question “mentioned Currie’s name” and also had “something about Linda Tripp doing something.” The news was “bad.” Currie hung up the phone and went back to sleep. When she next saw Clinton at the White House, he repeated his “We were never alone, right?” admonitions to her.
Which means he committed a felony. Not so, the president’s counselors respond. Currie was never a formal witness in the Jones litigation, and Clinton could not have known, at the time he lectured her about such falsehoods, that there would ever be a grand jury inquiry at which she would be called to testify. All the president was trying to do with Currie, his lawyers explain, was “refresh his memory” and prepare for Lewinsky-related media questions prompted by a Sunday, January 18, Internet bulletin from the Drudge Report.
Except that it cannot have occurred this way. The Drudge bulletin at issue did not mention Lewinsky’s name. It did not mention Currie’s name. It did not mention Tripp’s name. And Betty Currie did not tell the FBI that Clinton was concerned about the Drudge Report, in any case. She reported, instead, that the president was alarmed “that something would be in the Washington Post.” Which could only have been a reference to the Post scoop of January 21, a scoop that did, for the first time, mention every principal by name — including Kenneth Starr. When he attempted to fill his secretary’s head with lies about Monica Lewinsky, Bill Clinton already knew that he and both those women were about to be drawn into a major criminal investigation.
In this and other evidence, White House counsel Charles F.C. Ruff grudgingly conceded to the Judiciary Committee last Wednesday, there is “enough to give anyone who wishes it some intellectual cover” to vote for impeachment. Yes, there is. Enough — and plenty more. But mere “cover” is no longer necessary. And the time for endless sifting of the available facts has suddenly disappeared. For the president’s own defenders have abruptly, if unwittingly, condemned him.
Since Kenneth Starr’s impeachment referral first arrived on Capitol Hill, the White House has hardly let a day go by without citing the Founding Fathers on the limited circumstances in which a president may constitutionally be removed from office. Congress’s impeachment power, Alexander Hamilton wrote, arises only “from the abuse or violation of some public trust” by the chief executive. Those words are quoted again — “the abuse or violation of some public trust” — in the defense brief Clinton’s lawyers submitted last week to the Judiciary Committee.
It seems that standard has now been met, as even the president agrees. To forestall an impeachment vote by the full House of Representatives, Judiciary Committee Democrats last Wednesday night proposed an alternative resolution of “censure” against Bill Clinton — and in his bathetic “contrition” speech at the White House last Friday afternoon, Bill Clinton all but officially endorsed that resolution. The censure proposal pronounces, in language lifted almost verbatim from Hamilton’s Federalist No. 65, that the president of the United States has “violated the trust of the American people” and “dishonored the office which they have entrusted to him.”
Just so. And if he has violated a public trust, then Bill Clinton must be impeached. And if he has dishonored the presidency, then the presidency must be taken away from him.
David Tell, for the Editors
