AT THE END OF SEPTEMBER, BILL CLINTON told PBS’s Jim Lehrer the following three things: First, he claimed special prosecutor Kenneth Starr was engaged in a partisan effort to “get” him and his wife; second, he practically accused Starr of suborning perjury; third, he refused to rule out giving presidential pardons to people convicted of crimes resulting from Starr’s investigation.
Now, what would Hillary Rodham — that is, the Hillary Rodham of 1974, who worked on the House Judiciary Committee staff that drafted articles of impeachment against Richard Nixon — have said about all this? She might have said it was grounds for impeachment.
Consider the president’s conduct during the Lehrer interview. Clinton went out of his way, after saying he had given the matter little thought, to describe the process by which pardons are granted. The Arkansas cases “should be handled like others,” he said. It is clear what someone sitting in jail or contemplating the prospect might make of Clinton’s statement: She would be led to believe that the idea of pardons for Clinton’s Little Rock business and political associates was and is in play.
Whether Clinton intended to send such a message — and its corollary, that remaining silent before Starr, as Susan McDougal has done, might lead to a pardon — is impossible to know. But the fact that he made no immediate effort to “deny” that such was his intention or to have the White House ” clarify” his remarks, even in the face of rather strong criticism from normally friendly corners like the editorial boards of the New York Times and the Washington Post, only reinforces the suspicion.
Nor were Clinton’s remarks all that unusual for him. In prior weeks, Clinton had raised in sporadic fashion the topic of pardons. And as early as midsummer, he was making statements that suggested to William Satire and others that Clinton was publicly signaling his staff that, if they hung tough and didn’t cut a deal with investigators, he would see to it that they were taken care of.
By this point, it doesn’t really matter whether Clintons pardon talk is part of some insidious design. Under the Constitution, a president can be impeached if he is found to have engaged in “treason, bribery or other high crimes and misdemeanors.” It was the House Judiciary Committee that made the case back in 1974 that toying with the pardoning power falls within the category of “high crimes and misdemeanors.”
“High crimes and misdemeanors,” according to a Judiciary Committee staff report, are not limited to presidential violations of the criminal code. The phrase denotes behavior that, even if technically within the letter of the law, acts to “subvert the structure of government, or undermine the integrity of the office.” Clearly, a president who dangles a pardon or fiscal assistance in front of people who might have information damaging to him personally is using the power of his office to circumvent legal processes already underway.
The president, the committee staff said, has an “affirmative” constitutional responsibility to “take care that the laws be faithfully executed.” It doesn’t matter that the law establishing the special-prosecutor process is probably bad law; it is still the law and it is Clinton’s duty to see that it is carried out, not undermined. Nor does it matter that, under the Constitution, there is nothing preventing Clinton from issuing pardons to whomever he pleases. The one abiding principle is this: A president cannot use a legitimate power for an illegitimate end.
In the final analysis, “determining whether grounds for impeachment exist,” the House staff argued, is “derived from understanding the nature, functions and duties of the office” of the official being impeached. Did Hillary Rodham help write those words? I don’t know, but she certainly believed, as the committee staff did, that dangling pardons may not make a president a crook but could be an impeachable offense nonetheless. Does she still believe the same thing, now that the president is no longer Richard Nixon and her own name is Hillary Rodham Clinton?
Gary Schmitt is writing a book on executive power and the Founders.
