When you are on the “winning” side of some soon to be resolved issue, you are naturally disinclined to invite detailed argument about the merits of your position. Congressional Democrats believe they have this Clinton-Lewinsky matter locked down tight. So last Monday, at the House Constitution Sub-committee hearing on standards for presidential impeachment, they felt no need to engage in any serious debate about the foreordained result.
Perjury charges against the president? They have long since been adequately addressed by the newspaper funny pages, according to Rep. John Conyers; “Garry Trudeau dismissed that a few weeks ago.” The continuing controversy over those charges? It is a “jihad” and a “witch hunt,” according to Rep. Jerrold Nadler, something that bears comparison to “the 17th-century Court of Star Chamber or to a Moscow show trial of the 1930s.” On what basis are we to resolve the controversy? We need look no further, every Democrat insisted, than recent election results and poll numbers. And once we’re done, then what? We must get on with more important public business — like, Rep. Maxine Waters suggested, the “long-standing fallout of drugs and the CIA issue that I’ve been working on for the past two years.”
Why any of this might be true — and why they now believe it is unacceptable even to consider impeaching Bill Clinton for the crimes alleged against him — the subcommittee’s minority did not say. But last week’s hearing was not entirely without value, for some kind of serious answer to these questions did indeed emerge from the parade of expert academic witnesses the Democrats had called. In at least some of the exhaustively footnoted testimony, a reasonably coherent defense of the president was finally revealed — reasonably coherent, but frightening.
To be sure, not every minority witness was truly up to his assigned task. Two of them, Arthur Schlesinger Jr. of Harvard and Father Robert Drinan of Georgetown, have reached a stage of their lives at which they clearly imagine their ornamental presence alone to be enough to settle any debate. Drinan, who was unprepared to acknowledge that a president guilty of murder might be subject to removal from office, offered a brief history of the Constitution’s impeachment clause — and then rested his case simply on Clinton’s persistent popularity. Schlesinger cited the midterm election and the “strictly partisan” current critique of the president to much the same effect. It “fails the legitimacy test,” both men agreed, to impeach a president who retains majority support. Neither man bothered to explain why, if that is true, the Framers directly anticipated this very circumstance — by empowering the Senate to ban such a president, upon conviction, from any future public office.
Matthew Holden Jr. of the University of Virginia announced that presidential impeachment is a bad idea in general. “Frankly,” he observed last Monday, “they made a mistake” when they drafted the Constitution in 1787. The impeachment provision “should never have been put in.” But since we’re stuck with it, its application must be rigorously restricted to presidents whose actions are so dastardly as to “disable or potentially disable” the entire legislative or judicial branch of government. Bill Clinton is not such a president. “Neither Congress nor the courts are disabled, or under any potentiality of being disabled, or the president would not now be on the defensive.” Follow the bizarre logic of this argument: The fact that Congress is still theoretically capable of impeaching Clinton is itself proof that Clinton should not be impeached. And, by extension, the only president ripe for impeachment is a president so tyrannical that he has rendered Congress unable actually to pull it off. Matthew Holden Jr. appears to be an idiot.
Daniel Pollitt, professor emeritus of the University of North Carolina, seems to be either woefully ignorant or willfully dishonest. Pollitt was the only subcommittee witness last week who definitively concluded that Clinton cannot be impeached because he “did not commit perjury.” Pollitt based this claim on a specious account of the perjury statutes and case law, derived almost verbatim from White House Counsel’s Office memoranda. To which he added two original fillips of his own. Unrebutted by anyone on the Constitution Subcommittee, Pollitt contended, first, that U.S. district judge Susan Webber Wright has ruled testimony about Monica Lewinsky “not material” and “totally irrelevant” to the Paula Jones litigation; and, second, that “nowhere does [Kenneth Starr] use the word ‘perjury'” in his impeachment referral to Congress. Both of these “facts” are pure fiction. It is well that Professor Pollitt has retired from full-time law-school instruction.
It was left to three Democratic experts at last week’s hearing to outline a better-than-laughable brief against Clinton’s impeachment. Chicago’s Cass Sunstein, Georgetown’s Susan Low Bloch, and Harvard’s Laurence Tribe allowed as how a president might be subject to impeachment for certain crimes not directly related to his official responsibilities. They allowed as how perjury might qualify as such a crime. But they rejected setting a bright-line standard for impeachment at perjury. Because perjury “about sex,” in these professors’ judgment, just doesn’t cut it. And because, as Sunstein put it, “it is extremely doubtful that the line could be held in practice.” Before long, in other words, we would be impeaching presidents for all manner of felony violations.
This proposed impeachment doctrine has obvious problems of consistency. If a president may lie under oath about sex, what else may he lie about? And if there are certain things he may lie about, how might the Justice Department continue fully to enforce federal perjury penalties against all the rest of us? At the end of the day, the best that can be said for a “Lewinsky exemption” to impeachment is that it accurately reflects what is apparently a gut-level majority sentiment in America.
That is the best thing about it — and also much the worst. For the “slippery slope” argument Sunstein, Bloch, and Tribe mount against Bill Clinton’s impeachment brutally rebuts itself. By widespread agreement, the Monica Lewinsky scandal sets too low a bar for removal of a president. Think about that for a moment. Ten short months ago, it would have been thought inconceivable that a president who was convincingly alleged to have committed systematic felonies of any kind could keep his job. Now we are told, by Clinton’s most sophisticated advocates, that it is too much to ask — even dangerous to ask — that a president not be a felon. And most of us, quite suddenly, seem to believe it.
The country hardly needs now to fear, in our view, the prospect of excessively exacting standards for presidential integrity. Those standards, to the contrary, are plummeting before our very eyes. We concede that public opinion does not share our alarm at this development — and that impeachment of this disgraceful president is an increasingly remote possibility as a result. But we continue to hope against hope that Republicans in Congress will find the courage to do their unpopular duty anyway.
It was once an elemental principle that the president, surely the president, must obey the law. Oddly enough, the fact that this principle has been almost forgotten — that the nation wants to keep Bill Clinton — is one of the strongest reasons he should be impeached.
David Tell, for the Editors
