Consider some wise words of great consequence for two critical issues now pending before the Senate. The first issue is whether President Clinton’s alleged perjuries and obstructions of justice rise to the level of impeachable ”high crimes and misdemeanors.” The second is whether the allegations of prosecutorial misconduct by Independent Counsel Kenneth Starr are relevant to the Senate trial.
The wise words: ”It is incumbent on the Senate to fulfill its constitutional responsibility and strip this man of his title. . . . An individual guilty of such reprehensible conduct ought not be permitted to exercise the awesome powers which the Constitution entrusts to (him). . . .”
And: ”(His) contention seems to be that but for a vast conspiratorial vendetta, his innocence would have been proven or the charges would never have been brought. . . . He suggests that federal prosecutors pursued him so relentlessly and unscrupulously that they bargained for perjured testimony (and) that exculpatory evidence was withheld and . . . witnesses . . . intimidated. . . . If the claims have merit, steps should be taken to rectify the wrong. Remedial measures, however, will in no way abrogate the finding that (he) has engaged in impeachable conduct.”
Thus spake then-Senator Al Gore, in 1986, during the impeachment trial of U.S. District Judge Harry E. Claiborne for lying on two tax returns by grossly understating his income–that is, for lying to the government about a private matter involving no abuse of his official powers.
In removing Claiborne by a 90-7 vote, the Senate ruled that criminal lies about private matters amount to high crimes and misdemeanors.
Similarly, in 1989, the Senate removed Judge Walter L. Nixon Jr. by an 89-8 vote for committing perjury before a federal grand jury by pretending to have no ”recollection” of his effort to persuade a friend–who also happened to be a state prosecutor–to drop a drug case against a man whose father had made Nixon a partner in a sweetheart oil deal.
Al Gore and many of the Senate Democrats now defending Clinton–including Minority Leader Thomas E. Daschle of South Dakota and Clinton attack-dogs Tom Harkin of Iowa and Christopher J. Dodd of Connecticut–joined in convicting and removing Judge Nixon.
Indeed, of the 26 Senate Democrats who sat in judgment then, and who must now judge Clinton, every single one voted to remove Judge Nixon for perjury. There was no suggestion then that even one Democrat would have voted differently had the perjurer been the President.
Every one of those Senators–and every one of the House members who joined in the 406-0 and 417-0 votes impeaching Claiborne and Walter Nixon, respectively–thereby adopted as a matter of constitutional principle the view that lies under oath (to grand juries or the Internal Revenue Service), and other crimes comparable in gravity to Claiborne’s and Walter Nixon’s, are impeachable high crimes and misdemeanors. This is so even if the purpose of the lies is to conceal private, noncriminal conduct involving no official acts.
Indeed, until President Clinton got caught lying under oath, prompting the partisan professors to begin their deep dive into the tank on his behalf, nobody I know of–no member of Congress, no serious modern scholar, and no Framer of the Constitution–had ever even suggested that grand jury perjury about ”private” matters could not be impeachable.
Does all this mean that Senators are unprincipled if they vote to acquit Clinton?
Not necessarily. Senators could, of course, find Clinton innocent of some or all of the factual allegations–although not, in fairness, without first hearing the witnesses against him.
Failing that, Senators could oppose removal on the grounds 1) that the Claiborne and Walter Nixon precedents were wrong; 2) that the Constitution prescribes a lower standard of impeachability for Presidents than for judges; 3) that Clinton’s alleged crimes are less grave than Claiborne’s or Walter Nixon’s; or 4) that discretionary considerations counsel against removing Clinton, even if he is proven guilty of high crimes.
The first three arguments are untenable; the fourth is respectable although not, in my view, persuasive. To address them in turn:
1) The Clinton camp’s claim that his alleged crimes are not impeachable implicitly rejects the Claiborne and Walter Nixon precedents by contending that even clearly criminal perjuries and obstructions of justice are not high crimes if they involve no direct abuse of official governmental power.
This is especially hypocritical in the cases of the many Clinton defenders who voted to impeach or remove Claiborne and Walter Nixon. Also, it isn’t supported by the language of the Constitution; it is contradicted by the undisputed fact that Clinton could clearly have been impeached had he sought to obstruct a private civil lawsuit by paying a cash bribe (involving no abuse of his official powers) to the judge rather than by lying to her; it offends common sense to suggest that a President could not be impeached even for murder or rape; and it finds little support in the debates of the Framers and precedents.
2) The Clinton camp also argues that, as a matter of law, the President–who is elected by the whole nation, and is far more important than any judge–cannot be impeached for every crime that might cause the removal of a mere judge.
The most obvious problem with this argument is that the Constitution’s only definition of impeachable offenses–Article II, Section 4–suggests no distinction whatsoever between Presidents and judges: ”The President, Vice President and all civil officers of the United States (including judges), shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Some have suggested that another provision–Article III’s statement that federal judges ”shall hold their offices during good behavior”–implies that judges can be removed for conduct less serious than high crimes and misdemeanors.
But on its face, that interpretation is strained; it is without support in the records of the Constitutional Convention or in recent precedents, and was explicitly rejected by (among others) the much-heralded 1974 staff report for the House Judiciary Committee.
Clinton lawyers also claim that the same committee’s 1974 decision not to include a tax-fraud count in its articles of impeachment against Richard M. Nixon shows that a President cannot be impeached for such private, non-official crimes.
The argument is manifestly bogus. The 26-12 vote to reject the tax-fraud count did not reflect a judgment by the Judiciary Committee that proven tax fraud would not be impeachable. While four members did espouse that view, more than 10 said that President Nixon had not been proven guilty of tax fraud, or that they did not want to bog the case down by bringing in matters so tangential to the Watergate cover-up.
3) Of course, some perjuries and obstructions are less grave than others, and Clinton’s efforts to cover up a sexual affair do seem less grave than (for example) the Watergate cover- up.
What cannot plausibly be argued is that Clinton’s alleged crimes are less grave than those of Claiborne and Walter Nixon. In fact, the reverse seems true when one compares their relatively isolated crimes of lying with Clinton’s calculated perjuries and alleged obstructions of justice, which extended over many months and which involved witness-tampering as well as grand jury perjury; these crimes were facilitated by the use of Clinton’s presidential powers and staff.
4) This is not to deny that, in exercising their discretion to act in the national interest as they see it, Senators may properly oppose removing a President, even if he is proven guilty of high crimes for which they would remove a judge.
The President is unique in his importance to the nation. And for that reason, Senators should take into account considerations including the broad public opposition (so far) to removing Clinton.
But in exercising their discretion, Senators should recognize that the unique importance of the President cuts both ways: While removing him would be uniquely traumatic, his alleged crimes–which show a deep contempt for the law by the nation’s chief law enforcement officer–are uniquely visible, and are thus uniquely menacing to the rule of law, to trust in government, and to the national culture.
Reasonable people can, and do, oppose removing Clinton. What they cannot legitimately do, in my view, is pretend that his alleged crimes are not high crimes and misdemeanors under the clear constitutional precedents established in the cases of Judges Claiborne and Nixon.