High Crimes and Misdemeanors: The Case Against Bill Clinton (2 page)

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Authors: Ann Coulter

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There are even standards for evaluating the evidence of such misconduct. And these standards, too, must be applied evenhandedly if the rule of law is to survive. It cannot be the case, for instance, that, when a Republican president stands accused, he is to be held accountable for the actions of his subordinates, even in the absence of proof that he directly ordered those actions, and that a Democratic president is assumed to be innocent, no matter what the evidence, unless we catch him with a smoking gun in his hand. On videotape.
With each new revelation about President Clinton’s apparently corrupt and sometimes illegal behavior, paid and unpaid Friends of Bill (FOBs) take up the public relations gauntlet to announce that previously abhorred conduct is now considered wholly excusable conduct. “In the end the party would announce that two and two made five, and you would have to believe it…. [T]he logic of their position demanded it…. The heresy of heresies was common sense.”
2
Oceania is at war with Eastasia. Two plus two makes five. We’re “waiting for the facts to come out” to decide if President Clinton has lied,
3
and Mrs. Clinton is confident the allegations will “evaporate and disappear if they’re ever given the light of day.”
4
The only coherent epistemology at the moment is that once Clinton is caught doing it, it’s okay. At this rate, the entire country will soon be molesting interns, lying under oath, buying witnesses, flashing subordinates, and rifling through confidential FBI files. The only thing American citizens must never, ever do is tape a friend—even to expose government corruption. Free John Gotti! And those Floridians who secretly taped Newt Gingrich go to prison for life.
Everyone is entitled to his own opinion; everyone is not entitled to his own facts. Precedents, like Watergate, are facts. If a president’s “cutting corners or hoarding dirty little secrets” is enough to impeach him, as Nixon’s attorney general, Elliot Richardson, said, because “honesty is the best politics,”
5
then a president’s bald-faced lies under oath in a citizen’s constitutional case against him have to be enough. If it is wrong to talk about pornographic movies to female subordinates, it is wrong to drop your pants and say “kiss it” to female subordinates. If the woman’s statement plus one corroborating witness was enough evidence yesterday, it’s enough evidence today. Although, ultimately, one might have a preference for one rule or another, at least we should all know what the rules are.
There are pretty clear rules and standards for what constitutes a “high Crime and Misdemeanor,” or an impeachable act. Certain types of conduct have been accepted as valid grounds for impeachment throughout American history, and under the British constitutional precedents the Founding Fathers had in mind when they wrote the impeachment clauses of the Constitution. The grounds, and even more important, the purposes of impeachment, reach back with remarkable consistency more than six hundred years.
VICTIM OR THE CRIME
 
When the framers of the Constitution chose
the phrase “high Crimes and Misdemeanors” to complement treason and bribery as grounds for impeachment, “they adopted a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history.”
6
That statement comes from the report assembled by Representative Peter Rodino’s House Judiciary Committee, which framed the Articles of Impeachment against Richard Nixon. The so-called Rodino Report, entitled “Constitutional Grounds for Presidential Impeachment,” was the work of, among others, Bernard Nussbaum, who would serve as President Clinton’s first White House counsel, and Hillary Rodham, who would serve as first lady to President Clinton—the next president for whom impeachable offenses would be an issue.
Here’s some history:
• In 1666 Viscount John Mordaunt was charged with impeachment for the high crime and misdemeanor of making uncivil addresses to a woman.
• In 1680 Sir William Scroggs, lord chief justice of the court of the King’s Bench, was impeached on account of “his frequent and notorious excesses and debaucheries” bringing “the highest scandal on the public justice of the kingdom.”
7
• In 1701 Edward, Earl of Oxford, a member of the king’s council, was impeached for procuring an office for someone “known to be a person of ill fame and reputation.”
8
• In 1881 the Minnesota legislature impeached Judge E. St. J. Cox for “frequenting bawdy houses and consorting with harlots.”
9
Quite noticeably, all but presumably the last of these are not crimes—even misdemeanors—under the criminal law.
Though it will come as a shock to people who acquire their legal knowledge from TV pundits, the phrase “high Crimes and Misdemeanors” has nothing to do with criminal law. The “somewhat startling” proposition that high crimes and misdemeanors need not be crimes at all is, nonetheless, an indisputable fact demonstrated by the “great preponderance of authority.”
10
In fact, there is
no such thing
as a “high Crime and Misdemeanor” in the criminal law. Just as a sea lion is something completely different from a lion, and a mongoose completely different from a goose, the “high Crimes and Misdemeanors” mentioned in the Constitution are completely different from crimes and misdemeanors. Attaching “high” to “crimes and misdemeanors” creates an entirely different animal. And, as Rodham and Nussbaum once explained to the nation, the framers knew that.
Impeachment is not a criminal procedure; the acts that justify impeachment are not necessarily criminal acts; and the purpose of impeachment is not punishment.
Indeed, impeachment is not directed exclusively or even primarily at violations of criminal law: Supreme Court Justice Joseph Story in his great
Commentaries on the Constitution
was especially eloquent on this point. Not only “crimes of a strictly legal character” are impeachable offenses, but also political offenses, growing out of “personal misconduct… so various” that they “must be examined upon very broad and comprehensive principles of public policy and duty.”
11
First used for an impeachment in 1386, the phrase has always referred exclusively to conduct that could lead to an impeachment. Impeachable offenses encompass “a great variety of circumstances… which do not properly belong to the judicial character in the ordinary administration of justice and are far removed from the reach of municipal jurisprudence.”
12
JOHNNY B. GOODE
 
A “high misdemeanor” refers
not to a criminal offense just short of a felony, but to misbehavior, bad demeanor. As the Rodino Report explained, “From the comments of the framers and their contemporaries, the remarks of delegates to the state ratifying conventions, and the removal power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly.”
Impeachment for misbehavior is not, however, as unlimited as it sounds: the behavior at issue is moral behavior, not Emily Post polite society behavior. According to historical precedent, impeachable misbehavior “means (a) [misconduct] in the execution of office, or (b)
scandalous behavior in his private capacity
.”
13
Or, as Alexander Hamilton put it, the impeachment power is addressed to “the misconduct of public men” or the “violation of some public trust.”
14
In the course of prosecuting one of the greatest impeachment trials in Anglo-American history—the impeachment of Warren Hastings—Edmund Burke said: “Other constitutions are satisfied with making good subjects; [impeachment] is a security for good governors.”
15
Burke did not mean that statesmen were supposed to be “good” in the sense of competent, but “good” in the sense of moral: “It is by this tribunal that statesmen [are tried] not upon the niceties of a narrow jurisprudence but upon the enlarged and solid principles of morality.”
16
It seems it’s the president’s principles of morality that are supposed to be “enlarged and solid.”
Statesmen who merely transgress “the spirit of the law,” Burke said, “can never hope for protection from any of its forms.”
17
Other presidents being investigated by independent counsels have understood this and have waived even legitimate legal privileges. President Clinton has invoked every legal stonewall in the book, and even some that aren’t in the book.
Although Burke explicitly ruled out trying impeachments “upon the niceties of a narrow [criminal] jurisprudence,”
18
almost any serious crime will evidence a sufficiently diminutive morality as to constitute a “high Crime and Misdemeanor.” Still, the standard is morality, not the technicalities of the law. Crimes that are
malum in se
, or wrong in themselves, such as murder or bribery, would certainly fall within the ambit of “high Crimes and Misdemeanors.” Crimes that are
malum prohibitum
, or wrong only because the law makes them so—Occupational Safety and Health Act (OSHA) violations for example—would not.
The moral underpinnings of the impeachment clause can be understood by considering the framers’ purpose in crafting a Constitution in the first place. James Madison said the “first aim” of the Constitution was to ensure that men with the “most virtue” would become the nation’s rulers. The Constitution’s impeachment power was for “keeping them virtuous whilst they continue to hold their public trust.”
19
They were erecting a moral standard because they believed that only virtuous men could maintain a republic. As one constitutional scholar has pointed out, acts unrelated to job performance are proper subjects for impeachment because “a perjurer or a forger simply could not command the public respect indispensable to the administration of justice.”
20
Note, though, that even in the case of perjury or forgery—criminal acts—the rationale is not simply that the officer has violated the criminal law, but that such a violation discredits his office, and that failure to punish it would damage the government.
Impeachment was the means by which the Republic would defend itself from officeholders who could no longer command the public’s trust. As Hamilton stated: “Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment.”
21
The framers recognized that the credibility of the government would be undermined and the nation threatened if the president, judges, or other government officers were seen to be personally corrupt or self-aggrandizing, as if they were above the law.
SUBSTANCE AND MEANING
 
Despite its six hundred years
of history, the term “high Crimes and Misdemeanors” has been unfairly described as meaning “whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.”
22
This is a statement about procedure rather than substance.
As a procedural matter it is true that, theoretically, the House could impeach and the Senate could convict for an offense that is not a “high Crime and Misdemeanor.”
All this means is that no one could stop them, just as no one could stop the Senate from concluding in 1797 that senators are exempt from impeachment. (If they thought they could get away with it, the Senate might conclude that senators are immune from elections, too.) Similarly, the House, Senate, president, and Supreme Court can all pretend that Roscoe Filburn growing wheat on his lot to feed to his livestock affects commerce under the Constitution. There is no appeal from an unconstitutional Supreme Court ruling, just as there is no appeal from an impeachment conviction. But the absence of an appeal doesn’t mean “high Crimes and Misdemeanors” has no meaning, any more than “affecting commerce” or any other particular set of words in the Constitution has no meaning.
The general categories of impeachable conduct that developed in the four hundred years of use in Great Britain were these:
• corruption
• betrayal of trust
• abuse of official power
• neglect of duty
• encroachment on Parliament’s prerogatives
• misapplication of funds
Examples of impeachable conduct by officeholders included appointing “unfit persons to office” (often relatives and retainers). These were offices they had the strictly legal right to fill, so at worst this was mere neglect of duty. But appointing “unfit persons” denied the king’s subjects the benefits of just and efficient administration. Similarly, Justice Joseph Story included as an impeachable offense “habitual disregard of the public interests, in the discharge of the duties of political office.”
23
English courtiers were impeached for persuading the king to give them excessive gifts. These favors from the crown were not in themselves illegal, but it was held that using their access to the king for personal benefit was an abuse of power.

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