High Crimes and Misdemeanors: The Case Against Bill Clinton (42 page)

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IMPEACHMENT OF A PRESIDENT FOR PERSONAL MISCONDUCT

Any impeachment hearings
against Clinton could stray beyond his wily subordinates invoking executive privilege without telling him. Unlike Nixon, who was largely being held responsible for the misconduct of his subordinates, the weight of the evidence against President Clinton concerns the misconduct of the president himself.

Former Clinton Chief of Staff Leon Panetta discussed the White House staff’s efforts to restrain the president’s “dark side”:

We were sensitive to those issues.… [Let’s say] a woman wanted to ride with him in the limo, we took steps to make sure that didn’t happen. In the evenings, we always made sure he had company when he was with friends…. [Clinton] was cooperative. I never saw him in a situation that you would call reckless. You never control all of the private moments.… If it turned out that somehow his dark side prevailed in these moments of temptation, it would be a disappointment.
¹²⁹

But can the president be impeached for having a “dark side” that had to be suppressed by a corps of his top advisers?

Yes, absolutely.

Hamilton wrote that presidents would derive their confidence and firmness—critical qualities in a president—directly from “the proofs he had given of his wisdom and integrity” and “to the title he had acquired to the respect and attachment of his fellow citizens.”
¹³⁰Recall that James Madison said the primary object of the Constitution was to secure leaders with the “most virtue” and to “take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
¹³¹For that purpose, Madison said, the impeachment power was “indispensable.” Impeachment would counter “the perfidy of the chief magistrate.”
¹³²The impeachment of statesmen would be tried “upon the enlarged and solid principles of morality.”
¹³³

In 1701 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.” Now it is assumed that the president can actually
be
the “person of ill fame and reputation” without risking anything more than a censure.

One of the longest quotes on impeachable conduct given in the Rodino Report is this:

Not but that crimes of a strictly legal character fall within the scope of the power… but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged… by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts 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.
¹³⁴

There are undoubtedly grey areas in determinations of when personal misconduct constitutes grounds for impeaching a president. The president’s obtaining oral sex from a White House intern does not fall in the grey area. If a congressman’s married chief of staff was caught being sexually serviced by a Capitol Hill intern thirty years his junior, it would rank as a major scandal and would be a major political embarrassment for the congressman. This isn’t a congressman, and it certainly isn’t a congressman’s chief of staff. It is the president of the United States himself.

The argument against impeachment for “mere personal misconduct” misconceives the nature of an impeachable offense. When Alexander Hamilton described impeachment proceedings as related “chiefly to injuries done immediately to the society itself,” he meant a betrayal of a public trust, not partisan gamesmanship. Such “political” offenses range from abuse of power to personal misbehavior. But they exclude policy differences, since an erroneous policy decision might result from “a wilful mistake of the heart, or an involuntary fault of the head,”
¹³⁵as Edmund Randolph said. Since policy matters are necessarily off the table, in a sense, that leaves only “personal misconduct.”

Even in Great Britain, where impeachment was “initiated to topple giants,” high crimes and misdemeanors encompassed personal misconduct. American impeachments were, from their inception, concerned with more modest abuses. The Constitution had clearly eliminated the need for impeachment to be used in a power struggle with any king. Consequently, impeachments under the American Constitution have always had more to do with “squalid misconduct” of office holders than the sort of grand offense that might warrant a hanging.

The Senate has convicted officers after impeachments for such disreputable acts as drunkenness, tax evasion, and false statements to a grand jury.
¹³⁶Be it drunkenness, conspiracy to solicit a bribe, tax evasion, covering up a third-rate burglary attempt, or groping female staffers—all these involve “personal misconduct.”

Clinton has literally disgraced the office in the sense that people’s expectations for what goes on in the Oval Office are remarkably, historically low. One of the most devastating blows to President Nixon when the tapes came out was the introduction of the phrase “expletive deleted” into the vernacular. Nixon was a Quaker; he wasn’t even using the really good curse words. But the idea that cursing was going on in the White House offended people’s sense that the Oval Office was sacrosanct.

One of the most peculiar defenses raised by Clinton’s claque is its very active aggressive campaign to persuade people that Starr is just going after sex. As if it’s outrageous to suggest that the president should have a minimally decent personal life.

A president whose own behavior in the Oval Office introduces the term “presidential kneepads” into the nation’s vocabulary, and who conspires to break laws to hide that behavior—conducted on the presidential seal, no less—surely warrants, as the Constitution provides, “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

EYES OF THE WORLD

Now it is problematic
even to discuss what the president has been doing in his office. The whole country is tongue-tied with a series of convoluted euphemisms for the president’s sexual perversions and inadequacies laid bare in the Oval Office.

The Rodino Report cited Benjamin Franklin’s odd argument that including an impeachment power in the Constitution was “favorable to the executive”
¹³⁷:

What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in [which] he was not only deprived of his life but of the opportunity of vindicating his character.
¹³⁸

It’s funny—the one defense you never hear Clinton partisans make is that he deserves the opportunity to “vindicate his character.”

Now it is a laugh to read Alexander Hamilton’s calm assurance in Federalist No. 68 that the president would always be a virtuous man. But recall that he was confident that the office of the presidency would be filled only by “characters pre-eminent for ability and virtue”:

This process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union…. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.
¹³⁹

This is what was expected of the rulers in the new country forged from “a revolution which has no parallel in the annals of human society.” They had “reared the fabrics of governments,” Madison wrote, to create a Constitution that had “no model on the face of the globe.” And they had done so, “happily we trust for the whole human race.”
¹⁴⁰

At the end of the Constitutional Convention, Franklin was asked what they had wrought. “A Republic,” he said, “if you can keep it.”

Notes

CHAPTER 1

1
For the record, conservative commentators seem to have openly abandoned consistency on only one point—the question of whether the Kathleen Willey letters released by the White House immediately after her
60 Minutes
appearance belied a sexual harassment claim. Many conservatives promptly adopted the impotent victim excuse. This was silly. If Willey had been suing for sexual harassment, those fawning letters would have damaged her credibility. But she wasn’t. She was an extremely unwilling witness called by the Jones lawyers. The letters didn’t damage her credibility for that purpose. For the purposes of Jones’s lawsuit, the only thing that mattered with Willey was that Clinton did it, not Willey’s reaction.
See
Chapter 7.

2
George Orwell,
1984
, 69 (1949).

3
See, e.g.
, CNN’s
CNN Late Edition with Wolf Blitzer
, March 22, 1998 (Congressman Tom Delay (R-TX): “[ W] e’re waiting for the facts to come out.”);
The NewsHour with Jim Lehrer
, March 16, 1998 (Former Clinton Special Counsel Lanny Davis: “I think people are withholding judgment. I think they’re waiting to see if the facts come out.”); CNBC’s
Rivera Live
, February 11, 1998 (Lanny Davis: “[President Clinton] is to be believed when he says that he did not have this relationship. And until evidence comes in, until facts come in to prove otherwise…”); Liz Stevens, “Hill-billy Relations,”
Fort Worth Star-Telegram
, January 31, 1998 (“Whatever you think of the president’s guilt or innocence, there’s
no way to judge
him or his wife—or, for that matter, Monica Lewinsky—
until all the facts are in
. And maybe not even then.”).

4
Sonya Ross, “First Lady Says President Will Weather Latest Scandal,” Associated Press, January 22, 1998.

5
Peter Goldman, “Was Justice Finally Done?”
Newsweek,
January 13, 1975.

6
Staff Report, House Committee on the Judiciary, 93rd Congress, “Constitutional Grounds for Presidential Impeachment” (released February 22, 1974) [hereafter “Rodino Report”] at 4.

7
Raoul Berger,
Impeachment: The Constitutional Problems
, 211 and 201 (1973) (quoting 8 Howell 197, 200, Art. 8.).

8
Rodino Report at 6.

9
Berger at 200.

10
Berger at 58.

11
Rodino Report at 17 (quoting 1 J. Story,
Commentaries on the Constitution of the United States
sec. 764 at 559 [5th ed. 1905]).

12
Rodino Report at 17 (quoting 1 J. Story,
Commentaries on the Constitution of the United States
sec. 764 at 559 [5th ed. 1905]).

13
R.M. Jackson,
The Machinery of Justice in England
289 n.1 (London 5th ed. 1967) (quoted in Berger at 211, n. 96) (emphasis added).

14
Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

15
Paul Langford and P.J. Marshall, ed.,
The Writings and Speeches of Edmund Burke,
333 (1991).

16
7 Edmund Burke,
Works
11,14 (1839) (quoted in Laurence H. Tribe,
American Constitutional Law,
294 [2d ed. 1988]). A number of variants of the morality quote have been given, including, most popularly, Burke’s explanation that impeachment requires statesmen to try statesmen upon principles of “state morality.” Even in these versions it is clear that Burke is referring to the honor of statesmen, and not their technical competence. There have been various renditions of Burke’s speeches during the Hastings impeachment from the very beginning. There was no official reporter for either house of Parliament (and indeed it may have been a technical breach of privilege even to report debates at all). So compilations of Burke’s speeches have been pieced together from (possibly clandestine) note-takers whose versions conflict with one another—as well as with the versions Burke produced later.

17
Langford and Marshall at 333.

18
Laurence H. Tribe inserted “[criminal]” in his work
American Constitutional Law
.

19
Federalist No. 57, (James Madison).

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