History does repeat itself. On November 5, the American people re-elected Bill Clinton to a second term in the face of allegations of serious abuses of power by the President and members of his administration. Like the allegations about the break-in at the Watergate Hotel that George McGovern unsuccessfully tried to raise during the 1972 election, the allegations about the Clinton adminstrations abuses of power failed to capture the attention of the American people–partly due to the failure of Clintons rivals, Bob Dole and Ross Perot, to raise the issue until very late in the campaign, and partly–indeed, largely–due to the successful efforts of Democrats and their allies in the mainstream media to "stonewall" the issue, which they misleadingly called a question merely of "character."
The question of abuse of power goes beyond the matter of Clintons character: rather, it is an important substantive issue. In a presidential campaign, no single issue is more important than how an incumbent president has used the awesome powers of his office–whether the president has adhered to his oath of office, to faithfully execute the laws and to "preserve, protect, and defend" the Constitution of the United States, which limits his powers. Yet this issue was not adequately debated during the campaign, and the American people–except for those who regularly read the Wall Street Journal, the only daily national newspaper that has been fully covering the various Clinton administration scandals–cast their votes in ignorance of the matter. Like Watergate, however, the issue of President Clintons abuse of power cannot (and must not) disappear: it must be faced, if we are to remain a nation governed by the rule of law.
As in the administrations of Warren G. Harding (whose secretary of the interior was convicted of taking bribes in the infamous "Teapot Dome" scandal) and Richard M. Nixon (whose Vice President, Spiro Agnew, resigned and subsequently pleaded no contest to charges that he had received kickbacks when he was Maryland governor), officials of the Clinton administration have personally profited from their offices. Most notable is former Agriculture Secretary Mike Espy, who resigned in the face of allegations that he had taken illegal gifts from Tyson Foods and who, according to the recent findings of a federal jury, received illegal gifts from Sun-Diamond Growers,who apparently sought favors from his Department. The late Ron Brown, former Commerce Secretary, before his death in a tragic air crash in Bosnia, also was being investigated by a special prosecutor for various offenses, including receipt of bribes and falsification of his financial disclosure report. And Energy Secr
etary Hazel OLearys global junkets have been treated so cavalierly within the administration that Energy staffers sport T-shirts with her "world tour" logo.
More recently, allegations of illegal campaign contributions by Indonesians to the Democratic Party–what some commentators have called "Indogate"–raise the appearance that, under the Clinton administration, American foreign policy is for sale. Even if, upon investigation, it turns out that the administration did not ignore Indonesian human rights abuses in return for the contributions, there still remains the troubling issue of John Huangs dual role as a Democratic fundraiser and an official in the Commerce Department. The underlying problem is not the campaign finance system, as some have erroneously asserted, but rather the Clinton administrations disturbing propensity to use the power of the federal government for political aggrandizement. The Commerce Department is not the only federal agency that has been politicized by the Clinton administration: so too have been the Federal Emergency Management Agency (FEMA), the agency that administers federal disaster-reli
ef dollars (whose giveaways have been used as a political tool to tie local communities to the federal government); the Immigration and Naturalization Service (which, in an election-year push to grant citizenship to 1.2 million immigrants, the Clinton White House pressured to speed up processing of forms, allowing tens of thousands to become Americans before criminal record checks were done); and, possibly, even the Internal Revenue Service (which, according to a recent article in the Wall Street Journal, might have been used to harass conservative nonprofits such as the Western Journalism Center and the Heritage Foundation). Misuse of IRS audits and investigation powers against White House "enemies," it should be noted, were among the allegations raised in the articles of impeachment drawn up by the House Judiciary Committee against Richard Nixon in 1974.
Like Richard Nixon, Bill Clinton also has abused the powers of his office, both by usurping powers that the Constitution assigns to Congress and by misusing legitimate presidential powers. Long before the Watergate scandal fully broke, Nixons unprecedented use of the powers of his office to create what critics described as an "imperial presidency" was roundly condemned by academics and Congressional leaders. President Clinton has taken the "imperial presidency" to new heights. He has set new, dangerous precedents for presidential over-reaching of commander-in-chief powers with his use of American troops as "peacekeepers"–essentially, a Peace Corps with guns–in the military occupation of both Haiti and Bosnia, without the prior approval of Congress. Just as President Nixon failed to faithfully execute the law by impounding funds appropriated by Congress, President Clinton has demonstrated a willingness to flout the law in order to further his pol
icy objectives. An obvious example is his administrations unwillingness to enforce the Supreme Courts 1988 Beck decision, ruling that workers are entitled to a refund of union dues money used for political purposes (such as the AFL-CIOs $35-million announced effort to help Democratic candidates in this years Congressional elections).
More ominously, the Clinton administration has resurrected Nixons doctrine of executive privilege and extended it further than even President Nixon was willing to go. Not only has the Clinton administration invoked the doctrine to justify its failure to turn over documents subpoenaed by Congressional committees (most recently, a memo from FBI Director Louis Freeh that is said tobe highly critical of the administrations anti-drug policy), but also to claim immunity for him from civil action lawsuits–such as Paula Joness sexual harassment suit–until his term as president expires. Clintons claim of presidential immunity is extraordinary and unprecedented; it amounts to the claim that the president is above the law.
The most egregious form of presidential corruption, however, involves presidential abuse of power as a part of a criminal conspiracy. This was the Watergate scandal that brought about the downfall of Richard Nixons presidency. This too is the form of corruption involved in the allegations raised about both President Clinton and his wife, Hillary Rodham Clinton, in connection with the three major scandals that continue to be investigated by independent prosecutors and Congressional committees: Whitewater, "Travelgate," and "Filegate." Unlike Watergate–the underlying crime of which was, as it has been aptly described, a "third-rate burglary"–Whitewater involves a far more serious underlying crime, the looting of a savings and loan association, that cost American taxpayers approximately $60 million. As in Watergate, however, in Whitewater the critical matter is not the underlying crime but the cover-up. The President and Mrs. Clinton, acting on the
ir own and with their subordinates, are charged with, among other things, withholding relevant and material evidence; making false or misleading statements to the FBI and Congressional investigators; interfering with FBI and Justice Department investigations (including that of the death of White House counsel Vince Foster, who was deeply involved in the Whitewater fraud); obstructing justice by destroying documentary evidence that might be used against them; and willfully disobeying Congressional subpoenas. All of these allegations of wrongdoing are astonishingly similar to those specified in the articles of impeachment drawn up against Richard Nixon in 1974.
Travelgate and Filegate involve allegations of still more serious wrongdoing: misuse of the FBI to bring fraudulent charges against the former employees of the White House Travel Office, in order to make room for Clinton cronies; and the collection and storage in the White House, in violation of the Privacy Act, of confidential FBI background files on hundreds of individuals no longer employed in the White House. Political columnist David Broder–hardly a conservative–has condemned such misuse of the FBI as "one of the most flagrant abuses of constitutional authority any president can allow or commit."
Yet another flagrant abuse of power being contemplated by the Clinton White House received some attention in the press in the weeks before the election. Asked whether he would issue a presidential pardon to his former Whitewater partner Susan McDougal (who in addition to her felony conviction is currently in jail on contempt-of-court charges for refusing to answer the grand jurys question, "Did the president testify truthfully?"), Clinton refused to rule out the possibility.
209 years ago, one of the leading Antifederalist opponents of ratification of the Constitution, George Mason of Virginia, warned that a future president might abuse his pardoning power, exercising it "to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own Guilt." For over two centuries, scholars have dismissed such Antifederalist warnings as the paranoid fears of "men of little faith" in the Constitution. With Bill Clinton in the White House, what was once considered ludicrous is now a realistic possibility.
It takes how much villainy to raze a presidency?
David N. Mayer is a Professor of Law and History at Capital University in Columbus, Ohio