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An Impeachment Post-Mortem

On Principle, v7n2

April 1999

by Robert Alt

For months, it was impossible to pick up a newspaper or magazine, or to turn the television or radio on without seeing or hearing about it in excruciating detail. A new cottage industry was born, one of spin-off cable news programs fed by stables of former prosecutors offering their opinions on matters legal and other. The defense team consisted of some of the best lawyers money could buy. They ably mounted a vigorous defense, assailing the motives of those charged to enforce the law, and turning a clear-cut case into a factual and legal quagmire. After what had been a very–perhaps too public–proceeding, the final deliberations occurred behind closed doors. The gratuitous coverage of events had exhausted public interest long before, yet droves tuned in to hear how it would end. When the verdict was announced, the President, who was trying to maintain his composure, is reported to have uttered a single word–an expletive. And so, the criminal trial of O.J. Simpson ended in acquitt
al.

If you thought this was a recounting of the impeachment of the President, you had good reason: the Simpson trial is in significant ways the intellectual precursor of the Clinton impeachment trial. The similarities run deeper than the public nature of the proceedings, the tactics of the defense, or even the use of DNA evidence. The real link is how the cases were resolved. Despite clear evidence, those who decided the fate of the accused in both trials ruled not based upon what the law demands, but rather in order to reach a desired outcome. In other words, the O.J. jury and the Congress found the respective accused not guilty by means of jury nullification.

Jury nullification occurs when a deliberative body decides to acquit the accused in spite of guilt. At best (although still a source of fiery debate), nullification is a jury’s attempt to do justice where the law is unjust; at worst, however, jury nullification is committed when a jury places passion above the law. In both scenarios, the question is not whether the accused committed the offense, but whether the punishment prescribed by law (or any punishment, for that matter) meets with the jury’s approval.

President Clinton’s impeachment, like the trial of O.J. before him, concluded with little serious question of guilt. In due course, Congress and the general public learned that the President did indeed have relations with “that woman” and engaged in an illegal cover-up. While the President’s lawyers proffered strained legal arguments that he did not actually commit perjury and obstruction of justice per se, most of Clinton’s defenders in Congress conceded some degree of guilt, and argued instead about how he should be punished.

Senators seeking to impose lesser penalties on the President (be it censure or some other variant) faced a major obstacle in the inflexibility of the Constitution regarding the penalty for impeachable offenses. The Constitution specifically states that “[t]he President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (emphasis added). Given this constitutional imperative, the Senate’s previous findings that perjury and obstruction of justice are high crimes and misdemeanors, the findings of the House of Representatives that the President’s alleged crimes do constitute impeachable offenses, and the evidence that the President did in fact commit perjury and obstruct justice, it is difficult to reach a conclusion other than removal. Indeed, Senator Byrd (D-WV), who is widely touted as the defender of Senate prerogative, stated before the final impeachment vote that he had no doubt that
Clinton’s actions constituted high crimes and misdemeanors, and that the Constitution required removal for conviction of the same. But Senator Byrd and a number of his colleagues voted “not guilty,” not because Clinton was innocent or because the crimes he was guilty of aren’t impeachable, but in order to nullify the Constitution’s mandatory sentence of removal.

The natural question is, why did Congress choose to save this President? This is, after all, the President who defines his politics by triangulation–distinguishing his own policies against those of both the Republicans and Democrats in Congress–thereby assuring him few friends on either side of the aisle. This is also the President whose reckless handling of the Lewinsky investigation created a campaign issue that neither Republicans nor Democrats wanted to touch.

There are a number of possible reasons for Congress giving Clinton a pass, but the simplest is because they could. Public opinion never rallied for the President’s removal in a way that made it politically difficult for Democratic members of Congress to “stand by their man.” While Democratic Senators expressed public indignation and profound private anger concerning the President’s actions, they had no desire to see a member of their party–no matter how deserving–be the first President removed from office by Congress. Further, the Democrat’s frustration toward the President was relatively minute compared to the rage they harbored for what they considered to be endless and, until Lewinsky, fruitless partisan investigations of the President. Thus, Senate Democrats seized the Clinton impeachment as an opportunity to repudiate the investigations (and the investigator) that had plagued the Clinton administration for years.

In Federalist No. 65, Alexander Hamilton warned of the danger of impeachments “be[ing] regulated more by the comparitive [sic] strength of the parties than by the real demonstrations of innocence or guilt.” This is an apt description of the Clinton case, however it is doubtful that party block voting would have occurred if political consequences were imminent. In conformity with modern poll-driven politics (epitomized by the President’s decision to lie as a result of polling conducted by Dick Morris), many members of Congress voted based upon the calculation that the American people supported a not guilty decision, and conversely on the belief that those who supported the ouster of the President could not exact revenge at the ballot box. This impeachment by polls is a dereliction of the Senators’ duty to act as representatives of the people rather than as conduits for their passions, however the Senate’s reliance on the polls raises a more basic question: wh
y did the American people support the President?

Here the People Rule . . .


With the President’s conviction doomed and his poll numbers in the stratosphere, many conservatives adopted the all-too-popular pastime of attacking the American people. Some suggested that Americans had lost their morality, while others went so far as to say that politics failed, and that people of virtue should quarantine themselves lest they be polluted by the decadent culture. These charges are dire if true, for while the Founders designed the constitutional structure for men and not angels, they nonetheless knew that the success of the regime depended upon the continued good character of the citizenry. While there is some evidence of cultural decline, the rumors of cultural collapse are premature.

There are many reasons that the American people did not actively promote the removal of the President. While moral indifference explains the response of a segment of the population, there are other factors that help to explain the public’s response that are not caused by a lack of public conscience. First and foremost, the average American was outraged that the President had desecrated the physical and institutional office of the presidency, yet even those who prosecuted the President argued that questions of morality were essentially irrelevant. This ground, which was far more comprehensible than the arcane legal concepts of perjury and obstruction of justice, did not need to be ceded. There is precedent in English and American impeachment history for removal of officers whose acts of moral turpitude damage the office with which they are entrusted. If this was used as a basis for impeachment, the administration’s efforts to focus attention away from the lying and obstruction and t
oward the sex would have been arguably less effective, and the American people would have been able to engage the question of moral fitness in venues other than talk shows.

Second, many Americans were uncomfortable with the way the case arose. Conservatives, who have long been opponents of invasive government, came to defend a broad theory of sexual harassment with expansive discovery of individuals who are not parties to the lawsuit. While this may be legally appropriate, many Americans had trouble understanding why Ms. Lewinsky should be relevant to an alleged event that happened years before Clinton ever met her. This is not to say that Judge Starr acted beyond his authority, or that the Paula Jones lawyers acted outside established law, but rather that it is difficult to hold the American people in contempt for their repulsion to the intrusion of government.

There are many other reasons that the American people responded as they did, including confusion caused by manipulation of the legal questions by skilled defense attorneys, the effective spin of official and unofficial White House spokespersons, fatigue created by endless media coverage, and a general belief that the outcome was foregone by the party breakdown in the Senate. While these reasons don’t justify the public response, they nonetheless point to causes other than rampant moral corruption for the American disengagement.

The Clinton impeachment does not stand as a shining moment in American history, but it is not the end of history either. Many in Congress neglected their duty to the people and the Constitution, and many in the country seemed unconcerned. If the people lose their moral compass and no longer care whether those in positions of public trust deserve to maintain such positions, then we have reason to fear. Should such an unfortunate moment arise, the fate in question would not be that of one president, but rather the institution of the presidency and the continuation of the American regime. Despite soundings of doom to the contrary, we are not there. The Constitution and the presidency, while slightly wounded, will survive in spite of this impeachment.

Robert Alt is the Deputy State Liaison at the Heritage Foundation in Washington, D.C. and an Adjunct Fellow at the Ashbrook Center.

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