Congress Needs to Take a Step Backward on Impeachment

J. Jackson Barlow

October 17, 1998

We either have a system that limits the power of government officials, or we don’t. Both the Independent Counsel, Judge Starr, and Congress have unlimited power to investigate President Clinton’s misdeeds. And both seem willing to use that power without any sense of self-restraint. This is an ominous precedent for our constitutional system.

The Republicans in Congress are obviously, and understandably, frustrated by their inability to make any dent in Mr. Clinton’s approval ratings. Yet their unseemly glee at releasing the Starr report — before they had a chance to read it themselves — suggests that their frustration has clouded their judgment. In their haste to damage Mr. Clinton, they have failed in their constitutional duty to think before they act. (One might add that their failures to articulate, much less enact, a coherent set of policies have helped to make Mr. Clinton look competent by comparison. The incompetence of the Republican leadership is Washington’s great untold story right now.) We deserve better government, and the presidency, if not this President, deserves better judges, than this.

Mr. Starr’s investigation is a good example of unlimited power at work. Recall that he began investigating the Whitewater land deal. Believing that the Clintons were engaging in a pattern of obstruction of justice, he expanded his inquiry first to include the Paula Jones case and then the Lewinsky matter. This relentless expansion of his investigative power gives every appearance, not of an impartial search for the truth, but a mission to get something, anything, on Mr. Clinton.

And where in all this is the pattern? What Mr. Starr turned up was one instance where Mr. Clinton lied. I always thought you needed at least two examples to show a pattern. I do not condone or excuse Mr. Clinton’s moral and marital failings. But I do expect a prosecutor who wants to show me a pattern to provide some proof that a pattern exists. It seems to me that we have gone to a lot of trouble and expense to turn up very little in the way of concrete evidence.

Mr. Starr chose not to use his power to prosecute, but instead turned to Congress and the court of public opinion. This suggests a certain embarrassment at the weakness of his legal case. The reasoning goes like this: since there are slim prospects of proving a legal case against Mr. Clinton, go public by releasing the report to Congress, and let Congress make the moral case against him. Congress, as the Conscience of the Nation, can then exercise its unlimited power of judgment and give vent to public indignation at the President’s behavior.

Indignation and frustration are the enemies of self-restraint, which is all that the Constitution imposes on Congress in impeachment inquiries. Unlike the Watergate Congress, which restored confidence in the system, this Congress has cast doubt upon its fitness to judge. Perhaps it is time to consider an alternative. This would be for Congress to follow the procedure it has recently used with impeachments of Federal Judges. They were convicted of crimes first, and then impeached. In this way, Congress had the benefit of the courts’ judgment as to the individual’s offense, and the accused had the benefit of the “due process of law” the courts provided.

Probably the Congress’s premature disclosure of confidential evidence has made it impossible to convict Mr. Clinton of perjury, should Mr. Starr wish to prosecute. But let’s allow him to try it. If he is really persuaded that Mr. Clinton is guilty of perjury, let him do his job as prosecutor.

What Mr. Starr has uncovered so far does not show a pattern of abuse of presidential power; indeed in their legal skirmishings over the past two years Mr. Starr has consistently won rulings that reaffirm the limits on the presidency. Unlike Watergate, which found systematic attempts to cover up crimes directed at the president’s political enemies, we find no system here. Nothing in the evidence made public thus far suggests that the grave constitutional step of impeachment is warranted. No further abuses of presidential power would be prevented by it. The courts have already prevented such abuses as have been threatened.

So let Mr. Starr prosecute Mr. Clinton. If he wins a conviction, then it will be time to think about impeachment. But for now, Congress would do itself, the country, and the Constitution a favor by dropping it.

J. Jackson Barlow is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University.