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OPENING ARGUMENT - The Best Case Againt Impeachment OPENING ARGUMENT - The Best Case Againt Impeachment OPENING ARGUMENT - The Best Case Againt Impeachment OPENING ARGUMENT - The Be...

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OPENING ARGUMENT - The Best Case Againt Impeachment

December 5, 1998



Amid the breathtaking buffoonery and mendacity of many of the House Judiciary Committee's Democrats, some honest and thoughtful arguments against impeachment were set forth, at long last, at a hearing on Tuesday.

The strongest of them came from Rep. Barney Frank (D- Mass.) and three law professors, Jeffrey Rosen and Stephen Saltzburg of George Washington University and (alas) Alan M. Dershowitz of Harvard, late of the O.J. Simpson defense team. It's worth reflecting on whether their best points should sway any House members who may be planning to vote their consciences.

Frank argued that ''we erode privacy'' when we allow anyone who files a lawsuit to compel the president (or anyone else) to answer under oath questions about ''intimate details of (his) life'' that are ''peripheral'' to the lawsuit. The implication was that the seriousness of President Clinton's lies at his Jan. 17 deposition in the Paula Jones lawsuit was mitigated by the unwarranted intrusiveness of the laws under which he was questioned.

That seems right. It would be even righter had Frank not voted in 1994 for a new law making it easier for sexual harassment plaintiffs to force defendants to answer questions about suspected sexual activities with others in the workplace.

Dershowitz extended Frank's theme by noting that ''the least culpable genre of false statements are those that deny embarrassing personal conduct of marginal relevance to the matter at issue.'' He also said that perjury is rampant; that it is committed by thousands of law enforcement officers every year; that ''the overwhelming majority'' of perjurers are not prosecuted; and that ''the sad reality appears to be that most people care about perjury only when they disapprove of the substance of the lie or of the person who is lying.''

All true--albeit greatly marred by Dershowitz' failure to note that in the cases of people caught in the act of clearly provable perjury, prosecution and prison time are quite common; and by his partisan rant against all who consider his friend Clinton's perjuries worthy of congressional attention.

Rosen associated the president's problems with ''the convergence of three sets of laws--the sexual harassment laws, the laws prohibiting lies to federal officials, and the independent counsel law--which have been recklessly expanded in the post-Watergate era.''

While Clinton ''deserves his share of the blame for the expansion of these laws,'' Rosen said, the fundamental problem is that ''thanks to an unfortunate combination of judicial decisions and overreaching by Democratic and Republican prosecutors and independent counsels, . . . . there is now a gap between the kinds of lies that most people think should be illegal and those the law actually forbids.'' Rosen warned against setting a precedent whereby ''every time a future president's testimony is contradicted under oath, . . . . the brutal machinery will again grind into motion, a special prosecutor will be appointed, and the country and the president will again be distracted, in ways whose costs are hard to measure.''

These points are useful correctives to the simplistic suggestions by Independent Counsel Kenneth Starr and some House Republicans that any false statement under oath by a president, however trivial or private the subject, would warrant impeachment.

It would be silly, as Frank suggested, to impeach Clinton if his only proven perjury had been (for example) his claim to the grand jury that his first sexual encounter with Lewinsky had been in early 1996, when in fact their first time had been on Nov. 15, 1995--when she was an intern.

But neither Frank nor the anti-impeachment witnesses came to grips with the gravely aggravated, calculated, and protracted nature of Clinton's attacks on the integrity of the legal process.

Clinton's multiple sworn lies at his Jan. 17 deposition were not impulsive answers to surprise questions. He had planned to lie, in coordination with Lewinsky--whom he encouraged, in a 2 a.m. phone call on Dec. 17, to lie--after he learned that she was on the Jones witness list. And this course was not the only way for Clinton to protect his privacy. He could have settled the Jones case then, or appealed Judge Susan Webber Wright's order that he answer inquiries into his sexual activities in the workplace.

More important, he compounded his initial efforts to obstruct justice when he chose to encourage his secretary, Betty Currie, to lie for him; when he lied to the American people with such emphasis; when he sent his secretary of State and other subordinates out to repeat the lies; when he abused governmental privileges to cover up the lies; when he used White House aides to unleash vicious attacks on truth-tellers and truth-seekers; and, most egregiously, when he went before Starr's grand jury on Aug. 17 to tell a new series of lies, while falsely claiming that his earlier testimony had been ''legally accurate.''

What we have here is not occasional, minor, garden- variety perjury, but multiple acts of perjury. What we have here is the nation's chief law enforcement officer deliberately and publicly thumbing his nose at the law. Such calculated lawlessness would almost surely bring prosecution, and probably conviction and prison time, if the perjurer were, say, a member of Congress, or a mayor, or a general, or a cop.

And he keeps on lying. Clinton continues to claim through his lawyers that (as he swore to the grand jury) he never once touched Lewinsky intimately and thus never had ''sexual relations'' with her as defined for purposes of his deposition. If you believe that--and that is virtually the only exculpatory evidence Clinton has offered--you'd believe pigs fly.

Moreover, the answers that Clinton submitted on Nov. 27 to the Judiciary Committee's 81 written questions contain, by my count, another 10 or so probable (if not-quite-provable) lies, not to mention innumerable legalistic evasions.

Some say the lies in which Clinton now takes refuge are trivial efforts to dodge questions on the order of ''What did the president touch and when did he touch it?'' But such reductionism rewards the cynical game Clinton and his apologists play: First they deny the big lies by concocting tortured, after-the-fact redefinitions to slice concepts such as ''sexual relations'' into tiny, legalistic slivers; then they dismiss as inconsequential the little lies that Clinton tells to prop up the big ones.

Some also say that the rule of law does not require impeachment, because Clinton will still be subject to criminal prosecution when he leaves office. True in theory; unlikely in practice. In any event, does it make sense to keep an unrepentant and incorrigible liar on as president for two more years because he can always be sent to prison later for crimes the proof of which is staring us in the face?

Given the near-certainty that the Senate would not muster a two-thirds vote to remove Clinton, the strongest argument against impeachment by the House is that it would be bad for the country, and would strain the legitimacy of the process, for the House to push through by a narrow, party-line vote an impeachment opposed by two-thirds of the public.

As Saltzburg testified, a Senate trial would ''paralyze this country for some period of time. . . . So the question you ask yourself is: Is the quality of the evidence, and the nature of the charges, enough to warrant putting the country--not just the president, but the country--through that kind of proceeding?'' A fair question. Should those of us who think Clinton deserves impeachment, but who have lost the battle for public opinion, give up now, for the sake of the country?

Not quite. Although a tough censure resolution would be both constitutional and better than nothing, I would probably vote to impeach Clinton if I were a House member--even though, if I were a senator, I would shrink from removing him unless public opinion changed.

The reconciliation is that a Senate trial, predictably ending in censure, might do the country more good than harm. It would surely be a more dignified and instructive spectacle than the shameful brawl that the Judiciary Democrats (with help from blundering Republicans) have made of the House proceedings. In the Senate, the Democrats include a core of grown-ups--such as Daniel Patrick Moynihan of New York, Robert Kerrey of Nebraska, Robert C. Byrd of West Virginia, and Joseph I. Lieberman of Connecticut--who take presidential perjury seriously.

Democrats like these, and their Republican counterparts, could bring about a bipartisan focus on the gravity of Clinton's lawless conduct and the real challenges such conduct poses for the body politic. Unless and until that happens, a vote not to impeach would feel too much like a vote to reward Clinton and his allies for their shameless mockery of the legal system and the impeachment process alike.

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