The Wounded Constitution

How well has the Constitution survived the impeachment ordeal? In the end, neither of the two articles of impeachment that the House had adopted, in a party-line vote, was endorsed even by a majority of senators, let alone by the two thirds necessary to convict the President and remove him from office. Many commentators saw this result as a demonstration of the Constitution’s wisdom and power. The New York Times declared that “Congress has just demonstrated that an impeachment based solely on partisanship cannot succeed under a process that, like the Presidency itself, is founded on so steadfast a rock.” Professor Laurence Tribe of the Harvard Law School said, in the same newspaper, that “the impeachment drama will have yielded few heroes—except the Constitution’s Framers, whose wisdom that drama will again have vindicated.”

We must hope that history justifies this optimism, but it seems premature now. The long, disgraceful story revealed a dangerous threat to the separation of powers that is the Constitution’s structural heart. If the politicians who control Congress are numerous enough, and partisan or zealous or angry enough, they can remove a democratically elected president they dislike simply by finding some misdeed that they can label a “high crime.” No other body can review their declaration. The only check on Congress’s impeachment power, as I argued in an earlier article in this journal,^* would be a broad understanding, shared across parties and ideologies, that impeachment is a last resort, that it should be used only in an emergency when it would be evidently dangerous to the Constitution and to the nation to allow the president to continue in office. “High crimes and misdemeanors” must be taken to mean wrongful conduct so threatening to those institutions that we must endure a grave shock to the balance of powers in order to escape the danger.

Did the impeachment and acquittal of President Clinton reflect or establish that broad understanding? The Republicans in the House put the nation through months of hearings, debate, and trial, weakening the presidency, preoccupying Congress, and monopolizing public attention, on grounds that did not remotely approach the standard I described. Half the members of the Senate voted to remove the President on those grounds, and many—it is impossible to say how many—of the other half voted to acquit, not because they deemed those grounds inadequate, but because they thought that the “House managers” who presented the case against the President in the Senate had failed to prove the charges. Senator Byrd, for example, a Democrat who is often hailed as the custodian of Senate traditions, voted for acquittal, but said he had no doubt at all that the charges, if proved, would meet the constitutional standard, and Senator Specter, one of the five Republicans who voted for acquittal on both charges, said he was voting for the “Scottish verdict” that the charges were “not proven.”

Clinton’s continuing political popularity was plainly, moreover, a crucial ingredient in his ultimate escape. Would the result have been the same if the public, instead of awarding the President historic highs in approval ratings, had turned against him, as it might well have done if the economy had soured instead of remaining so buoyant? Would five Republicans have voted to acquit on both charges if, instead of fearing voter retribution in the next election, they found their own poll support rising at every stage, cheered on by a public excited by the spectacle of an unpopular president at bay? Would no Democrats then have found it in their conscience, and to their electoral advantage, to turn against the President, presenting themselves as moral heroes for doing so?

It is tempting to say, as many commentators have said, that the public responded as it did out of constitutional wisdom or deep respect for the office of the presidency—that it understood the constitutional principles at stake better than the politicians did. But a combination of other factors seems at least an equally good explanation of why the public gave the President such support. The economy is unprecedentedly strong, Starr was unattractive and clumsy, and the House managers were inept. The President’s alleged crimes were rooted in a consensual sexual relationship, which the public, to its great credit, thought not a fit subject for inquisitorial investigation, as distinguished, for example, from dubious private financial arrangements, which would have been an equally inappropriate ground for impeachment. Clinton’s dogged persistence and charm surpassed expectations yet again. We were saved from a constitutional disaster not by the Framers’ prescience, but by Clinton’s political skills, and by his and our sheer good luck.

It might yet be, however, that the public’s hostility to the impeachment, however it is explained, will grow into the national consensus of constitutional principle that alone can protect us from the danger that the process revealed. There is precedent for such a development. When Franklin Roosevelt, frustrated that the Supreme Court had overturned much of his New Deal legislation in the early 1930s, proposed to increase the size of the Court so that he could appoint enough new justices to win the verdicts he wanted, even his most fervent allies were shocked and denounced his scheme. The condemnation grew so universal that it is now inconceivable that any president, even if his party dominated the Congress, would try to enlarge and pack the Court, though the Constitution’s text still permits it. We need a similar consensus that impeaching a president on the kinds of grounds the House cited is a crime against the Constitution; otherwise we cannot be confident that a president less popular or less successful than Clinton will not be impeached by partisan zealots, on equally improper charges, in years to come.

But we cannot reach that shared understanding so long as any substantial body of opinion thinks that the grounds on which the Republicans impeached Clinton were appropriate ones, as many people, I fear, do. Even many of those who think that the Senate’s final verdict was the right one nevertheless believe that the impeachment leaders acted responsibly, and that the charges they brought were plausible even if not ultimately persuasive grounds for conviction and removal. William A. Edmundson, a professor of law at Georgia State University, pressed that opinion in a letter to the editors of The New York Review. He said that the judgment whether a president’s acts merit impeachment and removal is a matter of “probabilities and degrees.” “Sometimes,” he said, “matters of proportion, probability, and degree are such that no reasonable person could, in good faith, dispute them. That, I fear, is not this case. It has been our misfortune that this presidency has pitched us an intermediate case lying somewhere between the undoubtedly impeachable nefariousness of Richard Nixon and the undoubtedly unimpeachable probity of Andrew Johnson.”

So long as any substantial section of the public accepts that view of what has happened, future partisan majorities will be encouraged to look for similar grounds for impeaching a president who is less popular than Clinton is now, in hopes of convincing the nation that the crime they charge is marginally worse than what Clinton did. It is therefore important to study the constitutional arguments that the impeachment leaders actually made, to see whether they support Edmundson’s analysis. Several of the House Managers attempted to explain why, if they did prove that Clinton had lied to a grand jury and tried to induce other witnesses to lie as well, that would justify removing him from office. We can test whether this really was an “intermediate” case, and whether the Republican decision to impeach was a reasonable one, by examining what they said.

They offered one semitextual argument. The Constitution specifically cites “bribery,” along with “treason,” as a ground for removal, and the managers argued that perjury is close to bribery. F. James Sensenbrenner, a manager from Wisconsin, told the Senate, for example, that “perjury is the twin brother of bribery.” The managers’ argument for that remarkable claim was only, however, that legislatures and sentencing guidelines often prescribe the same penalty for both offenses, and the pertinent question is not whether perjury merits as serious a punishment as bribery in the criminal courts, but whether the two crimes, if committed by a president, offer equally serious threats to the nation. The Framers referred specifically to bribery because a bribe induces an official to act against the national interest—they were particularly worried about bribes from “foreign powers.” Perjury in a private matter presents no such general danger.

The main arguments the managers offered were very different: they were arguments of principle, and the most frequent of these appealed to the “rule of law.” Almost every one of the managers, every time he spoke, said that it was necessary to convict and remove the President in order to protect the principle that even presidents are not above the law. Charles T. Canady of Florida asked, for instance, “Will [Clinton] as President be vindicated by the Senate in the face of crimes for which other citizens are adjudicated felons and sent to prison?” If that argument is sound, then the high constitutional hurdle for impeachment that the Framers tried to construct to protect the separation of powers collapses, because the argument converts any crime a president might be thought to have committed into a “high crime” justifying his removal. If a president is not above the law, he is not above any law.

But the argument is evidently a bad one. Failure to impeach a president or remove him from office does not “vindicate” him of anything. He can still be indicted and prosecuted when he leaves office, and that possibility is enough to show that a president is not above the law. Only a few of the managers even acknowledged that apparently decisive answer to their major claim, and those who did could make only the lamest reply. Canady, for example, said simply that “justice delayed is justice denied.” That slogan makes sense in the civil law: delaying the award of damages to a medical malpractice victim for several years, for example, during which the victim might not be able to afford new treatment, would be a grave injustice. But the slogan makes no sense at all in this context. It does not deny anyone justice to wait until a democratically elected president has completed his term before prosecuting him for any crimes he might have committed while in office.

The bizarre response of another manager, Asa Hutchinson of Arkansas, showed even more plainly that the managers had no answer to the point. “The argument that Clinton can be tried after he left office,” Hutchinson said, is “not too subtle of a suggestion that the independent counsel go ahead and file criminal charges against the President…but I do not believe that is what the country has in mind when they say they want to get this matter over.” The fact that a criminal prosecution after the end of the President’s term would be unpopular hardly shows that the rule of law can be upheld only by removing him from office now.

In any case, a congressional impeachment, particularly one conducted in the way the Republican leadership conducted this one, is not even an appropriate, let alone a necessary, means of vindicating that ideal. The rule of law does not mean just that criminals should be pursued; it means that those accused of crime should be protected as well. That rule is not served by an independent counsel who is free from the normal constraints of the criminal process—Starr’s behavior in this case would presumably have led to charges being dismissed in an ordinary criminal case. Nor is the rule of law served when articles of impeachment are so vaguely drafted, as they were in this case, that they would have been rejected as a proper indictment in a criminal court. Nor when the congressmen charged with deciding whether to impeach and whether to convict receive daily opinion polls telling them how the voters want them to decide. Nor when wavering congressmen are threatened with punishment if they vote the wrong way, as moderate Republican representatives were intimidated by right-wing zealots threatening to run primary candidates against them in the next election. (Imagine a jury trial in which the prosecutor threatened to get jurors who voted to acquit fired from their jobs.)

The impeachment process is widely described as political rather than judicial—Chief Justice Rehnquist, presiding in the Senate trial, ruled that senators should not even be called jurors—and the political character of the process is often cited as explaining why the Senate’s decision is not subject to judicial review. But exactly because it is political and not judicial, impeachment has very little to do with the rule of law.

The managers’ next favorite argument appealed to a different dimension of the rule of law—the impact of official behavior on private citizens. Most of them said, at one point or another, that Clinton’s behavior should be judged a high crime, and he should be removed from office, because he lied in a deposition in Paula Jones’s case against him, making it harder for her to prove that he violated her civil rights by exposing himself to her in a hotel room. One of the managers, George W. Gekas of Pennsylvania, went so far as to say that they were relying exclusively on this argument. “We are not saying that the President…should be convicted…just because he committed perjury or obstructed justice; but because…[he] attempted to destroy the rights of a fellow American citizen.”

In fact, the House had rejected a proposed article of impeachment accusing Clinton of perjury in his Jones-case disposition (presumably because the judge in that case had ruled the deposition immaterial) so the Senate did not even have before it the charge that Gekas and other managers said justified removing the President. In any case, their argument was once again an evidently bad one. If Clinton lied in his deposition in Paula Jones’s case, and if that lie indeed prejudiced her legal rights to recover damages against him, the ordinary civil courts have ample power to redress the wrong by reopening the case as, indeed, Paula Jones’s lawyers petitioned an appeals court to do before the case was finally settled. That is a much better way of protecting her rights than throwing a president out of the office to which the nation had elected him.

The third major argument the managers pressed was equally weak. They said that since the Senate had removed judges from office for perjury in the past, they must follow that precedent and remove a president for the same offense. But judges are appointed for life provided their behavior is “good,” and it is much more dangerous to the judicial process to allow a perjured judge to remain in office for the rest of his life than it is dangerous to the nation to allow a president who has lied under oath, in a private matter, to finish his term. So the precedent established for judges does not apply obviously or automatically to presidents. More argument is needed to show that perjury, particularly in a private matter, is always an impeachable offense in a president’s case.

The managers’ arguments were not ones, then, that might appeal to “reasonable” people as demonstrating a case for impeachment of even “intermediate” strength. They were very bad arguments that could not honestly be advanced by anyone who accepts that presidents should be impeached and convicted only when their criminal behavior has shown that it is dangerous to the Constitution or the nation to leave them in office. These bad arguments nevertheless persuaded the House and more than half the senators. We are very far from a national consensus that a high standard for impeachment is the proper standard.

I said, in my earlier article, that in the 2000 elections we should support congressional challengers who run against the impeachment leaders, and who make the illegitimacy of the impeachment a campaign issue. Several readers wrote to ask how they might help in such an effort, but other readers said that my suggestion was dangerous because it would help to fuel the blind partisanship that has so corrupted our government in recent years. Professor Edmundson, for example, in his letter to the editors, said that I have urged an “electoral jihad” that “would propel us even farther from ordinary politics.” I agree that any political war of vengeance would be inappropriate and counterproductive. But it is not wrong for us to oppose politicians whose views on important issues we think dangerous—not wrong to work to defeat candidates who would vote contrary to our own convictions about economic justice, abortion, or foreign policy, for example.

Our remarkable but fragile Constitution is as important as any of these, and its safety depends on respect not only for its text but for its more basic philosophy as well. It is entirely appropriate for voters who believe that the impeachment leaders endangered the Constitution to seek to replace them with other representatives who have a better understanding of that philosophy. We should not depend on the luck that pulled us through this crisis. We need to nurture the visceral consensus I described—that impeaching a president for acts that signal no danger to the Constitution or the nation violates the separation of powers just as surely as packing the Supreme Court would. It might well help in that effort to make the impeachment a continuing political issue. Senator Mitch McConnell of Kentucky said, in a recent television discussion of the impeachment aftermath, that the “good news” for Republicans is that the public quickly forgets. We owe it to our country to try, this time, to help it to remember.

—February 18, 1999