Analysis: No Response From GOP on Larger Issues
Washington Post Staff Writer
Wednesday, December 9, 1998; Page A16
An outsider a cocksure academic invited to testify to the House Judiciary Committee by President Clinton's lawyers threw down a challenge to House Republicans yesterday.
"If you believe [the charges against President Clinton] . . . rise to the level of impeachable offenses . . . you will vote for impeachment and take your risk at going down in history with the zealots and the fanatics," said Sean Wilentz, a Princeton historian. "If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway . . . history will track you down and condemn you for your cravenness."
Witnesses don't ordinarily address members of Congress in such language, as many members made clear to the professor at yesterday's session on constitutional standards for impeachment.
But Wilentz, along with a group of other prominent Democrats Samuel Beer, a retired Harvard government professor, Bruce Ackerman of the Yale Law School and former attorney general Nicholas deB. Katzenbach argued that even if Clinton did commit perjury as the Republicans charge, he should not be impeached, because impeaching a president is such a grave and momentous decision that it must be reserved for extreme cases of "political crimes against the state," as Katzenbach put it.
Essentially, they were putting the committee on notice: Use the impeachment process to score a political point at your peril future generations will not forgive you. But Republican members wouldn't respond, except to criticize Wilentz, and generally spent their time talking about Clinton's lies and the dangers of letting him get away with them.
The two sides never really engaged, especially on the largest issues raised by the witnesses.
Beer warned that impeaching a president causes "enormous damage" to the presidency and the country, and has an enduring effect on the separation of powers between Congress and the executive branch. Ackerman warned of the year-long paralysis of government that an impeachment trial in the Senate would bring. "Nothing could be more improper than to use the impeachment process as a punishment," Katzenbach said.
Yet Republican after Republican made clear that they thought the president had to be punished for lying under oath to a grand jury, and in a deposition for Paula Jones's civil suit against him.
Rep. George W. Gekas (R-Pa.), for example, challenged Katzenbach: "You're saying that perjury, which would be a direct affront to the judicial process, could not be considered fairly by any of us as being an impeachable offense."
Would impeachment of Clinton on these charges lower the bar for future impeachments, and invite political retribution by a future Democratic Congress against a future Republican president (as Ackerman suggested)? Republicans had no comment.
Would an impeachment in the face of strong public support for the president be a grave mistake, since impeachment requires popular consensus (Katzenbach's assertion)? No response. Would this impeachment undermine presidential power for years to come, as the impeachment of Andrew Johnson did for the last third of the 19th century (Wilentz's argument)? No reply.
Fairly or not, an observer could easily conclude that the Republican majority on the committee had no desire to confront any of these larger questions. But this is not unusual. Congressmen are rarely eager to take responsibility for establishing new precedents, particularly on sensitive issues. And the historic impact of impeaching Clinton for lying about, and perhaps encouraging others to lie about, his sexual misadventures has rarely been part of the public debate throughout 1998.
Yet just as scholars, journalists and politicians have rushed to reread the history of Johnson's 1868 impeachment and Richard Nixon's near-impeachment in 1974 to better understand the issues this time, so future generations will have to refer back to this episode the next time impeachment of a president is considered.
Wilentz noted that the next-to-final draft of the Constitution described impeachable offenses as "treason, bribery, and other high crimes and misdemeanors against the state." This formulation might have helped Clinton this year, since it isn't so easy to describe his alleged perjury as a crime "against the state."
But the "style committee" of the Constitutional Convention altered this sentence to say "high crimes and misdemeanors against the United States," the wording now in the Constitution a vaguer proposition that might make it easier for some to vote for Clinton's impeachment.
Beer argued that when the House votes to impeach it is taking the place of the public which originally elected the president, and implicitly interferes with the principle of popular sovereignty that the founders decided should be the key element of the American system. Confronting the "dire responsibility" that a move to impeach creates, he argued, Congress must answer one overriding question: "Does the national interest require the removal from office of this president?"
Republican members had concrete concerns. As Rep. Charles T. Canady (R-Fla.) put it, the committee had before it "convincing evidence of a pattern of lying under oath and obstruction of justice," and that was sufficient basis to move forward with impeachment.
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