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Scholars Weigh Likelihood of Future Impeachments

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  • By Ruth Marcus
    Washington Post Staff Writer
    Monday, February 15, 1999; Page A3

    Now that the last Founding Father has been invoked, and the final century-old precedent disinterred and dissected, the impeachment and acquittal of President Clinton moves into the realm of history.

    And there, the sharp clash over its import is just beginning as legal scholars debate the lessons of the only modern presidential impeachment trial. Has the House's action "debased" what one lawyer calls "the constitutional coin of impeachment," potentially triggering a string of partisan attacks? Or, will future politicians recoil from impeachments having seen the failure that attended the House Republicans' nearly party-line effort to drive a popular Democrat from office?

    "We're going to have to wait and see," said Rutgers-Camden law professor N.E.H. Hull, author of a book on the history of impeachment and an opponent of the proceedings against Clinton. "The question is, has the bar been lowered and are we going to see a rash of partisan impeachments? Or has the whole process so repulsed everybody that we won't see another impeachment for another 130 years?"

    Interviews last week with more than a dozen law professors both for and against Clinton's impeachment, lawyers involved in other recent impeachments and legal historians revealed a broad range of assessments. The lively constitutional discussion goes far beyond the likelihood of future presidential impeachments to such issues as the implications for other officials and the effect on the procedures for impeachments to come.

    The answers may not be known for years. "Impeachment is a long-distance game," said Alan I. Baron, a Democrat who helped prosecute recent judicial impeachments. "In the next couple years, it's not going to happen again. The wounds are too raw, but 20 years from now, 30 years from now, it could happen again because of what's happened here."

    As the country absorbs the aftershocks of Clinton's impeachment and acquittal, the verdict of voters in the elections 18 months away – and whether the GOP drive for impeachment plays any role in their electoral calculus – will also determine the long-term effect of the proceedings. "We have to look to the 2000 election and see how the people react to this, and see who pays a price, if anyone," said Yale Law School professor Akhil Amar.

    "We're all looking for the lessons of this episode, but this episode is not over," said University of Pittsburgh law professor Peter Shane. "If it turns out Bill Clinton has a disastrous two years or if it turns out Bill Clinton has a fine two years and the Republicans have a disastrous election in 2000, that one circumstance or the other will certainly affect the political impact of this precedent."

    Even so, both sides generally agreed that future Houses will take care to conduct their own independent factual inquiries lest the Senate curtail their efforts once the matter moves across Capitol Hill. Indeed, House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) acknowledged that error Friday and said his tactical decision to refrain from summoning witnesses might have doomed the House's case. On ABC's "This Week" yesterday, Hyde said that decision stemmed from a commitment he now says he should not have made to finish impeachment proceedings in the House by the end of the year.

    The legal experts also said the lesson of the Senate's defeat of the two articles of impeachment – coupled with the House Judiciary Committee's rejection 25 years ago of an article of impeachment accusing President Richard M. Nixon of tax evasion – suggest that future Congresses will shy away from bringing cases that center on a president's private actions as opposed to his official responsibilities.

    At least for presidents, the experts said, the meaning of the hazy constitutional phrase "high crimes and misdemeanors" appears closer to the restrictive interpretation pressed by Clinton's lawyers, who contended it was limited to official acts threatening to the state. In contrast, the House managers pressed a broader approach, arguing that the Senate's conviction and removal of judges for perjury, even about nonofficial matters, should apply with at least equal force to presidents.

    "The Senate may be sending a signal that public and private misconduct can be separated in a president and that the private misconduct needs to be extremely egregious, something like murder I suspect, in order for that to serve as a basis for impeachment," said William and Mary law professor Michael Gerhardt. At the same time, there are some aspects to the Clinton impeachment proceedings that limit its broad applicability. The sexual details at the core of the perjury charges against him helped produce an aversion to calling live witnesses in both Houses that might not recur with a less seamy set of allegations.

    And the House's reliance on the factual findings of independent counsel Kenneth W. Starr may never be repeated, given the likelihood that Congress will either kill the independent counsel law when it expires this year or set far stricter ground rules for such counsels to make impeachment referrals to Congress.

    Without that referral mechanism to prod it into action, Congress might be more wary of starting impeachment proceedings.

    "It's very difficult to begin an impeachment. There's a huge threshold before Congress is willing to begin something so politically difficult," said Georgetown University law professor Julie O'Sullivan. "The referral from Ken Starr's office helped them get over that hurdle. Instead of 'Why should we go forward with an impeachment?' it became 'Why shouldn't we?' "

    For now, some impeachment opponents foresee danger ahead. "This impeachment has really lowered the bar so that it could be used by people with a political incentive on the House side to make impeachment more frequent," said University of Chicago professor Cass Sunstein. "It's very hard to know without knowing what the politics will look like 5, 10, 15 years from now."

    "I think the genie is out of the bottle," Baron said. "The constitutional coin of impeachment has been debased by the House. There is a serious risk that this can be used as a political weapon, and that is not what the framers intended."

    But David O. Stewart, who represented one of the judges prosecuted by Baron, said he thought the House was burned by the Clinton experience and would therefore be wary of repeating it. "It's got to be profoundly humiliating to the House that they could not even command a majority and there ought to be a lot more reluctance to go forward with these in the future," Stewart said.

    Harvard Law School professor Laurence H. Tribe said the outcome of Clinton's impeachment underscores the point made by Hyde at the start of the proceedings: an impeachment must enjoy bipartisan support to succeed. "The most dire predictions that, the impeachment genies having been let out of the bottle, we would confront a profligate series of future impeachments, seem very unlikely to represent an accurate prognosis," Tribe said.

    Rather, he said, "The lesson of this whole saga is that impeachment is not a tool you play with easily without casting more aspersion on yourself than on your target."

    Yale Law School professor Bruce Ackerman said a bigger risk for impeachment mischief might come from Democrats bent on retaliating against a future GOP president rather than from Republicans burned by the Clinton proceedings. "The Republican Party will be extremely reluctant to repeat this nightmare again," he said. "They will be very reluctant within living memory . . . to reassert in a high-profile way their identity as a party of impeachment."

    But, Ackerman said, a Democratic majority presented with allegations against a Republican president might be tempted by the prospect of payback. "There is a very serious risk that one set of failures of statesmanship builds another set," he said.

    Backers of impeachment predicted restraint and caution about unleashing another impeachment any time soon. "My sense would be that it will require something quite egregious to convince a House of Representatives to engage this machinery again," said former Reagan Justice Department official Charles J. Cooper. Suggestions that the floodgates of impeachment are now open, he said, "seem rather far-fetched."

    "One thing we have certainly learned is how important the general political background of impeachment is," said Yeshiva University law professor John O. McGinnis, noting that the two other significant presidential impeachment proceedings – against Andrew Johnson in 1868 and Nixon in 1974 – occurred against a backdrop of political turmoil. "Without that background of turbulence it's very hard to remove a president," he said.

    Gerhardt said he thought the risk presented by the Clinton impeachment was not to spur a rash of actions against future presidents but perhaps to make it easier for Congress to move against less prominent officials. He pointed to suggestions by House Majority Whip Tom DeLay (R-Tex.) that impeachment be used against judges whose opinions he considers to be judicial activism.

    "I would be most concerned not about what is likely to happen in the light of day but in the impeachment that occurs where very few people are watching or paying attention," Gerhardt said. "I think you have to keep an eye on whether the apparent ease with which this all occurred against a very powerful figure politically means it could occur against a less powerful figure politically." The procedures used by the House and Senate in the Clinton impeachment could also chart the course for future impeachments of lower-ranking officials – though lawyers involved in such cases differed about whether future Congresses handling impeachments will be more thorough as a result of the Clinton proceedings or less.

    "In this case the House got burned by relying on Ken Starr," said University of Miami law professor Terence J. Anderson, who represented then-Judge Alcee L. Hastings during his impeachment. "And I think the House will be a little more sensitive when a lawyer in my position [representing an impeachment target] says, 'No, you really ought to hear from the underlying witnesses before you move forward.' "

    But Stewart, who represented then-Judge Walter L. Nixon Jr., said he was concerned that the streamlined process used by both the House and Senate could be invoked as a basis for avoiding full factual development in a judicial impeachment.

    "With the judicial impeachments that involved criminal convictions, you're somewhat pushing uphill to start with and to get a serious full second look is hard," he said. "The Senate's been willing to do that at some level with these committee trials, but I worry that these precedents could be used to cut back on those rights."

    © Copyright 1999 The Washington Post Company

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