Respect Election or 'Cleanse the Office'?
Washington Post Staff Writer
Sunday, January 17, 1999; Page A27
In his presentation to the Senate yesterday urging the removal of President Clinton, Rep. Lindsey Graham (R-S.C.) spoke two words that go to the very core of the presidential impeachment process: "scary" and "cleanse."
"To set aside an election is a very scary thought in a democracy," Graham acknowledged, noting that Clinton had been elected not once, but twice, and remains from the point of view of Graham and many of his Republican colleagues mystifyingly popular.
But Graham and the other House "managers" who yesterday urged Clinton's conviction on the two articles of impeachment told senators they were constitutionally bound to take that unprecedented step in order to protect the presidency from an unworthy occupant.
"Cleanse this office," Graham implored, conjuring up the dramatic vision of Vice President Gore stationed outside the Senate chamber to assume the mantle of the presidency if two-thirds vote to convict Clinton.
The tension Graham touched on yesterday between the desire to respect the outcome of democratic elections and the need, when circumstances warrant, to oust those who have proven themselves unfit to serve is at the heart of the constitutional dilemma now confronting the Senate.
Even the president's most ardent defenders concede that his relationship with Monica S. Lewinsky and his efforts to cover it up were reprehensible.
But the two sides differ markedly not only on whether Clinton's actions amounted to criminal offenses the subject examined by the House managers on Friday and sure to be rebutted by the White House this week but whether, even if the president's actions were illegal, they mandate his removal from office.
Yesterday's presentation underscored the gulf between the two camps over the degree to which a president's misconduct must be related to his official duties to justify his ouster and the relevance of the Senate's prior convictions of federal judges for perjury.
Not surprisingly, the House prosecutors dwelt on the "cleanse" side of the equation, while the White House has stressed the "scary" part.
As a constitutional matter, impeachment as cleansing is exactly the right metaphor. Although it has often been lost in the debates over censure or other lesser means of sanctioning Clinton, the point of impeachment and removal is not to punish the official on trial but to protect the country from officeholders who pose a danger to the state.
The two sides disagree strongly on what acts the country needs protection from. The White House argues that Clinton's conduct was not related to his public responsibilities and therefore does not constitute the "high crimes and misdemeanors" the framers of the Constitution envisioned. "In the final analysis, the House is asking the Senate to remove the president because he had a wrongful relationship and sought to keep the existence of that relationship private," the White House said in its trial brief submitted last week.
But for the House managers, the two articles of impeachment against Clinton obstructing justice and committing perjury before the grand jury represent what Rep. Steve Buyer (R-Ind.) described yesterday as "quintessential impeachable offenses" because they constitute assaults on the judicial system.
"Lying to one's spouse about an extramarital affair is not a crime, it is a . . . private matter," Buyer said. "But telling that same lie under oath before a federal judge as a defendant in a civil rights sexual harassment lawsuit is a crime against the state and is therefore a public matter."
Likewise, he said, "Hiding gifts to conceal the affair is not a crime. It is a private matter. But when those gifts are the subject of a court-ordered subpoena in a sexual harassment lawsuit, the act of hiding the gifts becomes a crime against the state called obstruction of justice, and is therefore a public matter."
Said the lead prosecutor, Rep. Henry J. Hyde (R-Ill.), "These are public acts. And when committed by the chief law enforcement officer of the land, the one who appoints every United States district attorney, every federal judge, every member for the Supreme Court, the attorney general, they do become the concern of Congress. And that's why your judgment, respectfully, should rise above politics, above partisanship, above polling data." Indeed, the managers told the senators that, if they were to remain true to their own precedents, they had no choice but to convict Clinton. They pointed to the three judicial impeachments and convictions of the 1980s, in which three judges were accused of perjury and ousted from office.
Perhaps the most powerful precedent for the prosecution is the conviction of former judge Harry E. Claiborne, who was removed for filing a false income tax return under penalty of perjury and tried unsuccessfully to argue, much as Clinton's lawyers are doing now, that his tax cheating was unrelated to his judicial function.
"You took a little broader view," Graham reminded the Senate. And Rep. Charles T. Canady (R-Fla.) quoted the words of Clinton's own vice president at the time of Claiborne's conviction. "An individual who has knowingly falsified tax returns has no business receiving a salary derived from the tax dollars of honest citizens," said Gore, then a senator from Tennessee.
The White House discounts the relevance of the judicial impeachments. Although it leaves Clinton's defenders in the somewhat uncomfortable position of arguing that presidents do not have to be held to the same high standards of behavior as judges, the White House notes that because judges have life tenure assuming "good behavior," there is no alternative to impeachment for removing them.
In contrast, there are other ways for the country to deal with presidential misbehavior: Presidents are constrained by their fixed terms, the need to win reelection, and now that the Constitution has been amended a two-term limit.
The White House also argues that in the cases of two of the judges convicted of perjury Walter L. Nixon Jr. and Alcee L. Hastings there was some relation to their judicial office: Nixon because he lied about his intervention in a state court proceeding and Hastings because he lied at his trial for conspiring to fix cases in his own court.
Where the managers cite the judicial impeachments, the White House looks to the last presidential impeachment proceedings and notes the 26 to 12 defeat in the House Judiciary Committee of an article of impeachment accusing President Richard M. Nixon of filing false income tax returns. To Clinton's team, that precedent shows that a president's private acts do not warrant his removal although House prosecutors don't accept the White House reading of history here.
As the White House in its brief last week made the case against conviction, it warned of a presidency "permanently disfigured and diminished, at the mercy as never before of caprices of any Congress."
"The very stability of our constitutional government may depend upon the Senate's response to these articles," the White House argued.
But Canady replied yesterday that the republic survived seeing President Nixon driven from office and would respond with a similarly orderly transition if Clinton were removed.
"Who has so little confidence in the durability of the institutions of our government," he asked, "that he would allow a president guilty of perjury and obstruction of justice to remain in office simply on the basis of a fanciful and irrational fear of the supposed consequences of his removal?"
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