, , , , , , , ,

While rummaging around in some old files, I came across the item below, originally published in the December 22, 1998 edition of The Champion, the magazine of the National Association of Criminal Defense Lawyers.  In it, assuming the character of a congressman voting on articles of impeachment for President Bill Clinton, I laid out my views about the events of that turbulent period.  Readers, particularly those whose political memory doesn’t extend back that far, may find it of some interest. For me, it serves as a useful reminder that a credible case for the impeachment of Mr. Trump must steer clear of the politics of personal destruction that rendered the Clinton impeachment effort illegitimate.

Against Impeachment: An Imagined Argument in the House Judiciary Committee

Editor’s Note: On October 12, 1998, the faculty at Gonzaga University Law School staged a mock impeachment hearing before the House Judiciary Committee. Professors played the roles of Committee members arguing for and against forwarding the full House three proposed Articles of Impeachment [President Clinton] with perjury, obstruction of justice, and abuse of power. Professor Frank Bowman spoke in the character of a congressman opposed to impeachment. His remarks follow.

When I began thinking about what I would say here, I was angry. Angry mostly with two monumentally selfish men — one without honor, the other without judgment. Angry with a President, who with all his gifts — talent, intelligence, charm, and the ultimate gift of power given by the people of this country — could not restrain his sexual appetites, and then — when the day came that his failure was discovered, lied — and lied repeatedly — to cover it up.

Angry, equally, with the President’s pursuer, a man of nearly equal gifts, who has proven to be a smiling keyhole-peeping zealot, smugly convinced of his own righteousness, using the law’s tools, but refusing to be bound by its limits, fixated blindly on his quarry, determined to bring him down at last by whatever means.

Two men, locked together, clawing at one another, each so obsessed with personal vindication that neither has spared a thought for the damage they do, day by day, to the country they claim to serve. In the end, neither of them can win. Indeed both have already lost. Both crave the favorable judgment of history.

Neither will receive it. No matter what we do here, whether the President is removed or serves out his term, William Clinton and Kenneth Starr are already condemned to spend the remainder of their lives in a very public purgatory: the President disgraced, his adversary despised, both of them endlessly — and vainly — seeking to justify their actions of the past year. They are lost men, though they seem not to know it, and it is pointless to be angry with them.

The facts are that the Independent Counsel has made his referral, and the President will not resign. So the resolution of this great tragedy is no longer in their hands, but in ours. How this crisis in the life of the Republic should be resolved depends a good deal less on arguments about who they are, than on a choice we must make about who we are, as a nation and as a political community. Who did the Founders intend us to be? Who have we been throughout our history? What kind of public life together do we want to have for our lives and the lives of our children?

To begin at the beginning, we Americans are creatures of our written Constitution. If the ancient Israelites were the People of the Book, we are the People of the Constitution. The Constitution gave us a particular kind of government, with a unique and particular sort of chief executive — a President whose power does not rest on a parliamentary majority, but arises by direct grant from the popular vote of all the people. A President who serves, not at the pleasure of the legislature, but for fixed terms. A President who can be removed only one way, by impeachment for the commission of “treason, bribery, or other high crimes and misdemeanors.”

Those who favor the removal of this President are prone to abbreviate the constitutional language, to speak only of the rather mysterious phrase “high crimes and misdemeanors,” without mentioning the fact that the Constitution has given us two concrete examples — treason and bribery — of the type of offense the Framers intended to be proper grounds for impeachment. When the Constitution speaks of “treason, bribery, or other high crimes and misdemeanors” it is saying that a President may be removed if he commits treason, takes or gives bribes, or commits other acts similar both in type and seriousness to bribery and treason.

From this we can fairly infer two things:

First, a “high crime or misdemeanor” is an offense of the most serious kind. Treason is punishable by death. And bribery is everywhere thought of as among the gravest of non-violent offenses.

Second, impeachable offenses are public crimes, crimes that strike at the heart of the democratic order. As Alexander Hamilton said in Number 65 of The Federalist, they are “of a nature which may with peculiar propriety be denominated POLITICAL [and he capitalized the word “political”], as they relate chiefly to the injuries done to the society itself.”

In the present case, the President had an adulterous affair, and then he lied to cover it up. In my view, neither adultery nor lying to conceal it compares even remotely in seriousness to treason or bribery. Indeed, though adultery is often, and lying about it under oath always,criminal, and both occur routinely in every jurisdiction in the land, neither is ever prosecuted. People cheat on their spouses every day. And they lie about it, in divorce court, in child custody proceedings, in sexual harassment cases. And while they may lose their civil lawsuits, they are never prosecuted for perjury about their sex lives. In short, in every courthouse across America, adultery and its concealment rank below driving without a license and overtime parking in the amount of resources the nation’s prosecutors and judges are willing to devote to stamping them out.

Two Errors

But, I hear my learned Republican friends protesting that this is different. The President is the Chief Executive, sworn to support and defend both the Constitution and all the laws of the land. When he breaks the law, he violates a public trust. If the President breaks the law, and we do not impeach him, then, say my Republican friends, we “abandon the rule of law.” This argument rests on two fundamental errors.

First, the argument assumes that impeachment is the only remedy the law provides for a President who breaks it. Not so. As Alexander Hamilton said of those who actually are impeached, “After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.” The same is true of those who commit crimes, but are not removed from office on that account.

In other words, a refusal to impeach does not mean a refusal to punish. If the President did indeed commit perjury or obstruction of justice, nothing bars his prosecution for those offenses once he leaves office. It is remarkably telling that those who profess such deep concern about preserving the “rule of law” are so unwilling to let the law’s ordinary processes work. The truth is that the President’s opponents shun the ordinary process of law in favor of the uniquely political process of impeachment, because they rightly fear that no ordinary prosecutor would indict this President and no ordinary jury would convict him.

The second flaw in the contention that failure to impeach equals abandonment of the rule of law is that it ignores our most fundamental law: the Constitution itself. The Constitution does not say that any criminal violation, or even any felony, by the Chief Executive is grounds for impeachment. Had the Framers wanted to say that, they certainly knew how. Their numbers included some of the finest lawyers and legal draftsmen in our history. The Constitution says that impeachment follows only from the commission of especially serious, peculiarly public crimes — “treason, bribery, or other high crimes or misdemeanors.” My conservative friends — who are usually so insistent on giving the Constitution its plain meaning — want to bootstrap their way around this inconvenient language by contending that the President’s official obligation to enforce the law renders any significant violation of the law by the President himself a breach of trust grave enough to require impeachment. To agree with them is to say that, for a President, “high crimes and misdemeanors” means nothing more than any violation, or perhaps any felony violation, of the criminal code.

In sum, I cannot consent to the impeachment of this President on these charges because to do so would be, if not absolutely unconstitutional, at least anti-constitutional, in the sense that it would run contrary to what I think the Founders intended. The crimes alleged against the President are neither sufficiently grave, nor sufficiently “Political” — as Alexander Hamilton conceived the term — to merit impeachment. As one of our House colleagues recently said: “The President betrayed his wife. He did not betray the country. God help us if we cannot tell the difference.”

And yet, like my Republican friends, I am profoundly troubled by a President who lies under oath, however private the subject matter of the lie. I am profoundly troubled by a President who lets his subordinates lie for him. Who silently condones the conduct of his lawyers when they pass misleading information on to a court. If this is not impeachable behavior, it is certainly close. I am indeed sufficiently troubled, and feel sufficiently betrayed, by my President, that I might almost swallow my constitutional scruples and vote for impeachment, were it not for the fact that I believe to do so would compound the injury that Mr. Starr and Mr. Clinton have together inflicted on the country.

In the end, I cannot vote for impeachment because to do so would place the stamp of approval on the increasing viciousness of our politics. It would sanction the incestuous marriage of law and politics that has transformed all holders of high office into the automatic targets of a secular inquisition. I detest what President Clinton has done. I fear what the process that pursued him will do to what is left of our public life if it is not stopped.

The President’s opponents say, with every indication of sincerity, “It is not the President’s adultery that concerns us. It’s the lying. The lying in the deposition. The lying in the grand jury. The lying to the public.” Curiously, perhaps, I find the reverse to be true. What is to me incomprehensible and nearly unforgivable is the adultery itself. The betrayal of the man’s wife and daughter. The selfishness and sheer reckless stupidity of seeking physical gratification with this young woman in this place, not just once, but over and over again. But being a cad and a fool are not impeachable offenses. And so we hear about the perjury.

Original Sin

The problem is that while the adultery was the President’s failing alone, an original sin without which nothing that has happened since could have happened, the crimes for which his opponents would impeach him are the lies about the sin. And those crimes were largely manufactured for the express purpose of destroying the President. I know, and I hear some of my colleagues saying, it was Bill Clinton, not his opponents who chose to lie. That is true. These crimes of falsehood were “manufactured” not in the sense that the President did not commit them. They were manufactured because, once evidence of the original sin began to surface, it was the constant project of the President’s opponents to place him in situations where either a lie or the truth would destroy him.

Consider the Paula Jones lawsuit. Whatever its substantive merits, it was made possible by massive financial support from an ultra-conservative legal foundation, support one suspects did not arise because of a deep commitment to the rights of women or expansive interpretations of sexual harassment legislation. We now know that Linda Tripp met both with Starr’s prosecutors and Paula Jones’ lawyers before the President’s deposition in the Jones civil suit. The Jones lawyers sprung the Lewinsky questions on the President without warning in the midst of his deposition.

For its part, Starr’s office sprang into furious, but entirely secret, action: On January 12, 1998, Linda Tripp met with Starr’s people, who took her illegally recorded conversations with Lewinsky, and immediately wired her for more chats with her “friend.” On January 15, two days before the President’s scheduled deposition in the Jones case, Starr secretly obtained from Janet Reno permission to apply for expansion of his jurisdiction to investigate what he was already investigating. On the 16th Starr secretly secured expanded authority from the Court. On the same day, the day before the President’s deposition, Starr virtually abducted Monica Lewinsky, holding her incommunicado in a Washington area hotel, threatening her with decades of prison time if she did not cooperate and telling her that any cooperation deal was off if she called her lawyer. It was only after the President had testified, and told his first fatal lie, that Starr’s new focus was publicly disclosed. The implication is unmistakable. Starr’s office wanted, nay desperately hoped, that the President would lie. Because then they would have him — at long last. And so they scurried about in the dark, praying the President would fall into their trap.

It is easy to condemn the President for lying in the Jones case, and I certainly do not condone it. On the other hand, given that he had committed adultery with a woman half his age, what were his choices? He could tell the truth, and destroy his marriage, his relationship with his daughter, his Presidency, and not incidentally the life of Ms. Lewinsky. (For her life truly is destroyed. For the rest of her life, and for as long as this Republic lasts, she will be a dirty joke, an obscene footnote.) Or he could lie and hope for the best. He chose to lie, thus transforming a sin into a crime and giving his enemies the weapon they needed.

Since the initial lie, everything else has unfolded with miserable inevitability. Having lied once, the President had few options. To admit the lie was to confess perjury. To persist in denial was to court charges of obstruction. The dilemma came to a head when he was subpoenaed to the grand jury. Here was the second manufactured crime. It is against Justice Department policy to subpoena targets of an investigation to testify. The Department recognizes that it is unfair to force a target to assert his right against self-incrimination in front of the very same grand jury considering his indictment. However, Mr. Starr has never felt himself bound by the constraints that govern ordinary prosecutors. He knew that for political reasons, the President could not refuse to appear. He also knew that, to that point in his investigation, all he had was adultery and evasive answers to questions in a legally dubious civil lawsuit. So he set the perjury trap.

Once before the grand jury, the President could not possibly invoke his Fifth Amendment rights. Having agreed to testify, whatever he said would be used as evidence of perjury. If he denied the adultery, that would be perjury. If he admitted it, that would be confessing he committed perjury in the Jones case. So he danced, stuck to his silly definition of sexual relations, probably lied again, and colluded in the manufacture of yet another charge against him. And here we are.

All this having been said, my disappointment in this President is so great that, if I thought his downfall would end the story, allowing the country to move forward and heal its wounds, I would consent to his removal. But I cannot see that happy ending.

We, all of us, have created an engine for the destruction of public figures. It has grown slowly, its many components, often beneficial in themselves, falling together largely by accident. But it is upon us, it is devouring us, and it must be stopped.

We have passed an ever-more-comprehensive set of laws that make virtually every sort of unpleasant, unethical, or merely boorish behavior a legal cause of action. We have approved rules of civil discovery that allow intrusive questioning into the most collateral matters. We have laws against perjury and false statement that are seldom used, but always available. We have an independent counsel statute that confers on unelected and ungovernable proconsuls the power to pursue our highest public officers for any real or suspected transgression of the monstrous federal criminal code. We have well-funded advocacy groups at both extremes of the political spectrum who are beyond political control and who will use any available legal or public relations tool to demonize and destroy those they perceive as their enemies.

In combination, these many apparently unrelated developments permit the extremists of both parties to pull down their opponents, with a tacit nod from those of us who claim to be moderates. The strategy is plain. Find a mistake or personal weakness. If it is already criminal, call for an independent counsel. If not criminal yet, file a civil lawsuit or start a congressional investigation. If no direct evidence of criminality is unearthed, get the target under oath. Force the victim to admit indiscretions that will ruin him, or to lie and commit perjury.

The casualty list from this escalating cycle of political warfare is growing. As is the desire for tit-for-tat revenge. John Tower, Jim Wright, Clarence Thomas, Henry Cisneros, Newt Gingrich, and now the President himself. This old Republic has survived many things — world wars and civil wars, social upheaval and civil unrest. I am not sure it can withstand the prolonged criminalization of political life. From time to time truly bad people enter public office and must be removed. But the focus of public life cannot be on the private character of public people.

Ideas Not Personalities

The flaws in the private character of this President have been of the more obvious and titillating kind. But few lives could withstand the relentless scrutiny to which his life has been subjected. We, all of us, have to stop. We have to give up the notion that we profit by the personal devastation of our political opponents. We have to abandon the idea that political disagreements are the occasion for a moral jihad. We have to relearn one of the central tenets of representative democracy — that our long national conversation is about ideas, not personalities, that we can disagree with one another on the most fundamental points without hating each other, without seeking one another’s destruction.

In the end, this President should not be impeached, not because he deserves salvation, but because we do.

Postscript: At the conclusion of the mock hearing, the audience of students, faculty and members of the public, voted 109-90 against approving the articles of impeachment against the President.