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“High Crimes & Misdemeanors” on CNN

14 Sunday Jul 2019

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CNN’s fine reporter Zachary Wolf has published a conversation with Prof. Bowman about his new book, “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump” (Cambridge U Press 2019). You can read the conversation here — and it’s reproduced below:

Washington (CNN) As Democrats try to square growing calls for impeachment proceedings against President Donald Trump with hesitation from party leadership — and the political reality of a Republican-controlled Senate — it’s worth understanding what’s behind the concept of impeachment and why it should or shouldn’t apply to Trump.Luckily, Frank Bowman III, a law professor at the University of Missouri, is out with the definitive history of impeachment in his new book, “High Crimes and Misdemeanors; A History of Impeachment for the Age Of Trump.”We asked him in the lightly edited conversation below what something meant to curb the power of kings of England has to do with the current President of the United States.

Where does impeachment come from?

CNN: I found it really interesting the way you tied the idea of impeachment back to the Magna Carta and how lords used it almost as a form of protection against the king. Is there anything left from that original meaning in the way it is applied today?

BOWMAN: For centuries, the kings and queens of England were the dictators of their age, with the added advantage that they could claim a divine right to rule. They sought close-to-absolute power when they could. The other power centers in the society — hereditary aristocrats (lords), landowners, clergy, merchants, lawyers, judges and others — clustered in Parliament and fought for the idea that the king ruled under the law with an obligation to serve the whole kingdom, not merely his personal interests.Parliament couldn’t use impeachment to depose the king himself, but they did use it to bring  down ministers of the king who promoted absolute royal power and denied the authority of Parliament and the laws. They charged such ministers with subverting the “ancient and well established form of government” of the kingdom and introducing tyranny.

Under our Constitution, impeachment extends all the way to the person who heads the executive branch, the president. And the basic theory of the most important old English impeachments is built into our Constitution. We can impeach a president when his conduct subverts our form of government — the rules and norms that make up our constitutional order — and threatens tyrannical government by the chief executive without regard to the legislature or the law. I’d argue that’s exactly the situation we now face.

Is there a precedent for impeaching Trump?

CNN: You profile, in great detail, the impeachments of Andrew Johnson and Bill Clinton and the near-impeachment of Richard Nixon. Which of those bears the most resemblance to the possible effort by Democrats against Trump?

BOWMAN: Nixon is the closest in terms of the offenses he committed. Nixon’s troubles began  with illegal efforts to gather information against his Democratic opposition in the 1972 election, but mushroomed when he tried through lies, dangling pardons, bribery, attempting to enlist the CIA and FBI in a cover-up, firing special prosecutor ArchibaldCox, suborning perjury, specious claims of executive privilege, etc., to obstruct the investigation. He put the cherry on top by defying legitimate subpoenas from the House Judiciary Committee. The parallels to Trump’s conduct in relation to the Russia investigation and other inquiries are not exact on every point, but they are very close.A possible, and frightening, difference between Nixon and Trump is that Nixon, in the end, was a man of the law in the sense that, while he committed offenses and tried to evade responsibility for them, he nonetheless believed in the constitutional structure of the US and that its laws applied to him. So when push came to shove and he was ordered to produce incriminating material, he did. I am quite sure that Trump neither understands nor believes in the American constitutional system. And I am not sure that Trump believes that he is bound by the law.

Johnson’s case is quite different than Trump’s on its facts and historical context. It was a fundamental dispute between Johnson and the majority in Congress over the proper approach  to post-Civil War Reconstruction and the role of black freedmen in American life. Johnson was ready to re-empower the unapologetic leadership class of the defeated South and consign black people to the status of permanent peons. The Republicans in Congress wanted a wholesale restructuring of Southern society, including rights for freed black people. The impeachment fight was between two fairly well-articulated and clashing theories about what America should become.One can try to superimpose some coherent idea of America on Trump’s flailings, but in the end, the problem with Trump is not that he is trying to move the country toward some unpleasant, but coherent, vision of the future but that he is destroying the constitutional order to gratify his own ego and pursue personal wealth and power. In that respect, the fight between congressional Democrats and Trump is similar to some clashes between Parliament and the English crown.

Still, Johnson’s impeachment may have at least one lesson for us: The House impeached Johnson, but he escaped conviction and removal by one vote in the Senate. As a result, the effort to impeach him is often called a failure and a misuse of the impeachment power. I disagree. Johnson should have been impeached and convicted because his vision of America’s future was fundamentally wrong AND he would not accept the contrary judgment of Congress. Though he was not removed, the impeachment did cripple him politically and force him to back off some of his most intransigent positions on Reconstruction. The lesson, to which I’ll return  below, is that impeachment without removal can sometimes be valuable.

What’s are the limits of high crimes and misdemeanors?

CNN: You detail many possible high crimes and misdemeanors, including obstruction of justice, abuse of the pardon power, lying and greed. Can Democrats essentially say anything they don’t like is a high crime and/or misdemeanor?

Bowman: Yes … and no. From a purely procedural point of view, Gerald Ford was right when he famously said (during the course of an unsuccessful attempt to impeach Justice William O.Douglas) that an impeachable offense is whatever a majority of the House and 2/3 of the Senate say it is. That’s because (despite what Mr. Trump seems to think) congressional decisions on what does or does not constitute impeachable conduct are not “justiciable” — that is, they are not reviewable by the courts. (I know Alan Dershowitz has said the contrary, or something like it, but he’s dead wrong and, as usual, just trying desperately to keep his name in the media.)

That said, there are some generally accepted historical parameters for what does and doesn’t qualify as impeachable. Classically, they must be “great” offenses, that is, they need not be crimes, but must be serious offenses against the law or constitutional order. Generally, they involve misuses of the president’s office, though most experts concede that really serious private misconduct would count. For example, Mr. Trump’s famous boast notwithstanding, a president who committed a private murder is surely impeachable. President Clinton avoided conviction in the Senate for a variety of reasons, but among them was surely the conclusion by many senators that his misconduct, though disgraceful and criminal, was private, pretty inconsequential and unrelated to his presidential role.

I could go on, but the basic point is that a set of generally shared understandings about the kinds of conduct that should be impeachable has tended to place outside limits on what Congress is willing to seriously consider when contemplating impeachment. We’re talking about historical norms, not enforceable law. Of course, as we are reminded daily in the current administration, norms are flimsy things once those in power decide to ignore them.

Is impeachment possible with a Republican Senate?

CNN: Some Democrats want to impeach Trump but it seems extremely unlikely they could remove him from office with a Republican-led Senate. Does that essentially move impeachment off the table?

BOWMAN: I don’t think so. I respect Speaker Nancy Pelosi’s apparent view that impeachment would be politically disadvantageous for Democrats. However, Trump’s assault on American constitutional structures and values is so profound and so dangerous that I think it requires a response. If that response cannot remove him from office, it can at the least explain to the American people the facts about his conduct and, or even more importantly, why what he is doing is so wrong, so contrary to our constitutional history and so dangerous for our future. A properly conducted impeachment inquiry is the tool the Constitution gives Congress to perform this task.

Impeachment is a power granted the House by the express language of the Constitution. Therefore, in an impeachment inquiry, Congress’ power to demand information from the president is at its highest — far greater than the more general oversight powers of Congress to inquire into executive branch operations for other legislative purposes. Moreover, an impeachment inquiry — and the hearings that would be part of it — could command public  attention more than anything else Congress might do. Let’s be honest. It may be that nothing can cut through the endless stream of broadcast and social media chatter and focus the country on what Trump has done and why it is constitutionally unacceptable. But the best shot at that is probably impeachment.

Moreover, the lesson of history is that impeachments can succeed in the political sense even when they do not remove the offending official. British history is full of examples of officials who were impeached by the House of Commons and not convicted by the House of Lords but who were nonetheless politically destroyed. Likewise, just before the American Revolution, the Massachusetts Colonial Legislature impeached Chief Judge Peter Oliver for the sin of accepting a salary from the crown. Oliver was not convicted, because the royal governor dissolved the Legislature before he could be tried in the upper chamber (previewing, perhaps, the approach of Sen. Mitch McConnell). But he was forced from office nonetheless by public outcry, and the principle that American judges should be accountable to American legislatures, not the faraway royal government, was established in patriot minds.

I gave the example of President Andrew Johnson above. He was not removed, but he was  politically crippled and his approach to Reconstruction wounded, if (sadly) not killed.

What should Democrats do?

CNN: As the person who has spent more time studying impeachment than maybe anyone else in the country, what would be your advice to Democrats considering doing it now?

BOWMAN: I won’t presume to tell Congress what it should do. I’ll just say to the Democrats that if you are going to do it, don’t do it as a noble, but futile, gesture. If you’re going to do it, (a) use its power as a means to extract information about presidential misconduct that you can’t otherwise get, and (b) structure it to educate persuadable, but underinformed, citizens about Trump’s conduct and why it endangers the health of the American republic.

What should everyone remember about impeachment?

CNN: What’s the one thing you think every American should keep in the back of their head about impeachment?

BOWMAN: Impeachment is the Constitution’s defense against a president who, by conscious design or because of defects in his character, threatens republican government. The framers made impeachment hard because they didn’t want Congress throwing out presidents in partisan hissy fits. Still, the framers meant it to be used if, somehow, a manifestly unfit person were to become president and endanger the constitutional order they so carefully constructed. Donald Trump is the contingency for which they gave us the weapon of impeachment. The question is whether our politics is so broken that we lack the will even to pick it up.

A lesson from history: Conviction is not the only measure of a successful impeachment

26 Wednesday Jun 2019

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On June 25, Prof. Bowman published the following piece in Slate under the title, “Nancy Pelosi is taking the wrong lesson from past failed impeachments.”

By Frank Bowman

On Monday, Rep. Jim Himes of Connecticut became the latest Democrat to come out in favor of a formal impeachment inquiry. While Himes’ position on the House Intelligence Committee makes him one of the most prominent names to call for impeachment, House Democratic leadership has remained adamantly opposed to initiating such proceedings. As Democrats continue to agonize over whether to commence a formal impeachment inquiry against Donald Trump, they are trapped between two realities.

On the one hand, if they start an inquiry, the facts already known would compel a vote to impeach. On the other hand, the Republicans in the Senate will not vote to convict, regardless of the facts.

If, therefore, impeachment cannot compel removal, and if, as Speaker of the House Nancy Pelosi believes, impeachment risks loss of the House by the Democrats and enhances the chance of Trump’s reelection, what would be the point of starting the process?

I am loath to second-guess the proven political judgment of Pelosi in resisting a formal impeachment inquiry, but that judgment should at least be informed by a fair reading of history.

And as I explain in my forthcoming book, the history of impeachments—English and American—teaches that conviction of the target officeholder is not the only measure of a successful impeachment. Indeed, impeachments that did not result in convictions often succeeded in attaining most, if not all, of the objectives of those who initiated them.

Impeachment was invented by the British Parliament in the 1300s as a tool to counteract the dictatorial tendencies of the monarchy. Parliament could not remove an unsatisfactory king short of bloody rebellion. But impeachment gave it a means to check abuses of royal power by removing—and sometimes imprisoning, impoverishing, banishing, or beheading—the officials who carried out objectionable royal policies. The American founders abandoned British impeachment’s sometimes grisly criminal penalties (in part to make impeachment more palatable) but retained the distinctive procedural features of parliamentary practice—the lower house of the legislature brings the impeachment charges, and the upper house tries them.

Through the roughly four centuries during which impeachment was in active use by Parliament, a great many officials were impeached by the House of Commons but never convicted by the House of Lords. Sometimes the House of Lords acquitted the defendant outright. More often, it simply failed to act, or the process was blocked when the monarch “prorogued” (dissolved) Parliament before a trial could be held. The Earl of Suffolk (1450), the Duke of Buckingham (1626), and the Earl of Danby (1678) were all impeached but never tried because the king prorogued Parliament. Nonetheless, for each of these men and the king he served, impeachment was a personal and political blow.

The King preemptively banished Suffolk to forestall parliamentary condemnation, but Suffolk was murdered by pirates in the English Channel. Buckingham retained the King’s favor despite impeachment, but impeachment aggravated his personal unpopularity and he was assassinated. Danby was driven from office and imprisoned during the impeachment wrangling and effectively banished from public life during the reign of Charles II. In each case, the policies these men promoted on behalf of their royal masters were also impeded.

In 1715, the Earl of Strafford was impeached for giving Queen Anne “pernicious advice” about the Treaty of Utrecht. He was never tried but fell from power. His impeachment—along with that of the Earl of Oxford and Viscount Bolingbroke—signaled a decisive repudiation of pro-Catholic foreign policy and extinguished any hope of restoration of a Catholic English monarchy.

In 1787, when the Framers were gathered in Philadelphia to draft the Constitution, Parliament had just commenced the impeachment of Warren Hastings, governor-general of Bengal. Hastings’ impeachment was specifically mentioned in the exchange between George Mason and James Madison that gave us the phrase “high crimes and misdemeanors.” The trial dragged on for seven years and ended in acquittal, but the proceeding both destroyed Hastings and markedly altered the way England viewed governance of its overseas territories.

On this side of the Atlantic, impeachment was sometimes used by American colonists to protest royal policies. For example, in 1774, the Massachusetts House of Representatives impeached Chief Judge Peter Oliver for the “high crime and misdemeanor” of accepting a salary paid by the British monarchy under an act of Parliament. This seems bizarre to us, but to the colonists, the effort to pay colonial judges from the royal exchequer was an attempt to wrest control of the judiciary away from local authorities and make American judges accountable only to the faraway king.

Oliver was never tried because Colonial Gov. Thomas Hutchinson dissolved the upper chamber of the Legislature to prevent a trial. Nonetheless, Oliver became the hated embodiment of the danger of judicial servility to the monarchy. Faced with his example, no other Massachusetts judge dared to accept the king’s salary.

And although Oliver’s impeachment produced no conviction, the case assumed such importance in American minds that it made its way into the list of grievances against the king laid out in the Declaration of Independence. The king, wrote Thomas Jefferson:

… has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

After the newly independent United States adopted impeachment as part of its Constitution, the House of Representatives impeached Supreme Court Justice Samuel Chase in 1804, largely for judicial intemperance and displaying partisan bias in the exercise of his judicial duties. The effort to remove him was said to be part of an attempt by President Thomas Jefferson to purge the federal bench of judges aligned with his political opponents, the Federalists. Chase’s acquittal is often cited as authority for the proposition that judges should not be impeached for their political leanings. But it had another effect, which was to admonish federal judges to stay out of partisan politics when on the bench, which they have for the most part done ever since.

Finally, the failed impeachment of President Andrew Johnson in 1868 is cited by some as both a misuse of the impeachment power and an example of the futility of impeaching a president in the House, but failing to convict him in the Senate. I disagree on both points.

Johnson plainly deserved to be impeached. He was wrong about the most important constitutional questions posed by the aftermath of the Civil War—whether to readmit the rebel states of the defeated Confederacy to full political participation in national government without thorough reform of their politics and social structure, and whether to confer on black people the rights of citizenship that the abolition of slavery necessarily implied. Johnson wanted a version of “Reconstruction” that restored the white supremacist oligarchy of the Old South to power locally and influence nationally. And he wanted to consign freedmen to a sort of permanent peonage.

The Republican-dominated Congress wanted thorough Southern reformation and far more rights for black Americans. Johnson opposed them at every turn, vetoing virtually every congressional reconstruction bill and opposing ratification of the 14th Amendment. His effort to, in effect, pretend that the Civil War never happened was the true ground on which Republicans sought his removal, even though the articles of impeachment focused on the technicality of his violating the Tenure of Office Act by firing Secretary of War Edwin Stanton.

Although Johnson escaped Senate conviction by one vote, the impeachment proceedings forced Johnson to make concessions to Congress on reconstruction. Impeachment also eviscerated his effort to secure election to the presidency in 1868. One can fairly debate whether, in the long run, the goal of meaningful Reconstruction was helped or hurt by Johnson’s impeachment. But in the short term, it made crystal clear that congressional Republicans, not the president or recalcitrant southerners, would define the postwar political order.

Against all these cases stands the supposed cautionary tale of Bill Clinton’s acquittal. It is unquestionably true that the rush to impeach Clinton over his reprehensible personal conduct and obfuscatory perjuries imposed a short-term political cost on Republicans. But the lesson of that sad episode is not that any failure to convict a president is necessarily a political disaster for his or her opponents. Rather, the lesson is that the public will punish a party that tries to remove a president on transparently trivial grounds.

To draw from Clinton’s travails the lesson that no impeachment inquiry should be attempted without a guarantee of success in the Senate is to insulate even the most egregious presidential wrongdoing from serious scrutiny, still less serious consequences, so long as he can coerce the loyalty of a craven majority of senators of his own party. To take that line not only abandons a primary constitutional defense against executive tyranny but concedes that a politically dispositive fraction of the American public is so tribalized as to be unpersuadable.

I don’t think that is the lesson of American history, at least so far. Richard Nixon resigned because congressional hearings, including a formal impeachment inquiry, convinced an initially resistant American public and their congressional representatives that he committed constitutionally consequential misdeeds. Democrat Bill Clinton was acquitted because his impeachment inquiry disclosed tawdry and dishonorable, but constitutionally inconsequential, misbehavior. In the next presidential election, Republican George W. Bush, though confronted with Clinton’s strong economic legacy, ran on restoring “honor and dignity” to the White House … and won.

Ultimately, it’s not political naïveté to believe that a voting majority of Americans can be educated to recognize the threat to constitutional governance President Donald Trump presents.

Moreover, while it is imperative that Trump be beaten, it is only slightly less important that he be beaten on proper grounds. Not merely by promising better health care, or a more rational and humane immigration system, or a moderately improved system of allocating the vast wealth generated by robust capitalism. The constitutional health of the country requires that he lose, in significant part, because a voting majority of the American people understands that, unless repudiated, Trump and Trumpism will destroy the Constitution. Democrats can’t do this if they don’t at least try to make the case, and history suggests that the risks of such an effort are lower than they seem to fear. 

A Look Back at the Clinton Impeachment

30 Thursday Nov 2017

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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.