A Few Thoughts About Impeachment

© Dale Franks, 1998

I watched from ten to eleven o’clock this morning, while the House of Representatives approved two articles of impeachment against the President of the United States. I watched most of the day and a half of debate that led up to the vote, as well. Through these past few days, several observations have occurred to me as I watched.

I voted for Bill Clinton in 1992. Like many other Americans, I felt that George Bush had been a good president in the area of foreign policy, but had perhaps not spent enough time on domestic policy. The Soviet Union was gone, and with it, a large degree of importance had passed out of foreign affairs. It was now time, I thought, to concentrate less on the outside world, and more on the problems we face internally. Bill Clinton impressed me as a thoughtful, serious candidate, who had given much thought to the necessary changes in domestic policy that could now be addressed in a less crisis-ridden foreign policy climate.

As it turned out, I disagreed with much of what President Clinton did during his first term, and did not vote for him in 1996. Still, I think that he has done a fairly good job. Under pressure from a conservative majority in Congress, he has been a fairly moderate president. So much so, that his own party has often criticized him. He has often found a middle ground between the extremists of both parties, and managed to forge a consensus on many issues that, while not making everyone happy, produced legislation a majority could support.

Yet, as I watched the impeachment vote today, I approved of the results.

In my view, after reading the transcripts of the Grand Jury proceedings, it is difficult to escape the conclusion that Mr. Clinton lied under oath. In addition, I feel there is credible evidence that Mr. Clinton attempted to obstruct justice by tampering with a witness, Ms. Currie. I feel that both of those acts are grounds for impeachment. I am less sure that those acts rise to a level that requires removal from office, but thankfully, I do not have to make that decision. That is left to the Senate, who will hear all the evidence, and make their decision.

But as I watched the impeachment debate, I was struck again by the arguments made by Mr. Clinton’s defenders. I have written about the president’s defense before (The Arguments of Moral Cripples, September, 1998), but in these debates and their aftermath, I heard some other arguments that bear examination.

Many democratic members denounced impeachment as a Constitutional Coup d’Etat. That phrase is as oxymoronic as can be imagined. A coup d’etat is the overthrow of a lawful government and its replacement by a new government. A president who is impeached does not get overthrown. He remains in office as president unless 2/3s of the Senate, after a trial, votes to remove him from office.

Impeachment is merely the act of referring charges against the president to the Senate. It is the only method mentioned in the Constitution by which a president can be forced to answer for acts that may be illegal. Since it is particularly described in the Constitution, and since only the Senate can remove the president after a trial, an impeachment by the House cannot possibly be a coup d’etat.

Democrats also argue that impeaching the president is tantamount to overturning the election. This argument is related to the previous one. It is not true for precisely the same arguments listed above, and for an additional reason as well.

Overturning the election would be the replacement of Mr. Clinton by Dob Dole, or perhaps George Bush. But even if the president is removed from office, his replacement will be Al Gore, who was, by the way, elected by the American people in order to replace Mr. Clinton should it become necessary. If Mr. Clinton is convicted and removed from office, the election will not be overturned, but rather it will be confirmed by replacing the president with a successor chosen by Mr. Clinton, and elected by the American people.

Another argument made was that the Constitution was on the Democrats’ side. The Constitution is on no one’s side. The Constitution states that a simple majority vote of the House is all that is necessary to impeach a president. Any party that can obtain a majority of votes for impeachment may do so.

The only requirement is that the president must have committed acts of "bribery, treason, or other high crimes and Misdemeanors". And don’t ask what "high crimes and Misdemeanors" means. There is no more precise definition in the Constitution. But during the Judiciary Committee hearings, a majority of the constitutional scholars questioned by the committee thought that perjury and obstruction of justice could be considered such.

Some Democrats argued that "high crimes and Misdemeanors" are crimes that affect the president’s public duties or trust. They say that, even if the president is guilty, his behavior does not rise to the level of impeachment because it is private behavior, and as such, it cannot constitute a "high crime or Misdemeanor". Therefore, we should wait until the president is out of office, then prosecute him.

This argument is simply silly, because private acts can obviously be grounds for impeachment. For example, let us assume that some future president, one day after his inauguration, finds the First Lady in bed with a Secret Service agent. Enraged, our hypothetical president snatches the agent’s service pistol from the nightstand, and then shoots them both. Now, this is a private act, and has nothing to do with the president’s public duties or trust. So, does this mean that, even though the president is now a multiple murderer, we cannot impeach him and must wait four years—eight if he is re-elected—to prosecute him for the murders? I doubt it.

Some Democrats argued that even the men who wrote the constitution would not consider Mr. Clinton’s acts impeachable. I find that argument incredible. Even a cursory examination of American history shows that the founding fathers considered lying under oath to be a particularly contemptible act. I seriously doubt that the men who wrote the Constitution would have hesitated for a second to impeach a president who had done so.

The vast majority of Democrats argued for a vote on censure, rather than impeachment. I find this idea to be Constitutionally offensive. The idea that the House can censure the president is nowhere mentioned in the Constitution. Moreover, a censure that required any punishment of the president would be a Bill of Attainder, which is specifically prohibited by the Constitution in Article I, Section 9. Most constitutional scholars believe that a censure by the House, in any form, is a violation of the separation of powers, and so would also be unconstitutional.

The Senate may be on firmer grounds as regards their ability to censure a president. In fact, the Senate has done so once, in censuring Andrew Jackson. This censure was expunged the next year, however, and its constitutionality was never adjudicated before the Supreme Court. It may perhaps be constitutional for the Senate to censure the president in lieu of a conviction in an impeachment trial.

In any event, there is little support at all for the idea that the House can censure the president. It is true that nothing prevents the House from passing a "Sense of the House" resolution condemning the president. But such a resolution would have no force in law, and a simple majority could expunge it at any time. That being the case, one wonders what purpose such a resolution would serve, other than to avoid an impeachment.

Another argument of the Democrats is that the president should be shown "forgiveness". Well, I am all for that. The president should be forgiven. Forgiveness is, however, a private act, not a public one. If I sue you, and you perjure yourself in the course of our trial, I may very well forgive your perjury when I lose. My forgiveness, however, will not prevent you from going to jail. In the American system of justice the only recognized act of forgiveness is an executive pardon.

Of course, the Democrats say, the only reason the president was caught lying before the grand jury was that Mr. Starr set up a "perjury trap". Sorry, but that argument certainly won’t wash. There is no such thing as a perjury trap. The concept does not exist anywhere in Federal Law. All witnesses in all Federal legal proceedings have an absolute responsibility to tell the truth at all times. You obviously cannot be entrapped to tell the truth. And if you have previously lied under oath, you may, if asked the same question again, decline to answer by invoking your 5th Amendment right against self-incrimination. Since this is the case, it is not possible to create a "perjury trap".

Let me add another word about entrapment in general. Even if the above were not true, and it was possible to construct a perjury trap, entrapment would still not apply in Mr. Clinton’s testimony before the grand jury. The legal definition of entrapment is when a law enforcement official convinces you to commit a crime for which you have not shown a previous propensity to commit, and which you would not have committed in other circumstances.

In Mr. Clinton’s case this clearly would not have applied. Mr. Clinton had already given statements under oath in the Jones case that were, by his own admission, "misleading". Also, he knowingly allowed his counsel in that case to make representations about his relationship to Ms. Lewinsky that were clearly false. As such had already shown a propensity to lie under oath. Since that is the case, Mr. Starr’s questioning could not in any way be considered entrapment.

(As an aside, I would point out that Mr. Clinton’s counsel in the Jones case, Bob Bennet, stated in Mr. Clinton’s presence during the deposition that there was no sex between the president and Ms. Lewinsky "in any way shape, or form". When this was later found out to be false, Mr. Bennet, in order to escape the possibility of disbarment proceedings, was forced to write a letter to the judge, Susan Wright Edelman, acknowledging that representation as untrue.)

Another favorite Democratic argument is that impeachment defies the will of the people. That is an interesting argument, but since we are not a democracy, it is rather a pointless one. We have a democratic form of government called a republic. Under that form of government, we, unlike other countries, do not hold regular referendums on public policy issues. Instead, voters elect their representatives every two years, and those representatives are expected to vote in the best interests of their constituency. If the voters do not like the way the way their representatives vote, they are free to turn them out of office in the next election.

Our system of government was specifically designed so that the will of the people at any given moment is not the primary concern. The will of the people changes, sometimes with startling suddenness. Moreover, one can find many instances in history where following the will of the people would clearly have been the wrong decision.

From 1939 until 1941, most Americans clearly did not want to get involved in the war in Europe. Nevertheless, Franklin Roosevelt, against the will of the people, lent great support to England against Nazi Germany, even to the point where an undeclared naval war was in effect for seven months against German Submarines in the North Atlantic. While Mr. Roosevelt’s actions were clearly contrary to public opinion, they were proper, and his preparations for war aided our ability to fight the Germans immeasurably at an early stage.

From 1961 until 1963, President John Kennedy enforced segregation orders in the southern states, even though an overwhelming majority of the voters in that region were diametrically opposed to segregation in any form. Yet Mr. Kennedy was clearly right to do so, the wishes of the voters notwithstanding.

By the way, Mr. Kennedy also won the Pulitzer Prize for his book, Profiles in Courage, which told the stories of several senators who defied the popular will of their constituents, and voted according to their conscience. In it, he addressed the idea that elected representatives should vote the way the public wants:

The voters selected us, in short, because they had confidence in our judgement, and our ability to exercise that judgement from a position where we could determine what were their own best interests, as a part of the nation’s interests. This may mean that we must on occasion lead, inform, correct, and sometimes ignore public opinion, if we are to exercise fully that judgement for which we were elected.

If the current opinion polls about impeachment showed that a majority of Americans supported impeachment, I am certain the Democrats would be quoting Mr. Kennedy’s words precisely.

By the way, if you want to talk about polls then let me address it. The same polls that show Americans are opposed to impeachment also indicate that a majority of Americans don’t actually know what impeachment is. The polling indicates that a large number of Americans think that if a president is impeached, he is automatically removed from office. In essence, a majority of Americans seem to be of the opinion that they don’t know what impeachment is, but they don’t like it. By the way, in the latest NBC poll, 48% of respondents said that they do not know what the articles of impeachment say, having never read them.

I would suggest that if Americans are uncertain about what impeachment is, and they don’t know what is in the articles of impeachment, then polls that show they are against it are unreliable.

Another argument I heard was expressed not on the House floor, but by Professor Alan Dershowitz in a television interview. Mr. Dershowitz said that a vote for impeachment is "a vote for bigotry, a vote for fundamentalism, a vote to take away a woman’s right to choose". In short, Mr. Dershowitz said, a vote for impeachment is "a vote for evil".

Presumably, Mr. Dershowitz believes that if Mr. Gore replaces Mr. Clinton, we will be on the road to what Ted Kennedy once referred to as "Robert Bork’s America. An America "in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, and rogue police could break down citizen’s doors in midnight raids." Well. I had no idea that Mr. Gore was so dangerous.

(By the way, under the Clinton administration, rogue police already break down citizen’s doors in midnight raids, just as they did in the Reagan and Bush administrations. It’s called the war against drugs. But, that’s another story.)

Such arguments as Mr. Dershowitz’s seek to replace civil discourse with slander. This is incredibly unfair, apart from being quite untrue, since neither party has a monopoly on morality or compassion. But it is a perfect example of what has gone wrong with our political discourse. We have ceased to be a society in which reasonable persons can disagree. No longer do we hear substantive criticisms as to why the other side is wrong. Instead, especially on the left, debates are couched in moralistic terms, seeking to define the left as good, while the right is "evil" or "extremist".

Of course, if Republicans are evil and extremist, and if the majority in both houses of Congress, what does that say about the majority of voters that put them there? One explanation would be that the majority of voters in this country are stupid and are constantly being tricked into voting for Republicans (all of whom who are, of course, the spawn of Satan). If not, then they must be, like the Republicans they elect, evil persons who rejoice at the prospect of seeing the elderly starve, and poverty-stricken children die.

Frankly, I find Mr. Dershowitz’s argument incredibly insulting, since it implies that a majority of the electorate are either fools or knaves. I find Mr. Dershowitz’s attitude of moral superiority insufferable. In his world, evidently, there are only two kinds of people: the compassionate, reasonable people who agree with him, and the depraved and immoral people who don’t (and who, as Alec Baldwin suggested, should perhaps be stoned to death after having their wives and children killed).

This kind of moral terrorism is extremely damaging to free speech, and democratic government. We have a name for the type of government in which there is only one "right" way to think. We call it "totalitarianism".

The Democrats in the debate accused the Republicans of wanting to drag the impeachment out to harm the president. They said the Republicans should have ended this process long ago. But what about Mr. Clinton’s responsibility? Mr. Clinton could have ended this process long ago. For seven months, Mr. Clinton lied publicly, privately, and under oath about his relationship with Ms. Lewinsky. Every time Mr. Clinton was faced with the choice between telling a lie and telling the truth, he chose the latter. He encouraged his cabinet and his friends to repeat his lies.

Only after being faced with incontrovertible physical evidence, did Mr. Clinton finally admit what was already known. Even then, rather than admitting his lies, and asking forgiveness, he chose to attack the process that discovered them. One wonders whether we would have ever heard the truth were it not for that evidence.

And so, we have arrived at our current position. The president has been impeached. The sad part of all this is that it never had to come this far. In the aftermath of the impeachment vote, Mr. Clinton made another public statement. In it, he once again apologized for his "private behavior". But it is not Mr. Clinton’s private behavior that is at issue. What Mr. Clinton should be apologizing for is not his relationship with Ms. Lewinsky. He should be apologizing for the public behavior of lying while under oath.

On this point, however, Mr. Clinton remains silent.

Top