High Crimes and Misdemeanors: The Case Against Bill Clinton

  Invoking Executive Privilege As Obstruction of Justice

  If the legal talents of Hillary Rodham and Bernie Nussbaum are to be credited, impeachment for invoking executive privilege to thwart congressional subpoenas is an impeachable offense. The entire third article of impeachment against Nixon was based solely on the fact that he had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives….”

  This was for a somewhat legitimate invocation of executive privilege, being appealed through the courts. Ultimately, of course, the Supreme Court did recognize the existence of executive privilege, and created a new privilege. But the new privilege did not cover all presidential communications, as Nixon had argued. So the court ordered Nixon to hand over the tapes. Nixon, by the way, at least admitted he was the one invoking executive privilege.

  Flash forward twenty-five years: the nation’s chief executive, Bill Clinton, was asked about the invocation of executive privilege to shield high-level conversations about Monica, such as those his wife had with communications adviser Sidney Blumenthal. Executive privilege, of course, is the privilege of the executive; he’s the executive, and only he can assert or waive the privilege. The response from the president of the United States was this: “That’s a question that’s being asked and answered back home by the people who are responsible to do that…. All I know is, I saw an article about it in the papers today.”112

  In trying to pawn off the executive privilege gambit on his subordinates, Clinton was reversing the whole idea of a single executive held accountable for his subordinates through impeachment. The Constitution makes the president responsible for the actions of his subordinates precisely in order to prevent him from saying, “Well, I just appointed them but now it’s on their heads.” Here, Clinton was saying, “I like that dodge so much I’ll double it.” He made his subordinates take the rap for invoking executive privilege, even though they legally, constitutionally, cannot invoke executive privilege. By no stretch of the law can this be anyone’s decision but the president’s. Nixon did it once and had an article of impeachment voted against him for it.

  The framers explicitly posited obstruction of justice as an impeachable offense. Interestingly, though, the framers did not contemplate that the obstruction would be actually be committed by the president himself, but assumed it would be committed by persons with whom the president was connected. “Those who adopted the Constitution,” as the Rodino Report calls the framers, expressly stated that the president could be impeached if “there be grounds to believe he will shelter” any person who has broken the law.113

  One chance in 1,024, that the president himself has not committed perjury.

  IMPEACHMENT OF A PRESIDENT FOR LYING

  The Issue

  Lying to the American people may not be a criminal offense, but it is a breach of trust by the president. It is a “high crime or misdemeanor.” It is unquestionably an impeachable offense. As Hamilton suggested, the president could be impeached for acts that make him “unworthy of being any longer trusted,” even if immune from “legal punishment.”

  The idea that the nation has a right to expect the truth from the president has become a quaint anachronism. Since he is just a politician, no one believes him anyway. His words are treated as mere pleasantries. But there is a chance that the president will have to, for example, send men into battle. He has to be able to tell the country that we really need to do this and not have people assume it’s just some political stunt.

  It is roundly assumed that Clinton is lying. His partisans are only waiting to see if there is criminal proof that he lied under oath about something they deem important.

  The Precedent

  It wasn’t always this way. One president was almost impeached for lying—lying on one single narrow point that had nothing to do with his own misconduct. The first article of impeachment voted against President Nixon included—as a separate and independent ground—that he had lied to the American people. He was accused of “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States….”114 It wasn’t under oath, and it was enough.

  As Nixon’s first special prosecutor, Archibald Cox, explained:The President is not merely the only active government official elected in America by all the people; he is the nation’s image of itself, the symbol of the nation… Woe betide him who sullies the nation’s image of itself. In my view, Watergate proved the conscience of the nation as well as the ability of a self-governing people to vindicate, by the processes of open government, their own moral sense…. 115

  The president as “symbol of the nation,” “sully[ing] the nation’s image of itself,” the people vindicating “their own moral sense”—and Nixon wasn’t even getting oral sex from an intern. He wasn’t even the one wearing latex gloves in the Watergate Hotel.

  Nixon’s second special prosecutor, Leon Jaworski, summarized the “infamy and disgrace” of President Nixon: “What sank him was his lying…. People can tolerate a great deal in their public officials. If a person is big enough to say ‘I did it,’ he’ll be forgiven.”116

  In a prediction that later events would sadly disprove, Jaworski exulted that the Watergate scandal had made “tremendous” strides for “better government”: Those who seek office know there’s a very high standard expected of them…. There aren’t many who now think they can depart from the straight line. There’ll be less use of influence. The attention given to this case will give its results a more lasting effect. It has made its impressions deep-rooted. The good that comes out of it won’t be a passing fancy.117

  Elliot Richardson, the attorney general who resigned during Nixon’s “Saturday Night Massacre,” similarly described Watergate as a shot over the bow for politicians ambivalent about the truth: “[T]hey can’t risk cutting corners or hoarding dirty little secrets, if only because they’ve learned that honesty is the best politics—whether or not there is a real regeneration of morality.”118 (Sam Ervin, chairman of the Senate Watergate Committee, was more subdued in his estimate of the salubrious effect of Watergate on other politicians, saying that it would be “up to the media to keep reminding people.”)119

  Some “better government” we got. President Clinton has announced to the American people: “[L]isten to me. I’m going to say this again. I did not have sexual relations with that woman—Miss Lewinsky.”120 More than twenty hours of taped conversations of an unsuspecting witness, thirty-seven Lewinsky visits to the White House, Betty Currie’s testimony, a dress, a brooch, a hat pin, and much additional evidence say otherwise.

  A few days after the Lewinsky story broke on January 21, 1998, Ben Bradlee, who had been editor of the Washington Post during Watergate, ticked off some of the “eerie” comparisons with Nixon during Watergate: “You have a president lying. You have a president wounded and hurt by trying to cover it up. What will the consequences be? Well, it’s going to be very difficult for Clinton to get out of this.”121

  Clinton’s Friends Say He Is Lying

  Clinton’s flacks defend their man with these points: (1) even if Clinton is lying, it has to do with sex; (2) even if Clinton is lying, the vast right-wing conspiracy is out to get him; (3) even if Clinton is lying, Starr is a really, deeply evil man; (4) even if Clinton is lying, his poll numbers are high; and so on. But no one denies that he is lying (except Eleanor Clift and the first lady, going beyond the call of duty to earn their presidential kneepads).

  Oddly, even his paid White House defenders openly acknowledge that the president is lying. One “adviser” gave the Washington Post this spin to Kathleen Willey’s groping allegation: “Clinton’s not a coercive guy; he’s very subtle…. Were they together? Yes. Did something happen? Possibly…. I think she is lying about how she felt about it.” But his boss says unequivocally that he didn’t grope her—not that he did it but she liked it.122


  Leon Panetta, Clinton’s former chief of staff, said of Clinton: “At some point he’s going to have to tell the American people what the truth of that relationship was.”123

  And, of course, George Stephanopoulos, former senior Clinton aide, said of the Lewinsky affair: “These are probably the most serious allegations yet leveled against the president. There’s no question that… if they’re true, they’re not only politically damaging but it could lead to impeachment proceedings.” He elaborated later, saying Clinton had violated a “loyalty contract” with the American people by asking people to lie:I don’t think a president is loyal to his people if he either knowingly asks them to lie or asks them to say things which he realizes are not very credible, asks them to take him on his word without giving them reasons to take him at his word. And I think that is the trap that the president has set right now.124

  Press Secretary Mike McCurry: “If it turns out what the president has said has not been fair and square with the American people, that has enormous implications.”125

  Albert Eisele, who served as press secretary to Vice President Walter Mondale, pointed out another trap Clinton has set for himself, and this one is unavoidable. In an editorial for The Hill, Eisele wrote that Clinton “has disgraced and degraded the presidency and betrayed his family and friends, his party and his country.” (Meanwhile, Republican Senators Trent Lott and Arlen Specter were calling on Ken Starr to wrap up his investigation.) Eisele continued, “Americans are willing to forgive their elected officials almost anything as long as they tell the truth.” But, he continued, “We do not believe that Clinton has done that in the present case, and we don’t know if he will, or is even able to, without exposing himself to charges of perjury” (emphasis added). For the president to come clean now, he would have to admit that he has already committed a felony.

  At least one recent Democratic presidential candidate considered the trustworthiness of the president a matter of public concern:Every time [the president] talks about trust it makes chills run up and down my spine. The very idea that the word “trust” could ever come out of [his] mouth after what he has done to this country and the way he is trampled on the truth is a travesty of the American political system.126

  There’s just no such thing as truth when it comes to him…. He just says whatever sounds good and worries about it after the election.127

  That was what candidate Bill Clinton had to say about President Bush during the 1992 campaign.

  Lying “About Sex”

  Ironically, the argument that Clinton’s relationship with Lewinsky is a “personal” matter—only “about sex”—has effectively deprived Clinton of any possible defense if he is lying. Probably the only defense the president of the United States could pony up to a charge of lying to the American people would be that the lie was required by his duty as the chief executive—something like a secret military maneuver, troop movements in a war zone, or an impending sting operation against domestic terrorists. Obviously, even a presidential lie told to save lives is problematic in a democracy. Lying about oral sex with a White House intern cannot possibly have anything to do with saving American lives or any other official presidential duties.128

  As Ben Bradlee said, “[I]t’s going to be very difficult for Clinton to get out of this.”

  IMPEACHMENT OF A PRESIDENT FOR PERSONAL MISCONDUCT

  Any impeachment hearings against Clinton could stray beyond his wily subordinates invoking executive privilege without telling him. Unlike Nixon, who was largely being held responsible for the misconduct of his subordinates, the weight of the evidence against President Clinton concerns the misconduct of the president himself.

  Former Clinton Chief of Staff Leon Panetta discussed the White House staff’s efforts to restrain the president’s “dark side”:We were sensitive to those issues.… [Let’s say] a woman wanted to ride with him in the limo, we took steps to make sure that didn’t happen. In the evenings, we always made sure he had company when he was with friends…. [Clinton] was cooperative. I never saw him in a situation that you would call reckless. You never control all of the private moments.… If it turned out that somehow his dark side prevailed in these moments of temptation, it would be a disappointment.129

  But can the president be impeached for having a “dark side” that had to be suppressed by a corps of his top advisers?

  Yes, absolutely.

  Hamilton wrote that presidents would derive their confidence and firmness—critical qualities in a president—directly from “the proofs he had given of his wisdom and integrity” and “to the title he had acquired to the respect and attachment of his fellow citizens.”130 Recall that James Madison said the primary object of the Constitution was to secure leaders with the “most virtue” and to “take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”131 For that purpose, Madison said, the impeachment power was “indispensable.” Impeachment would counter “the perfidy of the chief magistrate.”132 The impeachment of statesmen would be tried “upon the enlarged and solid principles of morality.”133

  In 1701 a member of the king’s council was impeached for procuring an office for someone “known to be a person of ill fame and reputation.” Now it is assumed that the president can actually be the “person of ill fame and reputation” without risking anything more than a censure.

  One of the longest quotes on impeachable conduct given in the Rodino Report is this:Not but that crimes of a strictly legal character fall within the scope of the power… but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged… by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.134

  There are undoubtedly grey areas in determinations of when personal misconduct constitutes grounds for impeaching a president. The president’s obtaining oral sex from a White House intern does not fall in the grey area. If a congressman’s married chief of staff was caught being sexually serviced by a Capitol Hill intern thirty years his junior, it would rank as a major scandal and would be a major political embarrassment for the congressman. This isn’t a congressman, and it certainly isn’t a congressman’s chief of staff. It is the president of the United States himself.

  The argument against impeachment for “mere personal misconduct” misconceives the nature of an impeachable offense. When Alexander Hamilton described impeachment proceedings as related “chiefly to injuries done immediately to the society itself,” he meant a betrayal of a public trust, not partisan gamesmanship. Such “political” offenses range from abuse of power to personal misbehavior. But they exclude policy differences, since an erroneous policy decision might result from “a wilful mistake of the heart, or an involuntary fault of the head,”135 as Edmund Randolph said. Since policy matters are necessarily off the table, in a sense, that leaves only “personal misconduct.”

  Even in Great Britain, where impeachment was “initiated to topple giants,” high crimes and misdemeanors encompassed personal misconduct. American impeachments were, from their inception, concerned with more modest abuses. The Constitution had clearly eliminated the need for impeachment to be used in a power struggle with any king. Consequently, impeachments under the American Constitution have always had more to do with “squalid misconduct” of office holders than the sort of grand offense that might warrant a hanging.

  The Senate has con
victed officers after impeachments for such disreputable acts as drunkenness, tax evasion, and false statements to a grand jury.136 Be it drunkenness, conspiracy to solicit a bribe, tax evasion, covering up a third-rate burglary attempt, or groping female staffers—all these involve “personal misconduct.”

  Clinton has literally disgraced the office in the sense that people’s expectations for what goes on in the Oval Office are remarkably, historically low. One of the most devastating blows to President Nixon when the tapes came out was the introduction of the phrase “expletive deleted” into the vernacular. Nixon was a Quaker; he wasn’t even using the really good curse words. But the idea that cursing was going on in the White House offended people’s sense that the Oval Office was sacrosanct.

  One of the most peculiar defenses raised by Clinton’s claque is its very active aggressive campaign to persuade people that Starr is just going after sex. As if it’s outrageous to suggest that the president should have a minimally decent personal life.

  A president whose own behavior in the Oval Office introduces the term “presidential kneepads” into the nation’s vocabulary, and who conspires to break laws to hide that behavior—conducted on the presidential seal, no less—surely warrants, as the Constitution provides, “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

  EYES OF THE WORLD