High Crimes and Misdemeanors: The Case Against Bill Clinton

  Now it is problematic even to discuss what the president has been doing in his office. The whole country is tongue-tied with a series of convoluted euphemisms for the president’s sexual perversions and inadequacies laid bare in the Oval Office.

  The Rodino Report cited Benjamin Franklin’s odd argument that including an impeachment power in the Constitution was “favorable to the executive”137:What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in [which] he was not only deprived of his life but of the opportunity of vindicating his character. 138

  It’s funny—the one defense you never hear Clinton partisans make is that he deserves the opportunity to “vindicate his character.”

  Now it is a laugh to read Alexander Hamilton’s calm assurance in Federalist No. 68 that the president would always be a virtuous man. But recall that he was confident that the office of the presidency would be filled only by “characters pre-eminent for ability and virtue”:This process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union…. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.139

  This is what was expected of the rulers in the new country forged from “a revolution which has no parallel in the annals of human society.” They had “reared the fabrics of governments,” Madison wrote, to create a Constitution that had “no model on the face of the globe.” And they had done so, “happily we trust for the whole human race.”140

  At the end of the Constitutional Convention, Franklin was asked what they had wrought. “A Republic,” he said, “if you can keep it.”

  Notes

  CHAPTER 1

  1 For the record, conservative commentators seem to have openly abandoned consistency on only one point—the question of whether the Kathleen Willey letters released by the White House immediately after her 60 Minutes appearance belied a sexual harassment claim. Many conservatives promptly adopted the impotent victim excuse. This was silly. If Willey had been suing for sexual harassment, those fawning letters would have damaged her credibility. But she wasn’t. She was an extremely unwilling witness called by the Jones lawyers. The letters didn’t damage her credibility for that purpose. For the purposes of Jones’s lawsuit, the only thing that mattered with Willey was that Clinton did it, not Willey’s reaction. See Chapter 7.

  2 George Orwell, 1984, 69 (1949).

  3 See, e.g., CNN’s CNN Late Edition with Wolf Blitzer, March 22, 1998 (Congressman Tom Delay (R-TX): “[ W] e’re waiting for the facts to come out.”); The NewsHour with Jim Lehrer, March 16, 1998 (Former Clinton Special Counsel Lanny Davis: “I think people are withholding judgment. I think they’re waiting to see if the facts come out.”); CNBC’s Rivera Live, February 11, 1998 (Lanny Davis: “[President Clinton] is to be believed when he says that he did not have this relationship. And until evidence comes in, until facts come in to prove otherwise…”); Liz Stevens, “Hill-billy Relations,” Fort Worth Star-Telegram, January 31, 1998 (“Whatever you think of the president’s guilt or innocence, there’s no way to judge him or his wife—or, for that matter, Monica Lewinsky—until all the facts are in. And maybe not even then.”).

  4 Sonya Ross, “First Lady Says President Will Weather Latest Scandal,” Associated Press, January 22, 1998.

  5 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.

  6 Staff Report, House Committee on the Judiciary, 93rd Congress, “Constitutional Grounds for Presidential Impeachment” (released February 22, 1974) [hereafter “Rodino Report”] at 4.

  7 Raoul Berger, Impeachment: The Constitutional Problems, 211 and 201 (1973) (quoting 8 Howell 197, 200, Art. 8.).

  8 Rodino Report at 6.

  9 Berger at 200.

  10 Berger at 58.

  11 Rodino Report at 17 (quoting 1 J. Story, Commentaries on the Constitution of the United States sec. 764 at 559 [5th ed. 1905]).

  12 Rodino Report at 17 (quoting 1 J. Story, Commentaries on the Constitution of the United States sec. 764 at 559 [5th ed. 1905]).

  13 R.M. Jackson, The Machinery of Justice in England 289 n.1 (London 5th ed. 1967) (quoted in Berger at 211, n. 96) (emphasis added).

  14 Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

  15 Paul Langford and P.J. Marshall, ed., The Writings and Speeches of Edmund Burke, 333 (1991).

  16 7 Edmund Burke, Works 11,14 (1839) (quoted in Laurence H. Tribe, American Constitutional Law, 294 [2d ed. 1988]). A number of variants of the morality quote have been given, including, most popularly, Burke’s explanation that impeachment requires statesmen to try statesmen upon principles of “state morality.” Even in these versions it is clear that Burke is referring to the honor of statesmen, and not their technical competence. There have been various renditions of Burke’s speeches during the Hastings impeachment from the very beginning. There was no official reporter for either house of Parliament (and indeed it may have been a technical breach of privilege even to report debates at all). So compilations of Burke’s speeches have been pieced together from (possibly clandestine) note-takers whose versions conflict with one another—as well as with the versions Burke produced later.

  17 Langford and Marshall at 333.

  18 Laurence H. Tribe inserted “[criminal]” in his work American Constitutional Law.

  19 Federalist No. 57, (James Madison).

  20 Berger at 14.

  21 Federalist No. 70, at 427 (Alexander Hamilton). See also Rodino Report at 9 (The president is “personally responsible for any abuse of the great trust reposed in him.” [quoting framer and Supreme Court Justice James Iredell]).

  22 116 Cong. Rec. H 3113-3114 (Statement of Representative Gerald Ford) (daily ed. April 15, 1970).

  23 Rodino Report at 16 (quoting 1 J. Story, Commentaries on the Constitution of the United States sec. 764 at 559 (5th ed. 1905).

  24 Berger at 44-45.

  25 Berger at 43.

  26 Report of the National Commission on Judicial Discipline and Removal, at 30 (August 1993).

  27 Berger at 3.

  28 Berger at 71-72.

  29 Berger at 71.

  30 Berger at 74.

  31 Rodino Report at 14 (quoting Edmund Randolph).

  32 Federalist No. 65, (Alexander Hamilton).

  33 Report of the National Commission on Judicial Discipline and Removal at 27 (August 1993) (quoting 2 The Records of the Constitutional Convention 65 [M. Farrand ed. 1911]).

  34 Rodino Report at 13 (quoting Charles Cotesworth Pinckney of South Carolina and Edmund Randolph of Virginia, respectively).

  35 Rodino Report at 10.

  36 See, e.g., Charles McCarry, “Bill Clinton’s John Dean?” New York Times, July 12, 1998. McCarry suggests that President Nixon, despite being extensively investigated by grand juries and congressional committees, “may not have needed a pardon.”

  37 Anthony Lewis, “Abroad at Home: Again, the Imperium,” New York Times, November 17, 1986 (“The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”) (quoting opinion of Justice Robert H. Jackson in the Steel Seizure case).

  38 Rodino Report at 15.

  39 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.

  40 See Information Bank Abstracts, Anthony Lewis, New York Times, January 21, 1974:ABSTRACT:

  A Lewis holds lawsuit against
Pres Nixon has not inhibited Nixon from exercising Pres powers despite Nixon’s protestations that it would do so when he recd grand jury subpoena for Watergate tapes and documents last summer. Holds Nixon’s problem is loss of public belief in his word. Notes Nixon’s latest assertion of his right to ignore subpoena from Sen Watergate com. Holds legal test of Sen subpoena is highly significant as control of information has played crucial part in rise of imperial Presidency (emphasis added).

  41 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.

  42 Bob Woodward and Carl Bernstein, “The Final Days: Part Two,” Newsweek, April 12, 1976.

  43 Martha Sherrill, “Interview: Grave Doubts. Senator Bob Kerrey,” Esquire, January 1996.

  44 “Excerpts From Clinton’s News Conference on Investigations and Middle East,” New York Times, May 1, 1998.

  45 Despite the talk of “absolute Despotism,” taxes were actually relatively moderate under King George III. Fair and just, in fact, compared to Clinton’s 1993 “tax stimulus bill” that swept in a Republican Congress for the first time in forty years.

  46 Chuck Raasch, “Bennett Asks: Where’s Religious Right in Clinton Fight?” Gannett News Service, February 27, 1998:Though the Christian Coalition has preached family values for almost a decade, the organization has not officially come to conclusions about the Clinton-Lewinsky controversy, spokesman Arne Owens said….

  “They truly believe you are innocent until proven guilty. They want to see the facts… Everyone we talk to, certainly within our grass roots, is very, very concerned about this.” [ Former Christian Coalition Spokesman Ralph] Reed maintained that when he headed the coalition, he turned down an invitation from conservative supporters of Paula Corbin Jones to appear at her first press conference—before she filed suit alleging Clinton sexually harassed her.

  47 Federalist No. 65, at 396 (Alexander Hamilton).

  48 Federalist No. 51, at 322 (James Madison).

  49 Rodino Report at 13.

  50 Peter Goldman, “Was Justice Finally Done?” Newsweek, January 13, 1975.

  CHAPTER 2

  1 Agence France Presse, January 24, 1998.

  2 Eric Pooley, with reporting by Michael Duffy and Charlotte Faltermayer, “Monica’s World,” Time, March 2, 1998.

  3 ABC’s Good Morning America, January 21, 1998.

  4 NBC’s Today, January 22, 1998.

  5 Editorial, “The Allegations,” Washington Post, January 22, 1998.

  6 Susan Schmidt, Peter Baker, and Toni Locy, “Starr Investigates Whether Clinton Told Intern to Deny Affair,” Washington Post, January 21, 1998.

  7 In Black v. Zaring Homes, Clinton’s EEOC issued a “right to sue” letter and filed repeated amicus briefs in support of a woman whose claim of discrimination consisted of five in-between-color remarks made by male colleagues. These included such whoppers as a coworker saying, “Nothing I like more in the morning than sticky buns,” while reaching for a pastry and—as the complainant put it—“wriggl[ing]” his eyebrows. Once, she also overheard her supervisor refer to a woman as a “broad.” The jury awarded the plaintiff $250,000 for such indignities. Clinton’s EEOC fought to vindicate the plaintiff’s rights in Zaring Homes until January 1997, when the Sixth Circuit Court of Appeals, mercifully, reversed the jury’s verdict.

  8 President Clinton’s press conference, Friday, February 6, 1998.

  9 Complaint, Jones v. Clinton, No. 94-290, at para. 6-11 (May 6, 1994).

  10 Complaint, Jones v. Clinton, No. 94-290, at para. 20-21 (May 6, 1994).

  11 42 U.S.C. sec. 1983. This statute codifies constitutional rights, including the Fourteenth Amendment right to be free from discrimination by the government on the basis of sex.

  12 United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983).

  13 Dick Morris said of Clinton’s presidential immunity claim in the Jones case: It “was basically a trumped-up argument that [Clinton lawyer Bob] Bennett threw together at the last minute to get this thing put off until after the election. And of course by 9-0, it had no legal merit. I never thought it had any legal merit. But the point was, we weren’t going to let this thing be adjudicated in August, October, November, near the election.” Quoted in Ross Mackenzie, “Between The Grand Inquisitor & The Church Lady, Assessing The Clintons,” Richmond Times Dispatch, June 22, 1997.

  14 See, e.g., Quick v. Donaldson Co., 90 F.3d 1372, 1379 (8th Cir. 1983); Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995) (holding that exclusion of evidence of different type of sexual harassment than that alleged by plaintiff constitutes reversible error).

  15 Clinton v. Jones, Oral Argument before Supreme Court (January 12, 1997).

  16 An anonymous caller to the Rutherford Institute was described as a “nervous young woman” by the man who took her calls. Tim Weiner and Neil A. Lewis, “Testing of a President: The Unraveling,” New York Times, February 9, 1998.

  17 Michael Isikoff and Evan Thomas, “The Secret War,” Newsweek, February 9, 1998.

  18 As we will see, Hubbell had worked on a fraudulent land deal at the prestigious Rose Law Firm—as had Hillary Clinton. The prosecution’s theory was that the White House arranged for Hubbell to be paid hush money to keep him from testifying against Mrs. Clinton. In the months following his indictment, Hubbell managed to pull down more than $500,000 in “consulting fees” with “little work, if any” expected in return. Jordan had been of great “help” to Hubbell. See, e.g., Susan Schmidt, “Hubbell Meetings with Riady Draw Probers’ Scrutiny,” Washington Post, March 23, 1997.

  19 Susan Schmidt, Peter Baker, and Toni Locy, “Starr Investigates Whether Clinton Told Intern to Deny Affair,” Washington Post, January 21, 1998.

  20 “The invocation of executive and other privileges in this context also presents a question of overriding concern to the full and impartial administration of justice: the circumstances under which the Executive Branch may withhold information from a federal grand jury investigating allegations of misconduct against the president, other Executive Branch officials, and various private individuals.”Petition For a Writ of Certiorari Before Judgment, United States v. Clinton, May 28, 1998.

  CHAPTER 3

  1 This is not as extraordinary as it may sound. Three sitting presidents have been sued for acts they committed before taking office. These suits, against Theodore Roosevelt, Harry Truman, and John F. Kennedy, were dismissed or settled out of court. At least six other sitting presidents have responded to written interrogatories, given depositions, and provided videotaped trial testimony “with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty.” Clinton v. Jones, 117 S.Ct. 1636 (1997). President Clinton had already given videotaped testimony twice in criminal proceedings: United States v. McDougal, 934 F.Supp. 296 (E.D.Ark.1996); United States v. Branscum, No., LRP-CR-96-49 (E.D. Ark., June 7, 1996). President Carter also voluntarily gave videotaped testimony for use at a criminal trial. President Nixon, of course, produced tapes in response to a subpoena. United States v. Nixon, 418 U.S. 683 (1974). President Ford gave a deposition in a criminal trial, United States v. Fromme, 405 F.Supp. 578 (E.D.Cal.1975). Presidents Monroe and Grant answered an interrogatory and gave a deposition, respectively, in criminal cases. See generally Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote (1975) L.F. 1.No sitting president has, however, “ever testified, or been ordered to testify, in open court.” Clinton v. Jones at n.14. So far.

  2 Pursuant to a subpoena, the tapes themselves had been turned over to Starr Friday morning, the day before.

  3 Judge Wright explained that she assumed Fisher could provide a good faith basis for asking the questions about Lewinsky, noting that he would be sanctioned later if it turned out that he could not. The judge also offered to review the good faith basis for the questions in private, at which point Bennett relented.

  4 Deposition of William Jefferson Clinton, Jones v. Clinton, at 65-
66 (January 17, 1998).(emphasis added).

  5 “Throughout last year’s [ 1997’s] controversy over Democratic campaign fund-raising, the White House strategically released entry logs, telephone records, notes and other internal documents that may not have provided a flattering portrait of its activities but at least preempted congressional critics from putting the information out first…. But information about White House visits and presidential phone calls that was made public last year is now being guarded with fierce protectiveness.”Peter Baker, “White House, Changing Tactics, Guards Records; During Fund-Raising Flap, Documents Were Strategically Released to Limit Bad Spin,” Washington Post, February 3, 1998.

  6 See, e.g., Matthew Campbell, “Hillary in Retreat,” Sunday Times (London), March 8, 1998.

  7 Deposition of William Jefferson Clinton, Jones v. Clinton, at 73-76 (January 17, 1998).(emphasis added).

  8 Deposition of William Jefferson Clinton, Jones v. Clinton, at 76-77 (January 17, 1998).

  9 See, e.g., David Brock, “His Cheatin’ Heart,” The American Spectator, January 1994.On yet another occasion that Patterson described, the governor and his security detail arrived at the Little Rock airport and Clinton told his bodyguards that he was going to be driven back to the residence by the Arkansas lawyer, who had met the plane, so that she could show him her new Jaguar. “On the ride back he drove and she was nowhere to be seen in the car,” Patterson said. “Later he told me that he had researched the subject in the Bible and oral sex isn’t considered adultery.”

  To himself if to no one else, Brock may be a totally discredited journalist, but the point is that the president’s oral-sex-is-not-adultery position had been reported, not that it was necessarily true.