Clinton v. the Constitution
11:00 PM, Feb 21, 1999 • By CHARLES R. KESLER
PRESIDENT CLINTON'S ESCAPE FROM JUSTICE was a disappointing spectacle. Nevertheless, his impeachment contains some important political lessons.
To begin with, the presence of the independent counsel distorted the constitutional process of impeachment. This is not a criticism of Kenneth Starr, who did his duty sine ira et studio; but even such a conscientious special prosecutor as Starr could not avoid becoming a standing excuse for the House of Representatives to postpone or duck its own responsibilities. Absent Starr's report, the House would have needed to conduct its own aggressive investigation, call witnesses, and deliberate from the beginning about the definition of impeachable offenses and the (political) wisdom of bringing charges against the president. This would have had two salutary effects: It would have reinforced impeachment as an aspect of the constitutional separation of powers, and it would have allowed the proceedings gradually to shape public opinion.
Starr's mission was to look for laws that had been violated, implying that impeachment would turn on an "independent" legal question that would be as impartial or value-free or depoliticized as possible. His inquiry had the perverse effect of paralyzing the Republicans (always suckers for non-partisanship), who even after they had voted to impeach Clinton were reluctant to make his indictment a political issue. Yet the House Democrats' bitterly partisan reaction to Starr's report punctured these extravagant, one-sided presumptions of legalism and tainted his inquiry in the public mind.
Moreover, the length and intensity of Starr's investigation helped to inspire the public's suspicion that this impeachment was not a matter of the legislative branch checking the executive in order to defend the Constitution, but instead was about the ruthless pursuit of a private individual by the implacable forces of the state. In short, the public never quite saw this case as concerning the abuse of public office, except maybe Starr's abuse of his office. They saw it as a defense of privacy and individual liberty, personified by Clinton, against the intrusive power of the state, personified by Starr, who seemed like a humorless IRS agent run wild. That his charges against Clinton involved covering up and lying about sex only reinforced Clinton's claim he was being persecuted not for his actions as president but for his conduct as a private man -- one of us.
The House Republicans' decisions to release the Starr report and to televise Clinton's grand jury testimony played into this misimpression. The report's recounting of his sins made them less obscene (literally, off-stage), and so the public's indignation dissolved into titillation and finally into ennui. The videotape emphasized Clinton's beleagueredness, rendering him more sympathetic (and pathetic, too). Broadcasting it undermined the Republicans' claims to be strictly following the Constitution, inasmuch as the decision revealed how desperate they were to turn around popular opinion. They were in a bad bind, to be sure, but it was impossible to ignore popularity and to play to it at the same time.
One clear lesson from all this, then, is that the independent counsel statute should be allowed to expire, and that the fundamentally political and constitutional quality of impeachment should be acknowledged and respected.
Starr deserves our gratitude for doing the best he could with an unconstitutional office, of course, and the House Republicans, despite their mistakes, deserve honor for their courage and justice. They staked their argument for impeachment, at bottom, on the principle of equality under the law. Unless Clinton has to obey the same laws that we do, he is on his way to being King Bill. Trumping privacy with equality, the House Republicans summarized their legal case against the president in this resonant principle of political justice. By raising this anti-monarchical plea, they (and the senators who voted with them) discovered why they had been called "republicans" in the first place and how they might at least begin to make equality a Republican principle again.