No Middle Way
11:00 PM, Feb 21, 1999 • By JOHN O'SULLIVAN
WHEN TRENT LOTT FIRST SUGGESTED that Bill Clinton might be censured by the Senate rather than found guilty on the impeachment charges and ejected from office, I was immediately attracted by the idea. Like most conservative observers of the Clinton scandal, I doubted that the "smoking gun" evidence needed for even a Republican Senate to convict would ever be found. Yet by this time last year there was already enough of a commonsense case to find him guilty in the court of public opinion. As Michael McCurry had pointed out with devastating obviousness: If there was an innocent explanation for the president's closeness to Lewinsky, they would have produced it. And they didn't.
If by common consent Clinton was guilty of serious offenses and yet would not be "found" guilty of them, that would surely produce a widespread sense of injustice and even outrage that would have to be appeased in some way. Sen. Lott clearly felt so; I did as well; and so, all too plainly, did a nervous Democratic party. What could be done? Censure seemed to be a reasonable compromise between Clinton's intolerable vindication and his improbable conviction.
Nothing in the last year fundamentally changed this calculation. The evidence (the stained dress, for instance) against the president became stronger, indeed undeniable. His own lies and evasions accordingly became more strained, not merely absurd but absurdist (the meaning of is). And in order to avoid convicting their own party leader, the Democrats were compelled to argue that perjury and obstruction of justice must meet the most refined linguistic standards of evidence, are anyway constitutionally trivial crimes, and fall beneath legal notice altogether when committed in pursuit of sex, which, far more than love, conquers all.
Yet though all this would once have seemed likely to produce a still greater sense of injustice and outrage at Clinton's acquittal, the opposite is the case. The public seems to have reacted to the House managers' superb presentation of the prosecution case with a mixture of boredom, hostility, and embarrassment. As a result, the "finding of fact" motion (essentially a tougher censure with explanatory footnotes) was abandoned in the teeth of opposition from the Democrats who, it became clear, would vote for at most a very mild censure reproving Clinton's "private" conduct. Even those who want to deprive the president of unalloyed vindication must feel that this censure simply does not do the job.
And, as it happens, I have meanwhile been persuaded that there is no acceptable middle way between conviction and vindication. The Senate had either to acquit or throw the president out. We should accept its verdict as the result of the workings of the U.S. Constitution under the influence of public opinion, while making clear that we profoundly disagree with it.
My first reason is that any compromise -- simple censure or finding of fact -- is not found in the Constitution and is constitutionally dangerous, leading perhaps to future legal harassment of the executive by Congress. (Can't happen? What do you suppose the independent counsel law is?) For more sophisticated legal arguments, please consult Bob Bork.
Second, the various versions of censure concede too much. A simple censure would at best imply that the offenses cited fell below the level of impeachable offense; in other words, it would be a surrender to the rationalizations of Torricelli, Geraldo, Harkin, Larry Flynt, and the rest of the Comedie Francaise. A finding of fact would be worse. It would state rather than imply that the Senate judged a president fit to remain in office even though he had committed such serious offenses as perjury. That might just about be justified if Clinton had admitted these crimes and sought the forgiveness of the Senate and the American people. But he remains impenitent, apologizing insincerely for lesser misdemeanors.
Third, censure would let the American people off the hook. Although there is unlikely to be a clear and angry sense of justice denied as a result of Clinton's acquittal, it probably will leave a nasty taste in the mouth. So it should. Largely because of popular opinion, the Senate strove mightily to avoid the obvious verdict that Clinton committed impeachable crimes. They should feel bad about it -- and a censure would allow them to rationalize away that guilty feeling.