The Magazine

NO DEAL

Oct 19, 1998, Vol. 4, No. 06 • By CHARLES KRAUTHAMMER
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AT FIRST IT WAS JUST PANICKED DEMOCRATS looking for some way to get off the impeachment hook without appearing to exonerate the president. But then the wise men -- that motley crew of eminent fixers and formers (Former Secretaries of this, Former Counsel to that) -- weighed in. And that's when you knew for sure it was a terrible idea.


It all began with Joe Lieberman's speech on the floor of the Senate on September 4, the first major Democratic denunciation of the president. After that, no Democrat dared duck or defend. But since none wanted to impeach, there had to be a middle way.


The first idea was censure, a resolution of Congress criticizing the president and putting its official stamp on the national verdict that he done wrong. It was the briar patch the president passionately pleaded he not be thrown into. Unspun, it was his most fervent hope for a soft landing. It was therefore talked up incessantly by Democrats and others looking for the easy way out.


When the Republicans wouldn't buy, the ante was upped. George Stephanopoulos floated "censure plus": The congressional parking ticket would be accompanied by a fine. Presumably this would give weight and substance to the gossamer of mere censure.


There are two problems with this proposal. First, it is flatly unconstitutional. The Congress cannot levy a fine on anyone. That is a bill of attainder, forbidden by Article I, sections 9 and 10, of the Constitution. And second, there is the practical issue. The Clintons are not just penniless. They are millions of dollars in debt. There is no way they can pay a fine. However, they certainly have enough rich friends who could pay it for them. Censure plus therefore means, in reality, censure plus a couple of Clinton phone calls to find a fatcat to pay the bill.


Not good. So the search for an even better middle way continued, culminating in the ultimate, the Platonic ideal of sage moderation. It came with the imprimatur of a wise man eminent, wholly irreproachable, and of such advanced age (85) as to have no possible personal interest in the matter. This was no mere Leon Panetta or Lloyd Cutler or Howard Baker. This was former president Gerald Ford.


Ford weighed in for what can only be dubbed "censure squared": that the president be ordered to the well of the House before a joint session of Congress where he would be personally and publicly rebuked.


Ford is right that this would have a dramatic effect. It would be televised. And would end up as the single most remembered moment of the Clinton presidency, condign punishment for a president who so lusted for a legacy -- any legacy -- that he cared not a whit what it might consist of. If Ford is followed, it will consist of this one humiliating video clip.

 

II


Yet this too will not do. Condign it might be, but constitutional it is not. Congress has no right to order the president to go anywhere, let alone appear before it in the well of the House. For Clinton to come, he would have to voluntarily submit to the summons of Congress. No president should do that. Clinton, of course, would, as a way to save his own skin. It would be yet another example, indeed the paradigmatic example, of a career spent putting personal welfare first -- ahead of the office and of the country.


The office cannot and ought not be so demeaned and diminished. Which is why the censure of a president has not been tried since 1834. Three years later that censure (of Andrew Jackson by the Senate over a dispute about the Bank of the United States) was not just revoked by the Senate but expunged from the record.


Ours, after all, is not a parliamentary democracy. If we ever have one, the Ford proposal would be a splendid way to reprimand a prime minister short of canning him. But we don't have a prime minister. We have a president. Under a system that has succeeded for two centuries in preventing tyrannical rule by the brilliant and unequaled device of separating power, the legislature has no role in judging the chief executive.


With the single exception of impeachment. If the president acts criminally, the Congress may remove him. There is no provision for anything else. Removal is the job of Congress. Rebuke is the job of those who chose him: the people.


The proposals for censure or censure plus or censure squared are an attempt to satisfy what is called the proportionality issue. In this particular scandal, it is argued, the level of offense simply does not merit the remedy of removal. That may be right. In which case, the legislature should cease and desist and let the government go on.