"WHAT PRESIDENTS did you just smear then?" That was Chris Matthews's memorable reply to a guest on Hardball who argued that, after all, Dwight Eisenhower might have had an affair with his wartime driver. The reply shut the guest up: For a brief moment, the viewer wondered, Has a Clintonite been shamed? Is it possible? And then the viewer realized, No, he's not shamed. He's thinking. Hmm. Who are we going to smear next?
This week's leading candidate for smearing by the Clinton legal tag team is not quite a president. It's Alexander Hamilton, the nation's first secretary of the Treasury and also the first officer of the new republic to be ensnared in a sex scandal. In 1791, Hamilton, married and the father of four children, started an adulterous affair with a woman named Maria Reynolds. Soon Hamilton was being black-mailed by Reynolds's swindler husband, James. Hamilton paid several hundred dollars (an impressive sum in those days) before finally ending the affair in the summer of 1792. After their success with Hamilton, the two Reynoldses expanded their criminal careers, this time trying to defraud the U.S. Treasury. When they were caught, they attempted to escape prosecution by offering Hamilton's political opponents in Congress proof that he was involved in their scheme: the record of the money he had given them. Confronted with the evidence by a select congressional committee, Hamilton cleared his name of corruption charges by confessing the affair.
In their brief to the House Judiciary Committee, Bill Clinton's lawyers draw a convenient moral from this episode:
It is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as creating an impeachable offense. It is also apparent that efforts to cover up such private behavior, including even paying hush money to induce someone to destroy documents, did not meet the standard. Neither Hamilton's very high position, nor the fact that his payments to a securities swindler created an enormous appearance problem, were enough to implicate the standard. These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable.
The Clinton White House has its vices, but let nobody say that one of them is a lack of ingenuity. Quite unmentioned here is the detail that none of Hamilton's "efforts" to cover up his affair involved the violation of any laws. Hamilton was not tampering with witnesses in a case against him, he did not indicate to his friends and employees how they might most usefully lie for him before a federal court, and he did not perjure himself. Those differences are breezily ignored in the Clinton brief. Watching David Kendall, Charles F. C. Ruff, et al., turn the Maria Reynolds story inside out, one has to wonder what feat of legal imagination will come next. Reinterpreting the Benedict Arnold story to prove that none of the Framers would have objected to taking campaign donations from the Chinese military?
Actually, the Maria Reynolds story clarifies the precise point at which personal misconduct is transformed into a public offense. Hamilton came to that point and, at immense personal cost, refused to cross the line. Clinton came to that point and, fully understanding what he was doing, charged past it.
At the moment that the congressional committee came to call on him in 1793, Alexander Hamilton faced a choice exactly like the choice Bill Clinton faced at the Paula Jones deposition this past January. A humiliating sexual secret had come into possession of his political enemies. (One of the committeemen investigating Hamilton was James Monroe, a leading member of the vast Jeffersonian conspiracy. Anything that Monroe knew, Jefferson knew.) Hamilton could keep his secret only by a betrayal of public responsibilities.
For Hamilton the choice was, if not easy, then inevitable. He admitted the full embarrassing story, convincing the congressmen that he was entirely innocent of the corruption charges but putting a deadly political weapon into the hands of Monroe. Four years later, Monroe leaked the story to a newspaper, and Hamilton took an even more extreme step to vindicate his reputation for public integrity: He wrote and published a pamphlet confessing the entire affair. For Clinton, too, the choice was inevitable. He lied. Once to a civil court, and then again to a federal grand jury, starting the chain of lies that has brought the country to the brink of the second impeachment in 200 years.
It's worth stopping to think what would have happened if the White House counsels were right -- if Clinton really had followed Hamilton's precedent. Suppose, when asked by the Jones lawyers about the Lewinsky affair, Clinton and Monica had told the unflinching truth. The ensuing news leaks would surely have been unpleasant for the president. But the truth would not have helped Jones's case very much -- a consensual affair initiated by the woman does not prove a propensity to harass -- and after a week or two of jokes by Jay Leno, the story would have blown over. Clinton today would be happily chatting on the telephone to congressmen about Kosovo while under the ministrations of one of this year's crop of interns, and the Starr investigation would be limping its way to an anticlimactic end.
It's worth bearing this alternative in mind when friends of the president say his scandalous behavior is "just about sex." It was within Clinton's power to keep the story strictly about sex, and if he had done so, there would have been no scandal, no Starr report, no impeachment hearings. We have all three because Clinton chose the opposite course from Hamilton's: He disdained his public trust and broke the law, rather than suffer the exposure of his false pretenses as a father, husband, and national leader.
What would Alexander Hamilton himself say about all this? As it happens, we can hazard a reasonably well founded guess. At Philadelphia in 1787, Hamilton unveiled his own preferred version of a federal constitution. Article IV, Section 13, of the Hamilton draft expressed Hamilton's own preferred grounds for impeachment: The president, he suggested, should be impeachable "for any crime or misdemeanor."
If it were up to Hamilton, of course, a character like Clinton would never rise to the presidency in the first place. But if he somehow did make it, there would be no bizarre debate over precisely how many felonies a president must commit before he can be removed. The very first one would do it.
David Frum is a contributing editor to THE WEEKLY STANDARD.