LESSONS FROM CLINTON'S IMPEACHMENT
AND TRIAL
By David Mayer

•  Professor Mayer is the faculty advisor for the Federalist Society.  He received his A.B. and J.D., University of Michigan; M.A. and Ph.D. in History, University of Virginia. He practiced law at Pierson Semmes and Finley, Washington D.C.  He was a postdoctoral fellow at the Institute for Humane Studies, at George Mason University and was a visiting law professor at Chicago-Kent College of Law in Chicago.  Professor Mayer teaches: Law & American History, Legal History, Copyright, Unfair Trade Practices, and Seminars in American Constitutional History and Libertarianism and the Law.  He also teaches an undergraduate U.S. Constitutional History course in the History/Political Science department at Capital University's Bexley campus. He has published such works as The Constitutional Thought of Thomas Jefferson (University Press of Virginia, 1994; paperback edition, 1995), and several articles in various law, history, and political science journals.

 Several important lessons can be drawn from the impeachment of President Clinton by the House of Representatives on December 19, 1998 for perjury and obstruction of justice, and his subsequent trial in the Senate, which voted on February 12, 1999 to acquit him of both charges.  In my view, the response of both houses of Congress as well as the response of the American people to the Clinton case illustrate certain fundamental truths about the state of American politics today.
 These are the lessons, as I see them, not necessarily in order of importance:

 1.  The Rule of Law.

 This was the essential issue in the Clinton case, notwithstanding the efforts of Clinton apologists to characterize it falsely as a case about "sex."  The case concerned criminal conduct, the offenses of perjury and obstruction of justice alleged in the articles of impeachment.  More fundamentally, the case concerned one essential aspect of the centuries-old principle of the rule of law: the concept of equality under the law, the principle that no one--whether king or president--is above the law.  And it concerned essentially the acid test for that principle: whether the law applies equally to a king or president, no matter how popular or politically powerful he may be.
 In his excellent summation of the case against Clinton before the House Judiciary Committee, the Committee's chief investigative counsel, David Schippers, put the fundamental issue quite succinctly when he observed that Congress and the nation were "at a crossroad from which two paths branch off."  One was the path of principle, maintaining the integrity of our Constitution and the judicial system by holding the president answerable to the rule of law and to his oath of office; the other was the path of political expediency, in which high public officials would be answerable only to "politics, polls, and propaganda."  The House of Representatives, by impeaching Clinton, passed the test; it ignored the polls and did its duty, under the law and the Constitution.  Unfortunately, the Senate failed the test; it acquitted Clinton because he remains popular as well as politically powerful, for reasons I discuss below.
 Regardless of their view of Clinton, however, all Americans should be happy and proud that we live in a country governed "by laws and not men"--that we live in a country where the head of the national government can be put on trial for his violation of the laws, under procedures established by the framers of the Constitution two centuries ago.  As Paul Gigot concluded in an excellent op-ed in the Wall Street Journal February 5, Clinton's impeachment and trial--regardless of its outcome--has been "a triumph of principle": "In an age of political cynicism, Henry Hyde and House Republicans fought for the rule of law against a liberal establishment and despite a complacent public and cowering Senate.  Our politics needs more such ‘defeats.'"

 2.  The Political Parties.

 There's a real difference between the two major political parties in America today, a difference revealed rather starkly by their opposite positions on the Clinton impeachment.  The Republican Party, by and large, remains faithful to the principles of equality under the law on which it was founded in the 1850s.  Abraham Lincoln gave a famous speech (his "Address before the Young Men's Lyceum of Springfield, Illinois") in 1838 in support of the rule of law, from which Congressman Henry Hyde quoted in his speech on the House floor preceding the vote on impeachment.  "Let every American, every lover of liberty, every well-wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of our country; and never to tolerate their violation by others," Lincoln had said.  Bringing Lincoln's advice home to the present day and applying it to Clinton's case, Hyde noted in his remarks to the Senate that members of Congress have a duty not simply "to weigh our mail every day and then to vote accordingly"; that, rather, they are "elected to bring our judgment, our experience, and our consciences with us here."  He added, "There are issues of transcendent importance that you have to be willing to lose your office over," among them, "the concept of equal justice under law," the concept vindicated by the House vote to impeach Clinton and by the heroic efforts of the House managers to prosecute him in the Senate.
 The Democratic Party today, in contrast, has betrayed the principles under which it was founded by Andrew Jackson in the late 1820s.  A key principle of the Jacksonian Democrats, too, was that of equality under law; Jackson's party was formed, in part, to oppose special "privileges" under the law (such as the exceptional powers Congress granted to the Bank of the United States).  Nothing could be further from the founding principles of the Democratic Party than permitting a man like Clinton to violate the law, and his own oath to protect the Constitution, which imposes upon him as president the duty to see that the laws are "faithfully" executed.
 One of the most amazing aspects of Clinton's political survival has been the willingness of his party to prostitute itself--sacrificing honor, integrity, and principle--in his defense.  His Democratic supporters have put themselves in the embarrassing position of supporting the continuance in office of a man who's far more of a "crook" than Richard Nixon ever was, a man who committed perjury before a federal grand jury and who conspired to obstruct justice in order to evade liability in Paula Jones' lawsuit (incidentally, a lawsuit he sought to escape by having his Justice Department argue an extraordinary--and Nixonian--claim of immunity due to "executive privilege").
 Why are Democrats so ardent in their support of this man?  My theory is that it stems from the fact that the Democratic party today is intellectually bankrupt: all the interesting ideas in American politics today come from conservatives and libertarians (mostly, of course, from libertarians), while Democrats offer only the politics of envy, fear, and guilt as they cling to the welfare state, to the failed paternalistic policies of the past.  (As evidence, consider Clinton's recent State of the Union speech, which David Boaz of the Cato Institute aptly described as a speech "promising to get us all further hooked on government money and government programs, at only the cost of our freedom."  Clinton clearly offered his laundry list of more welfare-state programs as a sop to the "core" of his party.)
 To Democrats, Clinton's political survival has become symbolic of their party's survival.  They see Clinton's impeachment, conviction, and removal from office as a major loss to the Republicans, carrying with it not only Clinton himself but everything Democrats hold dear, such as affirmative action, the minimum wage, abortion rights, and of course, Social Security. Consider, for example, Alan Dershowitz's well-publicized rant on Geraldo's show ("A vote against impeachment is a vote against bigotry--it's a vote against fundamentalism--it's a vote against anti-environmentalism--it's a vote against the radical right--it's a vote against the pro-life movement.") Ideologically speaking, Democrats today are on the ropes.  Thus, they've rallied to the credo that David Limbaugh (Rush's brother) has correctly identified as one of the ultimate reasons for Clinton's acquittal in the Senate: "Virtually no misconduct, regardless how odious, will justify impeachment and removal if it might appear to give Republicans a political victory."
 Thanks to Clinton, the Republican Party today is the party of principle, the party devoted to the evenhanded and impartial application of the laws; the Democratic Party, the party of political expediency, of "politics, polls, and propaganda," for whom the laws have become a shield for the popular or politically powerful.

3.  The House of Representatives.

 One house of Congress--the House alone--took seriously its responsibilities under the Constitution, in spite of the efforts of the left-wing extremist Democrats on the House Judiciary Committee and the Democratic leadership in the House to "stonewall" in Clinton's defense.  Pursuant to its constitutional authority, the House impeached Clinton for offenses which clearly constituted "high crimes and misdemeanors."  In particular, the thirteen House managers who prosecuted the Clinton case in the Senate are truly, in the words of William Bennett, "authentic profiles in political courage," men who were willing to risk their careers to stand up for principle and the rule of law.  Equally courageous and admirable for their integrity were the five Democrats in the House who broke party ranks to vote in favor of the articles of impeachment, defying their party and even public opinion to do their duty under the Constitution.

4.  The Senate.

 The other house of Congress, unfortunately, failed in its constitutional duty.  The Senate, under the Constitution, has the "sole power to try" impeachments, which obliges the Senate to conduct a real, not a sham, trial--one in which the Chief Justice of the Supreme Court "shall preside," as the Constitution requires in the trial of a president.  Clinton's trial, however, was a sham--a kind of "political show trial" in reverse, with the defendant's acquittal, rather than his conviction, pre-ordained.  William Rehnquist, as author of the book Grand Inquests (a study of the impeachment and trials of Supreme Court Justice Samuel Chase and President Andrew Johnson in the 19th century), is arguably the Chief Justice best qualified to preside over an impeachment trial in the Senate; but he was reduced to a mere figurehead under the Senate rules.  No live witnesses were called (in contrast, forty witnesses testified at the trial of Andrew Johnson in 1868, a trial in which no key facts were in dispute); and the House managers, who bore the burden of proof, were denied the opportunity to present a formal rebuttal.
 The 55 Senators who voted "Not Guilty" on the first article of impeachment (perjury) and the 50 Senators who voted "Not Guilty" on the second (obstruction of justice) succumbed to the strategy of Clinton's defenders, who blatantly called for the Senators to commit "jury nullification," to acquit Clinton because they argued that perjury and obstruction of justice did not "rise to the level" of impeachable offenses, warranting his removal from office.  That argument is not only ludicrous (both offenses clearly are impeachable "high crimes and misdemeanors") but also unconstitutional, as it flies in the face of the Constitution's clear language giving the House of Representatives the "sole" power to impeach (which carries with it the exclusive power to determine what constitutes impeachable offenses).  Senate Democrats voted to acquit a man who their own draft censure resolution asserted has "brought shame and dishonor to himself and to the Office of the President" and created "disrespect for the laws of the land."  In a rare burst of honesty, one Democrat--Senator Robert Byrd of West Virginia--in a well-publicized interview admitted that Clinton's offenses were indeed high crimes and misdemeanors warranting his removal--"no doubt about it," he said--but that he'd vote "Not Guilty" nevertheless because of Clinton's high poll numbers.  The result was aptly characterized by the Wall Street Journal in its February 11 editorial as "poll-driven jury nullification, with Senate Democrats in the role of the O.J. jury."
 As for the five Republican Senators who voted "Not Guilty" on both articles of impeachment, it's interesting to note that three of them are so-called "moderates" from New England--Chafee of Rhode Island, Jeffords of Vermont, and Snowe of Maine--all up for re-election next year in states that Clinton carried in 1996.  That fact underscores the fundamental fact explaining the Senate's failure to convict Clinton despite the overwhelming evidence against him.  Contrary to popular wisdom, the Senate isn't the wiser or more deliberate body; it's actually more amenable to public opinion--more influenced by opinion polls to do what's popular rather than what's right--than is the House.  The Senate today is far different from the body described in Federalist No. 65 by Alexander Hamilton, who argued that the Senate was a "well-constituted court" for the trial of impeachments because it was "sufficiently dignified" and "sufficiently independent" of public opinion, a tribunal "likely to feel confident enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers."  Thanks to the 17th Amendment, the Senate described by Hamilton has ceased to exist in the 20th century.

5.  The Seventeenth Amendment.

 Why is the Senate today so amenable to public opinion?  The obvious reason is the 17th Amendment, which when ratified in 1913 changed the mode of selecting Senators from the framers' original design (by vote of the state legislatures) to popular election.  In addition to destroying the "impartiality" of the Senate that Hamilton described in Federalist No. 65--its independence from popular opinion--which therefore has made the Senate wholly unsuited for the trial of demagogues like Clinton, the 17th Amendment also destroyed one of the most vital checks devised by the Constitution's framers for the preservation of federalism.  As a result, the states have been reduced to the status of yet another "interest group" which must form lobbying groups (such as the National Governors' Conference or the Conference of State Legislators) to try to influence Congress.  One lesson to draw from Clinton's acquittal, then, is that the United States today suffers from an excess of democracy: the 17th Amendment ought to be repealed, and the original design of the Constitution should be restored.

(WEBMASTER: Please click below to continue to Part 2 of the piece.)