Impeachment is matter of politics GOP smells blood, which means Clinton could feel some pain

September 20, 1998|By Jules Witcover

WASHINGTON - If there is to be an impeachment inquiry against President Clinton by the House Judiciary Committee, what will it consist of?

First, it should establish guidelines on what are and what are not impeachable offenses under the Constitution's Article II specification of "treason, bribery or other high crimes and misdemeanors."

But Constitutional lawyers and scholars have argued for years about what this means. For practical purposes, Gerald Ford, the House Republican leader before he became vice president and president, might have put it best in a failed 1970 bid to impeach Supreme Court Justice William O. Douglas: An impeachable offense is "whatever a majority of the House of Representatives considers it to be."

During the Watergate affair of 25 years ago, then-Attorney General Richard G. Kleindienst put it more bluntly. To impeach a president, he said, "You don't need facts, you don't need evidence. All you need is votes." In other words, the decision comes down not to legalities but to politics.

At that time, in advance of impeachment hearings by the House Judiciary Committee against President Richard M. Nixon, a committee staff study reported there were "no fixed standards for determining whether grounds for impeachment exist." But, it went on, the reasons could include commission of "constitutional wrongs that subvert the structure of government or undermine the integrity of the office and even the Constitution itself."

The study also observed that a president's "entire course of conduct in office" could be considered, because "in particular situations it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government."

The Clinton defense team argues that only actions by a president that negatively affect the conduct of his official duties in office can trigger impeachment, and that Clinton's behavior touches only on his personal life and therefore does not demand impeachment. This might prove to be the president's strongest argument, because fellow Democrats in Congress can support it on legal grounds without appearing to condone Clinton's deplorable conduct.

This position is infinitely more defensible than the absurd arguments put forward recently by the president's defense lawyer, David E. Kendall, that Clinton did not commit perjury in denying sexual relations with Lewinsky because he did not believe that the court's definition of such relations applied to him.

Relying on this contorted defense is said by some lawyers to be legally necessary to protect the president against later criminal indictment. Politically, however, it is unsustainable, as the two Democratic leaders in Congress, Senate Minority Leader Thomas A. Daschle and House Minority leader Richard A. Gephardt have declared.

Daschle rightly called it legal "hairsplitting," warning that "continued legal jousting serves no constructive purpose," and Gephardt added that "the considered judgment of the American people is not going to rise or fall on the fine distinctions of a legal argument."

The danger in continuing to play semantic games - a favorite Clinton gambit - over what constitutes sex and perjury is that they can further alienate Congressional Democrats who are upset by the testimony about the president's behavior in the Starr report.

And with so many Republicans smelling blood and pressing for impeachment, Clinton cannot afford to risk losing the support of his fellow Democrats, many of whom reluctantly support keeping him in office.

Watergate

In the Watergate impeachment inquiry, the House Judiciary Committee benefited from the investigative work by the Senate committee headed by Democratic Sen. Sam Ervin of North Carolina and by two special prosecutors. Lawyers for Nixon were permitted to present defenses, but in the end they were overwhelmed by the disclosures of Nixon's complicity in the White House cover-up of hush-money payments and illegal uses of government security agencies.

With the avalanche of testimony supporting Monica Lewinsky's allegations that the president engaged in sexual relations with her on numerous occasions, and Clinton's acknowledgment that his conduct with her was "not appropriate," independent counsel Kenneth Starr's lengthy report could serve as a more than adequate case for the prosecution in an impeachment inquiry.

No doubt Democrats on the Judiciary Committee will resist dragging Lewinsky into public or into closed hearings to repeat her version of events. But, as in the Watergate case, the defense lawyers can be expected to get their chance to argue that Clinton's acts did not affect the conduct of his official duties and thus do not rise to the level of impeachable offenses.

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