Impeachment - from start to finish

October 18, 1998|By Lars-Erik Nelson | Lars-Erik Nelson,Special to the sun

"Impeachment: A Handbook," by Charles L. Black, Jr. Yale University Press. 80 pages. $6.95.

Suppose the president, desirous of having four wives, moves to Saudi Arabia and proposes to run his administration from afar, by telephone. It is not a crime, exactly, but it would certainly be an impeachable offense. Suppose, on the other hand, a president transports a woman across a state line for immoral purposes or conceals a young aide's possession of marijuana. These are indeed crimes, but hardly worthy of impeachment.

These vivid examples were used 24 years ago by Yale law professor Charles Black as a guide to help the nation grapple with the impending impeachment of President Richard Nixon. Black's clear, compact, entertaining analysis -intended for non-lawyers and easily accessible to interested high school students - has now been reissued just in time to help us wrestle with the possible impeachment of President Bill Clinton.

Central to this debate is the meaning of the constitutional standard of impeachable offenses: "treason, bribery or other high crimes and misdemeanors." Black argues that the seemingly vague phrase "other high crimes and misdemeanors" must mean transgressions on a par with treason and bribery, and not simply any offense at all. The important word is "other," which implies "more of the same."

"Thus, if I said, 'Bring me some ice cream or some candy, or something else good,' I would think you had understood me well if you brought me a piece of good angel food cake," he writes. "I would boggle a little perhaps, if you brought me a good baked potato, and I would think you crazy or stupid or willful if you brought me a good book of sermons or a good bicycle tire pump."

He also demolishes then-Representative Gerald Ford's argument that an impeachable offense is whatever a majority of the House determines it to be. That definition would open the president to an unconstitutional Bill of Attainder, in which guilt is assigned by a political majority, without any judicial proceedings at all.

Unfortunately, Black's book, for all its logic and precision, fails as a clear guide in the Clinton matter. In trying to come up with a workable definition of high crimes and misdemeanors, he sets three criteria: the offenses must be extremely serious, they must corrupt or subvert the political or governmental process and they must be plainly wrong to a person of honor, regardless of the statute books.

Clinton's accusers will say that his alleged lies under oath in a civil deposition and before a federal grand jury meet all three tests. Perjury is a felony, lying in a civil suit subverts the federal justice system and Clinton's behavior clearly offends most people's sense of honor.

His defenders will say no one is ever prosecuted for falsely denying sex in a civil deposition, and the underlying conduct, his sex with intern Monica Lewinsky, does not subvert the government.

Writing 24 years ago, Black could also argue with some hope that impeachment must not be used as a partisan tool to punish a political opponent. The current highly polarized Congress, however, seems willing to vote on party lines to do just that, even if it succeeds in impeaching the president by one vote.

Black is by no means the final word on standards of impeachment. He believed that Nixon's tax evasion was an impeachable offense. Congress decided it did not rise to the constitutional standard. Black thought Nixon had a right to privacy in his discussions with aides and should not have been forced to release his Oval Office tapes. Congress, and the courts, thought otherwise.

In the end, Gerald Ford may be right. Clinton's fate is in the hands of politicians, not law professors.

Lars-Erik Nelson, Washington-based columnist for the New York Daily News, and former Washington bureau chief for that newspaper, has covered government and politics in the U.S. and abroad for 35 years. He covered the Watergate events for Reuters.

Pub Date: 10/18/98

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