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Jewish World Review / September 7, 1998 / 16 Elul, 5758

Paul Greenberg

Toward impeachment

WHAT'S THIS -- SOMETHING SENSIBLE from Tom DeLay, Republican of Texas and, all too often, Ring-Tail Roarer of the Right?

Yep. Great issues have a way of invoking greatness, even in the most unlikely of politicians. Not long ago, the majority leader of the House -- Missouri's Dick Gephardt -- sounded positively statesmanlike when he both reprehended Bill Clinton's behavior and called for sober deliberation, not a lynch mob. Now comes the majority whip, Mr. DeLay, who suggests that, when Kenneth Starr's report reaches Congress, it be considered, acted on and put behind us -- rather than on the shelf. There is no guide through troubled waters like duty.

Lieberman and Bubba: How times change.

In the Senate, Joseph Lieberman raised the whole level of discussion several planes and was joined there by Bob Kerrey and Daniel Patrick Moynihan, who has made a habit of raising the level of public discourse. Let us think on such men the next time it's tempting to dismiss Congress with a wisecrack. It turns out that the Democratic Party has a conscience after all. And its voice last week was Joe Lieberman's. He deserved the respectful hearing he got. A sober sense of responsibility is being reborn on both sides of the aisle.

It's remarkable how effective simply following the law can be. In this case, it's called the impeachment process, and it came with the original Constitution the way a fire escape does with good construction. The process has been remodeled over the years by various precedents provided by defendants as different as Andrew Johnson and Richard Nixon, but it's still a remarkably serviceable exit in case of emergencies. All the nation has to do is follow the instuctions.

But the president, speaking from Moscow, urged the country to move on. Indeed we should. With dispatch, with deliberation, with justice. Unflinchingly. "Going back to work,'' as the president put it, need not be a synonym for "forget it and let it fester.'' Some things can't just be put out of mind. Let's lance this boil and get it over with. But the president acts as if he can put the operation off forever.

When do you think this boy is going to stop climbing fool's hill -- when he falls all the way down? Most of us learned better sometime in adolescence -- thanks to a mother's eye that missed nothing, or a preacher who kept uncomfortably close tabs on our behavior, or a teacher who knew just what we were trying to get away with. Here's the curse that the Bill Clintons of the world labor under: They're too bright to be caught early. They don't get hauled down till they rise so high that their fall hurts everybody.

By now the political questions about impeachment have been explored every which way: Will impeachment proceedings hurt Republicans or Democrats more this fall? Does the GOP really want to proceed with a process that could give Al Gore all the advantages of an incumbent president come 2000? Couldn't some way be found to let congressmen off the hook, like a nice innocuous resolution of censure? Yes, almost every ramification of this mess has been explored except simple duty. In this case, Congress' duty to act if presented with evidence of high crimes and misdemeanors.

And what of Kenneth Starr's duty? Will it be concluded once he hands off his report to Congress and is free to take the next dean's job that pops up? Why not? For a remarkable assumption has grown up that the president of the United States is not subject to the criminal law -- not so long as he occupies the White House, anyway. A sitting president, it's said, may be only impeached -- not indicted.

This notion is an extension of the separation of powers in the Constitution: To be a truly independent branch, it is argued, the executive must not be subject to the judiciary, or at least to the criminal courts. Yes, it's a remarkable assumption: A chief executive whose actions are clearly subject to the civil law -- see Jones v. Clinton and any number of other precedents -- is said to be immune to the criminal law except through impeachment. Taken to its logical conclusion, a president who took it into his head to grab an Uzi and start shooting down folks on Pennsylvania Avenue couldn't be restrained till Congress gathered, deliberated impeached and convicted.

It's an interesting theory, not to say a bizarre one. Maybe you have to be learned in the law to buy into it. I can't. Leon Jaworski gave this daffy doctrine a big boost when he persuaded a grand jury to name Richard Nixon an unindicted co-conspirator in Watergate rather than a prime mover.

Such confusions might be cleared away, or at least organized, if constitutional scholars were to discuss this curious corner of the law. Sure enough, still another member of Congress has done the responsible thing and will chair a hearing on just this question Wednesday. That's when Senator John Ashcroft -- another Missourian -- is inviting various experts before his committee to debate whether the president of the United States is subject to the criminal law.

Here some of us naifs had thought that the president was not only bound by the law but had a constitutional duty to faithfully execute it. It is another tribute to the corrosive influence of William Jefferson Clinton that he should have turned so innocent an assumption into another constitutional question -- the way he has all those presidential privileges he stretched to the breaking point and beyond. Once again, our clever president has added a whole new layer of sophistication to American law, or at least a whole new layer of sophistries.