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Jewish World Review /Jan. 28, 1999 / 11 Shevat, 5759
Tony Snow
To be a ‘sell-out’ or an unelectable pol --- that is the question
(JWR) --- (http://www.jewishworldreview.com) PRESIDENT CLINTON'S IMPEACHMENT TRIAL has left members of the
United States Senate in a quandary. If Republicans continue submitting him
to an eternal inquisition, they fear repercussions at the polls. If
Democrats give the impression that a) they don't believe he perjured himself
and obstructed justice, or b) they believe he did all this bad stuff, but
doesn't deserve removal, they risk getting embarrassed if he gets caught
sinning again.
It thus heartened both sides recently when Stuart Taylor of National
Journal published a column lauding a paper recently circulated by University
of Chicago Law School professor Joseph Isenbergh. The gravamen of the
piece -- to use a pedantic flourish much in vogue these days -- is that
there's an easy way out.
Here's how it works: The Constitution requires the removal of a president
upon impeachment for and conviction of treason, bribery or other high crimes
and misdemeanors.
It stipulates elsewhere that "Judgment in Cases of Impeachment shall not
extend further than to removal from Office and disqualification to hold or
enjoy an Office of honor, Trust, or Profit under the United States."
Close students of the Clinton-Lewinsky libido-drama know these passages by
heart. But Isenbergh offers surprising new ways to read them.
He urges a close examination of the two passages. He notes that the
Constitution never says Congress must limit impeachments to treason, bribery
or other high crimes and misdemeanors --- only that people guilty of such
malefactions must lose their jobs.
Then, citing the six-century history of impeachments, he asserts that the
House has a perfect right to impeach people for lower-level crimes. He also
claims that in such cases, the Senate may prescribe judgments other than
removal from office and surrender of benefits.
In theory, it could censure someone for a non-high crime. It also could
select other measures, including fines or appropriate humiliation.
He thinks the Clinton case falls into the low-crimes category. In making
the point, he demolishes an assertion I made in an earlier column --- the
notion that the phrase "high crimes and misdemeanors" doesn't necessarily
connote crimes against the state. Without going into the abstruse
particulars, let's just stipulate that he's right. The Founders sought to
banish high officeholders only for crimes against the state.
This brings us to the case at hand. Isenbergh thinks the Supreme Court
erred in the cases of United States v. Nixon and Clinton v. Jones. Those two
decisions established the proposition that plaintiffs could take incumbent
presidents to court as defendants in civil suits or criminal trials. He says
the Nixon opinion virtually compelled the creation of the now-deathless
beast, the independent-counsel statute, and made presidents prey to a wide
range of personal and political enemies.
Isenbergh believes the Jones suit should never have gone to court during
this presidency because the Constitution clearly states that presidents can
pay the piper after they have handed off the keys to the Oval Office.
Impeachment, he contends, serves as a proper response to bad behavior.
The professor's exposition gives both parties something they desperately
desire: a way to say Bill Clinton is guilty, guilty, guilty --- without
having to make Al Gore an unelected president.
If you listen to questions
from the floor or orations from the hallways outside the Senate chamber, you
hear members petrified at the prospect of firing a man who has approval
ratings that seem not merely stratospheric but unimaginable.
Isenbergh's paper suffers a couple of defects, however. First, he seems to
be a chorus of one when it comes to his analysis. This matters because
senators have very little intellectual self-confidence when it comes to
serving as judges in this trial. Many of them have spent a great deal of
time looking for wise men. They're not about to jettison their hand-picked
sages for what amounts to a lone voice.
Second, if he's right, Congress ought to impeach presidents a lot more
often. He lowers dramatically the threshold for bringing chief executives to
trial in the Senate.
(Ironically, this seeming defect adds credence to his
theory, since the Founders thought impeachment might be a rather frequent
spectacle.)
Isenbergh's paper is entertaining, interesting and provocative. It
tantalizes members of the World's Greatest Deliberative Body. But this time
around, it's too late. The House has made its case, and witnesses are on the
way. Republican prosecutors have barred the door to intermediate punishments
by drafting articles that accuse the presidents of high crimes and
misdemeanors.
Sooner or later, then, the Senate must acquit or convict. When it does,
honorables might wonder what could have been --- had they spent more time
studying constitutional law and less time taking pot shots at each
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