JWR Jeff JacobyBen WattenbergRoger Simon
Mona CharenLinda Chavez

Paul Greenberg Larry ElderJonathan S. Tobin
Thomas SowellMUGGERWalter Williams
Don FederCal Thomas
Political Cartoons
Left, Right & Center

Jewish World Review / Nov. 20, 1998 /1 Kislev, 5759

Paul Greenberg


LINE UP ALL THE CONSTITUTIONAL SCHOLARS in the world, and they still wouldn't reach a conclusion. That would seem about the only clear lesson to be drawn from Monday's parade of professorial witnesses before a House subcommittee delving into the history, meaning and possibility of impeachment.

The scholars did reach one clear consensus: Censuring a president for his offenses, rather than impeaching, him would be more cop-out than constitutional. A congressional censure for Bill Clinton, these witnesses pointed out, would amount to a mischievous gesture at best, and at worst a move toward establishing a parliamentary system, rather than one envisioned in the Constitution.

Soon enough Congress might be censuring -- perhaps even fining and punishing -- every president of the opposite party or just opposite ideas. Then what would happen to the independence of the executive branch?

Punishment without (clearly proven) crime is never a good idea. For that clear insight alone, these constitutional scholars are to be commended. Censure may be an attractive political compromise, but it has no constitutional warrant. The Constitution is quite broad enough to see the country through this little tempest -- if our leaders will just stick with it.

As for whether this president should be impeached, the scholars seemed as divided as the committee. Which figures, since they were chosen by the committee, and we all tend to consult experts who will reflect our own predilections.

The learned witnesses covered a lot of ground, much of it superfluous. Pedants will do that. If there was a single great division between them, and there was, it was this:

One group of experts (a camp not easy to distinguish from Democratic partisans) saw no great harm to the state if its chief executive, an official sworn to faithfully execute the laws, should obstruct justice, lie under oath or abuse his power -- so long as he did so for purely personal advantage, rather than for reasons of state. Call it the Clinton Defense. If upheld, you'll hear it a lot in perjury cases.

On the other side of the great divide were those scholars who felt a president of the United States should be held to higher standards, even in a time of low expectations.

Much of this debate over impeachment continues to say less about the president's guilt or innocence than about the standards of those debating it. And their prejudices. The gap between the warring scholars may reflect not only their political leanings, but how important they think respect for law to be in a president, or in government in general.

But scholars only study constitutional history. Not far away in the capital, the Supreme Court of the United States was making it. Even as these assorted experts were testifying, the court rejected a couple of the president's more whimsical attempts to fend off prosecution:

First the president sought to take cover behind the attorney-client privilege in order to shield his conversations with Bruce Lindsey -- White House counsel and political operative. The other and even less founded claim was a novel, not to say fictive, "protective function privilege,'' which sought to put the Secret Service beyond the reach of the law. The court rejected both claims with the curt dismissals they deserved.

Still, two of the justices, both appointed by the president in question, dissented from the court's opinion: Stephen Breyer and Ruth Bader Ginsburg. So much for the much venerated myth about justices of the Supreme Court rising above partisan loyalties once ennobled by their office. But it would be wrong to single out these curious dissents as out of character for Justices Breyer and Ginsburg; their other decisions have generally shown no great distinction, either.

This court as a whole may not be remembered for any audacious intellects other than Antonin Scalia, but at least it bypassed the chance to promote the Secret Service to the status of a Praetorian Guard unanswerable to any court of law.

Judge Breyer did produce the usual parade of horrors if Secret Service agents were subject to being questioned in a court of law -- including assassination. Mr. Justice Breyer has half a point: There is no doubt that this decision may indeed make presidents more cautious about committing crimes in the presence of the Secret Service, but why is that a bad thing? The only thing clear from these dissents is that, God forbid, should another president of the United States be assassinated, it will be blamed, like everything else, on Kenneth Starr.

Both of these dissenting justices were also leery of requiring in-house lawyers like Mr. Lindsey to testify about their conversations with the president in criminal proceedings. Such a ruling, they feared, would threaten the confidentiality of the executive branch.

But a president can still confide in public-provided counsel about policy and be assured of secrecy. Such conversations may be subpoenaed only in criminal matters. To quote one historian of the presidency -- Leo Ribuffo of George Washington University: "The only time presidents should be worried about what they say is when they are trying to commit a crime.''

In these short but definitive decisions out of the Supreme Court, and in the long, meandering discussions of impeachment before that House subcommittee the same day, the basic issue was the same: Shall the rule of law in this country be upheld even against a popular president?

With a couple of exceptions, the justices of the Supreme Court answered in the affirmative Monday. It may be a while before it becomes clear how the House of Representatives will answer that same, basic question. In the end, our representatives' response will say less about Bill Clinton's attitude toward the law than their own.


11/18/98: Guide to the perplexed
11/09/98: A vote for apathy
11/03/98: Global village goes Clintonesque
11/02/98: Farewell to all that
10/30/98: New budget, same swollen government
10/26/98: Of life on the old plantation -- and death in the Middle East
10/22/98: Starr Wars (CONT'D)
10/19/98:Another retreat: weakness invites aggression
10/16/98: Profile in courage
10/14/98: A new voice out of Arkansas
10/09/98: Gerald Ford, Mr. Fix-It?
10/07/98: Impeachment Journal: Dept. of Doublespeak
10/01/98: The new tradition
9/25/98: Mr. President, PLEASE don't resign
9/23/98: The demolition of meaning
9/18/98: So help us G-d; The nature of the crisis
9/17/98: First impressions: on reading the Starr Report
9/15/98: George Wallace: All the South in one man
9/10/98: Here comes the judge
9/07/98: Toward impeachment
9/03/98: The politics of impeachment
9/01/98: The eagle can still soar
8/28/98: Boris Yeltsin's mind: a riddle pickled in an enigma
8/26/98: Clinton agonistes, or: Twisting in the wind
8/25/98: The rise of the English murder
8/24/98: Confess and attack: Slick comes semi-clean
8/19/98: Little Rock perspectives
8/14/98: Department of deja vu
8/12/98: The French would understand
8/10/98: A fable: The Rat in the Corner
8/07/98: Welcome to the roaring 90s
8/06/98: No surprises dept. -- promotion denied
8/03/98: Quotes of and for the week: take your pick
7/29/98: A subpoena for the president:
so what else is new?
7/27/98: Forget about Bubba, it's time to investigate Reno
7/23/98: Ghosts on the roof, 1998
7/21/98: The new elegance
7/16/98: In defense of manners
7/13/98: Another day, another delay: what's missing from the scandal news
7/9/98:The language-wars continue
7/7/98:The new Detente
7/2/98: Bubba in Beijing: history does occur twice
6/30/98: Hurry back, Mr. President -- to freedom
6/24/98: When Clinton follows Quayle's lead
6/22/98: Independence Day, 2002
6/18/98: Adventures in poli-speke

©1998, Los Angeles Times Syndicate