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Jewish World Review /Jan. 28, 1999 / 11 Shevat, 5759

Tony Snow

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 other.


01/25/99: The apogee of a trend
01/21/99:What my 3-year-old taught me
01/17/99:Don't be fooled, folks
01/14/99: Must a pol be ‘baaaad’ in order to get elected?
01/12/99: Jumpin’ Jack (Kemp)
01/08/99 : Hot air in the Windy City

©1999, Creators Syndicate