INTRODUCTION

The framers of the U.S. Constitution did not intended impeachment as a penalty for misbehavior.  Indeed, by its nature the process is far more punishing to the nation than to any miscreant office-holder.  Rather, impeachment is a tool-of-last-resort for dislodging from power those in government whose official actions pose a clear and serious threat to the nation and to the democratic process.  It occurs to some of us, therefore, that the House of Representatives ought to give some thought to impeaching itself.

AN OPEN LETTER
to the 106th Congress of the United States

Amid the furor surrounding the impeachment of the President of the United States of America it is understandably difficult not to be swayed by myriad emotional appeals from both sides of the issue.  Even as many of our elected leaders make grand public statements about justice, fairness, and bipartisanship, their actions clearly indicate an intent to transform what ought to be a thoughtful and serious process into a grotesque political carnival.  However, a lapse of sober judgment here might well set a precedent which could permanently destabilize our system of government.  True, harm has been done; yet in our zeal to "get" the culprit we run the risk of compounding the damage by rash and ill-considered reaction.

So let us take a moment to distill the truly pertinent elements of this issue, to reflect upon them calmly, and resolve to act appropriately.  Included is a brief outline of the situation, which cuts through the confusing hype and reveals the essentials of the matter.  Following the outline is my own perspective of these events, for whatever value you may derive from it.  I realize that these few pages might not be as exciting as the tons of titillating grand jury testimony recently dumped onto the Internet, but perhaps they are more enlightening in a way, and certainly more constructive and forward-looking.

Though we, the public, cannot realistically expect you, our elected representatives, to address every concern with complete impartiality, in crucial matters we require you to act on our behalf in good faith, with integrity, and to the best of your ability with the information available to you.  Especially in cases affecting the very health of our democratic system, it is your duty to overcome partisan tendencies and behave in an objective, non-partisan fashion, armed with a clear and unbiased understanding of the overall situation and the potential consequences.  Those in public office who assume this responsibility when necessary deserve our admiration and support.  Those who are not up to it ought to consider a different line of work.  We trust you represent the former category rather than the latter, and will act accordingly.

Most sincerely...

 

AN OUTLINE
of essential points concerning the impeachment of President Clinton

According to Section IV of the Constitution of the United States, any impeachable offense must fall into the category of "treason, bribery, or other high crimes and misdemeanors."  By itself, the phrase "high crimes and misdemeanors" may appear vague and open to liberal interpretation, perhaps even inviting any interpretation necessary to justify an attack upon one's political opponents.  However, in the context of treason and bribery, the phrase "or other high crimes and misdemeanors" clearly indicates actions committed in the performance of one's office, which pose a significant threat either to the people or to their government.  Any act which does not meet this test, even if indictable under ordinary circumstances, does not constitute an impeachable offense.  We do not impeach elected officials merely for womanizing, jaywalking, or even using questionable deductions on their personal tax returns.  Such actions, while possibly immoral, foolish, or illegal, pose no significant threat to the nation.  To invoke impeachment over such minor issues constitutes frivolous and irresponsible misuse of a powerful tool whose use, even when fully justified, threatens the integrity of the electoral process and thus destabilizes our system of government to some degree.

---

I. Sexual encounter(s) between President Clinton and former aide Monica Lewinsky

A.  Immoral?  Probably, according to most Americans' standards of morality.

B.  Illegal?  No.  Both parties were of legal age, and any sexual acts appear to have been consensual.  Ms. Lewinsky was evidently an eager and active participant, and was not coerced.

C.  Impeachable?  No.  While extramarital sexual contact between consenting adults may be considered immoral, it is not illegal, much less a "high crime or misdemeanor."

II.  Perjury:  Not all false or misleading statements given under oath constitute perjury.  Legal oaths typically require telling the truth to the best of the witness's recollection, knowledge and understanding, which in many cases may be incomplete or inaccurate.  Because perjury is a legal matter, "legal technicalities" are pertinent to this question, regardless of whether they might be considered extraneous otherwise.

A.  To constitute perjury a statement under oath must meet all of the following criteria:

1.  The statement must be unconditionally false under any applicable circumstances.

2.  The witness must know at the time he makes the statement that it is false, subject to any definition of terms imposed by the court.

3.  The statement must be relevant to the case in question.

B.  According to evidence and testimony presented so far in this case, perjury is not clearly indicated under any of the foregoing criteria (let alone all of them), for the following reasons:

1.  Mr. Clinton's testimony, while falling disappointingly short of the entire truth, does not appear to be unambiguously false, in and of itself, under the conditions stipulated by the court.

2.  While Mr. Clinton was understandably less than forthcoming in his testimony, his claim, that his statement was technically true to the best of his understanding of the definition of "sexual relations" as applied by the court, must be accepted barring evidence to the contrary.  That the witness's or the court's understanding of "sexual relations" might be much narrower—even absurdly so—than the common perception of the term, is not germane to the legal issue of perjury.

3.  Testimony in the Monica Lewinsky matter has been ruled irrelevant to the Paula Jones case, by reason that any sexual activity between Mr. Clinton and Ms. Lewinsky was entirely consensual and hence had no bearing on Ms. Jones's allegations of sexual harassment and coercion.  Under that ruling, any stipulation that testimony was considered relevant at the time it was given is now moot.  Testimony is either relevant to the case or it is not; it cannot be both simultaneously.

C.  Although perjury is a serious matter, even if proven it does not by any stretch of the imagination constitute a "high crime or misdemeanor" comparable to treason or bribery—especially in a case in which no offense other than perjury itself was committed.

III.  Obstruction of justice

A.  Examples of obstruction

1.  suborning perjury

2.  withholding or destroying evidence

3.  intimidation or bribery of witnesses or officials

4.  jury tampering

B.  Examples of circumstances under which a credible case for impeachment could be built:

1.  violation of public trust or federal law (e.g., the Reagan denial of the Iran-Contra deal)

2.  subversion of the democratic process (e.g., the Nixon cover-up of the Watergate burglary)

C.  Examples of circumstances under which impeachment proceedings would be frivolous, irresponsible, and hence detrimental to the nation:

1.  any acts—even if illegal—which do not clearly rise to the level of treason, bribery, or comparable high crimes and misdemeanors

IV.  Abuse of power:  The inappropriate use of personal information contained in government files would be just cause for serious investigation.  Of the charges so far presented, these are the only ones which could realistically be considered "high crimes and misdemeanors."  Yet Mr. Starr's report makes little if any mention of the so-called "file-gate" issue in all the thousands of pages submitted to Congress, indicating that the Special Prosecutor himself appears to consider this a matter of relatively minor significance.

V.  Lack of trust and moral authority:  This is not an offense, only a shortcoming, but nevertheless a matter of serious concern.  Practically everyone deplores Mr. Clinton's lack of moral discipline in his personal life.  Yet polls indicate that two-thirds of Americans favor the President's public performance and policies, and admire his tenacious concentration on those issues in the face of constant distractions.  Furthermore, he is a highly respected figure internationally, popular with our allies and hated by our adversaries.  Evidently, he has all the trust and authority—at least in matters of concern to the public—that he needs to lead.  The other one-third is apparently so absorbed in its own narrow agenda that it just hasn't noticed.

A PERSPECTIVE

In the United States we have a standard mechanism for ridding ourselves of politicians we do not like.  It is called an "election."  Impeachment, on the other hand, is an extraordinary measure reserved for addressing only the most serious misconduct and abuse of office.  Because it is a disruptive procedure which countermands the express will of the electorate, impeachment must never be undertaken except for the most extraordinary and serious of causes.  Even the mere threat of it can cause much harm to the nation if that threat is raised for less than compelling reasons.

If attempting to be discreet about an extramarital encounter is to be considered an impeachable offense, then perhaps twenty percent of all U.S. presidents (beginning with Thomas Jefferson), not to mention hundreds of members of Congress, should have been impeached by now.  However, such frivolous use of impeachment would long since have undermined the democratic process and eroded the vitality of the nation, and the prosperous and free America we know would not exist today.

Obviously, if the United States is to remain a stable democracy worthy of the respect of the rest of the world, the dangerous precedent of overturning the will of the electorate on such a trivial excuse must never be set.  And if the Congress is to regain the rapidly eroding respect of the American people, it cannot hope to do so with theatrical indignation and bluster, but only through thoughtful consideration and prudent action.  Certainly we must be on constant guard against those who pose a definite threat to the nation.  But plainly it is in no one's interest—Republican, Democrat, or otherwise—to allow indignation about mere personal indiscretions, or even infractions of law which do not affect the operation of the government, to cause our constitutional system of elected government to become inherently unstable.  Sensationalist hype and sanctimonious hand-wringing notwithstanding, we cannot afford to snub the democratic process so cavalierly or for partisan ends if our nation is to survive and prosper.

AFTERTHOUGHTS
What have we learned from all this?

Now that the impeachment trial of President William Jefferson Clinton has finally sputtered to extinction, some are still as polarized as ever about the issue.  This is especially true of the members of the prosecutorial panel of the House of Representatives, who have put forth an immense effort to have the President removed from office.  Though they knew the odds going in, they are understandably frustrated, not only by their inability to secure a two-thirds majority conviction vote in the Senate, but by the ever rising popularity of President Clinton while their own popularity sinks like a stone.  If we can detach ourselves from the impeachment effort itself, and take a look at the broader picture, perhaps we can understand why public support for removing the President from office, while loud, has been so narrowly based.

• The purpose of impeachment:  Impeachment was not intended by the nation's founders as punishment for misbehavior.  It is strictly an emergency device for removing people from public office, when their continued execution of that office can be shown to pose a clear danger to the American people, to the democratic process, or to the office itself.  That is why the impeachment process was made so difficult, and the odds stacked against removal from office, so that it could not be successful on less than compelling grounds.  According to the Constitution, even acts which are clearly illegal do not constitute grounds for removal from office, unless they rise to the level of "treason, bribery, and other high crimes and misdemeanors."  As we look back on it, we can see that no such danger ever existed in this case, despite the hype and ruckus.

• Disgrace and loss of authority:  The sanctimonious hand-wringing about "disgracing the office" holds no more water in Clinton's case than it would have in Kennedy's, Eisenhower's, Roosevelt's, Cleveland's, or even Jefferson's, for similar personal misconduct.  The overwhelming majority of Americans have taken the pragmatic view, that if Mr. Clinton's own wife could forgive his personal behavior, it ought not to be a matter of concern to the public.  His personal shortcomings aside, President Clinton's leadership, performance, and accomplishments in office have been exceptional, especially considering the difficulties he has faced both personally and politically. Most people recognize and applaud this, even though their opinion of Bill Clinton as a person might be low.  It is the man which has been disgraced, not the office.

• Criminal activity:  The only possibly criminal activities pursued in this case have been those spawned by the investigation itself.  The "file-gate" charges, which could have been seriously damaging had there been any substance to them, were deemed not worth pursuing.  Before the Starr investigation of the Lewinsky matter, there was no question of either perjury or obstruction of justice.  These charges arose, not from the legitimate investigation of existing accusations or testimony, but as a direct result of the probe itself—a probe, not into criminal conduct, but into Mr. Clinton's personal indiscretions, and hence one which can reasonably be argued should never have taken place.  Thus, in most people's eyes, this was a contrived and deliberate effort to force Clinton into a position in which he would have no choice but to commit some illegal act—not to cover up criminal activity, but simply to protect his family, his partner, and himself from public humiliation and embarrassment.  If there ever was a threat to democracy and justice in this case, the public felt, it was this sinister attempt to "get" their elected leader by entrapment, this politically inspired blackmail, which was truly worrisome.  By contrast, a consensual frolic, even in the Oval Office, posed no real threat to the people or to their government; it might be grounds for disapproval, but not for removal.

• Lying about sex:  Americans are justifiably disappointed in Mr. Clinton for making intentionally misleading and incomplete statements to them.  And they are thoroughly annoyed at his legalistic nit-picking, crucial though those technical distinctions might be to his legal case.  Yet most grudgingly admit that, if placed in a similar situation, they might well do the same thing.  Even he who holds the highest office in the nation is still human, and any who have not trampled their own humanity in self-righteous zeal can empathize with that.  While this does not condone deceit and lack of candor, especially under oath, it explains why popular sentiment has opposed aggressive prosecution in this case.

• Lying in general:  Certainly we Americans dislike being lied to, even though we have come to expect it from politicians—whether it's about "no sexual relations," "no new taxes," or "no deals with terrorists."  But we dislike far more the prospect of our democratic process's being overturned for anything short of desperate reasons.  For such a precedent would permanently destabilize and weaken our form of government, and could ultimately lead to the downfall of democracy in a time of future crisis.  Our feelings, though hurt, will mend; the principle of liberty, on the other hand, cannot be abused in a fit of temper if we are to keep it safe for generations to come.

The lesson to be learned from this episode is clear.  Impeachment is not to be used frivolously.  It is not a handy weapon to "get" members of another political party whenever one's own party happens to enjoy a majority.  It is not a law-enforcement device for the wholesale punishment of misdeeds from jaywalking to tax evasion.  (A holder of high office can be routinely prosecuted for such infractions once his term expires.)  Rather, impeachment is a powerful tool of last resort to protect the people and their government from dangerous incompetence and severe abuse of official power.  With this in mind, the framers of the Constitution purposely designed impeachment to be very difficult to implement, but not impossible when truly called for.  Those who seek to use the impeachment process should be aware of its very limited purpose, of the short-sighted stupidity of invoking it for mere political purposes, and of the wrath of the American people regarding its use against their own elected servants for less than compelling reasons.