Necessary Impeachments, Necessary Acquittals

Article excerpt

Tod Lindberg is editor of Policy Review

IMPEACHMENTS HAVE BEEN sufficiently rare in our national political life to make generalizing about them a risky undertaking. Granted, too, the proximity of the impeachment and acquittal of President Clinton and the still-raw feelings it engendered may have led us to a heightened concern with the subject in general, perhaps inflating out of due proportion the importance of impeachment in American history.

Yet Clinton's impeachment by the House followed by the Senate's unwillingness to remove him is one of four cases, each involving impeachment and acquittal, that can fairly be called epic confrontations, both politically and constitutionally. In the details of these four cases - Supreme Court Justice Samuel Chase in 1804, Judge James Hawkins Peck in 1830, President Andrew Johnson in 1868, and President Clinton in 1999 - lies a tale of lasting significance broader even than the tumultuous issues that came out as these impeachments unfolded.

In these four spectacular clashes, a fascinating pattern presents itself. It is the story of how resort to the Constitution's ultimate sanction became inextricably entangled with one or another law that was itself fundamentally suspect constitutionally. These laws amounted to grave extra-constitutional disturbances to a carefully wrought constitutional system based on the separation of legislative, executive, and judicial powers. It was these disturbances around which sentiment for removal gathered in the first place - only to dissipate in the end.

Three conditions

WHY WAS PRESIDENT CLINTON impeached? And why was he acquitted? What were the causes?

It is, of course, possible to answer this question at various levels of abstraction, and accordingly to take his case as a window of one sort or another on the condition of American politics, culture, society, and the rest. There should be little doubt that Clinton's impeachment and acquittal will long stand as a major feature of the American political landscape. Aspects of the events of 1998-99 will long be adduced as evidence in theories about our times and mores. But short of this abstract inquiry, highly subject to disagreement as it is, there are a few specific aspects of the Clinton affair that most people, perhaps, would readily agree were necessary conditions for impeachment.

First, the president was unwilling to restrain his own conduct at a time when the ongoing Paula Jones case put him at risk of exposure of the relationship, and he was willing to be deceitful in court about it. Obviously, if Clinton had walked away from Monica Lewinsky's overtures, none of what happened next would have happened. Not only the president's opponents, but also many of his allies, were quite clear in their view that the president recklessly and shortsightedly failed to conduct himself in a manner consistent with his office. He himself was responsible for that improper conduct. There was no deflecting responsibility to others.

Had the Jones case been settled earlier, before Clinton was called to answer about other women with whom he might have been involved, there would of course have been a political cost to the president - both for settling and in the event that information about recent sexual encounters became public - but no impeachment. Similarly, had the Supreme Court ruled that the president is

constitutionally immune from civil suit while he is in office, as Clinton's lawyers urged and the court unanimously rejected, or had Congress passed a statute creating such limited immunity, there might once again have been embarrassment in the event of disclosure, but there would likewise have been no impeachment.

And it seems unlikely that, if Clinton had told the whole truth in the Jones case, the ensuing sex scandal would have led to his impeachment. Although the president's defenders argued otherwise, most of those who favored impeachment insisted that the sexual relationship itself was not the issue, but rather lying under oath and obstruction of justice. …