A Report Card on the Impeachment: Judging the Institutions That Judged President Clinton

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Now that we have lived through one of the most unusual events in American history--the impeachment and trial of the President of the United States--it is appropriate, indeed essential, that we assess how the process worked and learn what we can from it. Specifically, I want to address two questions: First, how well did the impeachment process work? In good academic fashion, I will grade each of the governmental institutions involved-- giving them, if you will, a report card. Second, what did we learn from the experience to guide us if, in the future, we face the impeachment of a President?

Let me start by saying that President Clinton's misbehavior was inexcusable. Had he been more disciplined, the nation would have been spared a year of agony. But his "inappropriate" [1] relationship with Monica Lewinsky was neither criminal nor impeachable. [2] Had he been more forthright when confronted in January 1998, we probably also would have been spared the year of torture. However, the $64,000 question is whether his efforts to spare himself, his family, and Monica Lewinsky the embarrassment of disclosure were impeachable offenses.

Before beginning the evaluation, I would like to disclose my personal connection with the saga. I first became involved when Paula Jones sued the President in 1994. I argued, in an op-ed, that a private damage action against a sitting President must wait until the President is out of office, unless the plaintiff can show irreparable harm from such a delay. [3] After the Supreme Court ultimately rejected that argument [4] and Independent Counsel Ken Starr [5] sent his referral to the House of Representatives, I urged members of the House not to impeach. [6] I was also one of the law professors who drafted and circulated the letter arguing that the President's actions did not warrant impeachment. [7] Furthermore, I was one of the nineteen constitutional scholars who testified before the House Judiciary Committee on impeachment. [8] After the House voted to impeach the President, I counseled members of the Senate on their role in the President's trial. In short, I am not unbiased but believe I can be fair in ev aluating the performance of the various institutions involved, giving a grade to each of them.



Any critique of the impeachment process should begin with the independent counsel statute. The statute, at least as it has been constituted to date, gets an "F," and we are fortunate that Congress allowed the law to expire last June. [9] To say that we are well rid of the statute is not to say that Starr misused it. Indeed, it is important to note that he seems to have been vindicated by the court for the wrong-doings of which he was accused. [10] In fact, as Professor Gerhardt points out, one of the problems faced by independent counsels is their somewhat unique vulnerability to criticism from their targets. [11] Our recent experiences under the statute have shown the wisdom of those such as Justice Scalia who questioned its constitutionality from its inception. [12] The statute's name emphasized the need for independence, but that independence came at a significant price: the loss of accountability. In effect, independent counsels were not accountable to anyone. They had unlimited time, an unlimited budget , and a singular focus, or target. Judgment was not built into the statute. While the Attorney General could theoretically dismiss an independent counsel "for cause," [13] in reality, dismissal was politically impossible. In fact, no independent counsel was ever fired by the Attorney General nor had his investigation terminated by the Special Division. [14] This tension between accountability and independence was not simply a design defect; in constructing such a statute, there is an unavoidable trade-off between independence and accountability. Both are valuable attributes, but given the inevitability of a trade-off, our recent experiences demonstrate that accountability is more important than independence, and that independence can be achieved without a special statute. …