A plague on all their houses

On Capitol Hill, partisan hard-liners have damaged the constitutional democracy they claim to hold so dear.

Published November 30, 1998 8:00PM (EST)

So this is where things stand: We have a president of the United States who is unfit to hold that high office and a House of Representatives that is equally unfit to sit in judgment of that president. When the Founding Fathers formulated the idea of "co-equal" branches of government, it's doubtful this is what they had in mind.

Then we have an independent counsel who lacks any moral authority to make his case. Not to mention a press corps that has abdicated its responsibilities to explain to the American people the consequences to constitutional governance of trivializing the impeachment process as a means to conduct partisan warfare.

It is as if the various parties to this dispute are in a fast and furious competition to see who can inflict the most serious and permanent damage to the Constitution and the rule of law. And just when it seemed the debate could not sink any lower, hard-line congressional Republicans continued their assault on Clinton after the Iraq airstrikes, even as American troops were in harm's way.

The articles of impeachment adopted by the House Judiciary Committee and being considered by the full House state: "William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States."

It is hard to argue with that statement, although reasonable folks might disagree as to whether Clinton's actions are what the framers of the Constitution had in mind when they considered impeachment.

But, by the same token, what would be the fate of Kenneth Starr, the House Judiciary Committee and the press if they were to be held to the same standards as Clinton and could also face impeachment?

Have they too undermined the integrity of their high offices and positions, brought disrepute to the institutions they serve and acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States of America?

Before considering them, however, we should acknowledge the role President Clinton has played in his own undoing. While it is true that no other modern-day American president has endured such an organized and vindictive effort to destroy him at all costs, Clinton has played into his opponents' hands quite pathetically.

After all, his political enemies did not force him to lie under oath during his testimony in the Paula Jones case. Nor is anyone else responsible for his attempt to corruptly encourage others to lie in that civil case as well. It is Clinton who is solely responsible for denying due process to a litigant against him in a civil rights lawsuit.

By engaging in such conduct, Clinton most importantly violated the sacred oath he twice took upon taking office to "preserve, protect and defend the Constitution of the United States of America." It is because of the majesty of his high office and his swearing to that oath that House Republicans are correct that the president should be held accountable for his actions in some way.

If Starr truly believes that the president has committed multiple felonies, the only just course is for the independent counsel to seek the return of a federal grand jury indictment against Clinton in the District of Columbia and schedule a trial for when Clinton leaves office. Whatever the result, such a trial would lead to a vindication of one of the two men, the humiliation of the other and an end to the national turmoil their actions have caused the rest of us.

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Next, we consider Rep. Henry Hyde, the Republican chairman of the House Judiciary Committee, who has spearheaded the effort to impeach the president. In explaining his vote in favor of impeachment, Hyde solemnly stated: "We are fighting for the rule of law. I think it is our constitutional duty under the law to pursue impeachment. I'm frightened for the rule of law."

Apparently, however, Hyde came to his appreciation for the law late in life. Almost a decade ago, as a member of the special Iran-contra congressional investigating committee, Hyde was an outspoken and craven apologist for the Reagan administration's often illegal and extraconstitutional foreign policy toward Iran and Nicaragua.

Hyde did not lie awake late at night fearing for the fate of the rule of law then. Unlike Whitewater and the Monica Lewinsky affair, Iran-contra involved lawbreaking and abuses of power by the president and his most senior national security advisers that were central to the governance of the nation. They included illegal arms sales by the Reagan administration to Iran, a terrorist state, as well as the covert funding of the contras, despite the fact that such assistance was also illegal.

An investigation by Iran-contra independent counsel Lawrence Walsh led to convictions or guilty pleas by nine people. Criminal charges were brought against senior officials of the National Security Council, the State Department, the Defense Department and the CIA.

As a ranking Republican on the Iran-contra committee in 1987, Hyde had this to say at the time about the massive lawbreaking within the Reagan White House: "All of us, at some time, confront conflicts between rights and duties, between choices that are evil and less evil, and one hardly exhausts moral indignation by labeling every untruth and every deception an outrage."

Hyde also excused the conduct of National Security Council aide Oliver North by asserting that during previous presidencies, the White House had long been "a palace of pragmatism where dishonesty flourished."

Rep. Bill McCollum, R-Fla., has also been one of the Judiciary Committee's most outspoken members in support of Clinton's impeachment. Even after the bombing of Iraq began, McCollum pushed to continue with the impeachment vote. "I think it is irrelevant if there's bombing going on. We can still do the impeachment," McCollum said.

Like Hyde, during the Iran-contra scandal, McCollum was one of the House's most virulent defenders of the lawlessness of the Reagan administration's conduct of foreign policy. Then also a member of the House Judiciary Committee, McCollum led an effort to derail a subcommittee probe of the role of then-Attorney General Edwin Meese and White House officials in obstructing criminal investigations of North and his contra resupply network, according to a former member of the Judiciary Committee and two former staffers.

"McCollum was in constant contact with the Justice Department and White House in an effort to thwart what we were doing," a former Judiciary subcommittee staff member told me earlier this week. "In my mind, he wasn't assisting the White House's coverup. He was part of it."

Next we should consider the role of Starr, a man who finds so much fault with others, but will only acknowledge one fault of his own: loving the law too much.

"My experience is in the law and in the courts," Starr intoned before the House Judiciary Committee. "I am not a man of politics, of public relations, or of polls ... Rather, as a product of the law and of the courts, I have come to an unyielding faith in our court system ... the sanctity of the judicial process."

But Starr's lasting legacy to this peculiar time will most likely be the enduring harm he has done to the rule of law he says he so loves. Because of Starr's prosecutorial missteps, it is unlikely that Congress will reauthorize the independent counsel statute. Because of his prosecutorial zeal, a vast segment of the American public has lost its faith in federal prosecutors to enforce the laws of the land.

Starr was certainly right in telling the House Judiciary Committee that no president should be above the law. And he was also right to say that the president should be awarded no greater rights than the average citizen.

But by the same token, we do not want a system of government where anyone, including the president of the United States, should have lesser rights than an ordinary citizen. We do not want our public officials to be below the law any more than we would allow them to be above it.

For most of the rest of us, it would be unthinkable for a wealthy philanthropist, such as Richard Mellon Scaife, to spend millions of dollars on private investigations of our personal lives. Nor is it conceivable that any public prosecutor would ever spend $40 million to investigate the 20-year-old business dealings and personal conduct of any ordinary citizen. And none of us would have been compelled to testify against our best interests to a federal grand jury, as the president was.

As former Rep. Elizabeth Holtzman of Brooklyn, an author of the original independent counsel statute, persuasively argued in the New York Times last August when Starr demanded Clinton's testimony before his federal grand jury:

"Unlike most witnesses, [Clinton] cannot invoke his Fifth Amendment right not to testify on the ground that he might incriminate himself -- even though he is fully entitled to do so. If he were to invoke the Fifth, it could easily, if unfairly, be portrayed as an admission of guilt and could permanently taint his presidency ...

"Plainly, Mr. Starr is maneuvering to take advantage of Mr. Clinton's inability to claim the Fifth and coercing him into becoming a witness against himself. But Mr. Starr should understand the constraints on the president require restraint in the use of the prosecutor's power."

During the course of his four-year investigation, however, Starr has displayed as little restraint in exercising his prosecutorial discretion as the president had in his sexual indiscretion.

Finally, we should also consider the role of the media in all of this. After all of its hyperventilating on the soap-opera aspects of this story over the course of the last year, one would think the press would now attempt to lead a thoughtful and national discussion as to what does and does not rise to the level of offense that should lead to the impeachment of the president.

But today, there are no Edward R. Murrows or Walter Cronkites to provide us with the proper perspective. Instead, we are left with the likes of Geraldo Rivera. In all fairness, however, who can claim that Geraldo is not the best qualified journalist to cover the Clinton crisis? After all, understanding complicated DNA evidence has proven to be as crucial to the impeachment of the president as it was to Geraldo's other recent big story, the O.J. Simpson murder trial.

Clinton's harshest critics may be right in asserting that one of his most enduring legacies will be his undermining of the rule of the law. But when historians consider this peculiar time, they are likely to conclude that Henry Hyde, Kenneth Starr and numerous others in Congress and the press have been Clinton's unindicted co-conspirators in the damage they have done to the Constitution.

By Murray Waas

Murray Waas is a frequent contributor to Salon.

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