Hello Oprah, good-bye Constitution

An impeachment scholar bemoans the spectacle that has invaded the House of Representatives.

Published December 4, 1998 8:00PM (EST)

It was a strange week --- even by Washington standards. First, the Judiciary Committee announced it would expand its impeachment inquiry into campaign finance abuses. Then it put two women who'd been convicted of perjury about sexual matters on the stand for hours to share their tales of woe. Committee investigators reviewed two secret Justice Department memos requesting Attorney General Janet Reno to investigate President Clinton's 1996 campaign finances, only to decide they would most likely not subpoena the memos' authors -- former Justice Department prosecutor Charles LaBella and FBI Director Louis Freeh. And then House Republicans told their leadership they wanted to bring impeachment to a vote this month so the investigation would not bleed into next year, when the Republicans will hold a smaller majority.

Meanwhile, press reports indicated that even the most die-hard Republicans inside and outside the House have all but given up hope that the president will be ousted. In a strange and abrupt turnaround, the majority party called off plans to expand the inquiry into campaign finance, after all. And in the midst of it all, Vice President Al Gore quietly chose a campaign manager, showing more sense than most of his colleagues: It's not about impeachment, stupid. It's about Campaign 2000.

To help put the week's strange events into perspective, Salon spoke to impeachment scholar Akhil Amar, a professor at Yale Law School, who wrote the forward to "Impeachment: A Handbook," the authoritative textbook on the subject.

On Tuesday, two women who'd been convicted of perjury were brought before the committee. What was the legal significance of their testimony?

Just when you thought it couldn't get any sillier ... That [presentation] was a big "so what?" Has any one of them been impeached? No! Had any one of them been elected by the American people? No! Is Bill Clinton subject to criminal prosecution as an ordinary citizen when he leaves office? Yes. [The women] were subject to the criminal process and [Clinton] will be too. That's just simple logic and the fact that [the Republicans] don't get that yet ... What is impeachable is a different question than what is prosecutable. Things that are prosecutable are not always "high crimes" even if they are crimes. And something doesn't even need to be a crime in order to be impeachable.

If the women who spoke about their perjury convictions weren't relevant witnesses, as you suggest, then what or whom would have been relevant to bring forth?

Here's what would be relevant. Let's talk about Andrew Jackson killing another man in a duel to protect his wife's honor. Would that be impeachable? That's a relevant, useful question because it's about someone who was president. If you want to figure out what the proper standards for presidential impeachment should be, think about past presidents, their behavior and misbehavior. This other stuff, I just don't get it. I don't know how I understand the president's conduct better when I parade all these talk-show guests in front of the committee. It's the Oprah-ization of the House of Representatives.

Today's papers suggest that Republicans concede it's unlikely they'll have the votes to impeach, and yet it seems many of them would like to go down fighting.

To go down fighting is almost the worst of both worlds because they cheat themselves in the process. If you've got something impeachable, show it; if not, move on.

How has the committee failed to make a strong case for impeachment?

The proceedings and recommendations lack legitimacy if they're partisan. Maybe the Republicans are right and the Democrats are wrong. But if the Republicans all vote one way and the Democrats all vote another, that's the definition of partisanship. It's perfectly OK for the House of Representatives to impeach by a simple majority. What lacks legitimacy is if that majority totally breaks down on party lines. If you're a Republican you have to persuade some [Democrats]; otherwise you lack legitimacy. And if you don't understand that as chair of the committee, well, fish rots from the head.

There are some Democrats who have said they would break ranks and vote for impeachment.

If there were a healthy number of people on both sides who crossed lines, then I would say it's been an acceptable process. You had that in Watergate. You had Bill Cohen. You had Howard Baker and many others, but I just don't see that yet having emerged here.

Next week, the White House lawyers will go before the committee and present a defense of the president. What should they focus on?

I guess I would try to emphasize a few fundamental things. I would try to say the rule of law does not demand that everyone who could be impeached must be impeached. Whoever says that is a fool. It is simply not true. There's no constitutional duty to impeach. Every prosecutor has inherent discretion not to prosecute and the House of Representatives is a prosecutor, too, in this case. They keep saying ["rule of law"]. I have taught law at Yale Law School for 15 years and I just don't understand what [Hyde] means when he says that.

What do you think he means?

I think he is either confused or cynical.

So, if you were a White House lawyer presenting the president's defense next week you would define "rule of law" for the committee?

I would say, let's talk about treating like things alike, and equality under the law. I would say there is asymmetry here: If you think a guy is guilty, you can still vote to acquit in our system. If you think the guy deserves to be impeached, but the American people don't, you can vote no. What you can't do is, if you think he is innocent, and your constituents want him hounded, you can't vote yes. There are two hypotheticals: In one, in good conscience you can think that someone is guilty, but your constituents think he is innocent. You can vote not guilty, or not to impeach, and you haven't violated any oath of office. Conversely, if you think he is innocent, and your constituency thinks he is guilty, you can't vote guilty. You just can't do it. This is a trial, so there are built in asymmetries in favor of the accused. I would at least identify those fundamental things.

Anything else?

Yes. Presidential impeachments are different from other impeachments. When you impeach a president, you put the country through trauma, so you should have a different and higher standard than for a judge, because you are undoing the votes of millions of Americans.

By Lori Leibovich

Lori Leibovich is a contributing editor at Salon and the former editor of the Life section.

MORE FROM Lori Leibovich

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