Ruff going

Clinton's lawyers take their best shot, but impeachment seems all but inevitable.

Published December 10, 1998 8:00PM (EST)

The clash of President Clinton's defenders and detractors in the House Judiciary Committee over the last week was as much cultural as political. The committee Republicans' obsessions with Clinton's character have scarcely changed since the 1992 election. They're the stuff of right-wing talk radio: He's an unfit commander in chief; he's the embodiment of moral subversion; he's a poor role model for children, as Rep. Mary Bono of California rattled off as catechism on Tuesday. From that perspective, the comparisons with Watergate over the last two days -- the callbacks of Nixon-era legislators and prosecutors -- missed the point.

A more relevant comparison was provided by the coincidental release of the FBI's fat file on Frank Sinatra. Sinatra and his private vices opened J. Edgar Hoover's nostrils every bit as effectively as Clinton does today's right -- and maybe for some of the same reasons. Sinatra's insolent sexuality made him an easy a target for the repressed (if dress-wearing) Hoover; so too his youthful flirtations with liberals and communists, not to mention his leading role in the racial integration of pop music, which bears comparison with Clinton's at least symbolic commitments on race. Sinatra's work sometimes brought him into the company of bad characters, but years of charges of mob connections finally proved as groundless as Kenneth Starr's Whitewater inquiry.

The parade of President Clinton's defense witnesses before the Judiciary Committee, closing out Wednesday with Clinton lawyer Charles Ruff, offered a wide range of arguments and rationales for avoiding impeachment. But like Hoover's obsession with Ol' Blue Eyes, the Judiciary Republicans showed themselves impervious to any rational argument for the due process of law. Rep. Bill McCollum, of Florida (whose idea of due process is locking 12-year-old delinquents in prison with adult murderers, rapists and thieves, a measure he actually got the House to pass this year) had set the tone in a pre-hearing interview when, without apparent irony, he called impeachment "the ultimate scarlet letter." (Apparently McCollum never read Nathaniel Hawthorne's novel, or else he'd see the committee's entire Republican caucus embodied in the vindictive persona of Roger Chillingworth). Committee Chairman Henry Hyde complained of having to listen to too many professors; Rep. Bob Barr of Georgia (himself notorious for licking whipped cream from the breasts of two women at a 1992 celebrity fund-raiser) declared that the president's defense amounted to nothing more than "clever ways to parse words and definitions."

The fact is that anti-Clinton zealots like McCollum and Barr, though clearly repudiated by the public in November, have over the last two weeks moved impeachment faster and further than almost anyone predicted. Rep. Zoe Lofgren, D-Calif., reported meeting befuddled venture capitalists, who'd been convinced that November's election and the downfall of Newt Gingrich would have put the whole impeachment enterprise safely to bed. Instead, it's moved out of the realm of politics and polls; the primary audience for this week's hearings was not the public, but those 12-to-24 wavering Republican members of Congress.

For that audience, the impeachment faction had one simple message, repeated over and over: The president lied under oath, and fed his staff false information so they would repeat it to the Monica Lewinsky grand jury. To that charge, the president has no factual defense. Instead his defenders peppered the committee with a huge range of constitutional and legal arguments hoping that one or another might resonate in the ear of a wavering Republican.

By the end of Ruff's testimony, the mood in the hearing room had lightened from the partisan sniping of Tuesday. But make no mistake: Congress is almost certainly headed into the utterly uncharted constitutional territory of a lame-duck impeachment. Some of the hearings' legal arguments were solid and persuasive -- Yale professor Bruce Ackerman's warning about the abuses inherent in a lame-duck impeachment vote, for instance, and various former prosecutors' pricis on perjury. But what will unfold over the coming weeks is not a judicial proceeding in which precedent rules, but a wild-west political shootout that will make the last 12 months look tame.

The only certainty is that sometime in the next few days, the Judiciary Committee will vote out articles of impeachment. They have already been drafted, and were released late Wednesday afternoon. What happens next is anyone's guess. Several things will not happen, however. There will be no deal like that suggested by the New York Times editorial page, in which the president accepts censure in return for a promise of no prosecution from independent counsel Starr. Not only will Starr never agree to such an arrangement, but it almost certainly violates the constitutional separation of powers.

On Wednesday, former Massachusetts Gov. William Weld suggested a different deal: Congress encourages a formal report by Starr's grand jury (those citizens who have yet to be heard from), Clinton acknowledges wrongdoing and agrees to a fine. But that, too, would seem subversive of Starr's whole strategy, which has been to use his grand jury's powers to investigate, but not let his grand jurors anywhere near an independent evaluation of the evidence and issues.

One other thing that will not happen: a separate plea-bargain in the Senate if impeachment goes to trial. Some of the most important testimony of the entire week of hearings came on this subject, from former Nixon Attorney General Elliot Richardson. Richardson pointed out that while wavering House Republicans are expecting the Senate to clean up their colleagues' impeachment mess, under the Constitution the Senate has very little discretion. If a two-thirds majority of senators find that the facts and legal issues are as presented by the House, they have no constitutional alternative but to convict and remove. It's like the federal sentencing guidelines: There is no provision allowing the Senate to offer a lesser sanction. While the Senate may enact a grand version of jury nullification by refusing to try the impeachment at all, when it comes to offering a penalty it's strictly all or nothing.

It is only the House, Richardson pointed out, which has the equivalent of prosecutorial discretion: Even if most members of the House think an impeachable offense has been committed, they are under no constitutional obligation to vote out articles of impeachment. It is only the House that has the ability to offer lesser sanctions, or no sanctions at all.

Richardson's point -- and the sum total of the week's hearings -- was a grim piece of news, whether for the public or anyone in Washington hoping the impeachment process will still fade away. Any fence-sitting Republican members of Congress who think voting for impeachment will allow them to hand off an uncomfortable compromise to the Senate are missing their constitutional duty, and possibly locking the Senate into a process from which there is no looking back. It was not a Democrat but Republican Rep. Chris Shays of Connecticut who this week sought to pull his colleagues back from an impeachment based on culture, not law. Said Shays: "We don't need to be in the scarlet letter business."

By Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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