As Act I in the impeachment drama draws to its conclusion, the political stakes keep getting higher. To unscramble the latest plot twists and turns, Salon spoke with Monroe Freedman, former dean of Hofstra University law school and one of the country's leading legal ethicists, about what Act II -- an impeachment trial in the Senate -- might look like. Freedman also offered a glimpse at the eventual Act III, the aftermath of all this, and why President Clinton should never be able to practice law again.
Many members of the president's defense argued Thursday that if the president were being tried in a civil case, he would never be charged with perjury.
Now, nobody would be charged in a civil case for what President Johnson did in the Gulf of Tonkin, either, but I would consider that impeachable. I would not think the president's perjury in this case comes close to being an impeachable offense. I don't think he should be prosecuted criminally because I don't think anyone else in his circumstances would be prosecuted criminally.
Do you think he should be punished at all? Censured?
I would like to see him disbarred, or at least severely sanctioned in his capacity as a lawyer. A lawyer who lies under oath, regardless of if it is technically perjury, or a lawyer who tells someone to go into the courtroom or into the deposition and deny what they know to be true -- and I believe the president did this -- that person should not be a member of the bar. I don't want him impeached, I don't want him to go to jail, but I don't want him counseling people in legal matters.
What about when Henry Hyde says we have to observe the "rule of law"?
We do have to observe the rule of law and the rule of law does not require impeachment! The rule of law does not result in the criminal prosecution of the president, but very likely, the rule of law should result in disciplinary action, absolutely.
So since -- in your opinion -- the rule of law isn't being observed, this is basically a purely political event.
There's nothing wrong with that. The president represents one of the three political branches of our government and the Congress represents another. It would be unrealistic to say this is not, or should not be, political. However, when we say "political" we can mean it in a pejorative sense. The president's people have been making the point that as a politically responsible branch of government, the last thing the legislature should want to do is tie up the country for months in impeachment proceedings!
As legal scholar Ahkil Amar said in an interview last week, we have to look at the fact that this had become a partisan event and therefore it is more political in the pejorative sense.
Absolutely. That's exactly right. Partisan politics has its place in government, but political in the bipartisan sense is what I hope would be at work in something as important to the entire country as impeachment.
If articles of impeachment are sent to the Senate, what would a Senate trial look like?
The chief justice of the United States would preside, which I think means he will not be hearing and deciding cases in the Supreme Court during that time. This means cases will be heard by an even number of justices and therefore you are going to get some 4-4 dispositions. Then I would expect that it's going to be determined by the leadership of the Senate along with the chief justice, with the chief justice making the final decision in each instance as to how the proceedings will go forward. There would be managers from the House, presumably, to make the case against the president, and they would call witnesses; the president's people would then be able to cross-examine the witnesses against the president.
Would the president go before the Senate?
In an ordinary criminal proceeding, the defendant is not required to testify. I wouldn't be surprised if the president did not. But that's going to depend on tactical and political considerations that I don't have any inside knowledge about.
Is there any way the Senate could choose not to act on articles of impeachment or are they constitutionally required to act?
What is more likely is that the House would simply decline to appoint managers or might vote to rescind the impeachment. I agree with [Bruce] Ackerman [Yale University law professor and member of President Clinton's defense]. It's been mentioned that the new House could go forward without re-voting on the original impeachment. But it seems to me that when they vote to designate managers they are for all practical purposes ratifying the earlier impeachment. If the Senate did not convene an impeachment trial, certainly the president is not going to try to do anything! Nor could he. And if anybody were to go to the Supreme Court and, say, order the Senate to have a trial, I don't think there is a legal scholar or lawyer in the entire country who would expect the Supreme Court to do anything but refuse to decide that issue. It is also a matter of practical power because if the court were to say to the Senate, "You are required to have a trial," and the Senate simply did nothing about it, the court would be making a monkey of itself.
Clinton's defense has stated the burden of proof should not be on the president, yet the Republicans are asserting that it should be.
That is kind of strange. If we were to analogize it to a criminal trial, then impeachment is like an indictment and there is a relatively low standard of proof. It is probable cause, which is quite low, but then in the Senate it would be beyond a reasonable doubt. I would expect that a conscientious member of the House or of the Senate would impose upon him or herself a standard of clear and convincing evidence, which is a good deal more than probable cause. It is more than what you have in a civil trial, which, in the ordinary civil trial, is a preponderance, more likely than not. It's less than in a criminal prosecution of beyond a reasonable doubt. It seems to me that that hits the right balance. But if you were to ask, why do you say that? All I can answer is, that's my judgment.
Ordinarily, the burden is on the party who is seeking to change the status quo. There is always a presumption that things ought to stay the way they are, unless there is some affirmative reason for changing it. Well, that argues for at least a preponderance of evidence. I would say, as in most things that are really important, there would be a minimum of clear and convincing evidence.