The culture of prosecution

The impeachment trial is the logical conclusion of the culture of prosecution, which President Clinton has helped nurture.


Bruce Shapiro
January 9, 1999 1:00AM (UTC)


Somewhere between Christmas Eve and New Year, I managed to spend 96 consecutive hours without uttering the words Lewinsky, impeachment or Starr. It was the first such intermission in 12 months, and as a result, the turn of the year really did seem to offer a new sense of possibility.

Until the last several days, even Washington seemed to briefly share that hope. It appeared that the Senate might tear away the degrading politics of the past year as easily as if Monica Lewinsky were just a pin-up on the 1998 calendar page. Trent Lott, despite his own job as a far-right water-carrier, seemed to have little stomach for a drawn-out impeachment trial. The compromise proposed by Sens. Slade Gorton, R-Wash., and Joseph Lieberman, D-Conn., offered a face-saving way out, an opportunity for the congressional impeachment faction to take its best shot while sparing the country a long, pointless regurgitation of the Starr Report.

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But with the apparent failure of the Lieberman-Gorton compromise, the Senate is now headed for some version of a full trial, with the impeachment faction once again driving the car. And the all-Monica-all-the-time media is full of speculation: How many witnesses? How will Chief Justice William Rehnquist rule? Should the whole deliberation be televised?

Each of these is the wrong question. Even whether the president will be convicted or not may be the wrong question. The only question that counts is simple: Can the trial that opens next week somehow redeem American politics and avenge "the rule of law," which the right endlessly talks about but has been busily trying to subvert?

This is not an idle question. Trials exist to determine guilt, of course; but they are also morality plays that dramatize society's deepest commitments and fears. And in recent years, televised trials have assumed ever more importance as the stand-ins for real public debate over significant issues. The Clinton impeachment trial is the endpoint of an arc that began with the O.J. Simpson trial, which became a lens through which to view racial perceptions of the justice system; an arc that has included, along the way, the Oklahoma City bombing trial, the Unabomber, the Louise Woodward "nanny killing" trial. Each touched some broader chord than the simple facts of the horrific offenses involved.

Television may be to blame for our obsession with show trials. But so are a couple of generations of national politicians, including Clinton, who've made law-and-order policy and the fast, dramatic conviction of criminal defendants front-and-center in electoral rhetoric. Trials are now the national pastime, and Clinton's impeachment is the ultimate show trial -- certainly the Trial of the Century, assuming it doesn't spill over into the 21st.

Henry Hyde and his impeachment-managing comrades have accused Democrats of trying to short-circuit the trial by suggesting that senators ditch the whole proceeding after a few days of preliminary argument. But who's doing the short-circuiting? In any courtroom in the land, "due process" means that a defendant gets to challenge a prosecutor's indictment before any evidence or witnesses are brought to the table. Every day, for instance, hundreds of cases get tossed out on "summary judgment," a judge's decision that an indictment or lawsuit doesn't qualify for full trial. Summary judgment is an essential check on the power of prosecutors and lawsuits. The impeachment equivalent would be a version of the Gorton-Lieberman compromise, a quick vote to see whether the evidence presented to date merits a trial.

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To the impeachment faction, of course, Clinton's "trial" means only the courtroom show and the predestined hanging afterward: the Salem Solution. But in American law -- as opposed, say, to the People's Republic of China, or Slobodan Milosevic's Serbia -- spectacle is trumped by process. Trials have credibility with the public precisely because the punitive powers of judge and jury are constrained by that group of rules and rituals known collectively as "due process."

Indeed, one of the most disturbing arguments -- heard from Democrats as well as Republicans -- is that the president should not rest his defense on what Sen. John Breaux, D.-La., called "legalese": such supposed technicalities as challenging Starr's motives, or questioning the constitutional probity of Congress' lame-duck impeachment. This is an extension of one of Starr's most pernicious charges, that the president obstructed justice by asking courts to review the independent counsel's subpoenas of White House lawyers and Secret Service.

No more dangerous argument has emerged from the entire Clinton-Starr confrontation: that the mere assertion of legal rights amounts to obstruction of justice. Now the impeachment faction would convict Clinton in the Senate for the high crime of mounting a vigorous defense.

This is no surprise. One of the cornerstones of Reagan-and-after conservatism has been the rhetoric of prosecution, the persistent drumbeat that criminal defendants are let out on "technicalities." Hyde, Bill McCollum, Phil Gramm and company are pursuing in Clinton's impeachment their precise image of how trials should be conducted: with as few rights as possible for the accused and no procedural checkpoints along the way. Clinton, too, has played more than a minor role in shredding the rights of criminal defendants, in particular the appeal rights of death-row prisoners. So it's fitting that now, like Robespierre, he seems trapped by the very culture of prosecution he's helped nurture.

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With the Clinton trial, most Americans hope for some ratification of the calm and sanity that seemed to descend during the holiday interregnum. Which is precisely what the framers of the Constitution had in mind when they lodged the power to try impeachments in the Senate, which is more insulated than the House from immediate political pressure.

Though it seems ever less likely, Clinton's impeachment could still become a showcase for the nation's best constitutional values, winning credibility through senators' religious adherence to due process. If not, the Clinton trial will be what the O.J. Simpson trial was for many people: a dispiriting metaphor for the state of the union.


Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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