The prosecution won't rest

The chief counsel in the Clinton impeachment compares the current president to Nixon. Let me count the ways he's wrong.

Published October 4, 2000 8:59AM (EDT)

Do you remember David Schippers? He was on television, the rumpled looking guy with white hair and a beard, who read a long statement to the House Judiciary Committee advising it to impeach President Clinton for 15 felonies. Then, just when it seemed he'd finished, out of nowhere, he started reciting Longfellow: "Sail on, O Ship of State!/Sail on, O Union, strong and great!/Humanity with all its fears,/With all the hopes of future years,/Is hanging breathless on thy fate!"

Well, I must admit that it was at that point that I could barely watch him any longer. But I did listen, as he explained his recitation. "How sublime, poignant and uplifting; yet how profound and sobering are those words at this moment in history. You now are confronted with the monumental responsibility of deciding whether William Jefferson Clinton is fit to remain at the helm of that ship." To be courteous, let's say I found this cornball ending less than poignant, if not inappropriate, given the reason this 68-year-old attorney was testifying.

In fact, I was embarrassed for him and the committee. David Schippers was the House Judiciary Committee's chief investigative counsel, and this was his grand debut. But his report and advice to the committee had been a waste of time, not to mention sophomoric. Aside from the grade school poetry, he had merely summarized and reworked Independent Counsel Kenneth Starr's so-called Referral (aka "The Starr Report") -- with which all concerned were familiar. Starr had listed 11 possible grounds for impeachment, including perjury, witness tampering, obstruction of justice and abuse of power; Schippers upped the ante by stacking on four additional alleged crimes, using the same evidence, but including conspiracy and misprision (failure to report a crime) charges. Stacking is one of the nastier games prosecutors play. Starr had not stacked.

Just when I thought Schippers was finished, he pulled a stunt I'd never witnessed in over three decades of observing events on Capitol Hill. He asked committee chairman Henry Hyde if he could make a personal observation. A personal observation! On what basis could he step out of his role as a committee counsel? I was confused. As staff man, his personal observations were out of order, and totally irrelevant. Surely, he knew this. I expected Hyde to politely push the request aside, because if he didn't surely one of the members of the committee would object, but the avuncular chairman quickly responded: "Certainly." At the time, I was unaware of Schippers' special relationship with Hyde.

As I listened in utter amazement, Schippers invoked Sir Thomas More, the English lord chancellor who'd opted for death rather than recognize a fallen-Catholic king, Henry VIII, as the head of the Church of England -- but this "Man for All Seasons" reference had no bearing whatsoever on the Clinton impeachment proceedings. Then Schippers declared that "15 generations of our fellow Americans, many of whom are reposing in military cemeteries throughout the world, are looking down and judge what you do." Before Schippers finished, I was on my feet.

"This is very strange stuff," I said to a friend who was watching the hearings with me. "Sir Thomas More! Fifteen generations of dead Americans! This is actually sad. This man doesn't have a clue about what he's doing," I added, feeling badly for Schippers.

At the time, I was in Florida to give a speech to a group of New York investment bankers who had invited their best clients (and spouses) to a Palm Beach resort for sun and fun mixed with seminars and speakers. Arthur Schlessinger Jr. and I were the dinner speakers for their final evening. They wanted my best estimation of what was going to happen to Clinton. As a former chief minority counsel of the House Judiciary Committee, I was about to explain the inappropriateness of Schippers' behavior to my friend, when he pointed back at the television.

California Rep. Maxine Waters was on the screen. She was angry, and understandably outraged. She was demanding that Hyde explain why he had not stopped Schippers, who was "out of order" (using the applicable parliamentary vernacular) for violating the standing rules of the committee, not to mention the decorum expected of staff. To squelch the incident, Hyde immediately assured Waters that Schippers' personal remarks would be stricken from the record (and they were).

That was my introduction to Schippers, on Oct. 5, 1998. Throughout the impeachment proceedings, I continued to notice him. I was in Washington covering the events full time as an on-camera consultant and commentator for MSNBC. Accordingly, I was reading and watching everything. Also, I was talking privately with others associated with the House Judiciary Committee, both members of the committee and the professional staff. It was painfully clear, and not only to me, that Schippers was playing out of his league. He was operating in a world he did not understand, or appreciate. At the time, I felt sympathy for him. But no longer.

Schippers has written a book (with journalist Alan P. Henry), "Sellout: The Inside Story of President Clinton's Impeachment," which had, when I last checked, and to my astonishment, climbed to the No. 5 spot on the New York Times bestseller list. Oddly, Schippers thanks friends and family for helping with the book, but not journalist Henry, who -- whatever his role -- produced a book that sounds exactly like Schippers, who is out promoting it. The book is a bad-tempered, often sarcastic screed, and a poorly argued polemic. Beginning with his pejorative title, Schippers shouts, insults, rants, raves and points his accusing finger at everyone who disagrees with his assessments. Remarkably, he remains oblivious to his own lack of understanding; in short, he continues to embarrass himself.

What's initially most striking about the book is Schippers' apparent unawareness that he was a pawn, used by the Republicans for political cover. Schippers writes that when Hyde first called him on Jan. 14, 1998, the chairman said he "wanted a Democrat, someone who'd been around for a while, someone with a lot of experience in court," to assist the committee with its congressional oversight investigation of the Department of Justice, an agency that Schippers had worked for 30 years earlier.

On Jan. 21, 1998, before Schippers had agreed to come to Washington, the Lewinsky story broke. So when Hyde and Schippers next spoke, Hyde told him, "Dave, I think there is a possibility that we may have ... to go into an impeachment inquiry." Schippers reminded Hyde he was a Democrat, and not anxious to get "into an ugly, partisan impeachment process." Hyde downplayed the impeachment prospect, and Schippers was convinced to move to Washington to take on the oversight investigation of the Department of Justice.

Hyde is an accomplished, shrewd and savvy politician. By having a registered Democrat do the digging (whether into the Justice Department or William Jefferson Clinton) Hyde was protecting himself, and his Republican colleagues, from charges of partisan behavior. There is no shortage of experienced, able and knowledgeable lawyers in Washington, but Hyde had a special relationship with Schippers that made him, despite his inexperience in national politics, an ideal choice.

Hyde could be as certain of Schippers' loyalty as he was of a pope's religion. These men first met in 1968 when Hyde was in the Illinois legislature and they were both members of the Illinois Crime Investigating Commission. In 1974, when Hyde ran for Congress as a Republican, Schippers -- a lifelong Democrat -- backed him. As one reporter discovered, "Shippers did everything he could, despite his Democratic ties, to get Hyde elected."

In 1996, the Hyde-Schippers friendship was cemented even further when both men were knighted by the Catholic Church's Equestrian Order of the Holy Sepulcher, an order that traces its origins to the First Crusade in 1095. Knights are recommended by their parish priests and bishops based on outstanding service to the church and community, and are approved by the pope. In the investiture ceremonies, the knights dress in formal attire and an archbishop dubs them three times on the shoulder with a historic sword; they are said to be quite moving. The Catholic Church awards no higher honor to its priests and laity than the knighthood shared by Hyde and Schippers.

Schippers enjoys an excellent reputation in Chicago as a former federal prosecutor and as a criminal defense lawyer, where for three decades he represented a range of clients from exotic bird smugglers to porn stars, along with a few serial killers. Yet nothing in his background, nor in his 40 years of law practice in Chicago, provided any training or experience for the task he would ultimately be given when working for Congress -- impeaching a president of the United States. He had no Washington experience, nor real political experience. To the contrary, as reading his book makes clear, he is not a politically sophisticated person.

And political sophistication was very much called for in this situation. An impeachment proceeding is a purely legislative and political proceeding, and very different from court proceedings. While there are precedents, the rules are constantly being adjusted by Congress from proceeding to proceeding. No other branch of government can pass judgment on impeachment proceedings, for (as the Supreme Court has ruled) there is no appeal to the courts, and by the terms of the Constitution an impeached and convicted official cannot be pardoned by a president. Impeachment by the House of Representatives, and conviction by the Senate, simply remove an official from office.

Impeachments, thankfully, are rare. Before Clinton's proceeding, there had been only 15 occasions when the House of Representatives had impeached. The first proceeding was in 1799 and the last before Clinton was in 1989. There have been only 13 Senate trials, since two of the impeached officials resigned before the Senate acted. Before Clinton, only two presidents had been involved in impeachment proceedings: Andrew Johnson, who was impeached by the House but found not guilty by the Senate in 1868, and Richard Nixon, who resigned after the House Judiciary Committee voted to impeach him but before the full House voted, in 1974. Impeachment procedures and precedents are a relatively small body of congressional jurisprudence.

In 1970, when House Minority Leader Gerald Ford called for the impeachment of Supreme Court Justice William O. Douglas, I was an associate deputy attorney general (for legislative affairs). Attorney General John Mitchell requested that I visit my former colleagues at the House Judiciary Committee to find out what was likely to happen with Douglas. Nothing, I learned. The charges against Douglas were baseless.

At that time, I spent several long afternoons and evenings studying old files from the House of Representatives involving impeachment proceedings relating to federal judges dating back to the 1930s. Those files, and Ford's efforts, left no doubt in my mind that impeachment was (and is) a purely political process, from start to finish. Law professor Michael Gerhardt, who was a CNN commentator during the Clinton proceedings as well as an expert witness before the House Judiciary Committee (I respectfully declined an invitation), has recently revised his highly respected work, "The Federal Impeachment Process: A Constitutional and Historical Analysis." He found the Clinton proceedings were consistent with the impeachment process that has evolved over the past two centuries, which he notes is inherently a political process designed to expose and remedy political crimes. Schippers' book makes clear he does not appreciate this fundamental nature of the process.

I have read most of the books written about impeachment, not to mention countless law and academic journal articles on the subject. When I heard Schippers was working on a book, I looked forward to it. Insider books can be highly informative. Unfortunately, Schippers' book is not. He offers no real insights, except to confirm that the Republicans and he were hellbent on removing President Clinton from office, notwithstanding the wishes to the contrary of the American people, and their elected representatives in the Senate. Schippers believes everyone, both Republicans and Democrats, and in particular the House and Senate leadership, "sold out" because they failed to assist Hyde and the Republican members of the House Judiciary Committee, and later the House managers, in their effort to oust Clinton. His only praise is for his compatriots, of course.

Diatribes (which Schippers' book is) don't usually merit detailed refutations. I'll offer a typical example of my problems with his analysis instead. I've selected one of his table-pounding assertions, a case where I know, from firsthand knowledge, that he is wrong. When arguing that Clinton should have been charged with abuse of power, Schippers declares "what [Richard] Nixon did -- and it was bad -- did not remotely approach the abuse of office perpetrated by Clinton and his cronies. Nor did President Nixon attack the constitutional rights of private citizens the way Clinton did."

This entire statement is untrue. Apparently, Schippers is not familiar with the comparative evidence. Any summary sampling of Nixon's abuses of power would, at minimum, include:

  • Nixon's plans to remove restraints on domestic law enforcement agencies in order to gather intelligence by means of surreptitious entries, electronic surveillance and mail covers (opening and examining first class mail) to obtain information relating to political dissidents and protesters.

  • Nixon's ordering aides to break and enter, and steal information, at the Brookings Institute in Washington.

  • Nixon's approving the breaking and entering into the office of a psychiatrist treating Daniel Ellsberg to obtain information that could be used to discredit Ellsberg after he leaked a Pentagon study of the war in South Vietnam to the news media.

  • Nixon's ordering the wiretapping of journalists and White House staff members to obtain information about potential news leaks.

  • Nixon's misuse of the departments and agencies of government (such as the Justice Department and CIA) to conceal illegal, improper or unethical conduct undertaken by the president or his staff on his behalf.

  • Nixon's suborning perjury and use of his high office to obtain secret grand jury information that he personally provided to grand jury targets.

  • Nixon's condoning the use of illegal, improper and unethical activities in the presidential election campaign of 1972, directed from the White House, including: breaking, entering, bugging, wiretapping and making copies of information within the offices of political opponents; the disruption, hindrance, impeding and sabotage of the political campaign of opponents; fabrication, dissemination or publication of false charges or other false information for the purpose of discrediting political opponents; using the powers of incumbency for political advantage by assisting those friendly to the president and "screwing" his enemies; and his selling ambassadorships for hefty political contributions.

    Schippers offers no evidence that Clinton's behavior as president was even close to Nixon's litany of abuses -- for there is none. The abuses of presidential power by these men is not similar, nor is there any rational basis to say that Clinton's behavior was more egregious.

    As a further example, take the action that truly triggered the impeachment drive against Nixon -- his firing of special prosecutor Archibald Cox because Nixon did not want produce the subpoenaed tapes that Cox demanded. It will be recalled that Nixon's attorney general and deputy attorney general resigned rather than take such an unjustified action. Nixon's firing of Cox (along with his police-state tactics employing wiretapping and break-ins for political purposes) frightened the American people and their elected officials. While Clinton's actions may have been morally troubling, he never terrified anyone with his alleged abuse of presidential power. Big difference.

    I have never been a partisan in the Clinton impeachment proceedings, and I have no credentials (nor inclination) to pass moral judgments on others. But I do understand how Washington works. So when speaking to the investment bankers and their clients in Florida, on Oct. 7, 1998, two days after watching Schippers, I advised them in my talk (as well as in written materials) that based on the available evidence produced by Starr, Clinton would be impeached by the House, but found not guilty by the Senate. I doubt I was alone in foreseeing these results, for my predictions proved accurate.

    It is equally apparent what will happen next. Schippers will soon be gratified by an indictment of William Jefferson Clinton, as a former president of the United States, for perjury and obstruction of justice by Independent Counsel Robert Ray. It will happen early next year. But Schippers will no doubt be displeased when the former president is not sent to prison (with his Secret Service detail). And he will surely see this as yet another "sellout."

  • By John W. Dean

    John W. Dean served as counsel to President Nixon from 1970 to 1973. He now writes a column for Findlaw and is the author of several books, with the next to be published in January 2004, a biography of Warren G. Harding. .

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