THE DRIVE TO IMPEACH PRESIDENT CLINTON:
THE PRESIDENT, THE LAW, AND IMPEACHMENT -- PART I
By Almon Leroy Way, Jr.
I have been observing with considerable interest the growing public controversy over the Clinton-Lewinsky relationship and associated allegations, U.S. Independent Prosecutor Kenneth Starr's investigation into the allegations, and the consequent legal maneuverings and political posturing of opposing personal and partisan interests.
As regards this matter and as part of my activities as an interested observer, I recently posted a discussion topic and question on an Internet message board which deals with problems and issues pertaining to and impacting on America's ability to maintain law and order within its borders.
My Discussion Topic and Question:
CLINTON-LEWINSKY--THE CENTRAL ISSUE:
MUST THE PRESIDENT OBEY THE LAW?
My Answer and Comment:
"In my opinion, the central and, by far, most significant issue in the Clinton-Lewinsky matter is a LEGAL issue: Did or did not President William Jefferson Clinton, in fact, violate the law? This issue raises a much broader legal and constitutional issue, a question that is fundamental: SHOULD THE PRESIDENT BE MADE TO OBEY THE LAW? Should we insist that the President observe and abide by the laws that apply to everyone else in American society, or is he to be considered above the law, free from the restraints and controls that the law imposes on the behavior of other individuals subject to USA jurisdiction? Riding on the answer that American society gives to the broader question are the longterm effectiveness and survival of our system of government.
"If the American governmental system is to continue operating as a CONSTITUTION- AL DEMOCRATIC REPUBLIC and as a GOVERNMENT UNDER LAW AND PROCEEDING ACCORDING TO LAW, every person holding public office, whether elective or appointive and no matter how high and exalted the office, must be made to observe and act in accord with the laws of our society and must be held accountable when he or she violates any of those laws. In American society, no one is above the law. All persons--private citizens and government officeholders alike--must obey the law.
"It has been alleged that President Clinton tried to persuade former White House intern and government employee Monica Lewinsky to lie under oath and/or to federal investigators and, in this endeavor, enlisted the assistance of Vernon Jordan, a Democratic Party activist and one of the most influential lawyers in Washington, D.C. If this allegation is true, then the President violated the law, committing at least three federal crimes--obstruction of justice, conspiracy to obstruct justice, and subornation of perjury--and thereby violated his Oath of Office (U.S. Constitution, Article II, Section 1, Clause 8), which calls for him to 'faithfully execute the Office of President,' an important duty of which is to 'take Care that the laws be faithfully executed.' [U.S. Constitution, Article II, Section 3.]
"If the allegation is true, the President has made a very costly mistake and should have to face the consequences. In regard to President Clinton being made to face the legal consequences of his alleged criminal actions, the constitutional authority to make the judgement call belongs to Congress. [U.S. Constitution, Article II, Section 3.] If a majority of the members of the U.S. House of representatives present and voting (provided there is a quorum) decides there is sufficient evidence to charge the President with having engaged in criminal conduct while in office and with having violated his Oath of Office, the House majority has the constitutional duty and responsibility as well as the constitutional authority to pass impeachment resolutions officially accusing him of these actions, thereby forcing him to stand trial before the U.S. Senate, sitting as a Court of Impeachment. If the Senate, by a two-thirds or greater vote, convicts the President of the criminal actions with which he is charged in the House impeachment resolutions, he is removed from office and permanently disqualified from again holding the Office of President and from holding any other 'Office of Honor, Trust or Profit under the United States.' [U.S. Constitution, Article II, Section 4.] Once he is removed from office, he can be indicted, tried, convicted, and sentenced by the courts in the judicial branch of government. Also, in there regular courts of law, he can be sued for damages."
A reader, in response to the commentary above, asked the following questions: "If a person was convicted of a crime and sent to prison, and if that person somehow got elected to the Office of President, would that mean his prison term was cancelled so that he could occupy the Office? If an escaped convict somehow got elected to the Office, and he was then discovered, would he remain President or be sent back to prison?"
The two scenarios you present are interesting as well as frightening.
Let's take a look at Scenario One. A person is convicted of a serious crime (a felony or high misdemeanor) and sent to prison. While serving his prison term, a presidential election occurs and the prisoner, though still incacerated, runs for the Office and manages to get himself elected.
Does this mean that his prison term has to be cancelled so that he can assume the Office of President and perform the duties of the Office?
Technically and legally speaking, NO.
For the sake of argument, let's say that the felony or serious misdemeanor of which he was convicted is a federal crime. Under the U.S. Constitution (Article II, Section 2), the President-elect could be granted a full and unconditional pardon by the incumbent and soon-to-be-outgoing President, since the latter would possess discretionary authority to grant such a pardon. A U.S. Court of Appeals, in a case brought before it, could lift the sentence, if a majority of the judges sitting on the Court agreed that one or more legal errors had been committed by the U.S. District Court that tried and convicted him in the first place. The U.S. Supreme Court could end the sentence, provided a majority of the justices ruled that the prosecution had obtained the conviction in a manner which violated the U.S. Constitution or a federal statute that Congress possessed the constitutional authority to enact.
Suppose the crime of which the President-elect was convicted is a state crime. Depending upon the constitution and laws of the particular state involved, the sentence could be terminated by the Governor through exercise of the chief executive's pardoning power or by an independent state board or commission possessing the authority to grant pardons, e.g., a "State Pardons and Parole Board." The State Supreme Court or one of the state's other appellate courts could overturn the conviction and sentence, if a majority of the judges on the panel decides there are legal grounds for doing so.
We know, of course, that none of this is likely to happen. Least likely to occur is election of a convicted criminal to the Office of President. American political culture--i.e., the basic political values and beliefs shared by virtually all Americans, fundamental values and beliefs regarding how government ought to be conducted, how American government actually is conducted, and who should enjoy the public trust and occupy government office, especially the Office of President--very strongly work against election of a convicted criminal as President. Besides, convicted criminals are definitely not popular among the voters who participate in American presidential elections.
For this scenario to become reality, the USA would have to be in an advanced stage of moral decay and social disintegration, involving the erosion of traditional American political culture to a point beyond any reasonable hope for its revival. American society would have to be on verge of a complete breakdown, the nation facing a series of catastrophes and crises so severe that the American people in their extreme desperation, were ready to accept the political leadership and put themselves at the mercy of a dangerous demagogue, someone aspiring to be America's own homegrown version of an Adolf Hitler, a Benito Mussolini, a Nikolai Lenin, a Joseph Stalin, a Fidel Castro, or a Sadddam Hussein.
Under such extraordinary circumstances, the politicians in the Congress and the state governments and the judges of the federal and state courts probably would lack the moral stamina and intestinal fortitude to resist the political juggernaut and would cave in to the demands of the secular "Messiah" and his revolutionary movement. The consequence would be emergence in the USA of a highly authoritarian or totalitarian political regime--a tyrannical dictatorship of some kind.
Now let's examine Scenario Two. An escaped convict somehow gets elected to the Office of President. Sometime after he is inaugurated and assumes the Office, it becomes public knowledge that our incumbent President is a convicted criminal and prison excapee--a fugutive from justice.
Would he remain President, or would he be removed from office and sent back to prison?
While the crimes of which the President was convicted occurred before he assumed the presidential office, the crime of escape from lawful confinement is an ongoing criminal act. Still at large, he is in continuing violation of the law, a violation occurring during as well as before his incumbency as President. Therefore, the U.S. House of Representatives has legal and constitutional grounds for impeaching the President, charging him with the commission of "high crimes and misdemeanors." After the House passes the impeachment resolutions, the U.S. Senate will try him on the charges, and if he is convicted, he will be removed from office. Once he has been removed from office, the proper authorities can arrest him and take or send him back to prison. Moreover, he is subject to prosecution and trial in the appropriate courts on the charge of escape from lawful confinement, and if convicted, he is subject to additional court-imposed penalties.
The probability of the occurrence of Scenario Two is extremely low--about as low as the probability of Scenario One becoming reality. Why? Consider three major factors in American national politics: (1) the very high stakes that are involved in the outcome of a presidential election, (2) the great diversity and heterogeneity of American society and the multiplicity of interests and factions that must be accomodated if one is to build a coalition with enough supporters and money to get himself or herself elected President, (3) the very high public visibility the Office of President and its occupant, and (4) the similarly high public visibility of a person winning or widely perceived to have a good chance of winning a major political party's nomination as its candidate for President. When it becomes apparent to the very potent centers of political power and influence within American society--e.g., the various institutions and levels of American government, the major political parties and their organizational components, the news media, and the numerous organized interest groups and political action committees--that a particular person is actively seeking a major party's nomination as its presidential candidate and that he or she has a good shot at obtaining the nomination and at winning the Presidency in the general election in November, the public spotlight is turned upon that person. Highly alert and attentive to the situation, the power and influence centers, each of them looking out for what it perceives to be in its own best self-interest, will try to find out everything they can about the aspiring presidential candidate. They will leave no stones unturned in their efforts to uncover and publicize his past. A person with a cloudy or tainted past has an extremely slim chance of becoming a credible candidate for President and an even slimmer chance of being elected to the Office.
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