THE DRIVE TO IMPEACH PRESIDENT CLINTON:
THE PRESIDENT, THE LAW, AND IMPEACHMENT -- PART II
By Almon Leroy Way, Jr
A. THE CLINTON-LEWINSKY CONTROVERSY:
In the first issue (Volume I, Issue # 1) of The Progressive Conservative, as well as previously on an Internet message board, I posed and addressed myself to the following discussion topic and question:
CLINTON-LEWINSKY--THE CENTRAL ISSUE:
MUST THE PRESIDENT OBEY THE LAW?
My answer and comment were as follows:
"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 CONSTITUTIONAL 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 these regular courts of law, he can be sued for damages."
B. THE CONTROVERSY--MORE RECENT EVENTS:
More recent developments in the Clinton-Lewinsky controversy, especially those occuring during the past few weeks, demonstrate that the major institutions comprising and basic principles underlying our CONSTITUTIONAL DEMOCRATIC REPUBLIC are alive and quite healthy and are not in serious danger of decay or erosion. These developments indicate that America's system of governance continues to operate as a GOVERNMENT UNDER LAW AND PROCEEDING ACCORDING TO LAW. The developments reaffirm our belief that, in American society, no one is above or allowed to operate outside the law, that the laws of our society apply to all persons subject to USA jurisdiction, including the President and other government officeholders.
On August 17, President Clinton will testify before a federal grand jury and answer questions pertaining to the allegations made against him in the Clinton-Lewinsky matter. After months of evasion and stalling by Clinton and his private lawyer, David Kendall, Clinton finally yielded and agreed to testify before the grand jury. Obviously, this agreement to testify did not come about because Clinton is willing and anxious to cooperate or perceives some legal advantage or political mileage to be gained by his testimony. Clinton has agreed to "voluntarily" cooperate only after Independent Counsel Kenneth Starr obtained a subpoena ordering the President to testify and U.S. District Judge Norma Holloway Johnson stated that, if Clinton did not comply with the subpoena, she would set a date for the testimony. Clinton has agreed to comply in order to cut his losses, to avoid aggravating the situation and enhancing the credibility of those who assert that he has been and still is playing fast and loose with the law and, during the course of this misbehavior, has committed impeachment offenses.
In short, President Clinton is being forced to testify before the grand jury. He is being forced to do so by operation of the legitimate processes making up our legal system, by operation of the legitimate institutions of our governmental system, functioning under and proceeding according to law. The sitting President is, quite painfully, being made to realize that he must observe and abide by the laws that apply to everyone else in American society.
Will President Clinton be impeached by the U.S. House of Representatives? Probably not. In testimony before the grand jury on August 6, Monica Lewinsky, according to a legal source familiar with her testimony, stated that she and Clinton had many sexual encounters inside the White House and that, while they did discuss means by which they could keep their relationship secret, Clinton never instructed her to lie under oath. Let's assume, for the sake of argument, that this report of Lewinsky's grand-jury testimony is accurate. With Lewinsky now denying that the President tried to induce her to lie under oath and in the absence of credible testimony to the contrary given by other persons, Starr, in my opinion, lacks sufficient evidence to support a recommendation to the House Judiciary Committee that it initiate consideration by the full House of resolutions charging the President with such impeachable offenses as tampering with witnesses, obstructing justice, conspiring with others to obstruct justice, and suborning perjury.
Lewinsky's purported grand-jury testimony to the effect that she and President Clinton had numerous sexual encounters inside the White House is irrelevant to the question of whether the President will or should be impeached. This testimony, if really given by Lewinsky, may or may not be true. The truth or falsity of the testimony is not relevant to the central legal issue in the Clinton-Lewinsky controversy: Did or did not the President, in fact, commit offenses warranting his impeachment by the House of Representatives and his trial and conviction by the Senate? Granted, such violations of the Judeo-Christian moral code as marital infidelity, adultery, fornication, and sexual perversion are highly repugnant to those professed Christians and Jews who take their moral code seriously, strictly adhere to it, and, justifiably, expect their coreligionists--whether private citizens or public officeholders--to do likewise. However, these sins against God's law are not impeachable offenses under the Constitution and laws of the United States. There are significant differences between divine (God-made) law and positive (man-made) law, even though, according to widespread human perceptions in the USA and in other Western societies, there is tremendous overlapping between divine and positive law and important aspects of the latter are derived from and based upon the former. The President's violation of the moral code, whether merely alleged or actually proven, is a matter for the American voters to judge in the coming presidential and congressional elections of 2000 and in subsequent federal elections, with each voter following the dictates of his or her own conscience in deciding whether to absolve or to condemn and punish the President's party and its candidates.
What about President Clinton's January deposition in the Paula Jones sexual-harassment lawsuit--the deposition in which Clinton declared under oath that he had never had sexual relations with Monica Lewinsky? Did he tell the truth in that deposition, or did he perjure himself? Getting an accurate answer to this question depends upon the evidence which Starr gathers and includes in his final report to Congress. More importantly, however, would the answer be relevant to the central issue under discussion: Did the President committ an impeachable offense? Some lawyers do not think so. In their opinion, the President's commission of perjury in a civil case, especially one that was dismissed for lack of evidence, is not an offense warranting impeachment proceedings in the House of Representatives or a trial in the Senate, sitting as a Court of Impeachment.
Even if this school of legal opinion prevails, the President will not necessarily be out of the woods, as regards his legal problems. Starr may very well be setting a trap for Clinton in the latter's testimony before the federal grand jury. On August 17, the President will be testifying before a grand jury conducting a criminal inquiry, as distinguished from a jury dealing with claims and counterclaims in a civil lawsuit. Undoubtedly, he will be asked the question as to whether he had sexual relations with Lewinsky. If he gives a negative response and this is not a truthful answer to the question, what happens next? That will depend upon how much evidence Starr has compiled to disprove Clinton's contension. If Starr has and presents sufficient evidence to prove that the President committed perjury before a grand jury in a criminal inquiry, then Clinton will be in deep trouble. He will be exposed as having committed a felony which, in legal circles, is widely perceived to be a "high crime" under Article II, Section 4, of the U.S. Constitution--i.e., widely seen to be an offense warranting impeachment proceedings in the House of Representatives. When, according to this scenario, Starr presents the evidence in his final report to Congress, the House Judiciary Committee will be under irresistable pressure to open hearings on House impeachment proceedings against the President and formally recommend to the full House that it conduct such proceedings. If House impeachment proceedings are initiated and a majority in the full House decides that there is enough evidence to prove that Clinton committed perjury in his grand-jury testimony, the House majority will certainly be under irresistable pressure to vote in favor of impeachment resolutions and thereby force the President to stand trial before the Senate.
Let's suppose that Clinton, in his testimony before the grand jury on August 17, admits that he did have sexual relations with Lewinsky and that he lied under oath in the Paula Jones civil case. What then? If the opinion that perjury in a civil case is not an impeachable offense prevails, Clinton will be off the legal hook, at least temporarily. He will not be tried, convicted, and removed from office by the Senate. He will be allowed to serve as President during the remainder of his current term of office, which expires on January 20, 2001.
Although the President will be off the legal hook, he might still be on the political hook. The political fallout from an admission of perjury in sworn testimony and of improper conduct in the White House could be tremendous--and disastrous for the Democratic Party. Clinton's chances of reelection as President would not be at stake, since he will be constitutionally ineligible for election to the Office in the year 2000 and therefore will not be running in that election. [Remember: The 22nd. Amendment to the U.S. Constitution limits anyone person to not more than two four-year terms as President, and Clinton is now in his second term.] Just the same, the fallout could result in significant political losses by President Clinton and the Democratic Party--by the President in loss of congressional support for his policy initiatives during the remainder of his term and by the Democratic ticket in loss of voter support in the congressional elections of 1998 and in the presidential and congressional elections of 2000.
[Editor's Note: As regards the significant political losses contained in my scenario of August 13, 1998, such losses, thus far, have not materialized. In fact, current public opinion polls and recent political developments (e.g., the results of the November, 1998, congressional elections) indicate that just the opposite is happening. Oh well! Making predictions or near-predictions of political events to come can be a rather hazardous enterprise. More about this in a future issue of Way's Commentary.]
Whether political fallout from the Clinton-Lewinsky matter impacts adversely on Democratic candidates in the 1998 and 2000 elections will, of course, depend on the mood of the voters in those elections. Public opinion polls indicate that, at the present, the general American public does not appear to be greatly troubled by the allegations that the President engaged in improper sexual behavior in the White House or by the fact that, in sworn testimony in the Paula Jones case, he denied having engaged in such behavior. For example, the nonpartisan Pew Research Center, in a recent poll, found that (1) 63 percent of the people believe that Clinton "definitely" or "probably" lied under oath in January when he denied that he ever had an affair with Lewinsky, and (2) 51 percent (i.e., a majority) of the people think the matter has "very little importance." Most Americans responding to the pollsters' questions say they couldn't care less, or words to that effect. Dick Polman, a political analyst with Knight-Ridder Newspapers, argues that "Americans have become numb to deceit in high places; indeed, they come to expect it." If the next presidential election were held tomorrow, instead of on the first Tuesday after the first Monday of November, 2000, The Democratic candidates for President and Vice President would probably win the election.
The mood of the voters, however, has been known to shift--and, at times, to do so rather dramatically. By early November, in 1998 or 2000, the voters may very well have undergone a significant and substantial change in mood, feeling that they have had enough and that it is high time for a change in the political leadership of our Nation. Will it happen? Only time will tell.
POSTSCRIPT (August 17, 1998):
Two of President Clinton's advisers, speaking on condition of anonymity, stated that the President, in testifying before the federal grand jury, will admit that he and Monica Lewinsky had an inappropriate relationship."
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