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Chapter One

Just Do It

Compared to the long hours and amazingly tedious work of practicing law, political punditry has much to recommend it. In only one respect does practicing law compare favorably with practicing punditry, but it is an important one. In the law, there are standards, rules, and precedents that must be adhered to by everyone--trial judges, opposing counsel, jurors, appellate courts, even, in theory, the Supreme Court. The first principle of law is that like cases are supposed to be treated alike.

Political commentary is completely different. Like cases are treated unalike with such alacrity as to make the head spin. No general principles can ever be adduced. If a pundit opines that there is no constitutional basis for President Bill Clinton's claimed immunity from civil suit, that is assumed to be a political preference, rather than an attempted interpretation of the law... and half the time it is. Pundits left and right switch sides with barely a blush, depending on whose president is being gored.

Nevertheless, there are standards and precedents and rules about the conduct of public men, presidents in particular. It cannot be the case, for example, that President Richard Nixon "shredded the Constitution" for inquiring about having the Internal Revenue Service (IRS) audit his political enemies (request declined), but that President Bill Clinton is an innocent victim of--in his wife's words--"a vast right-wing conspiracy" when he succeeds in having the IRS audit his political enemies. The evidence for either claim may be disputed--to a point--but the answer to whether politically motivated IRS audits are right or wrong should not depend on who the president is, or who the enemies are.

There are even standards for evaluating the evidence of such misconduct. And these standards, too, must be applied evenhandedly if the rule of law is to survive. It cannot be the case, for instance, that, when a Republican president stands accused, he is to be held accountable for the actions of his subordinates, even in the absence of proof that he directly ordered those actions, and that a Democratic president is assumed to be innocent, no matter what the evidence, unless we catch him with a smoking gun in his hand. On videotape.

With each new revelation about President Clinton's apparently corrupt and sometimes illegal behavior, paid and unpaid Friends of Bill (FOBs) take up the public relations gauntlet to announce that previously abhorred conduct is now considered wholly excusable conduct. "In the end the party would announce that two and two made five, and you would have to believe it.... [T]he logic of their position demanded it.... The heresy of heresies was common sense." Oceania is at war with Eastasia. Two plus two makes five. We're "waiting for the facts to come out" to decide if President Clinton has lied, and Mrs. Clinton is confident the allegations will "evaporate and disappear if they're ever given the light of day."

The only coherent epistemology at the moment is that once Clinton is caught doing it, it's okay. At this rate, the entire country will soon be molesting interns, lying under oath, buying witnesses, flashing subordinates, and rifling through confidential FBI files. The only thing American citizens must never, ever do is tape a friend--even to expose government corruption. Free John Gotti! And those Floridians who secretly taped Newt Gingrich go to prison for life.

Everyone is entitled to his own opinion; everyone is not entitled to his own facts. Precedents, like Watergate, are facts. If a president's "cutting corners or hoarding dirty little secrets" is enough to impeach him, as Nixon's attorney general, Elliot Richardson, said, because "honesty is the best politics," then a president's bald-faced lies under oath in a citizen's constitutional case against him have to be enough. If it is wrong to talk about pornographic movies to female subordinates, it is wrong to drop your pants and say "kiss it" to female subordinates. If the woman's statement plus one corroborating witness was enough evidence yesterday, it's enough evidence today. Although, ultimately, one might have a preference for one rule or another, at least we should all know what the rules are.

There are pretty clear rules and standards for what constitutes a "high Crime and Misdemeanor," or an impeachable act. Certain types of conduct have been accepted as valid grounds for impeachment throughout American history, and under the British constitutional precedents the Founding Fathers had in mind when they wrote the impeachment clauses of the Constitution. The grounds, and even more important, the purposes of impeachment, reach back with remarkable consistency more than six hundred years.

VICTIM OR THE CRIME

When the framers of the Constitution chose the phrase "high Crimes and Misdemeanors" to complement treason and bribery as grounds for impeachment, "they adopted a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history."

That statement comes from the report assembled by Representative Peter Rodino's House Judiciary Committee, which framed the Articles of Impeachment against Richard Nixon. The so-called Rodino Report, entitled "Constitutional Grounds for Presidential Impeachment," was the work of, among others, Bernard Nussbaum, who would serve as President Clinton's first White House counsel, and Hillary Rodham, who would serve as first lady to President Clinton--the next president for whom impeachable offenses would be an issue.

Here's some history:

* In 1666 Viscount John Mordaunt was charged with impeachment for the high crime and misdemeanor of making uncivil addresses to a woman.

* In 1680 Sir William Scroggs, lord chief justice of the court of the King's Bench, was impeached on account of "his frequent and notorious excesses and debaucheries" bringing "the highest scandal on the public justice of the kingdom."

* In 1701 Edward, Earl of Oxford, a member of the king's council, was impeached for procuring an office for someone "known to be a person of ill fame and reputation."

* In 1881 the Minnesota legislature impeached Judge E. St. J. Cox for "frequenting bawdy houses and consorting with harlots."

Quite noticeably, all but presumably the last of these are not crimes--even misdemeanors--under the criminal law.

Though it will come as a shock to people who acquire their legal knowledge from TV pundits, the phrase "high Crimes and Misdemeanors" has nothing to do with criminal law. The "somewhat startling" proposition that high crimes and misdemeanors need not be crimes at all is, nonetheless, an indisputable fact demonstrated by the "great preponderance of authority."

In fact, there is no such thing as a "high Crime and Misdemeanor" in the criminal law. Just as a sea lion is something completely different from a lion, and a mongoose completely different from a goose, the "high Crimes and Misdemeanors" mentioned in the Contitution are completely different from crimes and misdemeanors. Attaching "high" to "crimes and misdemeanors" creates an entirely different animal. And, as Rodham and Nussbaum once explained to the nation, the framers knew that.

Impeachment is not a criminal procedure; the acts that justify impeachment are not necessarily criminal acts; and the purpose of impeachment is not punishment.

Indeed, impeachment is not directed exclusively or even primarily at violations of criminal law: Supreme Court Justice Joseph Story in his great Commentaries on the Constitution was especially eloquent on this point. Not only "crimes of a strictly legal character" are impeachable offenses, but also political offenses, growing out of "personal misconduct... so various" that they "must be examined upon very broad and comprehensive principles of public policy and duty."

First used for an impeachment in 1386, the phrase has always referred exclusively to conduct that could lead to an impeachment. Impeachable offenses encompass "a great variety of circumstances... which do not properly belong to the judicial character in the ordinary administration of justice and are far removed from the reach of municipal jurisprudence."

JOHNNY B. GOODE

A "high misdemeanor" refers not to a criminal offense just short of a felony, but to misbehavior, bad demeanor. As the Rodino Report explained, "From the comments of the framers and their contemporaries, the remarks of delegates to the state ratifying conventions, and the removal power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly."

Impeachment for misbehavior is not, however, as unlimited as it sounds: the behavior at issue is moral behavior, not Emily Post polite society behavior. According to historical precedent, impeachable misbehavior "means (a) [misconduct] in the execution of office, or (b) scandalous behavior in his private capacity ." Or, as Alexander Hamilton put it, the impeachment power is addressed to "the misconduct of public men" or the "violation of some public trust."

In the course of prosecuting one of the greatest impeachment trials in Anglo-American history--the impeachment of Warren Hastings--Edmund Burke said: "Other constitutions are satisfied with making good subjects; [impeachment] is a security for good governors." Burke did not mean that statesmen were supposed to be "good" in the sense of competent, but "good" in the sense of moral: "It is by this tribunal that statesmen [are tried] not upon the niceties of a narrow jurisprudence but upon the enlarged and solid principles of morality." It seems it's the president's principles of morality that are supposed to be "enlarged and solid."

Statesmen who merely transgress "the spirit of the law," Burke said, "can never hope for protection from any of its forms." Other presidents being investigated by independent counsels have understood this and have waived even legitimate legal privileges. President Clinton has invoked every legal stonewall in the book, and even some that aren't in the book.

Although Burke explicitly ruled out trying impeachments "upon the niceties of a narrow [criminal] jurisprudence," almost any serious crime will evidence a sufficiently diminutive morality as to constitute a "high Crime and Misdemeanor." Still, the standard is morality, not the technicalities of the law. Crimes that are malum in se , or wrong in themselves, such as murder or bribery, would certainly fall within the ambit of "high Crimes and Misdemeanors." Crimes that are malum prohibitum , or wrong only because the law makes them so--Occupational Safety and Health Act (OSHA) violations for example--would not.

The moral underpinnings of the impeachment clause can be understood by considering the framers' purpose in crafting a Constitution in the first place. James Madison said the "first aim" of the Constitution was to ensure that men with the "most virtue" would become the nation's rulers. The Constitution's impeachment power was for "keeping them virtuous whilst they continue to hold their public trust."

They were erecting a moral standard because they believed that only virtuous men could maintain a republic. As one constitutional scholar has pointed out, acts unrelated to job performance are proper subjects for impeachment because "a perjurer or a forger simply could not command the public respect indispensable to the administration of justice." Note, though, that even in the case of perjury or forgery--criminal acts--the rationale is not simply that the officer has violated the criminal law, but that such a violation discredits his office, and that failure to punish it would damage the government.

Impeachment was the means by which the Republic would defend itself from officeholders who could no longer command the public's trust. As Hamilton stated: "Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment." The framers recognized that the credibility of the government would be undermined and the nation threatened if the president, judges, or other government officers were seen to be personally corrupt or self-aggrandizing, as if they were above the law.

SUBSTANCE AND MEANING

Despite its six hundred years of history, the term "high Crimes and Misdemeanors" has been unfairly described as meaning "whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office." This is a statement about procedure rather than substance.

As a procedural matter it is true that, theoretically, the House could impeach and the Senate could convict for an offense that is not a "high Crime and Misdemeanor."

All this means is that no one could stop them, just as no one could stop the Senate from concluding in 1797 that senators are exempt from impeachment. (If they thought they could get away with it, the Senate might conclude that senators are immune from elections, too.) Similarly, the House, Senate, president, and Supreme Court can all pretend that Roscoe Filburn growing wheat on his lot to feed to his livestock affects commerce under the Constitution. There is no appeal from an unconstitutional Supreme Court ruling, just as there is no appeal from an impeachment conviction. But the absence of an appeal doesn't mean "high Crimes and Misdemeanors" has no meaning, any more than "affecting commerce" or any other particular set of words in the Constitution has no meaning.

The general categories of impeachable conduct that developed in the four hundred years of use in Great Britain were these:

* corruption

* betrayal of trust

* abuse of official power

* neglect of duty

* encroachment on Parliament's prerogatives

* misapplication of funds

Examples of impeachable conduct by officeholders included appointing "unfit persons to office" (often relatives and retainers). These were offices they had the strictly legal right to fill, so at worst this was mere neglect of duty. But appointing "unfit persons" denied the king's subjects the benefits of just and efficient administration. Similarly, Justice Joseph Story included as an impeachable offense "habitual disregard of the public interests, in the discharge of the duties of political office."

English courtiers were impeached for persuading the king to give them excessive gifts. These favors from the crown were not in themselves illegal, but it was held that using their access to the king for personal benefit was an abuse of power.

Obviously, the categories tend to bleed into one another and specific incidents might fall into more than one category. For example, compromising the country's national security interests by leasing ports to the Chinese government or granting waivers for the transfer of sensitive technology could constitute corruption, betrayal of trust, or neglect of duty. Using the FBI and the IRS to harass a civil servant whose pink slip was sought by the president's friend and contributor might qualify as corruption, abuse of power, or neglect of duty (if the president was simply unaware of his subordinate's machinations). Granting perks and government jobs to people whose silence is sought constitutes corruption, abuse of power, and betrayal of trust--perhaps even misapplication of funds.

THE PROMISED LAND

Despite the high-sounding nature of these categories from the old country, oral sex from the interns in the Oval Office will do. Even in England impeachable conduct included personal vices. Men of weak character would place the government in disrepute. As was remarked in one English case, officers of the crown should not act so as to bring "scandal on the public justice of the Kingdom."

But when the impeachment device made its way across the ocean to America, it was inserted into a Constitution that created a government unlike any other. The different context gave impeachments a different color. Watergate-era cliches about the president "subverting constitutional government" were over-wrought rhetoric then; this is not the standard now. To paraphrase the current "just about sex" line, Watergate was about a two-bit breaking and entering. And unlike with Monica Lewinsky, it wasn't committed by the president, or even by people who worked at his White House, but by people who worked for his campaign committee. Grand-sounding treacheries weren't required by the framers, weren't required for Nixon, and aren't required now. It's enough for the president to be a pervert.

The British categories for high crimes and misdemeanors weren't rejected by the framers so much as they were expanded and reshuffled for use in a different country. The Philadelphia convention in 1787 adopted the impeachment remedy in the process of creating the first government in the history of the world that would have separated powers, checks and balances, and sharply limited powers. And, of course, no king. The reach and purposes of impeachment would be different in a constitutional republic. Personal misconduct took on a larger role in impeachments, for example, and policy disputes became irrelevant to impeachable conduct.

Impeachments in Great Britain had been used as a weapon in the ongoing and turbulent power struggle between Parliament and the king. Describing the standard reason for an impeachment, the Earl of Danby, a leader of the impeachment of Clarendon, said that if he did not succeed in hanging Clarendon for high treason, he, the Earl of Danby himself, would be hanged instead. (And in the "whirligig of politics" the Earl of Danby was in fact later impeached--but only imprisoned.) The king could not be impeached, but Parliament could weaken him by impeaching his ministers.

Consequently, impeachments in Great Britain tended to fall into ponderous, grand-sounding categories such as "abuse of power" and "encroachment on Parliament's prerogatives." Meanwhile, actual impeachments in this country have been for things like "consorting with harlots" and "drunkenness"

The only impeachment convictions ever rendered by the United States Senate were for the high crimes and misdemeanors of: Drunkenness and Senility; Incitement to Revolt and Rebellion Against the Nation; Bribery; Kickbacks and Tax Evasion; Tax Evasion; Conspiracy to Solicit a Bribe; and False Statements to a Grand Jury. While Clinton's defenders act as if an impeachable offense must be some immediate threat to the nation--such as the discovery that the president was conspiring with communist agents to turn over vital missile technology to Red China--impeachment was intended to be used, and always has been used, to remove officers who simply "behave amiss."

Impeachment scholar Raoul Berger remarked of impeachment American-style: "Once initiated to topple giants... impeachment has sunk in this country to the ouster of dreary little judges for squalid misconduct." But the American variations on impeachable crimes flow directly from the Constitution itself. Power struggles were resolved in advance by the Constitution; others would be resolved with constitutional mechanisms such as presidential vetoes, veto overrides, and judicial review.

Another difference between impeachment in Great Britain and impeachment in this country is that Congress does not have the authority to hang or otherwise punish the impeached officers. Some might say that eliminating the possibility of beheading or hanging cabinet officials for "treasons" defined retrospectively by the legislature was a step up.

One additional distinction the Constitution requires is this: policy disputes are not supposed to be resolved by resort to impeachment. Since impeachment was used in Great Britain as a weapon against a king whose veto Parliament could not override, impeachments frequently addressed policy disputes with the king. (These were often resolved with a hanging.) Members of Parliament couldn't stop the king from entering into treaties they didn't like, but they could impeach his ministers who gave the king such "bad advice." This was really a method to "condemn policies which they believed pernicious to the realm."

By contrast, the Constitution gives Congress plenty of tools, short of impeachment, to oppose a president's "pernicious" policies. Moreover, the chief magistrate would not govern by divine right, but by the consent of the people. Elections decide policy; impeachments judge character. Staging impeachments over policy disagreements doesn't make sense in the context of the American Constitution.

That policy disagreements cannot form the basis for an impeachable offense in this country is more than a logical deduction from the structure and purposes of the Constitution. At the Constitutional Convention, Madison explicitly rejected "maladministration" as a ground for impeachment. He said "so vague a term will be equivalent to a tenure during the pleasure of the Senate." (And thus, "high Crimes and Misdemeanors" was adopted instead.)

Other comments from the framers further demonstrate that the purposes of impeachment did not include policy disputes--but did include personal misconduct. Edmund Randolph said, for example: "No man ever thought of impeaching a man for an opinion. It would be impossible to discover whether the error in opinion resulted from a wilful mistake of the heart, or an involuntary fault of the head." Apparently, a "wilful mistake of the heart," when discernable, would constitute grounds for impeachment and removal.

When Hamilton described impeachable offenses as "political," he did not mean partisan. The president cannot be impeached for issuing executive orders that are strongly opposed by New York Times columnist Anthony Lewis. Rather, high crimes and misdemeanors are "political" in the sense that they "relate chiefly to injuries done immediately to the society itself." Since policy matters are necessarily off the table, in a sense, that leaves only "personal misconduct, or as Edmund Randolph put it, "wilful mistakes of the heart."

Perhaps the more significant American innovation on impeachment was that the chief magistrate could be impeached. Indeed, it was the president the framers had in mind when they drafted the impeachment clauses.

Having just fought a war to get rid of a king, the framers had "the perfidy of the chief magistrate" clearly in their sights when they included broad grounds for impeachment. They discussed the Constitution's impeachment power in terms of removing a president who "misbehaves" or "behave[s] amiss" as two of the delegates put it. Madison wrote that impeachment was meant to remove presidents for "incapacity, negligence, or perfidy." And Hamilton wrote that the entire process of selecting a president was designed to ensure that "some fit person" notable for "ability and virtue" would be chosen for that office. As a back-up mechanism to prevent rogues from holding office, they provided for impeachment.

To have the president's behavior propel the country into a national discussion of whether oral sex counts as adultery would have been a blatant "high Crime and Misdemeanor" if the framers could possibly have imagined any president would sink so low.

THE LAST TIME

But one doesn't have to look back to the Constitutional Convention for the standards. This country last faced the need to remove a president just twenty-five years ago during the presidential scandal known as "Watergate." Half the country actually lived through this most recent precedent for impeaching a president.

On July 27, 1974, the House Judiciary Committee adopted three articles of impeachment against Richard Nixon. The charges against him were neatly summarized in two sentences at the bottom of the indictment:

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

To say that Nixon was forced to resign for acting in a manner "subversive of constitutional government" is meaningless without knowing what acts comprised that "subversion." In brief, Nixon's subversion consisted of: One presidential lie, one invocation of presidential privilege, and zero criminal offenses. The standard for constitutional government subversion--or whatever the impeachable offense is called--should not be a function of poll numbers plus the misery index.

Impeachment, as the country was reminded in 1974, is intended to reinforce the heavy constitutional cables that hold even heads of state to the rule of law. If a president can slip these cables, we no longer have a constitutional republic. We end up with an "Imperial President," as Anthony Lewis and Company ceaselessly intoned during the Nixon presidency, right on up to the election of President Carter (to be reintroduced during the Reagan years).

As Nixon discovered, the president's obligations go far beyond the requirement that he not criminally obstruct justice. Madison explained, "If the President be connected, in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty." Using the power of the presidency to "pardon crimes which were advised by himself" or to "stop inquiry and prevent detection" of crimes was, according to Madison, an impeachable offense.

Nixon talked about political audits by the IRS, but no political audits were ever conducted (except of Nixon himself). Nixon invoked one privilege one time (and this was somewhat legitimate, since the Supreme Court did in fact recognize a brand new legal privilege). Nixon permitted his subordinates to delay one investigation once--for two weeks.

The worst that could be said of Nixon's alleged "obstruction of justice" was that he thought the president had a right to fight a legal case, just like a private citizen might. But as Nixon's first special prosecutor, Archibald Cox, said, "[T]here is a radical difference between what people expect of a president and his aides and what they will cynically tolerate from time to time in municipal aldermen or county commissioners." A president cannot act like a municipal alderman; he certainly should not be able to act like O.J.

If Nixon telling one lie, not under oath, constituted the creation of an "Imperial Presidency" demanding the president's impeachment, what has Clinton created by telling repeated lies, not only to the public, but under oath?

Lying to the American people is a clear betrayal of trust. There is no question that this is an impeachable offense, assuming the "lie" does not fall under the president's duties, such as protecting the military as commander in chief. That may sound odd, given how thoroughly politicians are associated in the public eye with lying. But throughout American history, acknowledged instances of presidents lying to the nation are both rare and notorious.

In fact, Nixon's lie--that the White House had conducted its own internal investigation of the Watergate break-in and found that no White House personnel had been involved--was actually cited in the first article of impeachment voted by the Rodino Committee. Article I charged Nixon with, among other things, "making or causing to be made false or misleading statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted..." (emphasis added).

The Watergate special prosecutor, Leon Jaworski, said of Nixon's disgrace and resignation: "What sank him was his lying." Even President Nixon's most loyal defenders abandoned his cause when they found that he had indeed lied to the public. Just on one point. "The problem is not Watergate or the cover-up .... It's that he hasn't been telling the truth to the American people .... The tape makes it evident that he hasn't leveled with the country for probably eighteen months. And the President can't lead a country he has deliberately misled for a year and a half." That, incidentally, was how Nixon's speechwriter, Pat Buchanan, explained to Julie Nixon that her father had to go.

Meanwhile, President Clinton has lied repeatedly, openly, and directly to the American people. He does not even seem to care whether there is a plausible sense in which his lies might be justified as half-truths--so long as he can get away with the lie, even temporarily. During the 1992 presidential campaign he brushed off his affair with Gennifer Flowers and his status as a draft-dodger with this doggerel deceit: "a woman I never had sex with and a draft I never dodged: Six years and countless lies later, he had taken to giving the country schoolmarm lectures, knowing his word would not be believed: "Listen to me... I never had sexual relations with that woman [Monica Lewinsky]." Clinton defender Lanny Davis is no Pat Buchanan.

Even the president's few remaining defenders in the criminal defense bar don't bother pretending to believe him anymore. They say his lies about Gennifer, Paula, Kathleen, and Monica don't matter because those are "about sex." No, actually, not all his lies are "about sex"; the lies "about sex" just happen to be the ones he told under oath. It's impossible even to keep track of all the lies he has told. As Democratic Senator Bob Kerrey casually remarked of the president, "Clinton's an unusually good liar. Unusually good. Do you realize that?"

And Senator Kerrey said that before the president started telling his lies under oath in a sworn deposition in front of a federal judge. The evidence that the president perjured himself, and perjured himself repeatedly, during his deposition in the Paula Jones case is overwhelming. So overwhelming, in fact, that Clinton acted like a trapped animal when he was later asked to say simply that it is wrong for presidents of the United States--in the abstract--to commit perjury and obstruct justice.

At a press conference on April 30, 1998, ABC reporter Sam Donaldson posed this question to President Clinton:

Now you deny wrongdoing, I understand, but as a standard for presidents what do you think: Does it matter what you do in private moments, as alleged? And particularly does it matter if you have committed perjury or in another sense broken the law ?

Clinton responded:

Well, since I have answered the underlying questions, I really believe it's important for me not to say any more about this. I think that I'm, in some ways, the last person who needs to be having a national conversation about this .

It is astonishing that the president of the United States has so obviously and blatantly broken the law that he feels he should not go on record saying that presidents, as a general matter, should not break the law. Clinton openly announces that he is "the last person who needs to be having a national conversation about" whether it should "matter" if the president is a felon.

U.S. BLUES

Though there are standards and precedents to abide by, impeaching a president is not just a matter of legal technicalities. It is a matter of our duty as citizens. Impeachment may seem like an extreme course, especially when our mutual funds are doing well, but it is a course specifically provided for in the Constitution. The Constitution was drafted by men who had already resorted to more extreme measures than impeachment to remove their colonial governors. They had staged a revolution and drafted a document proclaiming to the world that revolution was their right and duty, when, "in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another."

Americans have become so delirious on the rhetoric of choice that the question of whether to impeach a president, even one who has manifestly committed impeachable offenses, seems like a matter of personal preference, rather than our obligation as citizens of a republic. That isn't how our Founding Fathers put it in the Declaration of Independence. And they were about to alter a government "long established" in a more jarring fashion than a simple little impeachment.

They acknowledged that "[g]overnments long established should not be changed for light and transient causes" and recognized "that mankind are more disposed to suffer, while evils are sufferable, than to right themselves..." But the whole point of the Declaration is that finally there comes a limit to what citizens can tolerate from their government. And then the Declaration does not say merely that citizens have the right to make a change, but that they have a duty: When citizens witness "a long train of abuses and usurpations... it is their right, it is their duty, to throw off such Government...."

This is what it means to be a citizen in a republic--of the self-governing kind and not the banana variety. You can vote for a knave and a clown, but then you have to take some responsibility to correct your mistakes. And those who didn't vote for the clown have a responsibility to rescue the rest of the country from its foolishness. Moreover, there ought to be some responsibility attached to holding office in a government founded on the blood of patriots. (So, why exactly is the Republican Congress doing nothing while waiting for Ken Starr to save the country?)

This is our fundamental political tradition. The governed may be expected to abide a certain amount of evil for the sake of continuity and stability, but there's a limit. When it is easy to imagine Larry Flynt watching television coverage of the president and wondering what the country has come to, the president has got to go.

It has been the president's game to identify his critics as religious right fanatics to play on people's fear of excessive morality in politics. This is odd since the Christian Coalition hasn't made a peep about the president's manifest perversions and apparent crimes, except to endorse the position of Clinton's flacks: like Lanny Davis, it is just waiting "to see the facts." Be that as it may, surely it does not yet require fidelity to a particular religious creed to say the president of the United States should not be having affairs with an intern, lying to the American people, obstructing justice, or perjuring himself in a constitutional case.

Impeachment is not something even a partisan jumps into impulsively. But it's absurd to pretend that only nonpartisan adherents of good government--whoever they are--can call for impeachment. No one ever expected the impeachment of a president to be nonpartisan. It's supposed to be partisan. Alexander Hamilton wrote that impeachments would "enlist all [the citizenry's] animosities, partialities, influence, and interest." This was in a tract recommending adoption of the Constitution--along with its impeachment clauses.

In fact, the whole government is supposed to be partisan precisely so that, as James Madison put it, "each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights." If the president's enemies aren't going to be sentinels over him, who is?

The indignant complaint that the people attacking the president are out to "get" him is so illogical it stops you in your tracks. Okay, but then the people defending the president are out to save him, so where does that get us? There are always two sides. The question isn't whether there are two sides--down to the last criminal defense lawyer defending Clinton--but whether there are grounds and reason to impeach the president.

The Declaration of Independence gave only one side of the story, too. It repeatedly blamed the whole thing on King George: " He has refused his Assent to Laws, the most wholesome and necessary for the public good.... He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers." He did this. It didn't matter that they were out to get King George and that the Tories had a different opinion.

If this country didn't have the stomach to stand up for its principles, we'd be Canada now. And, anyway, this isn't revolution, so calm down. It is a remedial measure: "Impeachment is the first step in a remedial process--removal from office and possible disqualification from holding future office." (That phrase comes from the report drafted in part by Hillary Rodham.)

In Federalist No. 51, in which Madison commended the Constitution's reliance on partisan interests, he said: "It may be a reflection on human nature that such precautions should be necessary. But what is government but the greatest of all reflections on human nature?" What kind of reflection on our nature might it be if the country were willing to suffer Clinton to continue as president now that we have learned what kind of man he is?

The consequences of this can hardly be overstated. Democracy runs on trust, without which phrases like the "consent of the governed" are meaningless. It is essentially impossible to have democracy if elected leaders do not tell the truth, everyone knows they do not tell the truth, and no one cares. Presidents who by their deceit spread such cynicism actually do commit "offenses that subvert the system of government." As the Declaration of Independence put it, "Governments are instituted among Men, deriving their just powers from the consent of the governed" Consequently, "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it."

Elliot Richardson, the attorney general fired in Nixon's "Saturday Night Massacre" explained the danger of failing to remove a corrupt president:

[T]here is a serious risk when you investigate corruption. You may do more harm than good if all you do is poke a stick in a muddy pool and stir up the mud without clarifying the water.... [P]oliticians govern their conduct in the light of past experience .

HIGH TIME

If President Clinton can do what he has done and not face impeachment, we will have set an all-new, heretofore unimagined--unimaginable--low-water mark for elected officials. Not just that, but if Congress doesn't have the will to throw him out, Clinton will have established a new standard for the entire country. The new standard will be a total absence of standards. Lying doesn't really matter, as long as it's about sex, because sex doesn't really matter, even if it's gross, exploitive, adulterous, and risky. Go ahead: seize this loophole, to the ruin of your family.

And since manipulating the IRS or FBI from the top is all in the course of business, it must be okay to mislead them and divert them from the other end, too. If you get caught and don't have a good enough legal team to escape, you might have to pay a fine or go to prison. But there's no shame in it. The country doesn't really condemn this. We adore a lovable rogue. And we are very, very tolerant. The only thing we won't tolerate is a loser. Nothing matters except winning, and it is fine to lie and cheat and manipulate because honor is just a word, just hot air, and the country doesn't really believe in it.

If Clinton stays, we may as well change our national motto from "In God We Trust" to the old Nike slogan: "Just Do It!"

The last line of the Declaration of Independence is: "And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor." Impeachment isn't a revolution, and no one's lives or fortunes are at risk. It's not even our sacred honor this time. It's just a question of whether the country can patch together a little self-respect.

The Founding Fathers said the price of liberty is eternal vigilance. This book isn't even asking for vigilance. It's just asking people to give a damn. If Americans don't care about this, then they are expecting liberty without paying any price at all.

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High Crimes and Misdemeanors : The Case Against Bill Clinton

0786217561

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