A Report Card on the Impeachment: Judging the Institutions that Judged President Clinton

Abstract

Now that we have lived through one of the most unusual events in American history - the impeachment and trial of the President of the United States - it is appropriate, indeed essential, that we assess how the process worked and learn what we can from it. Specifically, I want to address two questions: First, how well did the impeachment process work? In good academic fashion, I will grade each of the governmental institutions involved - giving them, if you will, a report card. Second, what did we learn from the experience to guide us if, in the future, we face the impeachment of a President?

Let me start by saying that President Clinton's misbehavior was inexcusable. Had he been more disciplined, the nation would have been spared a year of agony. But his "inappropriate" relationship with Monica Lewinsky was neither criminal nor impeachable; and had he been more forthright when confronted in January 1998, we probably also would have been spared the year of torture. However, the $64,000 question is whether his efforts to spare himself, his family, and Monica Lewinsky the embarrassment of disclosure were impeachable offenses.

Before beginning the evaluation, I would like to disclose my personal connection with the saga. I first became involved when Paula Jones sued the President in 1994. I argued, in an op-ed, that a private damage action against a sitting President must wait until the President is out of office, unless the plaintiff can show irreparable harm from such a delay. After the Supreme Court ultimately rejected that argument, and Independent Counsel Ken Starr sent his referral to the House of Representatives, I urged members of the House not to impeach. I was also one of the law professors who drafted and circulated the letter arguing that the President's actions did not warrant impeachment. Furthermore, I was one of the nineteen constitutional scholars who testified before the House Judiciary Committee on impeachment. After the House voted to impeach the President, I counseled members of the Senate on their role in the President's trial. In short, I am not unbiased but believe I can be fair in evaluating the performance of the various institutions involved, giving a grade to each of them.