The Story About Clinton's Impeachment

Abstract

What was the story?

In the oral version of their presentations, the participants in this symposium generally prefaced their remarks with descriptions of their service in government. They wished to acknowledge their biases and to admit how the jobs they held had shaped their perspectives. So perhaps I should also state how my experience has shaped my views of impeachment, especially because my perspective on impeachment differs from that of my co-participants. Generally speaking, the other participants served in high government positions, and so they think in terms of policy, but I served as a trial lawyer, so I come to impeachment asking the trial lawyer's question: What is the story?

In the debate over impeachment, the prosecutors thought that President Clinton's actions represented a threat to the rule of law. The defenders denied this charge. Both sides agreed that the story was about the rule of law, and the articles to which I am responding employ the same metaphors. My thesis is that the prosecutors, the defenders, and those who spoke at the symposium all chose the wrong story; had I been the prosecutor, I would have told a story about breach of trust. As events transpired, the defenders were delighted to be telling the wrong story. The prosecutors were incompetent enough to choose the rule of law as their theme, and the defenders were glad to join issue on this favorable terrain. One wonders why the prosecutors made such a bad choice.

Perhaps the prosecutors avoided the breach-of-trust issue because this theme would have acted as a double-edged sword. They might have thought it easy to demonstrate that President Clinton was not worthy of our trust, but perhaps they did not wish to call attention to their own untrustworthiness. The Republicans, who comprised a majority of the House Judiciary Committee, failed to earn our trust because of their irresponsible behavior. They released the report by Independent Counsel Kenneth Starr ("Starr Report") without editing out irrelevancies; they compromised the tradition of grand jury confidentiality by releasing transcripts; they failed to adopt a clear set of procedures before beginning the process; and they failed to conduct an independent inquiry. They then compounded these mistakes by sending [*pg 194] thirteen Members of the House of Representatives to the Senate to manage their presentation. The thirteen Members made the Keystone Kops look efficient.

Because the House Republicans failed to demonstrate that they deserved our trust, it is no surprise that they also failed to show that President Clinton did not. One would have thought that it would have been easy, that making the case that President Clinton was untrustworthy would not have been beyond their competence. But it was. Their mistake seems to have been two-fold. First, they focused on sex by releasing the unedited Starr report, which distracted public attention from President Clinton's acts of perjury and obstruction of justice. Second, when they tried to switch the topic away from sex, and back to perjury and obstruction of justice, they chose to describe President Clinton's acts as a threat to the rule of law rather than as a breach of trust. Their misplaced emphasis on the rule of law crippled their attempts at persuasion by making them sound rigid, dogmatic, and abstract.

If the story of President Clinton's perjuries and his obstructions of justice had been told as a story about breach of trust, the Republican House Managers would have had several advantages; most importantly they could have shed the handicap of abstractness. Their talk about the rule of law was necessarily abstract because to argue that President Clinton's perjuries were a threat, they had to generalize. The House Managers had to argue the theme "what if everybody . . . ," which ultimately led away from what President Clinton did. By moving the argument away from the details, their rhetoric became ever less incisive, and ever more pompous.

One possible response to my assertion - the House Republicans were foolish to have cast their charges as a story about the rule of law - is to gasp in astonishment, "What could be more important than the rule of law?" When I made my remarks at the symposium on September 24, 1999, a member of the audience stated, "I find it rather disturbing that anyone would suggest that perjury is not a serious enough threat to the rule of law to warrant impeachment and removal from office." I responded that this astonishment is natural and understandable, indeed inevitable, to anyone who has been educated into the legal imagination. However, this line of thinking assumes that the legal imagination should govern. We all know that the public did not judge President Clinton's perjuries to be serious, and I surmise that they did not judge him harshly because they sympathized with his motives for lying - to conceal sexual trespasses. The public could forgive those motives. To be sure, by the standards of the law, President Clinton's motives for his perjuries were irrelevant, but one must remember that our Constitution begins, "We, the People, . . ." One should also remember what President Lincoln did not say: President Lincoln did not hold out government "of the lawyers, by the lawyers, for the lawyers" as a worthy ideal. If we judge President Clinton by the standards of legal justice, then of course he should have been impeached and convicted, but if we judge him by the standards of popular justice, then the outcome is rather more doubtful.

JEL Classification: K40, Z13