Falling Out of Love with America: The Clinton Impeachment and the Madisonian Constitution
14 Pages Posted: 22 Jun 2001 Last revised: 15 Jan 2008
This is one of a series of papers presented at a symposium sponsored by the University of Maryland School of Law titled Bidding Adieu to the Clinton Administration: Assessing the Ramifications of the Clinton Scandals on the Office of the President and on Executive Branch Investigations. The paper had its genesis in two autobiographical facts, the first being that the drama of Watergate moved me to become a lawyer, and the second being that nearly twenty years later I was involved in a very small way in the congressional hearings on the Clinton impeachment. The Nixon impeachment crisis inspired me to a life in the law. The Clinton affair was a dispiriting farce. Reflection on my divergent reactions to the two events led me to ask three questions. First, were the Nixon and Clinton impeachments truly as different as my memory makes them? Second, if the Clinton impeachment was indeed as bizarre and anomalous as it seemed, how could such a thing have happened? Third, what are the implications for the presidency and the project of governance in America of the fact that a president was impeached and nearly removed from office for lying about sexual infidelity.
The article concludes that Clinton impeach was distinguishable not only from the Nixon matter but also from all other presidential impeachments or near-impeachments in American history. Its uniqueness and its cause lay in the combination of three factors: the squalid triviality of the underlying conduct, the absence of mature leadership from the elected and appointed guardians of the constitutional system, and a new, mean, criminalized politics. The article discusses the trap that post-Watergate legalism set for ordinary politics, but rejects the notion that the legal structures created in the wake of Watergate were the sole cause of the Clinton disaster. In the end, the cast of characters from all components of the federal government who made the choices that led to impeachment repeatedly failed to understand and protect the American idea of government, which is not merely an abstract embrace of freedom, equality, and democratic self-governance, but is instead a societal compact to promote those ideals within the specific, if historically evolving, governmental framework outlined in the Constitution. The repeated want of respect for both constitutional doctrines (e.g., separation of powers) and constitutional offices and officers displayed by the Congress, the courts, the Independent Counsel, and the President himself suggest that many members of the country's governing classes have fallen out of love with the American idea of politics and governance. The Article concludes with a few preliminary suggestions on falling in love again.
Keywords: impeach, impeachment, Clinton, Madison, constitution, constitutional law, president
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