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A Constitutional Crisis

Kenneth Starr’s case against himself

“There is Substantial and Credible Information that President Clinton Committed Acts that May Constitute Grounds for an Impeachment,” Kenneth Starr declares in his report to Congress. But the independent counsel does not explain how, precisely, he has decided to define “acts that may constitute grounds for an impeachment.” Starr clearly believes that impeachable offenses are not limited to violations of criminal law, since he includes acts, ranging from bathroom trysts to more formal exercises of executive privilege, that not even he suggests are illegal. But, although Starr has concluded that not all impeachable acts are necessarily criminal, he also seems to have concluded that all criminal acts are potentially impeachable, whether or not ordinary prosecutors would pursue them.

The Framers of the Constitution had a different view, holding that high crimes and misdemeanors were, at the core, political offenses that subverted the constitutional structures of government. Judged by this standard, the case against the independent counsel is stronger than the case against the president of the United States.

The most expansive definition of the impeachment power was made famous by Gerald Ford. “An impeachable offense,” Ford said memorably, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” But, except in a purely descriptive sense, this has to be wrong. When Supreme Court justices joke that “the Constitution is whatever we say it is,” they clearly don’t mean that they are free to decide constitutional cases based purely on partisan loyalties or financial self-interest. It would be a similar usurpation of the Constitution if a Republican Congress decided to impeach and convict a Democratic president simply because his poll numbers were low or because it disagreed with his policies about gays in the military.

Another unconvincing definition was proposed by President Nixon, and rejected by Congress, during the impeachment hearings of 1974. An impeachment, Nixon suggested, is essentially a criminal proceeding, and impeachment can be justified only by proof of a crime. But this definition is both too narrow and too broad: as many have noted, not all crimes are impeachable offenses, and not all impeachable offenses are crimes. The eleventh article of impeachment in the 1868 Andrew Johnson hearings, which was the only article that Congress voted on, alleged that Johnson had denied the legitimacy of the thirty-ninth Congress and violated the Tenure of Office Act in firing his secretary of war. Neither of these charges involved crimes in the ordinary sense, and both appropriately charged the president with usurping the prerogatives of Congress. Like the Framers of the Constitution, the Reconstruction Congress rejected a penal model of impeachment, which the English Parliament had used to prosecute high officials for ordinary crimes. Instead, it saw the impeachment process as a way to hold high officials accountable for abuses of official power, illegal or not, that threatened the constitutional structure.

The most convincing interpretation of the impeachment clause flows naturally from a close reading of its text: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The word “other” indicates that high crimes and misdemeanors must consist of offenses that have the same characteristics as both bribery and treason. What bribery and treason have in common is that they are offenses that strike at the heart of representative democracy. When a president signs a bill in exchange for a bribe, or gives “aid and comfort” to the enemies of the United States, he’s subverted the constitutional structure at its core.

So, while Kenneth Starr is right to suggest that impeachable offenses aren’t necessarily criminal, he is wrong to suggest that all criminal offenses are necessarily impeachable. In the best essay written on the subject, Impeachment: A Handbook, published in 1974, Charles Black gave the following hypothetical example of a federal crime that clearly wouldn’t rise to the level of an impeachable high crime. “Suppose a president transported a woman across a state line or even (so the Mann Act reads) from one point to another within the District of Columbia, for what is quaintly called an ‘immoral purpose.’” It would be “preposterous,” Black concluded, to suggest that any president could be removed on such grounds. What makes this suggestion “preposterous”? It reminds us that a crime shouldn’t rise to the level of an impeachable offense unless it is “committed by public men in violation of their public trust and duties,” to use Justice Story’s famous formulation.

With this in mind, let’s examine the “eleven possible grounds for impeachment” that Starr’s report identifies. The allegations fall into four categories, in ascending order of seriousness: President Clinton lied in his own deposition in the Paula Jones case (counts one, three, four, and eight); he obstructed justice in the Jones case by trying to cover his tracks (counts five, six, seven, and nine); he attempted to “deceive, obstruct, and impede” Starr’s grand jury (counts two and ten); and he “abused his constitutional authority” by his efforts to hinder, impede, and deflect possible inquiry by the Congress of the United States” (count eleven).

Assume, for the sake of argument, that all of Starr’s factual allegations are true, even though they were made public before the president was permitted to present his side of the case. The first two categories, relating to Clinton’s lies in his civil deposition and his attempts to conceal his affair from Paula Jones’s lawyers, don’t plausibly qualify as offenses against the structure of government. Clinton’s equivocations in his civil deposition about where and when he touched Monica are indistinguishable from Black’s example of the president who transports a woman across state lines for immoral purposes. Even if the president confessed tomorrow that he perjured himself in the Jones deposition, no responsible representative should consider the civil perjury a high crime or misdemeanor. The point isn’t simply that no ordinary citizen would be prosecuted for lying and concealing evidence about a sexual affair that was later excluded from a civil suit that was later dismissed. The point is that purely self-protective lies about a sexual dalliance in a civil case can’t be considered a violation of Clinton’s public duties.

Clinton’s attempts to cover his tracks in the Jones case fall into the same category. It’s more reasonable, as Starr suggests, to conclude that Clinton, rather than Lewinsky, asked Betty Currie to retrieve the gifts the president had given the intern. But Clinton’s overriding concern was concealing his affair from the public, not denying the Jones lawyers evidence that he knew would have been inadmissible in court and was therefore unlikely to influence the case. Even assuming that Clinton dispatched his secretary to retrieve the gifts, the Justice Department rarely prosecutes attempts to impede discovery in civil cases, and, even if ordinary citizens were prosecuted for what Clinton did, his attempts to conceal his affair in a civil suit don’t threaten the structure of government. If there were convincing evidence that Clinton had used the resources of his office to persuade someone to lie under oath--if the talking points had been written by Bruce Lindsey, for example-- the abuse-of-power case might be stronger. But Lewinsky has testified that she wrote the talking points herself.

Clinton’s lies to the grand jury are a more serious matter. As Starr goes to pornographic lengths to demonstrate, it’s hard to conclude that Clinton didn’t lie when he implausibly denied that he touched Monica’s breasts and genitals. Unlike the lies in the Jones deposition, his lies to the grand jury were clearly intentional and material. Moreover, perjury before an ordinary grand jury might be viewed as an offense against the structure of government and therefore looks more like a potentially impeachable offense. (Judge Walter Nixon, for example, was impeached in 1989 for giving false statements to a grand jury investigating allegations that he had been bribed.)

But the reason that lies before grand juries are ordinarily considered offenses against the state is that they interfere with the grand jury’s decision about whether or not to bring indictments for crimes that might themselves be impeachable, as in Judge Nixon’s case. Because virtually everyone believes that the president can’t be indicted, it’s at least arguable that any lies the president tells to a grand jury don’t threaten the structure of government, as long as they relate to criminal conduct that falls below the impeachment threshold.

The perjury trap that Starr set for Clinton in the grand jury is the strongest element of the case for impeachment. Remember, however, no ordinary citizen would have been caught in a similar trap, because anyone but the president would have been free, in practice, to take the Fifth. In its disastrous decision to let the Paula Jones case proceed, the Supreme Court stressed that the president should be treated precisely like everyone else. By impeaching him for lying before a grand jury about an offense that no ordinary prosecutor would have investigated and that no ordinary citizen would have discussed under oath--and doing so without the procedural protections on which ordinary citizens rely--Congress would put the president in a far worse position than everyone else. Perhaps this is what Clinton had in mind when he mentioned that he felt like the protagonist in Darkness at Noon.

Aware that none of the allegations in his first ten counts makes out a clear case for an offense against the structure of government, Starr adds an eleventh count, which includes offenses that, in his view, constitute an abuse of power. This count alleges that “President Clinton abused his constitutional authority” by lying to the public and to Congress, refusing invitations to testify voluntarily, and invoking executive privilege, “all as part of an effort to hinder, impede, and deflect possible inquiry by the Congress of the United States.”

The circularity of this claim is audacious. Starr seems to be saying that, as soon as an independent counsel is appointed to investigate any potentially criminal violation by the president, the president interferes with the impeachment power of Congress if he denies his guilt rather than confessing immediately. Merely to restate this claim is to show its peculiarity. It was Kenneth Starr, not Congress, who decided that the president’s decision to lie about his affair in the Paula Jones case might be an impeachable offense. But what gives Starr the constitutional authority to make this decision? When he began his investigation, Starr’s defenders told us endlessly that he was merely doing what “ordinary” prosecutors do when he subpoenaed bookstore receipts, summoned Secret Service agents, and called Monica Lewinsky’s mother to testify against her daughter. But, unlike an ordinary prosecutor, Starr has not brought a criminal indictment; instead, he has submitted a report to Congress that describes, in the least flattering light possible, legal but embarrassing conduct that no ordinary prosecutor would make public, only to conclude that Clinton’s failure to cooperate with Starr’s own investigation is itself grounds for impeachment.

In a forthcoming article in the Georgetown Law Journal, Julie O’Sullivan, a former prosecutor in the Whitewater investigation, concludes that the independent counsel’s statutory power to submit impeachment referrals to Congress highlights the profound ways in which the office threatens to unsettle our constitutional structure. By allowing a special prosecutor appointed by judges to make an essentially political decision about which crimes rise to the level of impeachable offenses, the House has delegated the core of its impeachment duties. By turning independent counsels into impeachment investigators for the House, Congress has access to the powers of a criminal investigation that are normally denied to it, while allowing Starr, its nominal agent, to operate without the institutional and political checks that are supposed to constrain the impeachment process. The result is a constitutional aberration: a politically unaccountable and unconstrained officer who combines the functions of prosecutor, legislator, judge, and jury.

There was a reason that the Framers divided the impeachment process, which is a complicated blend of legal and political judgment, between the House and the Senate. The decision to accuse would be made by the House, representing the people, and the decision to convict would be made by the Senate, representing the nation. The Supreme Court was explicitly kept out of the picture, as Hamilton explained in Federalist 65, because “the awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons.”

The independent counsel law, we can now see more clearly than ever, has dramatically altered that delicate balance. Representing no broader constituency than the judges who appointed him, Kenneth Starr has used the apparatus of criminal law to trap a flawed and reckless president into lies about sex. He has pressured the House to respond to the charges, despite opposition to impeachment by the people of the United States. And he has ensured that the hearings will be focused on technical violations of criminal law that have no obvious connection to the president’s official duties, which was precisely the vision that the Framers rejected. The Lewinsky affair is not a sex scandal. It is, in fact, a constitutional crisis. And, if this president falls, our structure of government will be altered, with consequences that are now beyond our power to imagine.