The Clinton meltdown

National Review, Oct 12, 1998 by Robert H. Bork, James S. Rosen

Guess what he can't do his job either. From Russia to taxes, from spin to substance, from the domestic agenda to the Lewinsky affair, the Clinton administration is heating up and shutting.

Kenneth Starr has now filed his report with Congress, and it is unequivocal. This being Washington, almost every politician instantly equivocated. Sure, some of them said that what the President had done was immoral and wrong. But very few of them were willing to say that he had committed offenses justifying impeachment; instead, most of them offered bromides about waiting for more facts and the President's response. That sounds reasonable, but in fact it is not.

Two questions arise: Are the President's offenses serious? And, Do they constitute grounds for removal from office? These are not two ways of saying the same thing, because an impeachable offense requires "high Crimes and Misdemeanors," and those, as we are reminded by the words of Alexander Hamilton, are "offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself."

Has that standard been met? Not if you are one of those who agree with the President and his legal minions that the charges against the President are "just about sex." That is the line taken by the formerly redoubtable Maureen Dowd, who wrote that Starr had made a case for divorce but not for impeachment. Walter Shapiro, referring to the report as "gripping, Linda-Tripping, bodice-ripping," concluded that "Clinton's sordid middle-aged misdemeanors do not justify impeachment." These are almost willful misreadings of what Starr alleged. Not one of the eleven items that Starr thinks are "substantial and credible information that [in the words of the Independent Counsel statute] may constitute grounds for an impeachment" depends upon sex. Five of the counts allege perjury by the President, five allege obstruction of justice, and the final count states that Mr. Clinton's actions have been "inconsistent with the President's constitutional duty to faithfully execute the laws." If any one of the first ten counts is borne out by the evidence, the eleventh is automatically true.

Sex is not the gravamen of the report but merely the predicate for the cover-up allegations. If a man was charged with lying about a break-in and inducing others to lie, you might, if you were brainless, say the whole thing was just about a "third-rate burglary" and therefore not grounds for impeachment. To prove the charges of perjury and obstruction of justice, a prosecutor would have to prove the burglary, just as Starr, to prove his charges, had to establish the sex.

The main facts requiring impeachment and removal from office are already indisputable. The President may dispute some of Starr's factual allegations, and these challenges will require hearings. I have no doubt that televised hearings will bear out all the charges, but hearings are really not necessary with respect to the first two charges: multiple perjuries in the Paula Jones case and again before the federal grand jury. The President has effectively conceded those crimes. He does not contest the facts but thrusts the compliant David Kendall into the public arena to argue some version of the theory that there was no perjury because Monica may have been having sex with Bill but Bill was not having sex with Monica. The whole performance is so absurd that one could almost feel sorry for Kendall if he did not deliver his assigned lines with such smarmy self-confidence. Many commentators purport to see why Kendall must so embarrass himself: to admit to lying under oath would make Clinton vulnerable to criminal indictment, and the statute of limitations will not run out until well after he leaves office.

The best one can say of the sex-is-a-one-way-street argument is that it is hilariously witty. Advanced seriously, it does not come close to passing what lawyers call the "red-face test." To utter it should be to stammer and blush. That is why the commentators and the White House strategy are wrong. Should a prosecutor choose to indict Clinton after he leaves office (or perhaps file a sealed indictment now to be opened later), the Kendall defense will be no shield; it will be swept aside with the contempt it merits. There is thus absolutely no reason to continue absorbing the political damage this jesuitical argument deserves and receives. The President should state that he lied under oath, think of such extenuating considerations as his infinite capacity for self-justification suggests (accompanied by moist eyes and rapid-fire biting of his lower lip), and contend that perjury about sex is not adequate reason to impeach him.

In that contention he has considerable support, not only from the aforementioned Miss Dowd but from many others, including, surprisingly, William Safire, who says, "If forthrightly confessed, perjury about workplace dalliance should not be enough to force out a President." In the light of the Starr Report's footnotes, calling what took place in the Oval Office "dalliance" falls just short of calling World War II a "dustup." The idea seems to be that perjury about sex is not as serious as perjury about other matters. That won't wash.