The Morass Of Impeachment

Just when their election prospects looked the most dire, President Obama and the Democrats were thrown a lifeline by Sarah Palin. Until Palin called for impeaching the president, the Democrats faced a midterm debacle with their base dispirited. They were reduced to pointlessly flailing at the Koch brothers. Then, along comes the impeachment talk. Thanks, Sarah Palin. She’s the gift that keeps on giving – to Obama and the Democrats.

Make no mistake, Obama leads a corrupt, venal, incompetent administration. His abuse of executive discretion has been bad enough to suffer a 9-0 rebuke from the Supreme Court. To be shot down by Ginsburg, Sotomayor and Kagan is downright humiliating and makes a lawsuit in federal court by John Boehner a promising prospect.

Impeachment, like indictment, sounds ominous, but it is just the charge. Conviction is what matters. Moral victories are known by another word — Losses. Conservatives need to recall the political debacle of the Clinton impeachment.

Bill Clinton lied under oath. He committed perjury, this is an incontestable fact. But the 1998 impeachment was a mistake, politically and legally. Given the recent calls for President Obama to be impeached, it’s worth revisiting the failure of the Clinton impeachment.

It certainly was maddening to watch the morally flexible Clinton embarrass himself and the country time and again, yet manage to slither off the hook. If smugness and sleaze were crimes, Clinton would be in a supermax prison.

The failure of the Clinton impeachment was one of overreach, lack of imagination and politics (success would also have made Al Gore President – the worst outcome of all). One of the fundamental principles of the law is proportionality. Simply put, the punishment should fit the crime. Circumstances also matter. No intelligent judge would hand out the same sentence to a shoplifter stealing to feed his family and another shoplifter stealing to feed his drug habit. It is proportionality and circumstance that conspired to make impeachment a non-starter for the majority of the country in 1998.

Clinton’s perjury was not directly related to the discharge of his responsibilities as president. He lied about “extracurricular activities” with an employee. He lied about it as part of a seemingly interminable investigation that became a fishing expedition. If Ken Starr had been able to make something more out of the death of Vincent Foster and Whitewater, maybe things would have been different. But he couldn’t. As with so much Clinton touched, it was all muddy waters to the public. In the judgment of most of the American people, Clinton was a sleaze, but not to the extent that a general election should have been overturned.

I am not suggesting that Clinton should have escaped punishment. The problem was that the Republican House considered only two options: censure (i.e. mere criticism with a vote attached) and impeachment. If they had been more imaginative, they could have punished Clinton and achieved a political victory.

Consider one scenario: What if the House GOP proposed to censure Clinton and cancel his presidential pension? Not being the 19th century, it is unlikely that Clinton would have been destitute, but it would have been a punishment of some substance and likely would have enjoyed wide public support. The Democrats would have been faced with a difficult choice, particularly if Clinton decided to fight. Veto? Political disaster.