The Independent Counsel

Dear Akhil:

       Again, we are in agreement: The structurally unique place of the president implies that we must be especially wary about defining “high Crimes and Misdemeanors” in such a way as to make the chief magistrate of the nation vulnerable to impeachment by the House for any but the gravest abuses of the presidential office–or for offenses that, while not entailing that sort of abuse, are nonetheless so heinous as to make the president’s unfitness for that high office very clear indeed. Apart from the momentous consequences of decapitating an entire branch of the national government and undoing the results of a national election, it’s worth noting that the president is elected for a fixed four year term, whereas Article III judges “hold their Offices during good Behaviour” and might thus be deemed guilty of “high Crimes and Misdemeanors” in circumstances inconsistent with the “good Behaviour” we expect of life-tenured judges but not necessarily inconsistent with the office of president.
       Note that I have spoken here of not making the president unduly vulnerable to impeachment by the House. My reference to impeachment, and not simply to the ultimate sanction of removal by the Senate, was a deliberate one. Unlike impeachment of any other officer, impeachment of a sitting president–whatever the eventual outcome of a Senate trial–is likely to be domestically debilitating and internationally destabilizing. In the case of a Senate trial of a sitting vice president, or of a Cabinet officer, or of a federal judge, the bare fact of the trial’s progress is unlikely to be profoundly dislocating. Not so with a Senate trial of a sitting president. In the president’s case, the trial itself is bound to be significantly disruptive to the nation–and its conclusion is bound to be an unhappy one: If the president is convicted and removed from office, an abrupt trauma of one sort is endured; if the president is acquitted and permitted to remain in office despite what may be a lopsided vote in favor of removing him (as was the case with Andrew Johnson, who avoided by a single vote the two-thirds required for removal), a continuing trauma of another sort is begun–governance by a disgraced president who barely escaped removal from office.
       Thus we must resist any notion that impeachment and trial must automatically follow if the House believes that an offense technically qualifying as a high crime or misdemeanor has been committed by the president. Article II, Section 4 does make removal from office mandatory upon impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors–but no comparable provision of the Constitution makes impeachment and trial mandatory in any particular set of circumstances. Rather, just as prosecutors and grand juries regularly exercise discretion not to indict even when a technically indictable offense is found, so the House of Representatives should stand prepared to exercise the even more significant discretion not to impeach even when a technically impeachable offense is thought to have been committed.
       Suppose, for instance, that President Clinton is found by the House to have lied to subordinates hoping that they would repeat his false statements when testifying before the grand jury. Such conduct might be thought to constitute an abuse of the presidential office in the sense that nobody but the president would have been in a position to induce presidential assistants to submit false information to the grand jury investigating his behavior. Yet the fact that the subordinates in question would be offering hearsay rather than purporting to testify to facts within their own knowledge would make this abuse a relatively harmless one; the testimony of the subordinates would in no way magnify the credit that the president’s own testimony would receive. To put the nation through a Senate trial because of this sort of lie to subordinates, if we were not already prepared to put the nation through such a trial without that lie, would represent a wildly unsound exercise of the discretion reposed in the House. And, as for the president’s own false testimony under oath either in the Paula Jones deposition or before the grand jury–assuming the House concludes there was such deception–it seems highly relevant that no abuse of the presidential office as such (and no intentional deprivation of any citizen’s rights) appears to be involved when the president, sued in his capacity as a private citizen, lies under oath in the resulting civil trial solely to prevent exposure of what he reasonably believes to be an irrelevant sexual affair (rather than to suppress evidence plainly relevant to the plaintiff’s suit against him), and then dissembles before the grand jury simply to avoid contradicting his deposition testimony in that civil suit rather than genuinely to fool anybody about what the underlying facts were.
       It does appear that the president, in telling the nation that he never had sexual relations with “that woman, Miss Lewinsky,” was deliberately seeking to deceive the American people–but he was seeking to deceive with regard to a matter not itself involving any abuse of presidential power or otherwise implicating an offense that could plausibly justify impeachment.
       At the end of the day, it seems likely that nothing President Clinton is accused of having done in order to conceal his sexual affair will rise to a level that would warrant putting him on trial before the Senate. But, as I suggested earlier, it doesn’t follow that no censure would be appropriate, assuming one can avoid the bill of attainder ban. The Constitution is not so rigid in its design that an otherwise sensible resolution of this matter, calculated to bring decent closure to an episode that might otherwise result in incalculable damage to the nation and a terribly weakened presidency, is beyond our reach. We must avoid a precedent for censuring sitting presidents whenever they displease the party in control of Congress, but we must also avoid boxing ourselves in so tightly that we must choose between paralyzing the nation in a Senate trial that can have no satisfactory ending, and making no response (short of eventual criminal prosecution) to a course of presidential irresponsibility unworthy of the office.