Although the Monica Lewinsky scandal prompted widespread public disgust for President Clinton, few Americans wanted him removed from office. Today, despite general agreement that he engaged in serious lawbreaking, there’s little interest in seeing him prosecuted after he vacates the White House. Independent Counsel Robert Ray discussed that possibility recently, but even House Judiciary Committee Chairman Henry Hyde and Senate Majority Leader Trent Lott are on record rejecting that option.
So, do we have only the dispiriting option of seeing Clinton go unpunished for his defiance of the law? Maybe not. There is another penalty available that neatly fits the crime: disbarment.
The option of disbarment (and other lesser punishments) is under consideration right now by the organization that disciplines members of the Arkansas bar, to which lawyer Clinton belongs. The Committee on Professional Conduct of the state Supreme Court got the assignment from U.S. District Judge Susan Webber Wright last year, when she ruled that Clinton deliberately lied under oath during his January 1998 deposition in the Paula Jones lawsuit. She found him in contempt—the only president so honored with that distinction—ordered him to pay $90,000 to Jones’ lawyers, and referred the matter for possible disciplinary action.
This year, after receiving a formal complaint from the conservative Southeastern Legal Foundation, the Committee on Professional Conduct finally agreed to pursue the matter—and surprised everyone by rejecting the president’s request that its deliberations be postponed until his term is up.
The Committee on Professional Conduct, which could announce its decision as early as May 19, is likely to recommend some sanction against Clinton. How could it not? Judge Wright found “the record demonstrates by clear and convincing evidence that the president responded to plaintiff’s questions by giving false, misleading, and evasive answers that were designed to obstruct the judicial process.” Clinton defenders minimized the perjury by insisting that Clinton’s testimony concerned a peripheral matter in a lawsuit that was later dismissed and that Judge Wright herself ruled the testimony irrelevant. But that was before she discovered his answers were false. In her contempt finding, she said that the president concealed “information deemed by the court to be relevant to the plaintiff’s lawsuit.” Though Judge Wright dismissed the Paula Jones suit, the decision was appealed and Clinton ultimately settled with Jones for $850,000.
Of course Clinton’s crimes didn’t stop there. Federal Appeals Court Judge Richard Posner, in his evenhanded book An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, concludes that “it is clear beyond a reasonable doubt” that the president committed perjury in his deposition, in his grand jury testimony, and in his answers to the House Judiciary Committee; tampered with a witness (Lewinsky); and suborned perjury by her. Someone convicted of these offenses, Posner figures, could normally expect to get at least two and a half years in federal prison.
But for the reasons cited above, Clinton isn’t likely to face criminal prosecution. The disciplinary committee has several options in dealing with professional misconduct. It can give the offender a formal but private warning to clean up his act. It can issue a public reprimand, which serves both to embarrass the wrongdoer and alert clients to his shortcomings. It can suspend his license to practice law for up to two years. Or—the stiffest penalty available—it can request disbarment, which means he may never practice law again in Arkansas. In this case, the matter automatically goes to a trial court, which hears both sides before making the final determination.
Arkansas’ ethical guidelines say disbarment is appropriate for “serious misconduct” such as “dishonesty, deceit, fraud or misrepresentation.” University of Arkansas at Fayetteville law professor Howard Brill says false statements by lawyers have generally been punished only by reprimand or censure unless they were part of a broader pattern of criminal conduct, such as mail fraud. In Arkansas, he says, attorneys are usually disbarred or suspended only to protect clients against unscrupulous professional behavior.
This custom weighs in favor of a milder penalty, since Clinton’s sins don’t suggest a larcenous professional bent. But in recent years, Brill acknowledges, the Arkansas Supreme Court has taken a harder line against lawyers who lie. In one case, it affirmed the disbarment of an attorney who had engaged in insurance fraud, declaring, “There is simply no place in the law for a man or woman who will not tell the truth even when his interest is involved.” The Arkansas rules also specify that “lawyers holding public office assume legal responsibilities going beyond that of other citizens.”
These latter facts argue in favor of the stiffest possible sanction. So does the exceptional nature of Clinton’s false statements. They were told in the presence of a federal judge by the nation’s chief law enforcement officer—a far greater insult to our system of civil justice than, say, a private litigant embellishing a small point in a routine affidavit. His perjury not only cost Paula Jones and her lawyers considerable delay and expense—and might have cost them their entire case, which turned out to be worth $850,000—but also spurred a protracted, costly, and nationally divisive investigation by an independent counsel. Kenneth Starr deserves much of the blame for the excesses of the investigation, but Clinton bears some responsibility as well.
There is no defending what he did. During the impeachment battle, even Clinton’s stoutest defenders described his conduct in scathing terms. When House Democrats offered a censure resolution as an alternative to impeachment, they agreed he “made false statements concerning his reprehensible conduct” and took “steps to delay the discovery of the truth.” The chief Senate version, drafted by California Democrat Dianne Feinstein, said Clinton’s actions were “shameful, reckless and indefensible” and created “disrespect for the laws of the land.” Judge Wright found that he had “undermined the integrity of the judicial system.”
Such serious misconduct calls out for a penalty that exacts a real cost. A public reprimand—saying the equivalent of “Bad dog!”—would be laughably inadequate. In this case, even a suspension would be a hollow sanction. For a lawyer with an active practice, the temporary loss of his license is a crippling blow, forcing him to give up all his clients and his very livelihood for a time. But Clinton has no practice to lose, and he should have no trouble making large sums of money at other endeavors for a couple of years or more once he leaves the White House. Sanctions such as these would be a modest annoyance, at most.
Disbarment, however, has real teeth. It would foreclose any possibility of spending his twilight years as a well-paid figurehead at a prestigious law firm. Equally important, it carries the sting of disgrace, putting Clinton in the company of the infamous. Lawyers who have been permanently stripped of their licenses include the likes of Alger Hiss and Spiro Agnew—not to mention Richard Nixon, who voluntarily surrendered his right to practice in California and was disbarred in New York.
Of course, Clinton may be too busy sitting on corporate boards, collecting fat lecture fees, or running a Hollywood studio to give a moment’s thought to putting his law degree to work. But that only underlines the important point: Disbarment may be too lenient a punishment, but it can hardly be described as too severe. At the very least, it would affirm the importance of honesty in the profession, signal that transgressions against the law carry a price, and emphasize that political popularity is not enough to escape justice—all without dragging the nation through another extended ordeal.