For our recent “Tricky Hillary” issue (National Review, Aug. 1, 2016, on NR Digital), I wrote a feature arguing that Mrs. Clinton should be impeached. Given that, through the last quarter-century of our politics, we have learned that pending Clinton scandals are interrupted only by new Clinton scandals, it comes as no surprise that my point has just been proven by a scandal that erupted last week.
It’s actually a new scandal based on an old scandal — the “old” one, of course, emanating from the former secretary of state’s lawless homebrew server system, implemented for the specific purpose of avoiding the recordkeeping and disclosure requirements of federal law.
Since the newly revealed e-mails put the lie to Clinton’s always risible claim that these communications were unrelated to State Department business, they tend to be double-whammies. First, their substance is stunningly corrupt, often showing how she and her staff ran the State Department as an annex of the Clinton Foundation, the enterprise Bill and Hillary used to monetize political influence to the tune of hundreds of millions of dollars. Second, even the most innocuous of the e-mails that concern State Department business illustrate that Clinton brazenly lied to Congress and the public for over a year: maintaining that the destroyed e-mails involved yoga, Chelsea’s wedding, and other personal matters, not the operations of government.
Mrs. Clinton’s audacity has caught the attention of two congressional committees, whose chairmen have noticed that the new revelations show she quite intentionally misled lawmakers in House testimony. (The testimony pertained to the Benghazi massacre, another “old” Clinton scandal, if you’re keeping score.) Last week, those chairmen — Jason Chaffetz (R., Utah) and Bob Goodlatte (R., Va.) of, respectively, the Oversight and Judiciary Committees — penned a letter to the Justice Department asking that Clinton be investigated and prosecuted for perjury.
Except as a political salvo to remind the public of Clinton’s mendacity as she campaigns for the presidency, the letter is pointless. The Obama Justice Department, having already declined to prosecute a solid felony case against Clinton for mishandling classified information and withholding government records is not going to give perjury allegations the time of day. More to the point, though, the congressional plea for a criminal investigation is wrongheaded. Mrs. Clinton should be impeached, not indicted.
Republicans keep telling us they are “constitutional conservatives.” Well, how about it? The remedy provided by the Framers to deal with corrupt executive-branch officials (including former officials who might seek to wield power again) is impeachment, not criminal prosecution. That is because, for the well-being of the nation, the critical thing is that power be stripped from those who abuse it, to prevent them from doing further damage. Whether, beyond that, they are prosecuted for any criminal offenses arising out of the wrongdoing is beside the point.
The remedy provided by the Framers to deal with corrupt executive-branch officials is impeachment, not criminal prosecution.
As a practical matter, moreover, the perjury case chairmen Chaffetz and Goodlatte posit is weak, as I will demonstrate in a subsequent column. That is no fault of theirs. Perjury is a hard criminal case to make. Its focus is not a pattern of palpable deception but, more narrowly, whether a witness, in the course of being deceptive, has told provable, literal lies. The art of deceit (on which the Clintons wrote the book) generally involves deflection and misdirection. More common than flat out lies are assertions that quibble with, rather than respond, to the question; or that, while intentionally misleading, are technically accurate. It is rare for prosecutors to charge a perjury case even after a jury has clearly found a witness’s testimony to be false. Our everyday lives tell us why: It is often quite easy to detect that a person’s version of events was dishonest, even if it is difficult to pluck out a single sentence that was literally false.
But for now, let’s leave to the side the four perjury allegations specified in the Chaffetz-Goodlatte letter. Let’s stick with the Constitution.
Madison et al. gave Congress its own powers to check rogue executive conduct — and for them, no such conduct would have been more egregious than misleading the People’s representatives. The Framers would have thought laughable the suggestion that corrupt members of the president’s cabinet — officials who had taken their corrupt actions with the president’s knowledge and support — would be prosecuted by the president’s own law-enforcement agents. Indeed, at the time the Constitution was adopted, there were no such agents. Law-enforcement was handled by the states, and the attorney general was basically the president’s lawyer. There was no Department of Justice until 1870, nor anything like the FBI until 1908. That did not stop the Framers from including impeachment in the Constitution, nor cause Madison any hesitation in regarding impeachment as Congress’s “indispensable” tool.
Mrs. Clinton is the perfect example of why impeachment, not criminal prosecution, is the appropriate response to public corruption. The test of fitness for an office of public trust is whether an official is trustworthy, not whether she is convictable in a criminal court. Consequently, as I outlined in Faithless Execution, “high crimes and misdemeanors” — the Constitution’s trigger for impeachment — need not be violations of the penal code. As Hamilton explained, impeachable offenses are misconduct stemming “from the abuse or violation of some public trust,” and are thus properly “denominated political, as they relate chiefly to injuries done immediately to the society itself.”
A public official may not be indicted by a grand jury for an extensive pattern of deceiving Congress and the public. There is no such penal offense. But it is most certainly grist for impeachment.
In impeachment, the official is held to a higher standard of conduct because public office is an extraordinary privilege, not a fundamental right. Public office is a trust with awesome attendant powers; a person may be manifestly unfit for it without having committed indictable crimes. Therefore, high crimes and misdemeanors — which, again, need not be indictable penal offenses — are easier to prove: Congress may fashion its own rules for the proceeding, there is no judicial oversight, and no requirement that all essential elements of criminal offenses be proved beyond a reasonable doubt under strict rules of evidence — Congress must merely determine that violations of the public trust have occurred and that they warrant removal of that trust. By contrast, because a criminal prosecution does involve the potential deprivation of fundamental rights, the standards of proof are more exacting and the protections of judicial due process are guaranteed.
EDITORIAL: Mrs. Clinton and Her Fixer
This should be obvious for yet another reason: If impeachment were the equivalent of a criminal conviction, an impeached official could not be subjected to prosecution in addition to being impeached. That would violate the Constitution’s double-jeopardy principle. Our law, however, expressly prohibits such an outcome. In directing that the penalty for impeachment is limited to removal from office and disqualification from holding office in the future, the Constitution (in Article I, Section 3) provides that “the Party convicted [in a Senate impeachment trial] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Again: The point is for Congress to strip the undeserving official of trust and power. Whether she also warrants criminal prosecution is separately determined by executive branch prosecutors.
Why should the Justice Department do for Congress what Congress is unwilling to do for itself?
Thus, impeachment is more analogous to a civil lawsuit than a criminal proceeding. A person can be prosecuted for a crime even after being civilly sued for the same misconduct. Like impeachment, the civil suit has a lower burden of proof and legal standards that are not as exacting because it is not the functional equivalent of a criminal case. Just as impeachment is only about removing a corrupt official’s power, the civil suit is merely about compensation for damages. Neither involves the potential loss of liberty that a criminal conviction does.
Of course, when the question of impeachment is raised, congressional Republicans — if you can coax them out from under their desks — rationalize their passivity by arguing that, even if the House could approve articles of impeachment, there is no possibility of conviction by the two-thirds supermajority required in the Senate. This is indubitably so . . . but so what? It’s even less likely that the Obama Justice Department would investigate and prosecute Mrs. Clinton for perjury; yet that did not stop Chairmen Chaffetz and Goodlatte from sending their letter, did it?For once, I have some sympathy for Attorney General Loretta Lynch. Why should the Justice Department do for Congress what Congress is unwilling to do for itself? Congressional Republicans want Mrs. Clinton indicted in order to show that she is unfit for the presidency. But impeachment by the House would show the same thing, and the impeachment case is considerably stronger than the perjury case. Why should Lynch do the heavy political lifting? If Republicans think Mrs. Clinton is unfit, what’s stopping them from acting on their own, as the Constitution empowers them to do and as the Framers would have expected them to do?
Oh, one last thing. Let’s say the roles were reversed: The Democrats hold congressional majorities, and their presidential nominee is the dodgy real-estate mogul, while the Republicans are running a demonstrably corrupt former secretary of state. Would the Democrats have the slightest hesitation about impeaching the GOP candidate? I’m betting not only that the House would already have voted articles of impeachment; Senate Democrats would already have found the Republican votes they needed for conviction.
Anyone doubt me on that?
— Andrew C. McCarthy is a senior policy fellow at National Review Institute and a contributing editor of National Review.