Editor’s note: This article by Judge Robert H. Bork appeared in the October 21, 1998, issue of National Review.
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.
Lying under oath strikes at the heart of our system of justice and the rule of law. It does not matter in the least what the perjury is about. The proceedings of a court or a grand jury take place because we have enacted laws that we want to see enforced, and we want them enforced on the basis of truth, not fiction. We do not say that we care about truth when the subject is murder or drug pushing but care very little when the subject is the sexual harassment of a subordinate or tampering with witnesses to hide adultery. That the amount of lying at trials is reaching epidemic proportions is a matter not for acceptance but for condemnation.
So much is true when any witness lies under oath. Is it less true when the President does it? Does the majesty of the office confer a special warrant to lie? Quite the contrary. Perjury by a President is infinitely more reprehensible than perjury by an ordinary citizen. It violates both the oath, prescribed by the Constitution, when he takes office, “that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States,” and one of the central duties the Constitution places upon him in Article II, that “he shall take Care that the Laws be faithfully executed.” Those are solemn promises, but if the President may with impunity exert his best efforts to see that the laws are not faithfully executed but are made nullities, then the words are nothing more than meaningless incantations.
The Constitution is the foundation of the American Republic. It requires political virtue not only in its citizens but most especially in its highest officers. Repeated and deliberate lies told under oath, because they strike at the Constitution and the rule of law, are most certainly “injuries done immediately to the society itself.” They are, within any intelligible meaning of the words, “high Crimes and Misdemeanors.” If Bill Clinton is not impeached, convicted, and removed from office, that would be a greater injury done immediately to the society than his perjuries.
There can be no excuse for that. Perhaps the reason Clinton’s poll numbers remain high is that the public has long known about his character and strongly suspected he was lying to us all along, but that would only make the poll numbers more inexcusable. More likely, the explanation is that America’s most deeply held moral belief, formed in the last three decades, is that it is wrong to be judgmental. If that is the case, and it seems to be, then the deeper scandal than Bill Clinton’s Oval Office adultery and lies is the moral relativism of so many Americans. Politicians who are anxiously scanning the polls need to be reminded that vox populi is not vox Dei. It is the politicians’ job to lead. It is their duty, and ours, to be worthy of the Founders of the Republic. Not only the President and Congress but all Americans will come under the judgment of history for their actions in the days ahead. The only honorable course is to cleanse our tarnished ideals by removing this President from office.
– Robert Bork’s most recent book is The Country I Do Not Recognize.