There’s been a cottage industry in accusing Republicans of impeachment hypocrisy.
They happily impeached Bill Clinton and now vociferously oppose the impeachment of Donald Trump, even though Clinton was accused of obstruction of justice — just as Trump is now.
Is this a legitimate point?
There are uncomfortable parallels. The Democrats most fervent about impeachment say that it is their duty to do it no matter what, politics be damned. They speculate that perhaps the polling on impeachment will improve once it’s under way. Republicans said the same thing in the 1990s, and the Clinton impeachment ended in a fizzle.
And it’s certainly true that both Clinton and Trump behaved appallingly when under investigation.
Given that the Clinton impeachment, as a practical matter, acted as a censure vote and Clinton’s misconduct didn’t involve his core presidential duties, there’s a good argument that a formal censure would have been the wiser course. In retrospect, Newt Gingrich doesn’t give himself high marks for how he handled it.
That said, the case for Clinton’s impeachment was still stronger than the case for Trump’s.
The independent counsel in the Clinton case, Ken Starr, acting under a law that compelled him to notify Congress of impeachable offenses, said there was “substantial and credible evidence” that Clinton was guilty of eleven possible impeachable offenses. Starr didn’t, like Mueller, exonerate Clinton on the underlying matter and “not exonerate” him on the process crimes.
Most important, Clinton flat-out perjured himself, which no one disputed. If Trump had done the same in the Russia probe, he’d have been impeached already.
In the 1990s, there was bipartisan support for an impeachment inquiry and a strong consensus for punishing the president. Neither exists today.
While it’s easy to think that Clinton was always safe from removal in the Senate, and for the most part he was, there was a moment of legitimate peril for him. Under current conditions, it’s impossible to imagine Trump facing similar jeopardy.
It’s worth recalling all of this, and in what follows, I draw on the book I wrote on the Clinton presidency in 2003 (the original quotes are from my research at the time).
Ken Starr Didn’t Have Much Choice
Starr wasn’t, like Robert Mueller, a special counsel who is supposed to be tightly tethered to the Justice Department. He was an independent counsel who was envisioned under the law as a quasi-independent prosecutor who would serve up impeachment referrals to Congress.
Almost every aspect of the independent-counsel statute was a trespass on the executive branch: Congress required the attorney general to ask for the appointment of independent counsel in certain circumstances; gave to a panel of judges the power to make the appointment; and invested in the independent counsel, once selected, prosecutorial powers with almost no check from the rest of the executive branch.
Foolishly, instead of letting the independent-counsel statute lapse, Bill Clinton signed a renewal in 1993. He thus ensured endless investigations of his administration and, once the Monica Lewinsky affair got caught up in the Paula Jones sexual-harassment lawsuit against him, a huge step toward his own impeachment.
By the end of 1997, Ken Starr was about to move on to the report-writing phase of the Whitewater investigation, the original cause for his appointment, when his office got word of the Lewinsky matter.
A confidante of Lewinsky’s, Linda Tripp, called Starr’s office with information about Clinton’s efforts to keep the former intern quiet. Her allegations had a thematic connection to the rest of Starr’s work, since they involved attempts to ensure someone’s non-cooperation with a court proceeding by offering job help, a subplot of Whitewater.
When Starr’s deputy Jackie Bennett called deputy attorney general Eric Holder to apprise him of the situation, Holder’s reaction was, “Wha-wha-what?” There was really no option but expanding Starr’s authority to deal with the case. With Newsweek close to publishing an article on the affair, Holder told me, “It was pretty clear to us — there wouldn’t be time to get somebody else in there,” and if the opportunity had been missed to move quickly, “we would’ve been criticized, justifiably.”
Once the essentials of the Lewinsky story became clear —sex with an intern, attempts to get her to lie and win her silence, false statements in sworn testimony — Starr’s path was obvious and nearly inevitable: an investigation leading to an impeachment referral to Congress.
The independent-counsel statute essentially demanded it as a matter of law: An independent counsel, said the statute, “shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.” Creating this automatic pilot toward impeachment was one of the purposes of the misbegotten statute in the first place. It relieved Congress of the political risk of initiating impeachment proceedings itself.
Clinton’s Perjury Was Flagrant and Repeated
There’s no escaping the fact that President Clinton committed crimes in the Lewinsky affair. First and foremost, he perjured himself repeatedly — though his defenders would perform legalistic dances to try to keep the “p-word” from applying to his false statements.
Their chief argument was that his lies about Lewinsky in his deposition in the Jones case were immaterial to the case and therefore not technically perjury. The judge in the Paula Jones sexual-harassment case against Clinton, Susan Wright, did ultimately exclude evidence related to Lewinsky from the Jones case, but that was not because it was immaterial. She stipulated at the time that Clinton’s Lewinsky testimony “might be relevant.” Later, she elaborated: “Contrary to numerous assertions, this court did not rule that evidence of the Lewinsky matter was irrelevant or immaterial to the issues in plaintiff’s case.”
Besides materiality, there are two other elements to perjury: falsehood and the intent to deceive. Clinton’s defenders say his testimony was literally truthful by the definition Clinton assigned his words. But witnesses cannot create their own private languages. Their words must be understood by their common meaning, by which standard Clinton’s testimony was clearly false. As for intent, Clinton was open about his desire to deceive. “I misled people,” he said in his August 17, 1998, confession speech to the nation. “I can only tell you I was motivated by many factors. First, by a desire to protect myself from the embarrassment of my own conduct.” Imagine every dubious or dishonest thing Trump said during the Mueller investigation being repeated under oath — that was what Clinton did.
When he testified in his Jones deposition on January 17, 1998, he lied, most fundamentally, when he denied having sex with Lewinsky. The Jones lawyers offered a definition of sex drawn from the Violence Against Women Act, and Wright pared it down to: “contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an attempt to arouse or gratify the sexual desire of any person.” Even by Clinton’s solipsistic and implausible interpretation of this definition — i.e., that it was possible for Lewinsky to have sex with him while he wasn’t having sex with her — Clinton lied, since it is obvious that he touched Lewinsky in places that qualified as sex under the definition.
He lied when he said he had no memory of being alone with Lewinsky. He lied when he said he didn’t recall giving any gifts to Lewinsky (three weeks earlier, he’d given her a Rockettes blanket, a New York City skyline pin, sunglasses, cherry chocolates, a stuffed animal, and other trinkets). He lied when he said that he talked to Lewinsky about the possibility of her being subpoenaed in the Jones case only once, and that in passing and jokingly. He lied when he said that he didn’t know about Lewinsky’s subpoena in the Jones case when he talked to her for the last time. He lied when he denied that Vernon Jordan kept him updated about Lewinsky’s status in the Jones case.
After the impeachment fight had burned out in April 1999, Wright — the same judge Hillary praises for allegedly totally vindicating Clinton in the Jones suit — sanctioned Clinton for contempt of court. She wrote that there is “simply no escaping the fact” that Clinton gave “intentionally false” answers to questions from the Jones lawyers in a way “designed to obstruct the judicial process.” Even Abbe Lowell, chief investigator for the Democrats on the House Judiciary Committee, had told his fellow Democrats upon first evaluating the evidence, “Perjury in his deposition. No question that he lied.”
Clinton’s testimony before Ken Starr’s grand jury in August, after he had finally decided to admit his affair, was an encore performance of his civil-deposition lies. He lied when he denied having sex with Lewinsky, and he lied when he said their “inappropriate” relationship didn’t begin until 1996. He lied when he said his civil deposition in the Jones case had been truthful. He lied when he denied being alone with Lewinsky. He lied when he said that, when he coached Betty Currie, his personal secretary, with a series of rhetorical questions based on falsehoods, he was merely trying to jog his own memory. He lied when he said he hadn’t told Currie to get back the gifts he had lied about not remembering giving to Lewinsky. And he lied in denying that he had lied to his aides in the wake of the Lewinsky revelations.
In addition to his perjury, Clinton was guilty of obstruction of justice. By suggesting to Lewinsky that she give an affidavit to the Jones lawyers, Clinton couldn’t have been suggesting anything other than that she lie — and deny the relationship — in order to avoid being deposed. That is the only possible interpretation, unless we believe that Clinton was urging Lewinsky to expose the relationship preemptively and launch the near-destruction of his presidency.
It seems almost certain that — although both he and Currie denied it — Clinton sent Betty Currie to pick up from Lewinsky the gifts he had given her, in order to keep this evidence safe from a subpoena.
There was little ambiguity about all of this. It was locked-down and obvious.
A Broad Consensus for Punishment
It’s easy to forget the initial shock upon the revelation of Clinton’s conduct.
Later, by the time the controversy had neared its end, it seemed outlandish to think Clinton could have been forced from office. But that was only an illusion created after the fact. It could have been different — for instance, in August when Democratic senator Joe Lieberman of Connecticut condemned Clinton from the Senate floor, along with fellow Democratic senators Bob Kerrey of Nebraska and Daniel Patrick Moynihan of New York. “I’m pretty convinced that Clinton was within inches of losing the presidency then,” Lanny Davis, who had left the White House but was assisting in its defense, told me. “Because that could have sent a wave of Democratic senators away from him under the cover of Joe Lieberman and Bob Kerrey. And then he would have been very, very hard pressed to stay in office.”
Instead, Lieberman’s condemnation helped Clinton — it expressed disgust without calling for resignation or impeachment.
Nearly everyone agreed on the need for the House to undertake an impeachment inquiry, though. Thirty-one Democrats voted for the Republican inquiry plan, and the rest voted for an alternative Democratic plan.
There was a consensus in the country in favor of punishing Clinton. In December 1998, Clinton himself asked to be censured. As one of the Democratic censure resolutions said, Clinton had “egregiously failed” his constitutional oath, “violated the trust of the American people,” and “dishonored the office which they have entrusted to him.” This language echoed Lieberman’s August floor statement, when he said Clinton’s behavior was “disgraceful” and “immoral” and had “profound public consequences” — prompting Clinton to respond, “Basically, I agree with what he said.”
The Republican House in 1998 was not necessarily a lost cause for Clinton. He could perhaps have peeled Republican moderates away from impeachment by making a full confession. The problem was that he couldn’t fully admit to his wrongdoing without making a damning case against himself, i.e., “I’m a confessed perjurer.” So he had to stick with the word games.
Asked in one of 81 written questions by Henry Hyde if he had sworn to tell the truth, the whole truth, and nothing but the truth in his Jones deposition, Clinton responded, “I do not recall the precise wording of the oath.” His unresponsiveness and his repetition of his lies in response to the questions —he talked to Currie only “to get as much information as quickly as I could” — helped seal his fate in the House.
It impeached him by 228–206 on an article charging him with perjury before Starr’s grand jury and by 221–212 on an article charging him with obstruction of justice.
Clinton Wasn’t Getting Removed
Of course, the public considered the issue and didn’t want Clinton removed from office. The argument over impeachment might best be framed by two concessions made by advocates on the different sides. On one hand, there was Clinton’s lawyer Charles Ruff. Before the House Judiciary Committee, Ruff explained how Clinton had tried to walk a narrow line. “Reasonable people — and you maybe have reached this conclusion — could determine that he crossed over that line and that what for him was truthful but misleading or non-responsive and misleading or evasive was, in fact, false.” Although Ruff would not interpret his concession this way, he was essentially saying that in the course of attempting to deceive the court, Clinton told lies — i.e., he committed perjury.
On the other hand, there was none other than House impeachment manager Congressmsn Lindsey Graham. When asked during the Senate trial if reasonable people could conclude that Clinton shouldn’t be removed from office even if he was guilty of the crimes of which he was accused, Graham said “absolutely.”
The Senate obviously wasn’t going to convict — it requires a two-thirds vote — so even impeachment leader Henry Hyde was briefly considering alternatives. A censure resolution floated by Dianne Feinstein was enticing, with its statement that Clinton’s conduct “is unacceptable for a president of the United States, does demean the office of the president as well as the president himself, and creates disrespect for laws of the land.”
“At one time,” Hyde told me, “I was looking for a way to resolve this.”
We couldn’t walk away from pursuing the president, but it was clear that we would not get the two-thirds vote in the Senate. I had hoped to get the majority anyway, and had a couple of our distinguished, courageous senators remained distinguished and courageous, we would have. I thought, having seen the text of Feinstein’s resolution of condemnation — which was stronger than our bill of impeachment, it was excoriating — I would not have been unhappy if that had been adopted by the Senate.
As it happened, the Senate voted 55–45 to acquit on the perjury count, and 50–50 on the obstruction count. Clinton survived, although the debate over his impeachment was just beginning.
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