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Ending the Clinton Crisis

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from: James Hamilton
to: William Kristol

Posted Wednesday, Oct. 21, 1998, at 3:30 AM ET

Bill--

I'm pleased to have the chance to talk with you about a momentous issue facing the country--whether the president should be impeached.
I expect you and I agree on a number of aspects of this issue. For example, I expect we agree that the president's affair with an intern and his attempts to cover it up were deplorable. I also surmise we agree he should be punished.
The question is: what type of punishment?
I believe impeachment is the wrong route. Rather, I would suggest congressional censure coupled with a significant fine.
As you well know, the U.S. Constitution allows impeachment only for "treason, bribery, or other high crimes and misdemeanors." The juxtaposition of these words suggests that whatever the phrase "other high crimes and misdemeanors" means, it must signify something akin to treason and bribery.
In other words, this phrase strongly indicates that the offenses encompassed must be ones against the state. The comments of the framers of the Constitution support this interpretation.
George Mason, who proposed the phrase "other high crimes and misdemeanors," said that it referred to presidential actions that were "great and dangerous offenses," to "attempts to subvert the Constitution."
Alexander Hamilton opined that the offenses contemplated were those that "relate chiefly to injuries done to the society itself."
James Madison was concerned that the standard not be so lax that the president would serve only "during the pleasure of the Senate." Our system, of course, is not a parliamentary one, and Congress should not lightly negate the result of a national election.
Bill, no one I know condones the president's conduct or contends the lying he is accused of is a trivial offense. A person not enjoying the president's immunity might well be prosecuted for similar statements, although prosecution for perjury about private consensual sexual conduct among adults is exceedingly rare.
But especially in the impeachment context, Congress cannot divorce the testimony from the underlying conduct. Here the president's testimony related not to matters of national security or to treason or bribery, but in the main to private consensual sexual conduct.
Lying about treason or bribery or some breach of national security might well be characterized as a "high crime or misdemeanor." Lying about private consensual sexual conduct seems better denoted as a low crime.
Were we truly dealing with a high crime or misdemeanor, the severe disruption caused by a House impeachment proceeding and a Senate trial would be worth it. Grave offenses against the state must be rectified despite the consequences, in most conceivable circumstances.
However, where we are dealing with a low crime that does not constitute a dangerous offense against the state, the impeachment route is too onerous and disruptive to pursue. Many pressing issues are crying for the president's attention. The state of the global economy is precarious. The stock market bounces around like a lottery pingpong ball. The situations in Kosovo and the Middle East are frighteningly fragile. Social Security and health care require resolute action.
Given all this, impeachment is the wrong remedy. A stinging censure, appropriately delivered and coupled with a fine that has some bite, would send a proper and sufficient message to the nation--and especially its children--that even a popular, accomplished president will be fairly and proportionally punished for reprehensible conduct.
Congress seemingly has power to pass a censure resolution; indeed, the Senate censured President Andrew Jackson. And while Congress cannot unilaterally impose a fine on the president, he could agree to pay one as part of an overall resolution of the crisis, which he would be well advised to do in the circumstances.
Bill, these are my initial views. What do you think?

--Jim Hamilton

dialogues
entries
12345678
from: James Hamilton
to: William Kristol

Posted Wednesday, Oct. 21, 1998, at 3:30 AM ET
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James Hamilton is a partner at the law firm of Swidler, Berlin, Shereff, and Friedman. He was assistant chief counsel of the Senate Watergate committee and recently defended the continuance of Vincent Foster's attorney-client privilege before the Supreme Court. William Kristol is editor and publisher of the Weekly Standard. He is a regular guest on ABC's This Week With Sam Donaldson and Cokie Roberts.
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