High Crimes and Misdemeanors: The Case Against Bill Clinton (38 page)

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Authors: Ann Coulter

BOOK: High Crimes and Misdemeanors: The Case Against Bill Clinton
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More than a century later all indications are that the president has hit up a White House intern for oral sex, sexually assaulted a White House volunteer, obstructed justice, suborned perjury, and perjured himself, among many other infractions. The leader of the Senate—and the opposition party—quickly stepped to the plate… to criticize the prosecutor. They don’t make opposition parties like they used to.
In the case of Johnson’s impeachment, what the spunky 1868 Congress had in the way of enthusiasm, it lacked in constitutional authority. The mistake Congress made with respect to impeachment was to think mere policy disagreements sufficed for an impeachment. A policy disagreement is an example of what impeachment was
not
intended to address. In the words of constitutional scholar Raoul Berger, “A president… is not to be removed merely for differing with Congress.”
84
Each branch of government has its arsenal of powers by which it may frustrate the will of another.
As Supreme Court Justice Louis Brandeis explained in his duly famous description of the Constitution’s distribution of powers:
The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
85
 
Opposing Congress’s will, within his constitutionally delegated powers, was Johnson’s offense, and for that he was impeached. Mercifully, the two-thirds vote requirement was stiff enough to save Johnson—by a single vote—from conviction and removal by the Senate. Today, it seems, one would need a five-person vote requirement in the “Republican Senate,” to say nothing of the constitution’s two-thirds vote requirement, to remove any president for even enormous, impeachable crimes.
THE NEAR IMPEACHMENT OF PRESIDENT NIXON
 
Whatever one thinks
of the “evolving Constitution,” the framers’ abstract statements about what could get a president impeached are not as powerful as what almost got a president impeached, and did lead to a president’s resignation, just a couple of decades ago. Watergate is recent precedent. The articles of impeachment against President Nixon constitute compelling evidence of the sort of conduct that constitutes a “high Crime and Misdemeanor.”
Impeachment proceedings against President Nixon were set in motion not by the underlying crime committed by persons known to the president but by Nixon’s resistance to the investigation. Nixon refused to produce tapes of his conversations with top advisers, claiming executive privilege.
86
He offered a series of compromises including providing the grand jury with summaries of “private presidential papers and meetings,” to be authenticated by a Democratic senator—albeit a “nearly deaf” Democratic senator.
87
Special Prosecutor Archibald Cox refused to entertain these offers, believing he was entitled to every man’s evidence, including the president’s.
The special prosecutor served at the pleasure of the president, so on Saturday, October 20, 1973, the president ordered him fired, and the investigation returned to the “career professionals” at the Department of Justice. But Attorney General Elliot Richardson immediately resigned rather than follow the president’s order; Nixon then called on Deputy Attorney General William Ruckelshaus, who likewise refused to fire Cox and resigned instead.
That was it. The following Tuesday impeachment resolutions in the House were “raining down.”
88
Though the polls showed substantial majorities of Americans opposed removing the president through impeachment,
89
that
Congress was not cowed by the polls, and formal impeachment hearings were begun in the House. They don’t even make opposition parties like they used to twenty-five years ago.
President Richard Nixon became the second president to face impeachment hearings in more than one hundred years. Almost a year later—after the Supreme Court had, on July 24, 1974, rejected Nixon’s executive privilege claim for all presidential communications—he became the first president to resign.
Nixon had the legal right to fire Cox, who, unlike today’s independent counsels, was an employee of the executive branch. This, incidentally, is what inspired the creation of the “independent counsel” law. It created a procedure outside normal constitutional chains of command to appoint a prosecutor to investigate potential crimes by the executive branch, but wholly independent of executive branch authority.
90
An independent counsel can be removed only by the personal action of the attorney general (except in the case of impeachment) for good cause, physical or mental disability (except as forbidden by the Americans with Disabilities Act and the Rehabilitation Act), or any other condition that substantially impairs the performance of the independent counsel’s duties. The attorney general serves at the president’s pleasure.
91
Cox was being obstinately inflexible in refusing to entertain any compromise on the tapes when actual national security issues were at stake. It was not just the Vietnam War and violent antiwar protests at home. In the midst of Cox’s demand for tapes of Nixon’s conversations with his top advisers—privileged communications, as Nixon saw it—an all-new world crisis erupted. On October 6, 1973, Egypt and Syria bombed Israel in a sneak attack. Nixon ordered airlifts to Israel. The Soviet Union did the same for Egypt and Syria. The Yom Kippur War had morphed into a superpower crisis overnight. Nixon accelerated the airlifts to Israel,
92
dispatched Secretary of State Henry Kissinger to negotiate with Soviet leader Leonid Brezhnev—and then watched Cox on television refusing to accept the White House’s proposed compromise on the tapes, taunting Nixon to fire him. Back then, getting back to the country’s business meant “nuclear combat, toe to toe with the Russkies,”
93
not naming the First Dog.
Though the president was wholly within his rights firing Cox, and there were national security reasons for Nixon to resist Cox’s request for tapes, it just didn’t look good for the president to fire even an irritatingly inflexible special prosecutor during a superpower crisis.
Nixon’s attorney general and deputy attorney general resigned rather than fire Cox themselves only because the Senate resolution calling for appointment of a prosecutor independent of the Justice Department had specified that the attorney general “will not countermand, nor interfere with the special prosecutor’s decisions.”
94
Accordingly, Elliot Richardson and William Ruckelshaus had pledged noninterference.
95
White House Press Secretary Ron Ziegler explained Cox’s discharge that evening at 8:24 PM, saying that Cox had “pressed for a confrontation at a time of serious world crisis.”
96
Congress saw it differently. Firing Cox because he had refused to relent in his demand for tapes of Nixon’s Oval Office meetings smacked of obstruction of justice. There was no evidence that Nixon had broken any law. Nixon may have had the Constitution—even national security—on his side, but firing his own investigator didn’t have a good-government ring to it. When Nixon ordered the office of the special counsel guarded by an FBI agent to prevent files from being removed, the Nazi comparisons began to fly. Cox’s press spokesman, James Doyle, announced to the press that he was “going home to read about the Reichstag fire.” The
Times
of London reported a “whiff of the Gestapo” in America’s capital city.
In the end, instead of being rid of an overzealous prosecutor, Nixon had forced his own defeat on the tapes issue.
The Cox firing came in the wake of Vice President Spiro Agnew’s resignation, for reasons unrelated to Nixon or the Watergate break-in. Until Vice President-designate Gerald Ford was confirmed, the man next in line to be president was Speaker of the House Carl Albert, a Democrat. The Middle East crisis was still simmering, and there was no vice president.
There was no action on Ford’s nomination, however, when the House reconvened on Tuesday after the so-called “Saturday Night Massacre.” Instead, House business was focused on consideration of the numerous impeachment resolutions. House Republicans refused to oppose impeachment unless Nixon turned over the tapes. That day, Nixon agreed to turn the tapes over to the grand jury.
In dramatic contradistinction to Clinton, Nixon had raised a plausible and novel constitutional objection to releasing the tapes: that tape-recorded conversations between the chief executive and his high-level aides were privileged communications. There was no clear precedent—as there is now—regarding Nixon’s claim of executive privilege. The Supreme Court would have to decide the issue. But the Supreme Court had not yet ruled on Nixon’s executive privilege claim when the House and Senate impeachment committees got under way. The court would
not
rule on it for another nine months.
Nixon’s legal argument was not frivolous. The court did, after all, accept in principle his argument that a privilege presumptively attaches to high-level presidential communications. The court rejected only the idea that the privilege was absolute and applied to
all
high-level presidential communications.
Clinton’s assertion of executive privilege twenty-five years later to cover high-level communications about the president’s relationship with a White House intern, coming
after
the Supreme Court’s holding in
Nixon
v.
United States
, is completely frivolous and outrageous. No one has resigned from this administration. The Republican leader of the Senate tried to weasel out of impeachment hearings by proposing a completely meaningless “censure” of the president.
97
They really don’t make opposition parties like they used to.
Two days after Nixon relented on the tapes issue—without waiting for the Supreme Court to rule—he took the Watergate investigation away from the Justice Department and returned it to a reconvened office of the special counsel, this time headed by Leon Jaworski.
Nixon’s public resistance to turning over the tapes, even before the court had ruled on his privilege claim, had set the impeachment hearings in motion. The hearings would be conducted by Congressman Peter Rodino, chairman of the House Judiciary Committee, with the able assistance of Hillary Rodham and Bernie Nussbaum.
Invoking a single, somewhat legitimate privilege once, telling one lie to the public, allowing one part of an investigation to be delayed for two weeks—this was how Nixon engaged in “conduct that might adversely affect the system of government” and committed “offenses that subverted the system of government.”
THE OKIE FROM MUSKOGEE
 
Pattern of Corruption
 
According to recent precedent,
a president is impeachable for the misconduct of his subordinates. The House Judiciary Committee approved three articles of impeachment against President Nixon: obstruction of justice, abuse of presidential power, and unconstitutional defiance of House subpoenas. The articles of impeachment are accusations only, but even as accusations they repeatedly rely on allegations against Nixon’s employees or “agents.”
Article I, charging Nixon with obstruction of justice, claims he “engaged personally and through his close subordinates and agents in a course of conduct of plan designed to delay, impede, and obstruct the investigation [of a third-rate burglary committed by private citizens without Nixon’s knowledge, much less approval].”
Article II, charging Nixon with abuse of presidential power, listed as one of Nixon’s impeachable acts that he had “failed to take care that the laws were faithfully executed
by failing to act
when he knew or
had reason to know that his close subordinates
endeavoured to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities” (emphasis added).
Apart from Nixon’s lie to the public, which was the very first impeachable offense listed in Article I, the only impeachable act committed directly by Nixon himself was invoking “executive privilege.” (This was back when presidents admitted that they were president, and it was they who were invoking executive privilege.) While Nixon’s privilege claim was being duly appealed through the courts, the House initiated impeachment proceedings against him because he had invoked a privilege rather than giving the materials directly to Congress.
All other charges and accusations against Nixon rely on the actions of Nixon’s subordinates, which he allegedly “condoned,” “acquiesc[ed] in,” or “fail[ed] to act [to prevent].” Conveniently, the Rodino Report, written “to assist the Committee in working toward [a] resolution” of Nixon’s impeachment, enthusiastically endorsed the notion that the president is to be made responsible for the actions of his subordinates, through impeachment. “[T]he impeachability of the President was considered to be an important element of his responsibility,” so that, in Hamilton’s words, “there should be a single object for the jealousy and watchfulness of the people.”
98
On calm reflection, Rodham and Nussbaum were probably overreaching when they uncritically quoted James Wilson’s statement that a president could be impeached for “his negligence or inattention” to the actions of subordinates. When George Washington was president he had four cabinet members, and the executive branch, practically speaking, consisted of a few dozen men under his direction and control. Today, President Clinton has fourteen cabinet members, more than a thousand White House employees, and thousands of executive branch employees under his control.

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