Now we get to the icky, wash your hands after reading, impeachment. While President Clinton was, for the most part, a very good president, his personal life has always been questionable. When he came into office, we were just at the start of what has become a strong right wing propaganda-litigation machine.
When Clinton came into office, there were two scandals — one related to alleged sexual harassment and one related to a business development that failed (Whitewater). The investigation into Whitewater resulted in the appointment of an independent counsel under the post-Watergate independent counsel law in which the independent counsel answered to the courts (the way that a lot of special prosecutors do in state court) rather than the Attorney General. Ultimately, the investigation into Whitewater did not find any evidence warranting any action against President Clinton. The independent counsel claimed that President Clinton committed perjury during that investigation and referred that issue for possible impeachment to the House, but that referral went nowhere.
Meanwhile, the United Supreme Court allowed the sexual harassment case to proceed (at least with the pre-trial discovery phase). During that discovery, President Clinton was deposed (i.e. sworn testimony taken by the attorneys in the case out-of-court). During that deposition process, questions were asked about his sexual activities with other women including an intern working in the White House. The independent counsel (who had already gotten his investigation expanded to include other controversies that arose during Clinton’s first five years in office) received the authority from the court to investigate whether Clinton and his attorneys were planning to suborn perjury in the civil case. (It is unclear whether the potential false statements would have been perjury because it is unclear if those statements were relevant or material to the issue of whether President Clinton had sexually harassed the plaintiff in the case.) Kenneth Starr (the independent counsel) asked President Clinton to give grand jury testimony. Unlike the current president, President Clinton agreed (rather than fighting the subpoena) and gave testimony about his relationship with the intern that was misleading at best.
This dubious grand jury testimony became the substance of a second impeachment referral from Starr (who already had an offer to become the dean at a conservative law school). On the eve of the 1998 elections, the House voted to open up an investigation. In December 1998, the House formally approved two articles of impeachment: 1) perjury to the grand jury; and 2) obstruction of justice. Unlike the Johnson and Nixon articles of impeachment, both of these articles involved President Clinton’s personal conduct and neither expressly alleged the misuse of presidential power.
After the opening arguments in President Clinton’s case, the Senate voted to depose (on videotape) several witnesses. This procedure differed from what was done in the Andrew Johnson impeachment trial. One of the reasons for deposition (instead of live testimony) was the salacious nature of the ultimate issue — did President Clinton engage in sexual acts with an intern. The full depositions were available for review by the Senators but only excerpts were played in open session. Ultimately, the argument came down to whether perjury/obstruction of justice in a private capacity that did not involve any suggestion of the misuse of the powers of the presidency were serious enough offenses to qualify as a high crime and misdemeanor. The Senate reached the conclusion that, while it was appropriate to censure the president for his private misconduct, it was not appropriate to remove a president for this level of misconduct. (In almost every state, unless perjury is connected to a very serious criminal offense, perjury itself is a minor felony at most.)
In the Johnson impeachment, an implicit question was whether impeachment was appropriate when the alleged misconduct involved a dispute about the powers of the presidency and of congress in a gray area of the Constitution. In the Clinton impeachment, the question was when should private misconduct be the basis for removing a president. In both trials, however, the Senate did take evidence in the form of witness testimony — live testimony in the Johnson trial and depositions in the Clinton trial. We are now facing, for perhaps the first time ever, a President alleged with a clear misuse of presidential power and a Senate that refuses to hear evidence from the witnesses. By the end of this week, we will see if this bothers the Trumpublican party.
History is not going to look back well on Moscow Mitch and Spineless Lindsey and Two-faced Susan. But there is a very real chance that after this week, impeachment will be effectively limited to federal judges.
