High Crimes and Misdemeanors: The Case Against Bill Clinton

by Ann Coulter

  In February 1998, just as the Department of Justice was gearing up to prosecute the companies, Bill Clinton granted Loral a waiver from the sanctions imposed after the Tiananmen massacre. The waiver gave the firm permission to launch another satellite from China and, consequently, to continue helping the Chinese beef up their rocket technology. This was also just at the time the commander in chief was weighing whether to risk American lives to prevent Iraq from acquiring weapons that would be launched on Scud missiles. A Scud does not have a fraction of the range of these Chinese rockets, nor, for that matter, did Iraq have any weapons targeted at the United States.

  On February 18 President Clinton signed the waiver to allow Loral to launch its satellite, stating that the deal was “in the national interest.”37 The waiver expressly permitted Loral to do again that which had brought it under criminal investigation for having done once. To grant the waiver, Clinton had to ignore the advice of his own Justice Department, not to mention the concerns the Pentagon had already expressed.

  But President Clinton did not turn a deaf ear to all advice. He was apparently following the advice of two major campaign contributors.

  Since 1991 Hughes and Loral had contributed $2.5 million to the Democratic Party. Loral CEO Bernard Schwartz had personally contributed over $1 million; in 1997 Schwartz was the largest single contributor to the Democrats. Hughes CEO C. Michael Armstrong had been lobbying Clinton since 1993 to ease export limits on sensitive technology such as Hughes satellites. In one of Armstrong’s letters to Clinton, he used the magic words: he reminded Clinton of his past political support.38 What had the Pentagon done for Clinton?

  In 1995 Armstrong and Schwartz had sent a joint letter to Clinton requesting that the president transfer satellite export controls from the national security-minded State Department to the acquiescent Commerce Departement.39 (Presumably, Commerce officials such as John Huang would be more open to sensitive technology transfers to China.) In 1996 Clinton did so.

  Soon after Gerth’s story broke, the New York Times pointedly editorialized, “Control of these sensitive technologies is too important to sacrifice for commercial gain, much less campaign contributions…. The White House should not relax export control rules either to improve relations with China or to accommodate generous donors.”40

  Obviously, the Times is right. Selling national security for campaign donations is treasonous. If true, this is the biggest scandal of the Clinton presidency. But so far, there is no “evidence of the fact that [Clinton]… changed government policy solely because of a contribution.” So at least it can be said Clinton has met the low standard of probity he has set for himself—much as he kept all the promises he “meant to keep.”41

  But the argument Clinton’s defenders had made throughout the “bimbo” scandals blew up in their faces with the China scandal. They had essentially conceded that Clinton has no character, no morals, and that he lies a lot. Their argument was that it didn’t matter because the president’s low morals and perjury had to do with sex. (Those who believed the president was telling the truth belonged to a splinter party.) Well, here it mattered. Here national security was at stake, and the question was treason.

  If all this were known about a Carter or Reagan administration no one would think “treason.” “Stupid” or “sloppy” maybe, but not treason. “What you need to know about Bill Clinton is that the charge was plausible.”42 Clinton is to Carter what Aldrich Ames is to George Kennan.

  As the New York Times story was breaking, Clinton had his own big trip ahead of him. Ironically, he was headed to China. Jay Leno’s joke about Clinton being the only man who could distract attention from one scandal by starting another scandal had come full circle: In attempting to divert attention from the Monica scandal by planning a string of international junkets, Clinton had dropped himself right into the middle of his Chinese money scandal.

  In Federalist No. 64 John Jay explained that there would be little danger of the country entering into unfavorable agreements with other nations because of the president’s presumed “honor, oaths, reputations, conscience, the love of country, and family affections and attachments.” The Constitution, Jay wrote, had “taken the utmost care” to ensure that the president would be a man of “integrity.” But if a man like Bill Clinton ever worked himself into the White House, the impeachment clause of the Constitution would suffice “so far as the fear of punishment and disgrace can operate.”43

  Chapter Twenty

  High Crimes and Misdemeanors

  James Madison said the “first aim” of the Constitution was to ensure wise and virtuous rulers and to prevent “their degeneracy”:The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern and most virtue to pursue the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.1

  For that reason, the Constitution provides for impeachment.

  The requirement of virtue went for the president most of all. John Jay said, for example, “there is reason to presume” the presidency would fall only to those “who have become the most distinguished by their abilities and virtue.” He imagined that the electors would not “be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle.”2 He did not imagine Clinton.

  The third and final author of the Federalist Papers, Alexander Hamilton, praised the method for selecting the president3 as likely to ensure that the office will be “filled by characters pre-eminent for ability and virtue”: “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State,” but, Hamilton wrote, “other talents,” including virtue, would be required to win the presidency.4

  Talents for “low intrigue” may be enough for Arkansas, but they were not expected to be enough to win the presidency. The entire system is constructed to ensure that the office will be filled by “some fit person.”5 At a bare minimum, this suggests that the president must have virtues beyond not being a convicted criminal. Implicit in everything the framers say is that the president cannot be fooling around with interns. If we can’t trust him with Girl Scout troops visiting the Oval Office, he’s not fit for the office.

  That’s where impeachment comes in. The whole reason for including an impeachment procedure was to provide a backup mechanism for removing rogues when the selection process itself had failed to produce “some fit person” with “ability and virtue”—not merely some person who, thus far, has managed to escape a finding that he is guilty beyond reasonable doubt in a criminal prosecution.

  VIRTUE MEANS MORE THAN NOT BEING A FELON

  Clinton’s few remaining defenders exult that he is not guilty of a crime—or at least, not clearly, beyond a reasonable doubt. This is (a) almost certainly false and (b) completely irrelevant to the question of whether he has committed impeachable “crimes.” Though it may sound like it to the untutored ear, “high Crimes and Misdemeanors” need not be crimes at all.

  It is absurd, in fact, to think that a constitutional system carefully calibrated to elevate men of “virtue” would permit removal of the man occupying the presidency only upon proof beyond a reasonable doubt that the president had committed a crime. The historical evidence “establishes that the phrase ‘high Crimes and Misdemeanors’—which over a period of centuries evolved into the English standard of impeachable conduct—has a special historical meaning different from the ordinary meaning of the terms ‘crimes’ and ‘misdemeanors.’”6

  But with self-government a background fact rather than a brave new experiment, twentieth-century Americans seem no longer to expect their rulers, even presidents, to be “characters pre-eminent for ability and virtue.” The charges against Clinton are discussed only in terms of the criminal law, as if Clinton were a common criminal rather than the elected leader of a self-gover
ning nation. Elmer Gantry has somehow worked himself into the presidency, and congressional Republicans are sitting on their hands, saying they’re waiting to see all the evidence.

  Surely one reason for the modern confusion between impeachable offenses and criminal offenses is the odd phrase, “high Crimes and Misdemeanors.” This is a mistake; the phrase “high Crimes and Misdemeanors” has nothing to do with the criminal law. High crimes and misdemeanors are completely different from criminal offenses in purpose, scope, consequence, and meaning. One telltale fact is that there is no such thing as a “high crime” in the criminal law. Though there are “crimes” and there are “misdemeanors,” there are no “high crimes” or “high misdemeanors.”

  After surveying the etymological history of the phrase “high Crimes and Misdemeanors,” constitutional scholar Raoul Berger concluded:In sum, “high Crimes and Misdemeanors” appear to be words of art confined to impeachments, without roots in the ordinary common law, and which so far as I could discover, had no relation to whether [the act constituted a crime].7

  Likewise, the Rodino Report observed that “[s]ince the fourteenth century the phrase ‘high Crimes and Misdemeanors’ had been used in English impeachment cases to charge officials with a wide range of criminal and non-criminal offenses…. There is evidence that the framers were aware of this special, noncriminal meaning of the phrase ‘high Crimes and Misdemeanors’ in the English law of impeachment.”8

  The first-ever impeachment was of the king’s chancellor, Michael de la Pole, in 1386. Of the charges against him, the Rodino Report observes: some “may have involved common law offenses,” but others “plainly did not.” One of the common law offenses was defrauding the king—and the realm—in a land deal by arranging a false appraisal.9 (The “realm” was not defrauded of $60 million, but in other respects de la Pole’s get-rich-quick scheme was not unlike the various Whitewater land deals, one hardly need add.)

  Another of the charges against de la Pole’s impeachable offenses was simply that he had promised Parliament to carry out the advice of a parliamentary committee on improvements to “the estate of the king and the realm,” and then had not done so.10 This, of course, was not a criminal offense, but it was an impeachable offense.11

  Quite noticeably, the Constitution’s many references to criminal proceedings and criminal judgments do not apply to impeachment. The president has the right to grant pardons for all “offenses against the United States,” for example, “except in the case of Impeachment.”12 Similarly, impeachable “crimes” are excluded from the right to a trial by jury.13 Though impeachment is expressly excluded from these criminal procedures, impeachment is not mentioned in the Sixth Amendment to the Constitution. The Sixth Amendment requires, among other things, a trial by jury for all “criminal offenses.” Adopting this amendment would have directly abrogated the impeachment power of the House and the removal power of the Senate if an impeachable act were considered a “criminal offense.”14 But it is not.

  While a “showing of criminality is neither necessary nor sufficient for the specification of an impeachable offense,”15 any “significant breaches of criminal law” are clearly among the grounds for impeachment.16 As the Rodino Report puts it, the impeachment device is not “limited to” criminal acts.17 Rather, “high Crimes and Misdemeanors” encompasses a “wide range of criminal and non-criminal offenses” against the state.18 The whole point of having a unitary executive subject to impeachment was to throw out rogues and incompetents, not just convicted criminals.

  Impeachment requires completely different types of offenses and standards of proof. Indeed, the Rodino Report explicitly rejected the idea that any aspect of a criminal prosecution should be carried over to the impeachment process, including “the various elements of proof, defenses, and other substantive concepts surrounding an indictable offense.”19 Impeachment should not be undertaken lightly, but there seems no reason to expect the presumption of innocence in a criminal proceeding to carry over to an impeachment proceeding. It’s one thing to say we won’t put you in prison except on a beyond-a-reasonable-doubt standard. But surely a lesser standard is required for the country to say: You shouldn’t be the fellow with his finger on the nuclear button.

  Even on a preponderance-of-the-evidence standard, it is not easy to obtain an impeachment conviction. The constitutional check on whimsical impeachments is the hurdle of a two-thirds vote in the Senate for conviction. James Madison explained: “As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.”20 (If Madison could have foreseen today’s Congress he might have said, “as the Republicans are abject cowards, the security to innocence, even of the manifestly guilty, will be as complete as itself can desire.”) It was just that supermajority requirement for removal that saved President Andrew Johnson from being removed after he was impeached by the House.

  As James Wilson—the framer often called the “father of the presidency—said, “Impeachments… come not… within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects; for this reason the trial and punishment of an offense on impeachment, is not bar to a trial of the same offense at common law.”21

  IMPEACHMENT IS THE MOTHER OF ACCOUNTABILITY

  The “objects” to which impeachment would be directed in a constitutional Republic would be different from those under a monarchy. The president would have to be a virtuous man, for example, because he was not king. Having just fought the revolutionary war to throw off a monarchy, the framers of the Constitution were rather clear about the president not being a king. In fact, it was precisely to avoid such claims as are being made today—that the president is above the law or somehow special in any way because he is the sole repository of the entire executive branch authority—that the framers toyed with the idea of creating a committee of presidents. That idea was, obviously, rejected.

  But the reason it was rejected was not to make the president more powerful, but to make him more accountable.

  The idea was not even to have a series of kings with limited, four-year terms. Indeed, throughout the constitutional conventions and later ratifying conventions, the framers obsessively discussed the checks on the power of the president, so averse were they to recreating a monarchy. At the Pennsylvania ratifying convention, for example, James Wilson extolled the citizen stature of the president: “[N]ot a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”22

  Still and all, the creation of a president was one of the most contentious points in the proposed Constitution. The anti-Federalists argued that the presidency would soon replicate the very thing the Revolutionary War had been fought to end. Caricaturing the anti-Federalists’ portrayal of what the president would become—“[c]alculating upon the aversion of the people to monarchy”—Hamilton writes:He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates in all the supercilious pomp of majesty.23

  If he had been really prescient, Hamilton might have added, He has been shown surrounded by interns, providing him with oral sex. This was not the president envisioned by the framers, but a “counterfeit resemblance.”

  Methodically disputing this portrait, Hamilton compares the relative powers of the president, the king of England, and the governor of New York, concluding it “would be difficult to determine” whether the president or the governor of New York possessed more power.24 It was certainly clear that the man filling the office of the presidency would have nothing resembling the king of England’s powers. In any event, James Wilson pointed out that the president would have no proprietary claim on the of
fice, but could be impeached for acting “improperly.”25

  And not only for acting improperly himself, but for suffering his subordinates to act improperly. This is why there is only one president, rather than a board of presidents.

  One of the “weightiest objections” to vesting all the executive power in a committee rather than a single man, Hamilton said, was that a single executive would not be able “to conceal faults and destroy responsibility.” The legislature’s power to impeach the man in charge of the entire executive branch would make him responsible for the misconduct of his subordinates:It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.26

  Placing all the executive power in a single man would lodge all the responsibility in a single man. The president would not be able to hide behind the decisions of others. All the blame for any wrongdoing within the executive branch would necessarily fall on the president.

  Consequently, and as it turns out wholly theoretically, the unitary president would thereby be inhibited from engaging in bad acts. He would not be able to pass off his bad acts as the work of his subordinates because he would be held accountable for their misdeeds. And if the president did not orchestrate their misconduct, but merely failed to root out corrupt subordinates, he would still be held accountable for their actions. The people would not have to search for the wrongdoer, but rather would have, in Hamilton’s words, “the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”27