High Crimes and Misdemeanors: The Case Against Bill Clinton

by Ann Coulter

  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.

  But they were eager to “fix the blame,” and the odds were, tying Nixon to the actions of his subordinates would be the only way to tie him to an impeachable offense. After all, even the most paranoid Nixon haters never seriously contemplated discovering evidence that Nixon had been involved in the Watergate break-in. As the abundant use of “expletive deleted” demonstrated, Nixon was not guarded in his Oval Office taped statements. He can be heard on the tapes saying that the main thing that embarrassed him about the break-in was that “it was so dumb—tying it to us is an insult to our intelligence.” But even before the tapes came out, it didn’t make any sense.99

  The evident hope was that some of the president’s “men” had been so dumb, and that Nixon would try to protect them. Consequently, the Rodino Report provides a bounty of historical support for the proposition that the president can be impeached for the misconduct of his subordinates.100

  Stop the Madness—A Rational Standard for the President’s Accountability

  Still, it seems rather severe to suggest, as the Rodino Report does, that a bad act by a single one of these subordinates, if not remedied on account of mere “negligence” or “inattention,” should merit impeachment of the president. With thousands of executive branch employees, the president cannot reasonably be held responsible for giving positions to a few persons who may later turn out to be “unfit and unworthy” of the job (as the Duke of Suffolk was in 1450).

  On the other hand, the president should not be able to hire an endless stream of crooks and hoodlums to do his bidding, and then insist that all he knows about their misbehavior—after they get caught by some congressional or media watchdog—is what he reads in the papers. Surely the president is responsible for any bad acts that he has himself encouraged implicitly or explicitly.

  As James Madison noted:If the President be connected, in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.101

  Nobody’s Fault But the President’s

  There are several “grounds” on which to believe a president will “shelter” his misbehaving subordinates. Clinton illustrates at least four of them. First, the misconduct in Bill Clinton’s administration almost always benefits Bill Clinton. Second, the president has never routed out or punished malfeasance in his administration on his own. Indeed, the president invariably acts like he is responsible—but not in the sense of being accountable, only in the sense of being guilty. Third, the president’s accomplices generally end up with promotions, attractive job offers, or lucrative Lippo consulting fees. Moreover, the president’s criminal accomplices are somehow left with the impression that President Clinton is dangling a presidential pardon before them.

  Finally, though, the sheer number of mishaps the Clinton administration has stumbled into starts to make it look like it’s not an accident. This is not a subjective point. A president’s impeachability is not a function of the number of indignant Anthony Lewis columns prattling about an Imperial Presidency. But no one—maybe Anthony Lewis, not Clinton anyway—disputes the wrongdoing in the Clinton administration. The president, for example, does not dispute that Craig Livingstone’s collection of private FBI files on Republicans was wrong. Nor does the president dispute that William Kennedy’s demand for an FBI investigation of the Travel Office was an abuse of power. POTUS admits that he should not have met with “hustler” Johnny Chung and the DNC should not have been eagerly accepting illegal foreign contributions.

  Whatever the scandal, Clinton’s defense is the same: POTUS is not responsible. It was a bureaucratic snafu, and he knows only what he reads in the papers.102 But he is responsible—it’s his administration. And the fact that it is his administration is the one recurring factor in the never-ending series of bureaucratic snafus.

  If any one of the slew of Clinton administration lies, abuses of power, corruption, and obstructions of justice were dropped into an otherwise totally clean and honest administration, the president might plausibly be given a pass. Once. It would at least be a nonfrivolous debate. Giving Clinton a pass on every scandal in his administration—from the government persecution of Billy Dale to the sale of technology to Red China—is frivolous. And this is to say nothing of the president’s own perjuries and obstructions of justice exposed since 1997.

  You Win Again

  Noticeably, much of the misconduct in the Clinton administration keeps benefiting one person: Bill Clinton. And that is Bill Clinton, personally—or “the current occupant of that office,” as the Supreme Court referred to him in Clinton v. Jones.

  Clinton’s first White House counsel, for example, resigned, if not in disgrace then at least under a cloud, for having obstructed the FBI’s attempted investigation of Vince Foster’s office. Why would the counsel, heretofore respected lawyer Bernard Nussbaum, have had any interest in obstructing an investigation of Foster’s office? Foster, it seems, had been doing personal legal work for the Clintons. It was their tax records and their Whitewater documents that Nussbaum would not allow the FBI to see. Neither before nor after Nussbaum’s tenure at the White House has he found himself accused of improper conduct. Clinton has.

  Another victim of Clinton’s reverse Pygmalion effect was Mr. Clean, Bruce Babbitt, whom Clinton made secretary of the Interior. Was President Clinton, once again, the innocent victim of a corrupt subordinate? The secretary of the Interior apparently sold government policy for large donations to the DNC. It is difficult to believe Secretary Babbitt was freelancing in his abuse of power and, completely unbeknownst to the president, selling government policy for his own ends. Especially since his ends weren’t served. Babbitt wasn’t running for any office. A more credible scenario is that the sale of casino rights was part of Clinton’s acknowledged frenzy for campaign dollars. Padding DNC coffers advantaged Clinton, not Babbitt.

  Whose enemies were being audited by the IRS? Against whom might an impoverished Webb Hubbell have testified? Whose campaign coffers swelled with the sale of the Lincoln Bedroom, plots at Arlington cemetery, and White House coffees? To whose campaign had Loral and Hughes contributed?

  Earning Presidential Kneepads: Promotions and Pardons

  A president is responsible for the behavior of his subordinates if he allows them to believe he will protect them if they are caught engaging in improper conduct. The Earl of Oxford was held responsible for William Kidd’s piracies, on the theory that Kidd had been emboldened “through hopes of being protected by the high station and interest of” Oxford, since Oxford had appointed him. The point was not that Oxford had actually solicited Kidd’s piracies or had been videotaped offering Kidd a pardon if he were to go out and engage in piracies. Oxford had simply done nothing to dash Kidd’s hopes that he would be protected by Oxford’s good station.

  This is similar to the accusation often leveled at President Nixon—that he had set a tone that encouraged others in his administratio
n to engage in misconduct. And that was when misconduct consisted of White House staff keeping “enemies lists” that the president never ordered or saw, not White House staff using secret FBI files to compile dossiers on the president’s perceived enemies.

  If the worst that could be said of Clinton was that he had managed to set a tone that permitted others in his administration to engage in misconduct, he could start popping champagne corks. Clinton is constantly getting caught hinting at pardons and granting promotions to potential witnesses against him.

  Kathleen Willey was provided a series of positions with the government for which she was not obviously qualified as long as she stayed quiet about the president’s grope. Monica Lewinsky was given jobs both in and out of the government for her silence. Webb Hubbell made more money than he ever had earned or stolen in a comparable period in his life for keeping his mouth shut about the president. The United States attorney for the District of Columbia, who did not indict the vice president after Gore admitted on national television to committing all elements of a federal felony, was soon promoted. The government flunky at the Defense Department who illegally released information from Linda Tripp’s personnel file was given a promotion weeks later. (This despite Clinton’s promise during the 1992 campaign that “[i]f I catch anybody [going through State Department personnel files] I will fire them the next day. You won’t have to have an inquiry or rigmarole or anything else.”)103

  Six months after U.N. Ambassador Bill Richardson’s role as faithful mule to the president was exposed in the Monica Lewinsky scandal, Clinton chose Richardson to serve as secretary of Energy (a field of endeavor about which he probably knows even less than he did about diplomacy). To go from the cesspool of the U.N. to the Energy Department was considered a step up, if only because Richardson was then in a position to shake down some really big fat cats. In all of the press reports of Richardson’s promotion there was barely a mention of Richardson’s involvement in the Lewinsky affair. No one paused to consider: Hmmm, six months ago Richardson was offering Monica a taxpayer-funded job in the Clinton administration, now he’s being promoted to a much more important cabinet job. I wonder if…. But no.