The Law: The Clinton Impeachment: Untangling the Web of Conflicting Considerations

The process of impeaching and removing a president is an insurance policy that was bequeathed to us by the Constitution's framers--in the hope that we would rarely have to use it. In the mere two attempts to date that reached a Senate trial, the only conclusion one can draw is that the odds of getting a conviction are not high and have never been met.(1) Does this mean that impeachment is an impossible tool, incapable of ever serving its ultimate end? Or, alternatively, did the framers know only too well what they had designed? Did they intentionally leave us with a process that, by its very nature--much like democracy itself would be messy, complicated, and vexing? Indeed, they wanted us to struggle with our choices and to think long and hard before firing up the machinery of presidential impeachment, precisely because of the grave consequences it could produce for the nation. To ensure against quick, easy judgments, the framers made presidential impeachment unique among all governmental functions: a complex hybrid of four separate elements--legal, political, constitutional, and institutional all poised with the potential to work at cross-purposes with each other. No other official act of government is fraught with such a combination of conflicting factors, and it is this inherently mixed, interwoven nature of the process that may help to explain why no presidential impeachment effort has ever run its full course to conviction and removal from office. It also makes clear how Senator Robert Byrd (D-WV) could publicly state at the Senate trial that although he was certain that the president had committed perjury and obstruction of justice, his vote in the Senate would be based on what was in "the best interest of the nation." Legal answers alone did not wholly determine his ultimate decision on how to vote. Similarly, White House Counsel Charles Ruff, in his closing argument to the Senate, appealed to the broader sense of duty of the senators; urged them not to "lose sight of the constitutional forest for some of the analytical trees"; and asked them to consider the larger question, one of "fact, law and constitutional theory," of whether "the liberties of the people would be put at risk if the president were to be retained in office." These comments by both Byrd and Ruff illustrate that a mix of considerations were at work here, just as the framers intended. More than a year has passed since the impeachment and Senate trial of President Clinton. There has been no shortage of analyses about the president's behavior and the effort to remove him that it spawned, and one hesitates to add to the mountain of paper already produced on this subject (Spitzer 1999; Symposium 1999; Pious 1998; Pious 1999-2000; Posner 1999; Toobin 1999). But the tangle of elements, and the uncanny way in which calculations made to promote one tended to undermine another, is a variant of this story that has not yet been told. There are rich ironies to be observed, as well as sober reflections on the past and lessons for the future to be noted. Miscalculations were made on both sides. All parties in this process faced choices at critical junctures, and all made decisions that advanced their respective interest in one forum at the expense of an equally important one in another. Second-guessing, a posteriori, is not the purpose here (although it is an inescapable feature); rather, the objective is to gain an understanding of why decision making during an impeachment process is such a zero-sum game, where an anticipated gain from one strategic choice is canceled out by the equivalent loss from another that was rejected in a different sphere. Recognizing that constitutional, legal, political, and institutional factors play equally crucial, competing, and often irreconcilable roles here, and examining some examples of how this worked in practice, adds a fuller context in which to comprehend the enigma of impeachment. …