Clinton's accusers argue that wrongdoing deserves punishment, so Clinton should be impeached. But impeachment is not the only option available. Others include censure, a court trial after leaving office, or even prosecutorial discretion not to try the case. Which option is best depends on which punishment fits the crime. Impeachment is a poor option because the Founders did not intend it to be a personal punishment for wrongdoing, but a remedy to remove harm to the national interest. They left it to the courts to serve out punishment. Clinton's legal and consensual affair, as well as his illegal attempt to cover it up, caused no direct harm to the national interest. Conservatives argue that there was an indirect harm to the nation, because Clinton's wrongdoing encourages others to break the law. But Clinton can still be censured by Congress and tried in a normal court of law, which means that impeachment is not needed to send the right message to society.



Argument

Many conservatives argue that because Clinton lied under oath, he deserves to be impeached. Lesser punishments will not suffice. After all, he is the chief law enforcer in the land, and if he breaks the law, he deserves to go. One reason is to send a correct message to our children: no one is above the law, not even the president.

However, there are several fatal flaws with this argument.

Throughout the Congressional debate on impeachment, conservatives consistently portrayed impeachment as the only option to punish the president. The political motive behind this argument was obvious -- they wanted to inflict the maximum damage possible on their most hated political enemy.

But there were other options. After the president leaves office (impeached or not), he may still be tried in a normal court of law and receive a variety of punishments, just like any other citizen. This alternative is provided by the Constitution itself (Article 1, Section 3, Paragraph 7) and is reflected in Hamilton’s Federalist No. 65. So the president is not "above the rule of law," and the whole argument that impeachment is the only remedy to prove it is bogus.

If Congress did not want to wait until Clinton was out of office to punish him, then censure (that is, a Congressional reprimand) is another option. But the Republican House leadership argued that censure was unconstitutional. Under this guise, it prevented a vote on censure from even reaching the House floor, even though that is what the majority of representatives wanted! Yet censure is hardly unconstitutional; in fact, Congress censured President Andrew Jackson in 1834. The Committee on Federal Legislation (of the New York ABA) launched an in-depth study as to whether the Constitution allows censure, and found no obstacle. Why? The constitution neither authorizes nor prohibits censure. It does prohibit Congress from issuing bills of attainder (that is, fines), but there are practical ways of getting around this. Congress could reach a voluntary agreement with the president to pay a fine, and enforce such payment by the threat of resuming impeachment proceedings. (1)

There is also a third option that most people forget. That is the decision of government not to prosecute the case at all. The power of police and prosecutors to arrest, try, and convict is discretionary. There are legitimate reasons not to prosecute: either the prosecutor must prioritize all the cases before him, or the costs of prosecution exceed its benefits, or mercy should logically prevail over punishment. But the law hardly demands that all known cases should be prosecuted.

It is crucial to note the original purpose of impeachment when considering the most suitable punishment for Clinton. The Founders were clear that impeachment was not meant to be a punishment for individual wrongdoing, but a remedy for threats to the national interest. In Federalist No. 65, Hamilton said of impeachment:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They… relate chiefly to injuries done immediately to the society itself.

The Founders showed the non-punitive nature of impeachment when they declared that Congress could only remove a president, not punish him with fines or prison sentences. They reserved punishment for regular courts of law after the president left office. They did this because they believed that no person should be placed in double jeopardy for the same offense, a principle they even wrote into the 5th Amendment.

You can see this point another way as well. In the regular courts, there are strict rules of procedure, guaranteeing due process for the accused. The rules clearly define the rights and responsibilities of both the defense and the prosecution. But such rules largely do not exist in the impeachment process. Indeed, the lack of rules is remarkable. The Founders intended this to be more of a political process than a judicial one. Impeachment was meant to remove a threat to the nation, not to serve justice to individuals.

So many options exist. The only question now is: which one is most appropriate?

One of the most basic principles of American legal philosophy is that "the punishment should fit the crime." This principle is even established in our 8^th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

To determine which punishment is appropriate, we first need to consider the seriousness of Clinton’s alleged crimes, even if true.

In Clinton’s case, the underlying behavior involves an entirely legal and consensual affair that he had. This doesn’t call for any punishment at all, at least from the legal system. (Mrs. Clinton, on the other hand…)

What people deem wrong was Clinton’s attempt to cover up his affair in an official way, by denying it under oath, obstructing federal investigations into it and abusing his office to hide it. Although wrong, such behavior is certainly understandable; publicity of the affair was profoundly embarrassing and painful to his family. One might also observe that Kenneth Starr was overzealous in invading Clinton’s private life trying to dig up irrelevant dirt. Still, perjury, obstruction of justice and abuse of power are public crimes, and deserve punishment.

We should note that even then, these crimes are relatively minor. True, the law does not distinguish between levels of perjury. But impeachment proceedings are not bound to normal legal definitions of perjury, and are free to distinguish between levels of perjury. And there is a huge difference between perjury over a private affair and perjury that, say, clears an American diplomat, who then continues to spy for the Russians. The former results in no direct harm to the state; the latter results in enormous direct harm to the state.

Considering the Founder’s intended purpose for impeachment, combined with the fact that Clinton’s perjury resulted in no direct harm to the state, it becomes clear that Clinton’s actions fall far below the bar of impeachment.

Here, conservatives reformulate their original argument. True, Clinton’s perjury may have caused no direct harm, but it did cause considerable indirect harm. Namely, Clinton is the chief law enforcer of the land, and when he breaks the law, he sets a bad example. He breeds disrespect for the rule of law, especially among children looking to him as a role model. This is what constitutes his threat to society.

Of course, repeating this argument doesn’t improve it. Clinton can still be punished in a regular court of law, which eliminates the perception that the president can get away with breaking the law. Congress can even censure him if they want to send that message to society right away. Meanwhile, conservatives are still left to defend why perjury over an affair is such a deep threat to society. Polls consistently show that over two-thirds of all Americans approve of the job that Clinton is doing. It is clear that Clinton is not only causing no harm to society, but society is grateful to him for his excellent job performance.

The relative unimportance of perjury can be proven another way:

Prior to the Starr Report, perjury was the joke of the American legal system. It was both the most widespread and least prosecuted of crimes in America. In 1997, federal prosecutors launched nearly 50,000 cases, but only 87 of them were for perjury. That’s only 0.17 percent of all federal cases! (2)

There are two reasons for this startling figure. One is that perjury occurs in almost every adversarial trial. Indeed, the rewards and penalties following a verdict give many people an overwhelming and irresistible incentive to lie. "As prosecutors, we encounter people who lie under oath all the time," says S. Randolph Sengel of Virginia. "I don't mean to sound cynical, but a day doesn't go by when somebody doesn't come to court and bend it a little. If you were determined to prosecute every falsehood people made in court, that is all you would be doing." (3)

"If you converted perjury to water," says Milwaukee district attorney E. Michael McCann, "it would flood the place." (4)

"Every day. You see it every day," says Chicago defense lawyer Sam Adam. "There's an old legal expression: In Cook County, the outcome depends upon the preponderance of the perjury." (5)

But all this perjury doesn’t mean it is frequently prosecuted. On the contrary, it is one of the most difficult crimes to try. "Perjury is really hard to prove," says Washington attorney Jim Cole. "When you try a perjury case, you are splitting legal hairs. They are very technical cases. It comes down to what the person said, what they understood themselves to be saying, and what they understood the question to be." (6)

And the sheer volume of possible perjury cases is too much. "We feel if we open the door to that," says McCann, "when will it close?" (7)

When Starr first announced that he was referring Clinton for perjury, many legal watchers were quietly amused: surely this indicated how little he had on Clinton. But as 1998 wore on, the Republican beat the drum of perjury to a deafening crescendo, turning one of the least prosecuted offenses into a Crime of National Proportions. Incredibly, it became so grave that it threatened the very fabric of society itself, and demanded the removal of a president.

However, there is a simple rebuttal to the conservative argument that letting Clinton go would promote the spread of perjury in America. How could it get worse?

Some conservatives might then argue that impeaching Clinton for perjury could send a signal to society, discouraging them from perjury. Again, the rebuttal to this is simple. A regular trial of the president, complete with the requisite media circus, would do this just as effectively.

Conservatives emphasize that they want to impeach Clinton not for his private wrongdoing, but for his public wrongdoing, especially lying under oath.

However, all presidents take the following oath, complete with one hand on the Bible and the other upraised, when they are inaugurated into office:

"I do solemnly swear that I will faithfully execute the office of the President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States."

Ronald Reagan and George Bush: Sold arms to terrorists, laundered the money illegally, and used the funds to run an illegal war in Central America.

Gerald Ford: Pardoned Richard Nixon, allowing one of the greatest violators of the constitution in history to go unpunished.

Richard Nixon: Watergate. Included using the CIA, FBI and IRS to persecute his enemies, illegal campaign contributions, money laundering, infiltration and disruption of opponent’s campaigns, goon squads, slush funds… and that’s before the cover-ups.

Lyndon Johnson: Fabricated the Gulf of Tonkin incident, which justified military escalation in Vietnam.

John F. Kennedy: Authorized the assassination of Ngo Dinh Diem, an ally.

Dwight Eisenhower: Allied himself with Joe McCarthy both before and during McCarthyism, afraid of drawing McCarthy’s wrath. McCarthy, of course, launched a broad attack on the constitutional rights of hundreds of innocent Americans.

Franklin Delano Roosevelt: Illegally initiated the Lend-Lease Act.

Warren Harding: Almost universally regarded as the most corrupt U.S. president in history.

And every president from Eisenhower to Nixon illegally used the CIA to spy on American citizens, something prohibited by Congress. These presidents were not merely trying to defend against communism, but were using the CIA's domestic operations for their own political ends. For example, Operation Chaos, which lasted 15 years, infiltrated, spied upon and disrupted student organizations exercising their constitutional right to protest the Vietnam War. (8)

Clinton's critics are therefore highly inconsistent. Either they should agree that all presidents have deserved removal from office, or they should agree to let courts render proportional punishments that fit the crime. No double standard should exist.

Finally, surveys of all types consistently show that vast majorities oppose removing Clinton from office.

In regular opinion polls, between 60 to 70 percent of all Americans do not support the impeachment or removal of Clinton from office. (9)

Of 12 of the nation's top constitutional law scholars, 10 thought that Clinton's actions did not rise to the level of impeachment. (10)

A statement signed by 412 of the nation's leading historians concluded that "the current charges against [Clinton] depart from what the Framers saw as grounds for impeachment." (11)

A letter signed by over 430 of the nation's top legal scholars, from Harvard, Yale, Stanford and other universities, asserted that "the allegations detailed in the Independent Counsel's referal… do not justify presidential impeachment under the Constitution." (12)

Curiously enough, even a majority in the House of Representatives didn't want Clinton impeached. The majority (comprising all Democrats and some moderate Republicans) preferred censure. But House Whip Tom Delay prevented censure from coming to a vote, and twisted the arms of moderates to vote for instead of against impeachment. Delay controls Republican votes through his control over campaign fund-raising, and is an old-time party boss who happens to hate Clinton with a vengeance. (13) Consequently, the coerced vote did not reflect the true sentiments of the House.

After the House vote, damaging revelations appeared in the press. Four Republican Representatives who had voted for impeachment urged the Senate to vote for censure. And it was revealed that a total of 47 House Republicans, wavering in the final week before the impeachment vote, were secretly shown material gathered by Paula Jones' attorneys, which was ruled inadmissible and hearsay. Thus, an unfounded smear campaign was allowed to influence the representatives' votes. (14)

No matter which way you look at it, the impeachment of President Clinton was undemocratic, driven by a small group of extreme right-wing Republicans.

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