A Casualty of a Quest to Punish

The impeachment and trial of President Bill Clinton was professedly about the “rule of law” as much as about Clinton’s behavior. Acquittal, proclaimed the House managers, would undermine the rule of law by sending the dangerous message that the president is above the law. Conviction, responded White House lawyers, would undermine the same principle by condoning overzealous prosecutorial tactics. After listening to the Senate floor debates and CNN sound bites, one might conclude that the phrase “rule of law” is as malleable as the phrase “sexual relations” is or, as Clinton might say, “is” is. The concept of the rule of law has been invoked so loosely, in so many different ways and by so many different actors in this drama that one may wonder whether the phrase has, in the words of one scholar, “become just another of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians.” If so, it would be the most troubling legacy of the whole episode.

While the rule of law is an ambiguous, multifaceted concept, it represents an ancient and honorable theme that saturates U.S. constitutional theory and its political tradition. Respect for the rule of law, moreover, is central to our sense of national identity, as evidenced by its frequent invocation by elected political leaders seeking to mold public sentiment in their favor. It is thus imperative that the different strands of the concept of rule of law, so eloquently deployed by the House managers to tug on our heartstrings, be parsed out.

Briefly put, the managers have an impoverished understanding of the concept. The rule of law does not merely demand that all wrongdoers be equally subject to punishment. It also demands that governmental institutions, including the office of the independent counsel and the Senate acting as an impeachment tribunal, stay within proper bounds when investigating wrongdoing and when meting out punishment.

Lead House manager Henry J. Hyde (R-Ill.) was surely correct to assert that “no one is above the law.” In our constitutional order, the law, not the leader, is supreme. Accordingly, the president is not exempt, by virtue of his station, from the criminal codes and moral norms that guide the conduct of the rest of us. The managers’ claim that “if Clinton violated the law, he should be punished” is powerfully nourished by rule-of-law ideals.

But this rhetorical device oversimplifies matters, because it begs the question of the proper time, place and manner of such punishment. Clinton remains subject to conventional criminal prosecution for his alleged illegal conduct, though not, according to most constitutional scholars, while a sitting president. Clinton the individual may be pursued by an appropriate prosecutor, maybe even independent counsel Kenneth W. Starr, the moment he leaves office.

Perhaps such a prosecution would fail, in part because of questions about his guilt under the technical definitions of perjury and obstruction of justice. For example, Clinton’s defense of his deposition in the Paula Corbin Jones’ lawsuit as intentionally misleading but not untruthful, though not admirable, is legally sound. Moreover, there are serious questions of provability regarding the circumstantial, or “he said, she said,” nature of the relevant facts, which is one reason why many career prosecutors testified before the House Judiciary Committee last fall that few if any prosecutors would pursue such a case.

But these prosecutorial difficulties do not threaten rule-of-law ideals, for they have nothing to do with Clinton’s status as president. Prosecutors, at least properly disinterested ones, frequently decline to pursue cases considered too difficult to win or not worth the cost. As Justice Antonin Scalia himself protested in 1988 when arguing, in sole dissent, that the independent-counsel statute is unconstitutional, the institution of prosecutorial discretion exercised by accountable public officials is itself a central safeguard of individual liberty. The projected difficulty of prosecuting Clinton after he leaves office sends no message that he is “above the law.” The House managers were wrong, therefore, to suggest that the likelihood that Clinton will not eventually be criminally punished, a likelihood Clinton shares with most, if not all, persons alleged to have lied to cover up an illicit sexual affair, was a compelling argument in favor of an impeachment conviction.

The House managers’ insistence that conviction upon impeachment was the appropriate punishment because it was the only sure one contravenes another core principle of the rule of law: Officials with the power to sanction must act only within their lawfully defined jurisdiction. This is the first tenet of constitutional law that every law student learns, through the venerable precedent of Marbury vs. Madison. In that 1803 decision, the Supreme Court held that, while President Thomas Jefferson, acting through his Secretary of State James Madison, had committed a legal wrong in denying an official commission to judge-designate William Marbury, the court could not remedy that wrong because it lacked jurisdiction to decide the case. The Constitution grants the House and Senate jurisdiction to impeach and convict the president solely for the purpose of removing him or her from office to safeguard the liberties of the people, not for the purpose of inflicting punishment.

The question properly before the Senate should not have been whether to punish Clinton for committing a legal wrong. Rather, it should have been whether or not his wrongdoing was of such a nature as to either preclude him from continuing to execute, faithfully and capably, his official duties, or otherwise compromise the integrity of the office of the presidency or the larger constitutional order.

On this question, perhaps reasonable minds can disagree. But the House managers’ contention that the Senate’s failure to convict would imply the president is above the law because he would then likely escape punishment misapprehends the limited function of an impeachment trial. The managers’ uncompromising insistence on removal as punishment also fails to consider another elemental principle of justice: The punishment should fit the crime, a principle that surely underlies much of the public’s opposition to the entire Starr investigation and impeachment process.

Finally, the fact that the Starr investigation provided the vehicle for the managers’ case spotlights yet another important facet of the rule of law: evenhandedness in the application of the law. Legal experts and pundits previously have suggested that Starr’s office at various times became so focused on winning that Starr and his deputies overstepped well-established boundaries of impartiality and fairness. To the extent this is true, the House managers’ case necessarily became tainted through its reliance on Starr’s product such that the White House could protest and a cloud could descend over the rule of law.

Clinton may escape formal punishment for his allegedly illegal conduct, though his legacy will remain forever tarnished by his misbehavior and impeachment. Hyde is correct in asserting that whenever anyone escapes official punishment for legal wrongs either because of his status or stature, our faith in the rule of law is undermined. But the managers’ rigid insistence on an impeachment conviction merely to vindicate the rule of law itself compromised that very ideal. Especially when appealing to such a complex and multifaceted principle of justice, reason, not rhetoric, must be our guide.*