Prosecutors Use Judge’s Ouster to Support Case Against Clinton

For the House prosecutors, the most powerful legal precedent in the case against President Clinton is the Nixon impeachment--not Richard, but Walter.

In its last impeachment trial in 1989, the Senate convicted and removed from office U.S. District Judge Walter L. Nixon of Mississippi for lying to a grand jury.

This is “precisely the same charge” lodged against the president, Rep. F. James Sensenbrenner Jr. (R-Wis.) told the senators in his opening argument Thursday.

“The Senate showed no leniency to judges who lie. It would be absurd,” he said, to “set a lower standard for lying under oath for presidents than judges.”

White House lawyers argue that even if the president lied under oath in the grand jury--something they strongly deny--it would still fall short of an impeachable offense. The House Republican managers say the removal of Nixon shows otherwise. After all, the Constitution sets forth the same standard, saying a president or a judge should be removed for “high crimes and misdemeanors.”

“The vote just nine years ago [to oust the Mississippi judge] set a clear standard that lying to a grand jury is grounds for removal from office,” said Sensenbrenner, who also served as a House prosecutor then.

Nixon’s case has some parallels, but also significant contrasts, with Clinton’s.

In 1981, the judge turned to a wealthy oil man, Wiley Fairchild, in hopes of obtaining some extra money. In short order, the judge reaped a $75,000 windfall on a $9,500 investment with Fairchild.

“If I can ever help you, I will,” the grateful judge told him. Soon after, Fairchild turned to the judge for help when his son was charged with drug smuggling.

Nixon intervened with the local prosecutor, his hunting pal Bud Holmes. The son’s case was shelved, and Nixon and Holmes together telephoned Fairchild to tell him they had taken care of the matter.

However, the secret deal came to light when a grand jury began to investigate judicial corruption, focusing on Nixon and his windfall profits. Appearing before the grand jury, Nixon was asked about fixing the younger Fairchild’s drug charge.

“I have had nothing whatsoever officially or unofficially to do with the Drew Fairchild criminal case,” the judge testified. “I never had a thing to do with it at all and never talked to anyone.”

That testimony was false, prosecutors said, and four witnesses--including Holmes and Wiley Fairchild--said the judge had lied. Nixon was convicted of perjury and sent to prison. He was behind bars when Congress moved to impeach him in 1989.

He was the third judge to be impeached during the 1980s. Judge Harry Claiborne of Nevada was convicted of tax evasion and subsequently impeached. Judge Alcee Hastings of Florida was tried for bribery, but a jury acquitted him. A panel of judges, however, accused him of lying on the witness stand, and he was impeached. He has had the last laugh, however, since voters later elected him to the House of Representatives.

This week, the House prosecutors said the Senate should follow the model of the Nixon impeachment trial, where witnesses were heard. They did not mention, however, that the House Judiciary Committee had heard from the same witnesses before it voted on the articles of impeachment against Nixon.

“We held the equivalent of a trial in the House,” then-Judiciary Committee Chairman Don Edwards (D-San Jose) said. “We required all the key witnesses to come forward and testify.”

Also, the articles of impeachment charging Nixon with perjury focused specifically on his statements that were false, quoting them directly. In the Clinton case, by contrast, the perjury charge is broad and general, charging that the president lied to the grand jury “concerning the nature and details of his relationship” with Monica S. Lewinsky.

Legal experts differ on whether the judicial impeachments should guide an impeachment trial of a president.

Some say they should be treated the same, since the Constitution sets the same standard of “high crimes and misdemeanors.” Others say the two should be seen in a somewhat different light since they have vastly different responsibilities. More than 800 federal judges sit on the bench, while the nation has only one president, as this argument goes.

William and Mary law professor Michael Gerhardt, who wrote a book on the judicial impeachments of the 1980s, argues that presidents and judges are not in the same category. Federal judges are not elected and serve for life “during good behavior,” as the Constitution puts it. Presidents are elected, serve four years and leave office, unless they are reelected.

Washington attorney David O. Stewart, who defended Nixon, agrees. “It is not comforting to argue for a different standard, but as a practical matter, it is true. Judges are not elected, and if you have a bad one, you can’t get rid of him any other way” other than impeachment.

Hastings, the impeached judge, also spoke out last month against the Clinton impeachment. “I don’t think they are the same situation. Judges serve during good behavior. Presidents are elected,” he said in a phone interview. “And the impact on the country of a judicial impeachment is minuscule, compared to the president of the United States.”

Sensenbrenner ridiculed this sort of distinction Thursday. Does the Senate want to set a high standard for judges and low standard for “presidential trustfulness”? he asked. To do so would send a “terrible message” to the nation and to future generations, he said.

But White House lawyers argued in a brief to the Senate that the two cases are not parallel at all. Nixon was charged with abusing his judicial power by intervening to fix a case. This was properly seen as abusing “the power and prestige of his office,” they said. By contrast, the president is accused of lying to cover up an embarrassing sexual affair, they say.