Constitutional Opinions
Rabkin, Jeremy
CONST TUT ONAL by Jeremy Rabkin Moving On As late as October, Republican journalists predicted that "the President would be called on to resign" and warned that, if he did not, there would be "an...
...It is absurd to imagine they willnow be ashamed to turn again and revive harassment charges against Americans who happen not to be liberal presidents...
...Madison's war" nearly did...
...As late as 1974, there was no hint of this new doctrine when the young Bernard Nussbaum and the younger Hillary Rodham reported on impeachable offenses for the House Judiciary Committee in the Nixon case...
...That means Republicans in Congress need to take a hard, cold look at what has happened...
...CONST TUT ONAL by Jeremy Rabkin Moving On As late as October, Republican journalists predicted that "the President would be called on to resign" and warned that, if he did not, there would be "an explosion at hand...
...Oh well, no discredit to the president...
...Anyway, sexual harassment cases are in the hands of federal judges and—as indicated by the Supreme Court last spring—the judiciary is not going to exempt the rest of us just because Clinton got away with multiple counts of harassment...
...impeached for his conduct of the War of 1812, though he had left the country so unprepared that a British army easily entered Washington and burned all its public buildings in the summer of 184...
...And dare Democrats to vote against it...
...We also need to address what remains the most disturbing abuse of the Clinton era —the practice of taking large donations from foreign governments as "campaign contributions...
...How to survive and learn from Clinton's survival...
...Call it the John Huang law...
...Maybe the president just used the money for the private purpose of getting re-elected, rather than as part of his public conduct of the office...
...Perhaps nothing can be done about Attorney General Reno herself...
...But the opposing party is unquestionably injured by the illegal campaign practices of its rival...
...She also managed to block any serious, separate investigation by her own department...
...What if he then makes policy concessions to those who arranged the payment, but claims—as Clinton has done, in a related context—that he made no changes "solely" due to these "contributions...
...Nobody thought he could be JEREMY RABKIN is a professor of government at Cornell University...
...It is some consolation that, whatever future historians may say about the Lewin-sky affair, it won't escape their notice...
...Historians have been harsh on James Madison's conduct of the presidency, too, but they give him a lot of compensating credit for his leading role in drafting the Constitution, the Bill of Rights, and The Federalist Papers...
...But in other respects, the law must be made more demanding...
...As great as any abuse by Clinton have been the disgraceful cover-ups on his behalf by the Justice Department...
...Mere felonies don't count...
...It hasn't stimulated public demands for accountability from the chief executive who appointed them...
...Since the White House settled the Paula Jones case before the district court ruling could be overturned, we are left with Judge Susan Webber Wright's astonishing holding that dropping your trousers before a subordinate is not "harassment...
...Better again not to know the distressing details if the agriculture secretary took petty bribes and the interior secretary bent policy to please big campaign donors...
...Madison's experience provides additional perspective...
...Even at his lowest point Madison never directly faced impeachment...
...So here's another proposal: Amend the campaign finance laws to let the opposing44 A Congress that won't impeach Clinton will not impeach Reno for assisting in the coverup...
...Doing so will further vindicate all the calumniesheaped on Kenneth Starr, but there is no helping that...
...The first conclusion to draw is that the law establishing the independent counsel must be allowed to lapse next year...
...Apart from his perjury and other bits of friskiness, Clinton will be remembered for...
...The Clinton experience also proves presidents aren't accountable for the misdeeds of their subordinates...
...party collect vast punitive damages if it can prove the winner took illegal campaign contributions (especially from foreign governments...
...At Washington the effect of the news was so extraordinary as to shake faith in the seriousness of party politics...
...First came news that General Jackson had defeated the British army outside New Orleans...
...Then, against all odds, the president was saved by events...
...A few days later, a ship from Europe brought word that the British had agreed to peace terms...
...What if the president takes only a small bribe...
...The new Congress can't spend all its time on this project...
...We can't cure the defects of the independent counsel by renaming him "the Attorney General!' But we can ensure that future attorneys general will be more attentive to congressional protests over partisan manipulations by the Justice Department...
...Just as Clinton has proved too shameless to be shamed by revelations of his misdeeds, Reno has proved too block-headed to notice when congressional committees point out that her interpretations of the independent counsel statute are insupportable in logic or law...
...The law should stipulate that only physical actions, threats, or remarks aimed at a particular person can be "harassment...
...This administration has had a record number of Cabinet officers subjected to independent counsel investigations...
...Someone must attend to international affairs and pressing national concerns, while the president completes his "personal journey," his "atonement," and his various other therapies...
...That prescription is both unconstitutional and unwise...
...uh, perhaps for inadvertently instigating some important reform laws, enacted in reaction to his abuses...
...President Clinton's tawdry conduct is not going to break up the country—as "Mr...
...We must indeed move on, as his defenders keep urging...
...She has held, in effect, that no independent counsel can be appointed unless there is already enough evidence to warrant an indictment—in which case, of course, an independent investigation would be unnecessary...
...The law is popularly known as "the Bobby Kennedy law" after the attorney general who made it necessary...
...Someone in the White House grabbed goo FBI files...
...The country has survived worse crises...
...We used to think the Justice Department would be ashamed of putting presidential loyalty above such fundamental duties to the country...
...Even skeptical conservatives should have no trouble agreeing that such indecent conduct should not be tolerated...
...Call it the Clinton law...
...They did so without shame...
...This reform proposal is not only constitutional, then, but as American as — well, as James Madison's defense of "checks and balances": "the policy of supplying, by opposite and rival interests, the defect of better motives...
...The very adolescent quality of Clinton's offenses has left most Americans feeling that he is unworthy of so serious a process as impeachment...
...In some respects, existing doctrine is dangerously overbroad...
...Facing facts does not doom this Congress to inactivity...
...In particular, the law should specify that general remarks about "gender relations" (or anything else) cannot constitute "harassment...
...But there's no point dwelling on the injustice of it all...
...This Congress ought to undertake a review of sexual harassment laws...
...Simply by legislating a two-year term for the office, Congress can ensure that the AG return to the Senate to face charges and accusations of misconduct—and forfeit the office if a bare majority of the Senate thinks she has forfeited public trust...
...And it will have incentives to pursue such claims, even where the attorney general has contrary incentives...
...But the FEC also tends to be overly protective of incumbents...
...This is the opposite of the historic doctrine...
...The attorney general now serves at the pleasure of the president, which makes her tenure unlimited...
...Yes, the Federal Election Commission already has power to impose fines...
...For the same reason, the law limiting the attorney general to renewable two-year terms could be known as the "Reno law...
...Then, indeed, let's move on...
...Arnold's Rugby School...
...Cleaning up the moral and institutional debris left by the Clintons will be the work of a generation...
...The Supreme Court recently insisted that such "private attorney general" statutes can only give standing to plaintiffs who are personally or directly harmed by the dereliction they want to sue over...
...But we still shouldn't be naive...
...Republicans have been entrusted with control of Congress in order to defend the country, not Starr or his office...
...After the Kennedy administration, which saw the president name his brother to run the Justice Department, Congress forbade subsequent presidents to appoint close relatives to Cabinet posts...
...Two separate events produced this near miraculous deliverance...
...But in our time we are told by the Clinton team —and those loyal "scholars" who trooped before the House Judiciary Committee in November—that only public defaults in the president's conduct of his office rate impeachment...
...48 January 1999 • The American Spectator There's no point, either, in resurrecting the post-Watergate suggestion that the Justice Department be somehow detached from presidential oversight...
...Clinton has scraped through yet again...
...S ome conservatives console themselves that whatever else happens, Clinton's escape means sexual harassment laws will now be unenforceable...
...This is silly...
...No one stopped to ask why a government, which was discredited and falling to pieces at one moment, should appear as a successful and even a glorious national representative a moment afterwards...
...We might hope for better when the AG is on a two-year leash...
...The American Spectator • January 1999 49...
...So, as HenryAdams recorded in his acerbic history of the period, President James Madison was saved from political disaster against all the expectations of "the most intelligent and best-informed men of the time...
...Clinton's defenders haven't had to defend his record in this area, because Reno managed to block the appointment of an independent counsel to establish the facts...
...If the president is not going to be held accountable, what is the point of establishing that he really is a felon...
...After Reno, only a fool would trust the attorney general to put country ahead of party loyalty...
...We now know that an independent counsel can present an irrefutable case of presidential felonies and not trigger great public outcry or a serious congressional response...
...Congress should clarify the point in so many words...
...On the new doctrine, such bribes would be acceptable along with small episodes of perjury, witness-tampering, and obstruction of justice...
...It supposes that politics is an exercise in fair play, like a cricket match at old Dr...
...For a generation now, liberals have licensed pet advocacy groups to sue the EPA and other government agencies for failure to do their duty...
...A Congress that won't impeach Clinton for his abuses will not impeach Reno merely for assisting in the coverup...
...The whole notion of a "hostile environment" is an invitation to thought police and regimentation...
...The Constitution says the president is subject to impeachment for "treason, bribery and other high crimes and misdemeanors...
...It is unclear whether, under the new impeachment doctrine, this is an impeachable offense...
...Recalling this episode helps put our present constitutional upheavals in perspective...
...Janet Reno has proved the "defect of better motives" so next time, we should turn this over to "rival interests...
...Feminists who spent a decade harrumphing about sexual harassment turned on a dime to say Clinton's harassment was "private" and not worthy of punishment...
Vol. 32 • January 1999 • No. 1
