How do millenarians explain themselves when the millennium skips by and the imperfect secular world fails to implode? This seemingly frivolous question is suddenly topical in Washington DC, not because Y2K is fast approaching, but because America’s first sexually titillating Constitutional crisis has ended with an embarrassing whimper. A Republican Congress has just been publicly humiliated for trying unsuccessfully to oust a Democratic President in the middle of his second term. As it turned out, the serious charges were not provable and the provable charges were not serious. In the course of pressing their flimsy legal case, however, Clinton’s Republican tormentors predicted extravagantly that, if the President were not sent packing at once, ‘the beacon of liberty’ would be ‘snuffed out’. Without immediate impeachment and removal, one of their foremost legal minds also pronounced, ‘this country’s entire judicial process will inevitably collapse.’ So what would yesterday’s doomsayers have us expect today? Must we now kiss goodbye to the deterrent value of perjury law? Should we really pack our bags, fold our tents and prepare for American liberty to expire and the American legal system to crumble into dust?
However preposterous this rhetoric seems in retrospect, the Republicans were logically driven to predict the death of freedom should their party not prevail. The US Constitution gives only uncertain guidance about the degree of gravity that Presidential misdeeds must reach before they become impeachable. But Alexander Hamilton, in the Federalist Papers, suggested that impeachable offences must always involve ‘the abuse or violation of some public trust’ and result in ‘injuries done immediately to the society itself’. So how could the impeachniks justify plucking an archaic remedy (legislative removal of the executive despite the separation of powers) from the Constitutional museum? To do so, they had to exaggerate wildly the magnitude of the damage done to the country by Clinton’s attempt to draw a veil of secrecy over his unconsummated fumblings with a young woman who was not his wife.
In the end, overkill underperformed. The impeachment ship went to pieces, flags flying, on the obstinate reef of public opinion. The country did not swallow, for instance, the Republicans’ outlandish claim that a President who commits perjury in a dismissed civil case (assuming hypothetically that he did this) poses just as grave a danger to American democracy as a President who accepts bribes from a foreign power. Appalled at the Republican attempt to embarrass Clinton by inviting the entire planet to take a gander through his bathroom window, ordinary citizens were also irked by the lack of a sense of proportion in the Republicans’ hyping of damage and danger to the country. It is no secret that all human beings, including Clinton’s bitterest enemies, are capable of being stupid about sex. And a substantial majority of Americans also seem convinced that, if Clinton acted illegally, he did so only when his shrewd partisan enemies managed to corner him in two politically motivated legal proceedings and to pelt him with embarrassing questions about consensual sex that no one in a free country should ever be forced to answer. In other words, it was only in the hands of the President’s political enemies that his understandable attempt to keep an intimate relation secret became a lie potentially harmful to others. Refusing to ‘tell the whole truth’ under oath about the precise manner in which he fondled Monica Lewinsky’s genitals, most Americans concluded, posed little or no danger to the country. If asked, in fact, they would probably agree with the philosopher Thomas Nagel, who has said that you cannot trust a person who never lies about sex.
The case against Clinton was also doomed by pervasive hypocrisy. The media that thrives on sex and violence postured shamelessly as Clinton’s moral judge. Some conservatives, with abominable records in civil rights and no sympathy whatsoever for sexual harassment laws, took up these causes opportunistically in their zeal to damage the President. Others, who profess to revere the Constitution, rushed to use the Impeachment Clause to bludgeon a political opponent without the slightest regard for the intentions of the Framers. The Independent Counsel Kenneth Starr accused Clinton of prurience and abuse of power when it often seemed that he, Starr, was guiltier of both than Clinton. And religious conservatives who usually complain bitterly about the way smut is made promiscuously available to children eagerly discharged a sewer-full of details about oral sex onto the Internet.
The ‘scandal’, Americans were repeatedly told, was about law and morality, the obscure technicalities of perjury and the profound generalities of character and trust. But the dizzying back and forth between legality and morality obscured the essence of the miserable business. If you explained to Clinton’s enemies that they could not impeach a popularly elected official for being a poor role model, they replied that he lied under oath. If you told them that no one in American history has ever been criminally prosecuted for giving misleading testimony under these legal circumstances, they retorted that (polls be damned) he had lost the country’s trust. If it was not law it was morality, if not morality law. But the essence of the matter was neither legal nor moral. It was political. The scandal could not be explained in purely apolitical terms, as if no one involved were seeking power.
The legal charges against Clinton ultimately failed to stick because the political motivations behind them remained stubbornly in public view. To approach the political side of the scandal, we cannot do better than ask why the editors of the Wall Street Journal seem to hate Clinton so much. Having supported free trade, installed Goldman Sachs’s Robert Rubin to preside over the American economy, and retained and deferred to Alan Greenspan, Clinton has obviously been a good President for the business community. Indeed, he’s been so pro-business that he could not be successfully attacked by Republicans for his economic policies. So why should businessmen, who are nothing if not worldly, have gone along with a culturally conservative attack on the President?
The Wall Street Journal, remember, embodies the last vestige of the great Reagan coalition between American business and the religious Right. The Journal’s editors presumably loathe Clinton because he destroyed this coalition, intentionally, by shifting the Democratic Party to the centre of the political spectrum and convincing business men that they could get business-friendly policies from Democrats – that is, without supporting policies that discriminate against blacks, gays and women. By busting up the great Reagan-era coalition, Clinton reoriented the American political debate. (Some segments of the Left have been reluctant to rally behind the President for this very reason, because they see him as having ‘sold out’ to business, even though America would never have elected a candidate more liberal than Clinton.) The Wall Street Journal crowd, which bears a large share of the responsibility for dragging the country through this politically crippling affair, blames him, rightly, for having rained on their parade.
America’s hypocrisy meter finally exploded when the House Managers, in their Senate debut, attempted to wrap themselves gloriously in the flag. Henry Hyde, Republican chairman of the House Judiciary Committee, even suggested that all the patriotic sold iers who perished in America’s wars would have died in vain if Clinton were to remain in office for two more years. The ‘rule of law’ itself, the Republicans also alleged, demanded that the President be ejected from office instantly, without waiting for the normal expiry of his term. But not only were the amateurish Managers embarrassingly outlawyered by the resourceful White House defence team. It was obvious to anyone with eyes to see that, heartfelt professions not withstanding, they ‘loved’ less the law in general than the penalty in this particular case. It did not even cross their minds, apparently, that respect for law might suffer if the public began to believe that a supposedly neutral legal procedure was being wielded as a weapon in a struggle for power.
The two fighting tracts under review were both written in this half-comic, half-tragic partisan context, to defend the rule of law against the Republican use and abuse of its name. Both works went to press before the January Senate trial, so they do not look back in tranquillity at the frenzied affair. But the Harvard professor of criminal law, Alan Dershowitz, and the Yale professor of constitutional law, Bruce Ackerman, are two of the country’s most renowned teachers. So while issuing what are essentially interim reports from the battlefront, they together provide a comprehensive overview of the potential consequences for the rule of law of this politically concocted scandal, a power-play eccentrically disguised as the stoning of an adulterer.
Collecting his syndicated columns on the affair, originally published between 1994 and 1998, and distilling his main points in a useful introduction, Dershowitz gives us a blow by blow account of the Republican attempt to topple Clinton, running from the Paula Jones sexual harassment suit and the unlucky appointment of Kenneth Starr up through the impeachment hearings in the House Judiciary Committee. That Dershowitz is not an unwavering Clintonite comes across vividly in chapters with titles such as ‘Why Clinton Is Worse than Nixon’, where he denounces the President’s refusal to stand up for old-style civil liberties whenever they are so unpopular that defending them might cause the Great Campaigner to lose an election. But the principal thrust of his book is that the abortive Republican impeachment drive was ‘among the most irresponsible political actions in our history’, because it aimed to remove the President for ‘sins and alleged crimes that do not themselves endanger our liberties or our system of government’.
Dershowitz is merciless in exposing the bad faith of the impeachment drive. The Republicans apotheosised the rule of law, for instance, while inconsistently denigrating the ‘legal hairsplitting’ on which the rule of law patently depends. They threw every lawbook in sight at the President and then asked why he brought his lawyers with him everywhere he went. They overstated their ability to demonstrate conclusively the inherently vague charges of obstruction of justice and subornation of perjury, where ‘a slight shift in nuance or emphasis could turn the true reality of an innocent conversation into the false memory of an apparent felony’. While implicitly admitting that Clinton’s transgressions could never be successfully prosecuted in an American court, they nonetheless continued to assert that the unprosecutable was impeachable. And for all their pious kneeling before the rule of law, they seemed interested only in the perjury of one Democrat. When George Bush pardoned former Secretary of Defence Caspar Weinberger, who had been indicted for perjury, no Republican seemed worried that the pardon would ‘send a message’ that perjury in a good cause was excusable. To get their man, the clumsy architects of the impeachment suggested that any lying under oath, regardless of content or context, merited ejection from office. But the public refused to believe that a Republican President who lied under oath about a traffic violation would have aroused Republican cravings for his removal. Their case was therefore weakened by an unconvincing notion of the law itself, whereby any two delicts, so long as they fell roughly under a single broad rubric, such as ‘perjury’, would automatically trigger the same legal response. But one lie under oath that sends an innocent man to the death chamber and another that has no harmful consequences whatever should not be, and are not, treated identically under American law. If attention to circumstances, proportion, prudence, discretion and equity really had nothing to do with the rule of law, as the undiscriminating Republican case seemed to imply, then the rule of law would be a terrifying and inhumane ideal.
In their futile attempt to shore up wobbly public sympathy for their cause, Republicans also asked: ‘What if a university president or a CEO had behaved like Bill Clinton?’ They also pointed out that military officers can be discharged for adultery. So why should the President be treated more leniently? Were not the Democrats guilty of applying a double standard here? Dershowitz rightly answers ‘no’. Such analogies may have seemed plausible at first, but they were fundamentally misleading. Indeed, they reflected a basic confusion between Presidential and Parliamentary systems of government. A CEO or university president is appointed by a board of directors or overseers. He can be fired by the same body at anytime for, say, drunkenness or failure to lead. The President of the Unit ed States comes to office through a competitive election in which the entire adult population of the country has a voice. He is not appointed by Congress and can not be removed by Congress unless his misdeeds prove as serious, or nearly as serious, as treason. Assuming that the executive and legislative branches will always be tempted to attack and weaken each other, the Framers of the American Constitution tried to guarantee that neither branch could easily bring the other to its knees. Hence, they did not create an executive dismissible at the discretion of the legislature. In short, the parallel between the American President and a company CEO, university president, or military officer is flawed for the simple reason that it fails to take the constitutional separation of powers into account. That Republicans laboured to spread this misleading analogy says a lot about the quality of their thinking, not to mention their grasp of the fundamentals of American government.
Dershowitz pulls no punches in describing Clinton’s own irresponsible recklessness. The President’s little exploit did not encroach noticeably on the enumerated powers of Congress. But why indulge in ‘Oval Office sex with a young blabbermouth’, eager to spread the word about her conquests, if there is really a right-wing conspiracy out there angling to destroy you? For while Clinton ‘wanted sex with deniability’, what Monica wanted was ‘oral sex’ – that is, ‘she wanted to talk about it.’ A public scandal was bound to erupt.
So Clinton’s extramarital affair was not a triumph of good sense. But ‘the dumbest decision of his Presidency’ was ‘to have the President give a deposition in the Paula Jones case and answer questions about his sex life’. The blame for needlessly increasing the President’s legal exposure in this way falls, at least in part, on Clinton’s private lawyer at the time, Robert Bennett: ‘Bennett turned an easily solvable political problem into a legal crisis by allowing his client to fall into a perjury trap.’ Relevancy objections are seldom sustained in pre-trial discovery. (This open-endedness is widely thought to be a serious flaw in the US legal system.) As a result, his lawyer knew at the outset that Clinton could be asked virtually any conceivable question about his sex life. So, the safest route, says Dershowitz, would have been to ‘default’, without admitting guilt, and to agree to pay Paula Jones whatever the court required, on the grounds that litigating such a civil suit was simply incompatible with Presidential dignity and duties.
Through commentary and advice of this sort, Dershowitz clarifies the important distinction between Clinton’s two deposit ions, the first in the Jones case and the second before Starr’s grand jury. This distinction was so thoroughly blurred in American public consciousness by repeated incantations of ‘he lied under oath’ that even the House Managers failed to master it when presenting their half-baked case to the Senate. But Starr understood the difference very well. He knew that he could not topple Clinton – or even damage him politically – on the basis of a ‘deposition in a dismissed case where the testimony was only marginally relevant’. He therefore set out to stage-manage a higher-level legal procedure, in order to alchemise Clinton’s personal folly into an impeachable crime. By cross-examining Clinton before a grand jury about the most embarrassing details of his private sexual life, Starr presumably hoped to elicit an undeniably illegal act. In short, Starr (a Republican) attempted to manoeuvre Clinton (a Democrat) into making a legal misstep for which the President could then be forced from office.
Once Monica Lewinsky had been granted total immunity, Dershowitz notes, Clinton was the only remaining target of the grand jury process. It remains unsettled legally whether a serving President can be criminally indicted. If he can’t, then Starr abused the grand jury process – which should be used only to prepare an indictment – to bolster the Republican impeachment case. But if he can, then Clinton should have refused to waive his ordinary right against self-incrimination. If, for over-riding political reasons, Clinton had to accept being deposed before the grand jury, Dershowitz adds, he should have appeared in person rather than allowing himself to be videotaped, knowing that the video would probably be releas ed to the media in an attempt to humiliate him before the world. But this is not the common view.
Instead, most commentators now seem convinced that Gingrich and the other strategists behind the destroy-Clinton campaign made a fatal mistake in releasing to the public the President’s video-taped deposition. Republicans thought they could discredit the man by undressing him. What they forgot, or did not realise, is that Americans abhor intolerance, persecution and the invasion of privacy more than they condemn sexual permissiveness. The attempted video-regicide failed because it looked like a ‘show trial’, conducted by invisible, crassly invasive inquisitors. The American public apparently has its own informal ‘exclusionary rule’, refusing to condemn anyone on the basis of information gathered in such a crassly invasive manner. So the anti-pageant bolstered Clinton’s authority by making it easier for ordinary people to identify with him. It turned Clinton into a symbol of personal intimacy violated by a ruthless wielder of prosecutorial power, frighteningly unconstrained by a sense of what process is due.
The original purpose of the Independent Counsel Act, under which Kenneth Starr was appointed to investigate Clinton, was to depoliticise inquiries into the alleged wrongdoing of high office holders. Its failure in this case could not have been more spectacular. According to Dershowitz, Starr abused his unlimited budget and essentially ‘behaved like a Republican prosecutor out to gain political advantage for his party’. To expand his inquiry into the Lewinsky matter, he apparently concealed from the Justice Department his previous consultations with the lawyers for Paula Jones. Such a biased approach might have been expected, since this particular Independent Counsel was appoint ed not for his experience as a prosecutor (he had none), but ‘because of his political credentials as a right-wing ideologue’. Indeed, ‘Starr was appointed following a lunch meeting between one of the appointing judges and two right-wing Senators from tobacco states, and Starr was representing cigarette producers who were eager to see an end to the Clinton Presidency.’
To put Starr’s prosecutorial style in the proper historical perspective, Dershowitz cites Lavrenti Beria: ‘give me the man, and I will find the crime.’ In non-Stalinist systems, prosecutors usually start with a crime (the body of a murder victim, for instance), and then try to discover the culprit. Notoriously, Starr began with a man and spent more than 40 million taxpayers’ dollars on a fishing expedition trying to uncover any and every infraction his target might possibly have committed over a political lifetime. To shift from a Soviet to an American analogy, Starr used ‘means more typically associated with attempts to prosecute mafia dons, rather than political figures’. That was not exactly the purpose of the Independent Counsel Act and it is not what most Americans expect from the rule of law.
(In this context, incidentally, Dershowitz draws attention to a morally disturbing paradox of prosecutorial witness-purchasing: Starr tried to buy favourable testimony from Monica Lewinsky by offering her freedom from prosecution. But what he wanted her to disclose – which she ultimately did not do – was Clinton’s supposed attempt to buy favourable testimony from her by offering her a job. What we have here is a classic case of the cure imitating the disease.)
According to Dershowitz, ‘Starr and his staff overreached, overreacted, exaggerated and pressed every issue to the limits of its logic to expose the secret and embarrass the President.’ The ‘puritanical prosecutor’ was driven by ‘a partisan determination to embarrass the President out of office’. His principal technique was leaking uncorroborated innuendo to the press: ‘this is an Independent Counsel’s office that has elevated the politically motivated leak to an art form’. The press, understandably, has no appetite for looking critically at this particular form of official misbehaviour. (At the taxpayers’ expense, Starr freely provided the media with commercially profitable material, allowing even the purportedly classy press to boost readership by peddling sex.) As a result, it is now obvious what a fatal error it would be to assign the protection of a Constitutional value, such as privacy, to an organisation, such as the press, which has the strongest commercial interest in violating it.
Starr’s masterpiece was his famous Referral. While omitting exculpatory evidence, he crammed his report with irrelevant hearsay about cigar sex, phone sex and masturbation. Worthless in court (‘courts have held that it is improper to disclose testimony that was obtained in the absence of counsel and not subject to cross-examination’), such uncross-examined testimony helped decorate and enliven an ostensibly factual public report drafted artfully to make the President look like a fool. Dershowitz describes the Referral as ‘a report designed to embarrass President Clinton into resigning’, even without a proper impeachment and removal procedure. When the Democrats on the House Judiciary Committee asked their Republican colleagues to give the White House lawyers 72 hours to examine the Referral before it was released to the public, the Republicans flatly refused. They apparently hoped that the pornographic tidbits would do maximum damage to the President’s reputation, inflaming public outrage, if they could percolate freely in the media for a few days without a cogent White House response. This sort of crude partisan manoeuvre helps to explain how America’s famously weak and undisciplined party system could give rise to a party-line vote on the impeachment and removal questions.
With such tactics, Dershowitz argues, Starr ‘sought to make it impossible for Clinton to govern’, thereby allowing fellow Republicans to move his removal because of his incapacity to govern. At the time, Dershowitz himself took a strong position on this question: ‘If the President were to resign as a result of these disclosures, our system of checks and balances would be forever damaged.’ To have the President driven from office because of a press campaign – one in which the Economist, too, was happy to join with its crude ‘Just Go!’ cover story – would have made the US resemble the French Third Republic. Impeachment and removal by prescribed Constitutional means, however unwarranted and bad for the country, would have been much better than resignation under a media firestorm ignited by a runaway and unaccountable Independent Counsel.
Bruce Ackerman, for his part, pursues a different theme, namely the Constitutional obstacles on the road to impeachment and removal of a President. Instead of delving into the substance of the accusations against Clinton, he asks about the democratic legitimacy of the Republicans’ decision to impeach him in the way, and at the time, they did. Ackerman’s principal point is that the assembly which decided, on a party-line vote, to approve two articles of impeachment against Clinton occupied a kind of Constitutional limbo. The 105th House voted to impeach the President in December: that is to say, after the November elections, but before the freshly elected members of the 106th House took their seats in early January.
Impeachment is a political process. It should therefore be in the hands of the nation’s accountable representatives. But which representatives should assume this task: the old outgoing members or their incoming replacements? Can it be proper, in a democracy, for an assembly that will never again face the electorate to make a decision of such gravity, especially by a razor-thin majority?
The December impeachment vote, according to Ackerman, violated not only the spirit of democracy but also the spirit of the Constitution. Indeed, the Republican leadership, he implies, displayed either ignorance of, or contempt for, the intent of the Framers. He is thinking specifically of the intent of the Framers of the Twentieth Amendment (1933), drafted to abolish the practice of allowing ‘lameduck’ Congresses to make important political decisions. The framers and ratifiers of the Twentieth Amendment thought they had, in effect, eliminated the practice of holding anomalous sessions after the elections but before the convening of the new assembly. (Rare exceptions might be made for great national emergencies.) They certainly believed that, after elections, a hold-over House was not a body with sufficient democratic legitimacy to conduct important and controversial business. They explicitly aimed to eliminate lameduck legislation and lameduck Presidential appointments (when the Electoral College vote ended in a deadlock). It is thus reasonable to infer that they would also have wished to eliminate lameduck impeachment, ‘this supreme use of lameduck power’. In constructing his argument, Ackerman builds on We the People, his impressive two-volume (1991 and 1998) history and theory of American Constitutional law. To tease piously conservative advocates of impeachment, he also suggests that ‘we should refrain from insulting our grandparents.’ Original intent deserves greater respect than ephemeral partisan passions. Seen in the light of the Twentieth Amendment, the December impeachment vote was a flagrantly un-Constitutional act.
Ackerman also makes a related, sub-Constitutional argument about the proper response of the 106th Senate to the two articles of impeachment passed by the 105th House. His premise here is that ‘all pending bills expire with the expiration of the House or Senate that endorsed them, and it would be a very bad thing for our democracy if this were not the case.’ If no other bill can be carried over into the new assembly, why should an exception be made in this particular case? Why should we endow ‘a lameduck impeachment with an enduring constitutional vitality that no other bill possesses’? When Ackerman first fielded this argument publicly, after the November elections, defenders of impeachment cited Congressional precedents to prove him wrong. But he has now shown convincingly how feeble these alleged ‘precedents’ are. There have been only three held-over Bills of Impeachment in US history; none involved Presidents; and only one has occurred since the Twentieth Amendment. This last case, the 1988 impeachment of Judge Alcee Hastings, occurred before the November election – i.e. it was not decided by a lameduck House and the impeached judge wanted it held over for his own reasons. In sum, the Republican leaders in the 105th House – ‘and nobody else’ – have constructed ‘a terrible new precedent’.
Yet why would ‘conservatives’ attempt to upend the Constitution they claim to revere? This is not a question Ackerman himself asks, and it would take a psychoanalyst to answer it fully, but one political factor to consider is demographics. When Republicans look towards the next thirty years, they see an America in which European-Americans will gradually cease to be a majority. The Senate (that is, the jury in trials to impeach the President) is likely to remain in the hands of white ethnic voters for the foreseeable future, because each state, no matter how thin its population, gets two Senators. The President, by contrast, is likely to be elected by the big electoral-college states, such as California and New York, where the population is ethnically mixed. This proves nothing, but it does pinpoint a possible source of Republican anxiety, unconnected to any alleged concern for morality and the rule of law. It suggests that some strategists in the GOP may also have a very simple political motive for putting conservative principles aside and reordering our Constitutional system, so that the President will hence forth hold his office on the sufferance of the Senate.
Be that as it may, if the Republican leadership wished to impeach President Clinton in a procedurally correct manner, Ackerman explains, it should have resubmitted the articles of impeachment to a vote in the 106th House, where at least one of them might have passed, even though the Republican majority was unexpectedly reduced, presumably by anti-impeachment voters, in the November elections. Writing before the Senate trial, Ackerman even argued that ‘President Clinton has a high constitutional obligation to instruct his lawyers to challenge the power of the Senate to begin its trial without demanding that the newly elected House vote anew on a bill of impeachment’. It may well have been ‘politically convenient’ for Clinton to get the trial over with quickly (since the two-thirds threshold for conviction in the Senate virtually guaranteed acquittal); he should nevertheless have chosen to stand and fight on this battlefront, for the greater good of the Constitution.
Needless to say, Clinton did not heed the professor’s free advice. The President’s lawyers did not submit a motion to quash the articles of impeachment as un-Constitutional simply because they were passed by a lameduck House. The Republican leaders in the House and Senate were likewise unmoved, perhaps because they neither understood nor paid attention to the too subtle argument or perhaps because they simply wished to avoid the political hassle involved in acting on it. But even those of us who are convinced by Ackerman’s reasoning, can doubt his causal claim that the precedent of a lameduck impeachment will seriously weaken the Presidency and incite retaliation when the Republicans retake the executive and the Democrats again control Congress. It could be argued, on the contrary, that a party-line impeachment vote would have had much the same effect, whether the impeaching assembly had been a lameduck body or not.
Looking back in relief, many Constitutional commentators have remarked that the separation of powers was saved by the buoyant state of the American economy. But the opposite could also be true. Our ‘political class’ may have felt so free to indulge itself in this orgy of partisanship because times are good and dangers seem remote. Certainly no Republican Congress would have attempted to ‘hunt and destroy’ a Democratic President during the Cold War, for at that time nearly everyone agreed that the country’s leaders had to act decisively in a perilous international environment. Readiness to pillory Clinton now, therefore, seems to reflect a novel Republican belief, presumably born of ignorance, that a world without Communism is not a dangerous place in which to live.
The most serious charge of Republican irresponsibility, however, is that the impeachment-happy crowd neither intended nor expected to remove Clinton from office. Anyone who sincerely accepts the right-wing slogan that ‘the less government the better’ – as many Republicans seem to do – could have made the following calculation. Since two-thirds of the Senate was unlikely to vote to remove Clinton, the probable result of an impeachment effort was not a ten-year Gore presidency but a weakened, humiliated and perplexed national government. Thus those who identify American freedom with ‘getting the government off our backs’ could have secretly welcomed this entire scandalous process: not because they were in sympathy with evangelical Christians dreaming of an end to the sexual revolution or because they were repelled by Clinton, symbol of ‘68, but simply because they wanted American government to be maximally paralysed and distraught.
If this way of thinking was at all responsible for recent events, it is a sorry comment on the celebrated wisdom of the American Framers. For the system of separation of powers which they devised allows, as a Parliamentary system never would, an angry legislative majority to cripple and weaken the executive without removing him from office. That it was American conservatism which so dramatically exposed this additional pathology of divided government provides a semi-poetic conclusion to a semi-Constitutional crisis. After the Senate voted to acquit, the usual optimistic commentators explained that ‘the system worked.’ What would it have been like had the system not ‘worked’?