|Photo by Ted Soqui|
We don’t negate elections in America. Not lightly. Not like this. Not by the Congress overturning the expressed and considered judgment of the voters as to who should be their president. Not by the Congress wadding up and tossing away the results of a further referendum, conducted just this November 3, as to the fitness of that president to continue in office.
Here — or so the theory would have it — the people rule.
I know it’s just a theory. We’ve had presidents elected on a platform of X who governed on a platform of Anti-X. Woodrow Wilson won a re-election by promising to keep us out of war and then proceeded to get us into one. Much the same could be said of Franklin Roosevelt and Lyndon Johnson. It must also be said, however, that each of these presidents persuaded a majority of their countrymen to go along with these changes. They obtained — in Johnson’s case, briefly — the consent of the governed for their reversal of field.
But negating a presidential election is a vastly more radical undertaking than changing even a fundamental policy. Truth is, we’ve done it only once — and not in the case of Andrew Johnson, who, after all, was only elected to be Lincoln’s vice president, and who never himself obtained the kind of support required to govern the nation. No, the one and only full-fledged negation came in the matter of Richard Nixon, and it happened only after the emergence of the closest thing to a total consensus in American political history — a consensus that Nixon must go. With the court-ordered release of tapes on which Nixon was heard ordering the FBI to cover up the Watergate burglary, every last member of the House Judiciary Committee — and the last member, by the way, was a young Mississippi Republican named Trent Lott — signed on to the first article of impeachment. The committee supported impeachment by a 38-0 margin, while polls were showing the public supported overturning their presidential vote of two years previous by a 3-1 margin. A clear majority of Republicans supported Nixon’s impeachment.
Up to now, this is how we’ve negated presidential elections in America — only for matters that the overwhelming, bipartisan majority of the public and Congress believe rise to the level of high crimes and misdemeanors. The life of the law, Justice Holmes wrote, has been experience, and by that standard, the law in America has been that only a unified public can overturn a presidential election.
It can be argued, I suppose, that the American public, while not unified on the question of Bill Clinton’s impeachment, at least has a huge tilt in one direction. That direction, of course, is against. The latest CBS/New York Times poll, taken last Sunday after the conclusion of the House Judiciary Committee hearings, asked respondents whether their congressional representative should vote for or against impeachment, to which 30 percent answered “For” and 64 percent, “Against.”
And yet, within the next day or so, the Republican majority in the House of Representatives may very well impeach President Clinton. Put aside for a moment what this says about the Republicans’ assessment of Clinton. Focus on what this says about the Republicans’ assessment of us — the American people. Regicide is one thing. Plebicide — the dismissal of popular control of government — is something else again.
Was it only a few short months ago that the Republicans were vowing not to proceed without widespread public support? Actually, it was just this September that the Republicans justified their release of the unedited Starr Report and the unedited video of the president’s grand-jury testimony by saying that they wanted the American people to see the evidence and draw their own conclusion. (And they did, which is that Clinton should not be impeached.) It was just this summer that Henry Hyde said, “Ultimately, this has to be a bipartisan exercise. It’s important that we have the confidence of the American people.”
Today, the impeachment drive under way in Congress is not only not bipartisan. It is also being undertaken by a lame-duck Congress, a number of whose members were actually defeated in last month’s election, in which impeachment was a decisive issue. A few of the outgoing Democrats were defeated, as were more of the outgoing Republicans — five more Republicans than Democrats, in fact. A Congress whom the electorate repudiated, whose leader, Newt Gingrich, felt compelled to resign from, is now on the verge of impeaching a president whom the electorate endorsed. This is perfectly legal, of course. But it’s impossible to imagine a major governmental endeavor more lacking in legitimacy — particularly if Clinton is impeached by a margin of five or fewer votes. (I must have missed the particular Federalist Paper in which the founders made the case for lame-duck Congresses impeaching a president along party lines for lying to cover up sexual improprieties.)
What has happened to the congressional Republicans? How have they lost all sense of moral and legal proportionality, all sense of democratic propriety — not to mention all their rudimentary political judgment? How can an entire national political party go collectively berserk?
Judging by their conduct over the past week, some of the right-wingers seem so mired in their hatred of Clinton that just being Clinton is enough, by their lights, to merit impeachment. On Saturday, Judiciary Committee member Bob Inglis — one of those House Republicans who’d lost his seat in the November election — reacted to Clinton’s three-minute Friday-afternoon apology by telling his colleagues, “It’s horrific to me that the president would even continue that [i.e., committing perjury] as late as 4 yesterday . . . He continues to lie. He continues to deceive the American people!”
In the talk in question, Clinton agreed to accept a congressional censure, admitted misleading the public and the attorneys in the Jones deposition, and quoted the Rubáiyat of Omar Khayyám. It’s not clear which of these Inglis considered a “lie”: maybe the line that says, “The moving finger writes and having writ, moves on.” What really bothered Inglis, of course, was that Clinton didn’t confess to perjury — although, since five former federal prosecutors had told the committee that Clinton’s remarks didn’t even meet the criteria for a perjury indictment, it’s not clear why Clinton himself would confess that they did.
But there’s a method to the right’s madness. By stamping him, as Judiciary Committee member Bill McCollum suggested they do, with “a scarlet letter,” by impeaching him though they have no serious prospects of convicting him in the Senate, they nonetheless effectively end his presidency. They seek to make it impossible for him to govern, to restrict his every move. “It’s horrific,” Inglis told his colleagues, “that the man is leaving now to a trip [to the Mideast] where who knows what he would say, and who can count on what he says?”
The beauty of impeachment, argues Pepperdine law professor Doug Kmiec, who’s formulated some of the theories that underlie Inglis’ and McCollum’s remarks, is that it can serve as “a check on the president,” that it can put Clinton “on probation” — even if it doesn’t result in a conviction, even if it doesn’t go to trial. I spoke with Kmiec last Thursday and got a preview of Inglis’ outburst that followed two days later. “I actually have some concerns about our president and his immediate travel plans to the Middle East,” Kmiec told me. “I wonder to what degree his attempt to get a peace settlement [between Israel and the Palestinians] at Wye was driven by the need to look presidential. The agreement looked pretty thin; many questions were left unanswered. So my sense is that we need a remedy that is adequate to convey to the president that he cannot carry over the deception in what was an attempt to manipulate events in a civil action to anything else.”
In other words, impeachment would be a good in itself, since it would impede the president’s ability to conduct affairs of state. It would in essence make it impossible for him to get anything done during the last two years of his presidency — just as Whitewater helped cripple Clinton’s universal-health-care initiative in 1994, just as the Lewinsky affair impeded Clinton’s ability to push for a tobacco bill and campaign-finance reform all this year. As I noted two weeks ago, I’m not sure that Clinton’s agenda for the next two years — in particular, the partial privatization of Social Security — is even worthy of support. But whatever uncertainties I may harbor as to the wisdom of Clinton’s policies, I am certain beyond any doubt that the public had the right to choose Clinton to conduct its affairs of state, and that it chose him twice and then reaffirmed that choice just last month.
There is, of course, a counter to this argument — the counter of Edmund Burke. Legislators, said the great late-18th-century British conservative, were elected to exercise their own judgment. Today’s congressional Republicans, argued Paul Gigot, the most affable of The Wall Street Journal’s editorial bomb throwers, in a recent column, should heed Burke and pay no mind to mere “voter ‘instructions.’”
Let’s put aside any notion that Republican representatives may be dismissing “voter instructions” not for the promptings of their conscience, as Burke would have it, but under pressure from their legislative leaders. Let us assume they are all models of Burkean probity. But even if they are, presidential impeachment is the one issue to which Burke’s model of representation cannot possibly pertain. A vote to impeach the president has no analogue in the British parliamentary system, where Burke served. If a member of Parliament votes to bring down the government, and the government falls, general elections ensue, and his constituents can immediately choose whether to ratify his decision by re-electing him or oppose it by defeating him. But if a congressman here votes to topple the executive, and the executive topples, he undoes the last election and doesn’t trigger the next. It is one thing to hew to your own counsel between elections; quite another to substitute your counsel for the election altogether.
“I’m a Burkean, as some of my votes [e.g., for NAFTA] indicate,” says Howard Berman, the San Fernando Valley Democrat who serves on the Judiciary Committee. “But a vote for a presidential impeachment is the only vote in the American system where the argument ‘I’m voting my conscience’ has no meaning. It nullifies an election.”
And now, the nullification of an election is upon us. It is payback time, for Nixon, for Bork, for all the indignities of the ’60s. Never mind the public’s recoiling at the GOP’s government shutdown, its rejection of Republican neo-Puritanism and hyperpartisanism in the last two elections, its likely displeasure at having its electoral will overturned. What was said of the Bourbon monarchs when they returned, vengefully and briefly, to govern France after the revolution and Napoleon most surely applies to the Republicans today: “They have learned nothing — and forgotten nothing.”