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Thursday, September 08, 2005

DEMOCRACY: DEAD OR ALIVE
Part 2 of 5

A Political Impeachment

In the first part of this series, I explained the Republicans' sordid past of voter disenfranchisement. This legacy of undermining democracy continued on and ultimately infected the democratic process itself. Today we shift forward to the late 1990s.
The Republican Party attempted to undermine the electoral results of the 1996 Presidential Election through its political impeachment of President Clinton. Since Clinton never perjured himself in the legal sense, never committed a high crime or misdemeanor in any sense and was set up by a organized plot, the Impeachment should be viewed as nothing less than a conservative "coup d'etat."

I. Clinton Never Committed Perjury

Although Clinton’s lawyers eventually admitted to perjury, their legal argument centered around whether that perjury qualified as a high crime or misdemeanor. This may have been due to tactics: the larger issue was whether that perjury should really qualify as impeachable. However, Peter Tiersma of Loyola Law School lays out a compelling argument that Clinton’s lies of omission fail to meet the Supreme Court’s definition of perjury:

The seminal case is Bronston v. United States. The issue in Bronston was "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication."

The case arose because Mr. Bronston was involved in bankruptcy proceedings. Attorneys for his creditors were examining him, under oath, regarding assets that he personally owned in various countries, as well as assets owned by companies under his control. During this examination, the following exchange occurred:

Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?

A. No, sir.

Q. Have you ever?

A. The company had an account there for about six months, in Zurich.

The "truth" was that Bronston had had a large personal bank account in Switzerland for five years.

Bronston was convicted of perjury, and his conviction was affirmed on appeal. But the Supreme Court reversed. The Court acknowledged that in ordinary conversation, Bronston's response would probably be understood to imply that he had never had a personal bank account in Switzerland. But this was a legal proceeding where the parties were represented by lawyers trained in adversarial proceedings. Chief Justice Burger emphasized that the perjury statute refers to what the witness "states," not to what he "implies.” If a witness equivocates or gives a vague response, it is the examining lawyer's responsibility to probe more deeply and to clarify the answer.

Since Bronston established a “literal truth” defense to perjury, Clinton’s lack of false statements means that no perjury occurred. President Clinton denied having sexual relations, denied having a sexual relationship and denied having a sexual affair with Monica Lewinsky. Later he admitted to receiving oral sex from her. These statements constitute the entire body of evidence as to perjury.

I don’t believe oral sex involves any sort of “relationship” and a few minutes in the Oval Office doesn’t make it an affair either. Both of those connotate long term, quasi-committed people. When Clinton said “sexual relations” he was just saying “sex” like a Southern gentleman would.

The definition used by the parties in court referred to sexual relations by the term "engaging in" sexual relations. Clinton said later that he believed engaging in sexual relations, as narrowly defined by the parties, required one to physically touch another private parts for the purpose of gratification. Since he never did that to her, Clinton didn’t lie. Republicans say this is parsing words. Nonsense. Clinton was looking for a way out, but there’s no reason to believe that he didn’t understood the definition to describe intercourse, not oral sex. Regardless, his conduct didn’t meet the parties’ definition. It could be argued that he would have perjured himself at this point by saying he did have sexual relations with Lewinsky when, in fact, his conduct failed to meet the controlling definition.

II. No High Crime or Misdemeanor

In some instances, I agree that the “will of the people” is not enough to sustain a Presidency. Democracy can lead to strange results and, on occasion, absolute criminals will be revered by the people. Should a President truly commit “high crimes and misdemeanors” – “injuries done immediately to the society itself “, in the words of Alexander Hamilton– Impeachment should remain as option. Yet impeachment is not a power to take lightly, especially when it involves undermining the will of the people. If it’s unclear whether to do it or not, you err on the side of not doing it. The stakes are enormous.

Clinton’s lie about a private, consensual sexual affair fails to rise to the level of a “high crime and misdemeanor” under any definition of the word. Presidents lie all the time. Of course the other side will be quick to point out that Clinton was impeached for perjury, not mere lying. Fair enough.

Let’s assume Clinton committed perjury. His lawyers admitted as much. Even if Clinton didn't technically perjure himself, I think it's fair to say that he lied. As far as the common folk are concerned, that seems like perjury. The mere commission of perjury, however, is not enough to impeach. The Constitution requires that a President commit "high crimes and misdemeanors" in order to be impeached. Perjury fails to amount to a "high crime or misdemeanor" unless it occurs in the exercise of executive powers.

In a scholarly presentation of the Republicans' case on this issue, the Harvard Journal of Law and Public Policy, argues that perjury (22 Harv. J.L. & Pub. Pol'y 619 -- no link for this one, you need to sign in to Westlaw or Lexis) . It's worth noting that the writer of this article is Charles J. Cooper, a former clerk to Rehnquist and former deputy assistant attorney general to Ronald Reagan. He's also heavily involved with the Federalist Society. Cooper relies upon an exchange between two of the founders arguing whether impeachment should be for "maladministration" or "high crimes and misdemeanors." Madison objected to "maladministration" because it is "[s]o vague a term [would] be equivalent to a tenure during pleasure of the Senate." Cooper implies that because maladministration, which implies poor governance, was considered by one of the founders, then clearly the founders intended for just about anything to qualify as impeachment. Cooper goes back and cherrypicks quotes from history to back up his point.

But this one isolated exchange says nothing about what the founders as a whole thought. Just as when you analyze legislative history, you never know the meaning of a term based solely on the comments of one person. The founders, as a whole, decided to use the lofty phrase "high crimes and misdemeanors." They did not say "any crimes". The founders also spoke of how the crimes must injure society itself. Cooper says that perjury is such a crime. But arguing that Clinton's perjury somehow effects society is preposterous. This is not what the founders intended. They never could have contemplated a society like ours where the President of the United States would get called under oath and asked who he's had sex with. The crimes contemplated were obviously those that a President could actually commit in the late 18th century -- crimes related to the office.

Further, the founders' intentions alone do not control the Constitution. Unlike so-called originalists, I see the Constitution as a living, breathing document. We should interpret the Constitution to the fullest intent of the founders and the basic principles of this Nation. So-called originalists often say that we should ignore these basic principles due to some parsing of miniscule language and words. Regardless of what words were written or said, it's clear that the founders never wanted a President impeached for something as irrelevant a perjury about your personal life.

III. A Massive Conservative Propaganda Machine Set Clinton Up to Fail

a. The Propaganda Machine Starts Rolling

When Nixon resigned, Republicans fumed. Never again they promised. From this came the birth of the counter-establishment. Because academia consistently told the Republicans they were wrong on social issues and the economy, because the Republicans were in fact wrong, the GOP decided to form a new conservative establishment. Instead of the media simply reporting that leading scholars condemned the next tax cuts, the existence of a counter establishment forced the media to report that the verdict is still out -- with scholars on one side and the counter establishment on the other.

Today we take the existence of the counter establishment for granted. Who are they? After Nixon's resignation, what Hillary Clinton would later term "the vast right wing conspiracy" was born. After Nixon, 4 billionaire Republican families began massively funding a conservative propaganda campaign that would resemble actual media or scholarly outlets. The families became known as the "four sisters" of the counter-establishment movement: Richard Mellon Scaife's Sarah Scaife Foundation, the Charles G. Koch Charitable Foundation, the John M. Olin Foundation and the Lynde and Harry Bradley Foundation. They funded both intellectual "think tanks" as well as the publication of conservative magazines like the "American Spectator."

Creating organizations like the Federalist Society, the Heritage Society and the American Enterprise Institute had a two fold purpose for the "four sisters": 1) they could undermine academia with polished, well reasoned retorts and 2) it provided an ample base for future conservative leaders. Indeed, many, if not the majority, of President Bush's appointees are tied to one of the "four sisters" groups in some way.

A quick side note: Republican disrespect for academia stems from the fact that they need to lie to sell most of their ideas. If they went out in public and said that they wanted to give huge tax cuts to the top 1% because they funded their campaigns, they'd never get elected. The perfect example of this is how Bush never mentioned a massive, radical "reform" of Social Security in 2004, but as soon as he got reelected he made it priority number one. A lie of omission indeed.

b. The Arkansas Project

Richard M. Larry, the lifelong senior aide of "four sisters" charter member Richard Mellon Scaife, came up with the idea of investigating Clinton's activities as a way to undermine his Presidency in 1993. Scaife and Larry pressured the American Spectator, a right wing tabloid that has received at least $3.3 million from Scaife over the years, to start looking into the random accusations of backwoods kooks in Arkansas. The Spectator began by putting out pieces based upon statements from former Arkansas state troopers. They alleged Clinton arranged sexual affairs and they had all sorts of juicy details. Later on, these troopers and their juicy details were discredited. The author of the piece, David Brock, later admitted that he invented most of the story as well as a subsequent book on Anita Hill. He further admitted that he wasn't a journalist at the American Spectator, he was a propagandist whose mission was to attack Clinton at all costs. Brock had a nervous breakdown, came out of the closet and moved to the left. His sole mission today is to expose the "vast right wing conspiracy" and their lies. You can find his work at mediamatters.org , an invaluable website that tracks the news.

In his book The Republican Noise Machine, Brock explains how the counter establishment works: You start by printing a story in the American Spectator that lacks journalistic credibility, either due to lack of sources, invented facts or both. Soon Rush Limbaugh or Michael Savage mentions the story on the air. Next conservative news outlets like Fox News and Newsmax mention that Rush Limbaugh and the Spectator have mentioned it, increasing its credibility. Soon Conservative politicians and pundits start talking about it. And suddenly, the mainstream corporate media mentions that many conservative outlets are talking about the story, thereby legitimizing it. With this powerful infrastructure, the Republicans are able to invent stories, push them through their noise machine and turn those invented stories into actual reported news.

In the 1990s, these awful lies about Clinton involved allegations of rape and cocaine smuggling. They were discredited; the cocaine story cost the editor of the American Spectator his job in one of the few "just desserts" moments of the whole thing.

c. Whitewater

The Clintons were exonerated from Whitewater but here are the facts: David Hale, a convicted felon and former municipal judge, also owned a Small Business Administration lending company. Hale subsequently made a $300,000 loan to Susan McDougal, one of Clinton's partners in a piece of rural Arkansas property named Whitewater. McDougal apparently didn't qualify for the loan. The Clintons were passive business partners with the McDougals and ended up losing money. Here the facts end.

In order to pin this shady situation on Clinton, Hale claimed that Bill Clinton as governor personally called him to pressure him into making the loan. Many other shady allegations came through over the years, all of which were discredited and could all be traced back to one of the "four sisters" propaganda foundations.

The Republican noise machine in early 1993 starting revving up its engines on Whitewater and pressured Clinton to appoint a special prosecutor through its manipulation of the news media. A conservative three judge panel, including D.C. Circuit Judge Sentelle (I just spent the weekend attacking one of his dissents), selected Kenneth Starr as independent counsel in 1994. The independent counsel, created by act of Congress after Carter, creates a "fourth branch" of government accountable to no one. They have ultimate authority to as they please to investigate the President and ultimately file impeachment papers. Republicans hated this law for a long time because they were the ones doing shady things; the Independent Counsel Act has since expired. Don't expect to see it ever revived again now that Democrats hate it too. In my view, it's not constitutional because it interferes with the division of powers.

Starr himself was a member of the Federalist Society and a close personal friend of Richard Mellon Scaife. Despite new evidence or any signs that Clinton did anything illegal, Starr ruthlessly investigated Clinton for another 4 years before Monica Lewinsky broke in 1998. In effect, Starr became a check on Presidential power who had the ability to conduct a nonstop investigation of Clinton for his entire Presidency. The first time they caught him committing any sort of crime, about oral sex, they impeached him. This had been the intent of the Republicans all along.

Starr himself violated the power given to him through the independent counsel. Connecting Lewinsky with Paula Jones and somehow connecting that to Whitewater is strained logic at best, certainly not enough for a so-called brilliant legal mind like Starr's. Clinton and Lewinsky simply were not relevant to Starr's legal objective in pursuing Clinton. His personal objective, however, was to attack Clinton at all costs in order to remove him from the Presidency.

Starr resigned his post at the Independent Counsel in 1997 to take a high paying job as Pepperdine's Dean of its Law School and the School of Public Policy. The Washington Post reported, however, that Richard Mellon Scaife had recently given $1.1 million to the school in order to underwrite that very position. When these allegations surfaced, Starr un-resigned his post and kept on hunting Clinton. Clearly, however, Starr was prepared to get some payback for his war on Clinton.

Finally, if you ever have the stomach to read the Starr report, here it is. Don't read it with kids, it's an overly kinky bizarre romp that probably indicates a high level of porn stashed on Ken Starr's home computer. Regardless, the Starr report came to nothing when the Senate failed to convict Clinton of impeachment. Their legal case was weak and the public despised them for what was going on. The Republicans no longer found it valuable to investigate Clinton after their devastating electoral defeats of 1998. Instead of gaining seats, as the party not holding the Presidency had done in every midterm election during a President's second term in the last century, the Republicans lost seats. The Democrats made gains. Seeing the writing on the wall, the Republicans decided to fold up shop and just steal the Presidency in 2000. Oops, I meant "try and win" in 2000.

IV. Conclusion

The legal argument that Clinton needed to be impeached is weak at best. He may not have committed perjury and certainly didn't commit a "high crime or misdemeanor" as is required under the Constitution to impeach. Further, the Republicans placed him in a situation where he would be under oath answering questions about his private sex life. He had two options: 1) publicly humiliate himself or 2) lie. It was a win-win for the Republicans. Imagine if George Bush went on the stand and Democrats got to ask him about cocaine use in the 1970s. The result would be the same, but it would be unfair.

The lesson of Clinton's Impeachment is that the Republican Party will fight for power at all costs. The considerations of whether impeachment was justified in light of Clinton's two electoral victories and high approval rating never emerged. The will of the people, it seemed, could be ignored in favor of a large goal of attaining power. The plan was to impeach Clinton, then Gore, and then do whatever they pleased with the Presidency. The impeachment, however, marked the first time of a massive, coordinated Republican effort to undermine democracy. It would provide the blueprint for 2000, 2004 and the elections in Iraq and Afghanistan.

The next part in this occasional series will study the Republican attack on democracy in the 2000 Presidential Election.

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