If the Senate fails to remove Bill Clinton from office, is it in effect saying that presidential perjury is acceptable? Of course not, say his supporters, for, with or without removal, his punishment will be severe. A closer look suggests that these lesser punishments are so unlikely or so nonpunitive that the only meaningful remedy is removal from office.
Something akin to a plea agreement appears to be a real possibility. The Senate would censure and, perhaps, fine the president. He might be expected to admit lying under oath, which could subject him to later prosecution, but there has reportedly been talk of the Senate forbidding the courts to try him.
There is no tough punishment here. Imposition of even a huge fine would be essentially meaningless. The president, after all, is a legendary fund-raiser, and angry supporters would undoubtedly contribute, enthusiastically, to his cause.
As for censure, it is really a non-punishment designed to make the public think officials are held to the same standards it is. While Joe Sixpack could get up to five years in prison for each count of perjury, Clinton would just be told that he has violated the rules of the game and the Senate, at least for the record, disapproves. In other words: “Mr. President, you did wrong and got caught.”
Even if one accepts the premise that censure is tough medicine, it is not necessarily permanent. There is a precedent for a later Congress reversing censure imposed by an earlier one — in the case of President Andrew Jackson. While one might naturally expect a later Democratic Congress to rescind Clinton’s censure, even a future Republican Congress might decide it’s time to cut its losses and join the national consensus to “get this matter behind us.”
Courts, too, might erase censure. Clinton forces have already floated the argument that impeachment by the outgoing House and removal by the incoming Senate would be unconstitutional. That’s not so different, is it, from arguing that impeachment in one session of Congress and censure in the next is also unconstitutional?
An additional concern that might convince the courts to invalidate censure of the president: Can the Senate ignore punishments clearly specified in the Constitution and manufacture its own? For an impeached president, the Constitution permits removal from office and/or disqualification from future office — while saying not a word about censure or a fine.
Attempting to head off ouster by the Senate, Clinton enthusiasts have noted that he may be punished by the regular courts once he’s out of office. This option offers virtually no prospect of punishment, although, to be sure, the Constitution provides that even a president removed by the Senate is “subject to indictment, trial, judgment and punishment according to law.” But even if the Senate deal doesn’t ignore this constitutional principle, with Clinton’s immense popularity and mass of angry supporters, there is virtually no chance that any jury would convict him. And if it did, courts just don’t deal harshly with first-time, nonviolent offenders.
Many Clinton supporters would retort that my arguments ignore the fact that impeachment in and of itself is a terrible punishment — a badge of shame that will forever tarnish Clinton and his presidency. But this apparent truism may, in fact, be more misleading than informative. The fact is that Clinton is far more popular than the Republican-dominated House that impeached him. If impeachment brought disgrace to the president, why was he recently found to be the most admired man in the country? Why has his public approval soared with each new revelation, while the Congress has grown increasingly unpopular?
In sum, we are on the verge of “getting this matter behind us” — by letting Clinton walk free and, in the process, establishing the principle that perjury by any president, not just this one, is no big deal.
George C. Kiser, Ph.D. is an associate professor of political science at Illinois State University. Send comments to [email protected]
