Sunday, November 15, 1998

Finding right way to punish Clinton

By Morton Kondracke

The election results all but guarantee President Clinton won't be removed from office. Now, Congress' task is to find a fitting punishment short of that. Chances are, it will.

What that punishment should be remains to be seen. It could be censure, impeachment by the House without conviction by the Senate or a House vote on impeachment that falls short of a majority.

Any of the above would put a permanent -- and deserved -- brand on the Clinton presidency for the history books. Moreover, his punishment might not stop there.

Clinton's premeditated commission of perjury in a federal civil deposition and again before a federal grand jury surely constitute crimes, although arguably not "high crimes" of the kind the Constitution prescribes for impeachment.

Other charges against Clinton -- obstruction of justice and witness tampering -- need to be proved more solidly than they have been in Independent Counsel Kenneth Starr's report to Congress.

At last week's hearing before a House Judiciary subcommittee, Republicans argued perjury was a "high crime" because it amounted to "an attack on the rule of law" and violation of the president's duty to "take care that the laws are faithfully executed."

However, Democrats and allied scholars implicitly made the equally valid point that the Framers' intention with impeachment was to deal with real -- not metaphorical -- "attacks" on the Constitution.

If Congress ultimately decides Clinton's offenses constitute "low crimes," as they were described by historian Arthur Schlesinger Jr. at the hearing, Clinton could still face prosecution for them after he leaves office in 2001.

In fact, Starr conceivably could try to seek an indictment against the president while he's in office and hold a trial for him after he leaves. Legal authorities are split on whether that's possible.

So Clinton is not going to get off "scot free," as his critics fear will happen if he's not impeached and convicted. He will not escape the "rule of law."

In a democracy, however, Congress ought not ignore the unmistakable judgment of the public on so weighty a matter as the continued tenure of a president.

The public's will is clear through opinion polls and now election exit polls, whose results are consistent: Two-thirds of U.S. voters are opposed to Clinton's removal.

Impeachment was not precisely put to a referendum on Nov. 3, but the outcome practically guarantees 67 senators won't vote to convict and remove him.

Those who thought losing five seats would cause House Republicans to look for a quick deal -- or "exit strategy" -- seem to have been proved wrong.

Judging by members' comments at the Judiciary Committee hearing Tuesday, the GOP majority seems bent on voting articles of impeachment and sending them to the full House for a vote.

Possibly the articles will fall short of a majority of those present and voting there. In that case, Clinton still will go down as just the second president ever to have impeachment considered by the full House.

Possibly -- but not probably -- a censure motion might pass as a substitute for impeachment in the House. It's not likely because it would require the House to act as both judge and jury, which GOP leaders say violates constitutional order.

Perhaps a House majority will support one or more articles of impeachment and send them on to the Senate for a trial. That ordeal would constitute censure on its own, although the two bodies might want to follow up an acquittal with a stern joint resolution of censure.

Clinton critics consider censure a mere "slap on the wrist" for Clinton, and several scholars said it would create a dangerous precedent, leading to regular censures of the president when the opposite party controls Congress.

University of London's Gary McDowell told the Judiciary panel, "In light of the founders' concern that the president not be subjected to political molestation by Congress, it cannot be emphasized too strongly that impeachment is the only means granted to Congress to censure the president. It is impeachment or nothing."

Such opinions shouldn't be dismissed lightly, but there are counter arguments: Clinton would be only the second president ever subjected to joint censure -- the other being Andrew Jackson -- and the rarity of the procedure would signify it should be used only in unusually serious circumstances.

Moreover, censure has the advantage of being a punishment that Republicans and Democrats might agree upon. The votes on impeachment are likely to be party-line, understating the breadth of dismay Clinton's conduct has elicited in Congress and the country.

It's still remotely possible that Starr will bring more charges against Clinton -- such as systematic intimidation of witnesses -- that would unmistakably rise to the level of "high crimes."

On current evidence, it's clear Clinton has demeaned the presidency, violated the law and lied to the country. He won't be removed, but one way or another he will be punished. The system works.

Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill.

Newspaper Enterprise Assn.