by Stephen B. Presser
It is one of the puzzles of history that Republicans once sought to impeach Bill Clinton. Predictably, they failed to convict him in the Senate with the requisite two-thirds vote, and then Republicans lost the midterm elections that followed, all while President Clinton’s popularity increased dramatically. Even if the Republican effort to remove the president had succeeded, however, he simply would have been replaced by Al Gore, his vice president, and Gore probably would have been positioned to do better in his election bid than he did in his eventual match with George W. Bush in 2000.
In hindsight, the impeachment of Bill Clinton looks like nothing so much as a grave political miscalculation; something Republicans never should have undertaken in the first place. Why, then, did they do it, and what does their behavior teach us that might be relevant to the current rumblings about impeaching President Trump?
The Republicans moved against President Clinton because they believed that he had committed perjury and sought to obstruct justice in matters ultimately connected to the private lawsuit brought against him by Paula Jones, who had accused him, of sexual harassment, years earlier, when she had been an employee of the state of Arkansas, and Clinton was the governor of the state. She said that he had detained her in a hotel room, exposed himself to her, asked for oral sex, and when she declined, had threatened her with adverse consequences if she revealed what had happened.
The Clinton impeachment was not about this particular alleged misconduct when he was governor, but rather about his efforts to conceal relevant evidence of other sexual misdeeds, and to get others similarly to help him conceal such evidence, and also his failure honestly to answer questions regarding his involvement with other women. Paula Jones’s lawyers had sought to show that Clinton, as governor and after, had a policy of rewarding those who granted him sexual favors and punishing those who did not, which would have helped her prove the likelihood of the misconduct she alleged.
Clinton’s defenders claimed that this dispute over sexual peccadilloes did not rise to the level of an impeachable offense, and this view eventually prevailed in the Senate. Those who sought to move against Clinton claimed that these acts of perjury and obstruction of justice demonstrated that his lying under oath, and his seeking wrongly to frustrate a civil suit brought against him, showed that he simply lacked the character required of a president. His misconduct, the Republicans argued, showed that he tended to put his own interests ahead of his duties to the country, particularly his constitutional duty to take care that the laws be “faithfully executed.”
When Representative Henry Hyde (R-Ill.) rose on the House floor to bring charges against President Clinton, he quoted a definition of impeachable offenses taken from testimony I gave earlier before the congressional committee seeking guidance on the historical meaning of the term.
Impeachable offenses, Hyde said, “are those which demonstrate a fundamental betrayal of public trust. They suggest the federal official has deliberately failed in his duty to uphold the Constitution and laws he was sworn to enforce.”
I have argued that the facts Democrats had been urging in support of impeachment earlier this year did not meet this test, but we now have Volume II of Robert Mueller’s report, which many Democrats have argued presents a “roadmap” for impeachment proceedings, having to do with acts purportedly constituting “obstruction of justice” by President Trump.
In light of what we have learned from Volume I of the Mueller report, which clearly and completely exonerates the president from any charges of conspiring with Russians to influence the 2016 election, to bring impeachment proceedings against this president would be as inappropriate as it looked before the report, applying the same test governing the Clinton proceedings. Indeed, given the fact that there was no Russian collusion, and the president knew it, the president has been right all along that the Mueller investigation was a “witch hunt,” designed to hobble his presidency, regardless if Mueller realized it.
What charges could be brought based on Volume II of the Mueller report, which purports to set forth facts that might constitute “obstruction of justice?” I counted 11 instances in which Volume II suggested some sort of misconduct on the part of President Trump or his people:
1) He and they sought information about planned WikiLeaks releases, and he denied having any business in or connection to Russia, when he, as late as June 2016, may have been pursuing a hotel deal in Moscow.
2) He sought FBI Director James Comey’s loyalty, and asked him to “go easy” on his advisor, Flynn, who apparently had lied to the FBI.
3) He told his White House counsel, Donald McGahn, to stop Sessions from recusing himself from the Russiagate investigation, and when that failed, he tried to get Sessions to undo his recusal. He wanted Comey to lift the cloud of the Russia investigation by publicly saying (as he had privately assured Trump) that he (Trump) wasn’t under investigation.
4) He fired Comey, because, as he said, “this thing with Trump and Russia is a made-up story.” Which, of course, it was, but there were other, perfectly good reasons to let Comey go, and it is within the president’s prerogative to dismiss the FBI director.
5) He reacted adversely to the appointment of a special counsel and said “it was ‘the end of his presidency.’” The report says he tried to get McGahn to fire Mueller, but McGahn refused. Mueller, of course, was never fired.
6) He tried to get Sessions (using Corey Lewandowski as an intermediary) to shift the investigation toward future election interference, because the current investigation was “very unfair to the president” as it was. Nobody delivered that message to Sessions.
7) He apparently sought to conceal evidence of the June 9, 2016 Trump tower meeting that Donald Jr. had with a Russian who claimed to have “information helpful to the campaign” (dirt on Hillary Clinton). But that individual had no such information, and, indeed, the meeting may have been a set-up by Fusion GPS, the consultants who planted the Steele dossier.
8) He wanted to get Sessions to investigate Hillary Clinton’s misdeeds in connection with the 2016 campaign, and to reverse his recusal. The report notes that the president told Sessions, “I’m not going to do anything or direct you to do anything. I just want to be treated fairly.”
9) He pressured McGahn to deny that he had ever told McGahn to fire Mueller, and purportedly questioned why he had ever told the special counsel’s office about his efforts to remove Mueller. “McGahn refused to back away from what he remembered happening and perceived the president to be testing his mettle.” McGahn apparently told Mueller all he knew.
10) During Manafort’s prosecution and when the jury in his criminal trial was deliberating, the president praised Manafort in public, said that Manafort was being treated unfairly, and declined to rule out a pardon. After Manafort was convicted, the President called Manafort “a brave man” for refusing to “break” and said that “flipping” “almost ought to be outlawed.”
11) Similarly, the president’s counsel told Cohen to “stay on message” and not contradict the president about when discussions about the Trump Moscow tower took place. When Cohen’s office was searched, the president publicly asserted that Cohen would not “flip,” contacted him directly to tell him to “stay strong,” and privately passed messages of support to him. Cohen also discussed pardons with the president’s personal counsel and believed that if he stayed on message he would be taken care of. But after Cohen began cooperating with the government in the summer of 2018, the president publicly criticized him, called him a “rat,” and suggested that his (Cohen’s) family members had committed crimes.
President Trump calls these accusations “bullshit,” his pungent way of denying their factual accuracy. Be that as it may, the actions that Mueller details in Volume II, on the whole, even if true, ought not to strike an objective observer as attempts to obstruct justice, but rather as the actions of a man wrongly accused attempting to escape from unmerited obloquy.
The key question in an obstruction proceeding is always motive and given the unprecedented and unmerited persecution the White House faced from Mueller’s efforts, and given the thorough cooperation Mueller’s office actually received from the president, it is difficult to see how nefarious intent could be found in what the president did. Placed in context, the president’s actions are not obstruction of justice, if they are obstruction at all (and most were never carried out), they are attempted obstructions of injustice.
True, it may be that the president’s actions were self-serving, but they were not intended to frustrate a search for truth when, in fact, the president knew that the charges of Russian collusion were fabricated and false. Unlike President Clinton, who sought to obfuscate and conceal to prevent the laws he had sworn to enforce from being upheld in the Paula Jones case, President Trump, waiving executive privilege, eventually withheld no evidence from the special counsel, who appears grudgingly to have acknowledged that fact.
When it becomes clear that a president has committed acts that raise grave doubts about his honesty, his virtue, or his honor, impeachment is available as a remedy. Those who sought to remove President Clinton from office believed that test had been met. In President Trump’s case, though, he faced what we are discovering was a wrongful and mendacious conspiracy against him, launched by powerful people in government, and their allies in the Clinton campaign.
Bill Clinton had lied to avoid liability in a lawsuit for tortious acts he had committed—Trump, however, was innocent, as Mueller has shown us. Both may be flawed humans, but Clinton’s flaws led him to betray his duties, while President Trump was trying to resist what amounted to a silent coup to prevent him from carrying out the duties the American people had elected him to perform.
The Republicans who moved against President Clinton took a political hit for the principle that character counts in the office of the president. Perhaps the Democrat base believes that there is something wrong with Donald Trump’s character and that if President Clinton deserved impeachment, so does President Trump. If the Democrats were to succeed in removing Trump, however, it would not be because of his misdeeds, but because of the success of the nefarious fabrications lodged against him.
To impeach and remove this president, simply because Democrats hate him and believe he never should have won, would be not only an affront to truth, but a repudiation of the Constitution and of popular sovereignty itself.
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Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). This year, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.
