The Future of the Clinton Presidency:

Predictions and Constitutional Implications

Brian Smentkowski, Ph.D.
Department of Political Science
Southeast Missouri State University
Email:  bpsmentkowski@semovm.semo.edu

Context
Prediction
Constitutional Implications

I. Context:

1. Read the Starr Report and ask yourself which audience it was designed to reach. Is it a legal document, a political document, or soft-porn? What about the timing of the Report and the release of the videotape?

2. Watch Clinton’s deposition and ask yourself who he is appealing to and how?

3. Could the nexus of law and politics be any more clear???

II. Prediction:

Any prediction can only take into consideration the material presented to date. My prediction is that Clinton makes it. Why? Consider the following:

Articles of impeachment passed, no trial occurs --Congress does something, but does not violate public opinion. Despite the release of the Starr Report and the grand jury testimony, popular support for the president has not been greatly damaged. Why not? The public has shown that it can separate personal evaluations from presidential evaluations (this is easy to do during times of peace and prosperity). The general consensus is that Clinton, although an immoral person, is nevertheless a good president. To paraphrase Mario Cuomo, I wouldn’t trust the guy with my sister, but I would trust him with the country. The bottom line: The numbers are not in Congress’ favor, and neither is public opinion.

Articles of impeachment passed, trial conducted –The Senate cannot muster up the support to convict the President. Also note the peculiarity of impeachment proceedings: The President’s fate is determined by 2/3 of the Senate, in a trial conducted by House Managers, under the supervision of the Chief Justice of the United State’s Supreme Court. Rehnquist, though a Republican-nominated and elevated conservative, is disinclined to permit the Constitution to become a tool for political gain. He views the Document very rigidly, at times literally and with regard to the original intent of the Framers. Ironically, this conservative orientation to the Constitution works, here, to the advantage of Clinton supporters and impeachment opponents. The bottom line: Is it worth twisting the letter and spirit of the law –the supreme law of the land– in order to nail Clinton? No.

And then there’s the legal question! Where do each of the legal claims fall as a matter of Constitutional Law? On the floor...The OIC statute permits the Independent Counsel to investigate and prosecute perjury, obstruction of justice, and witness tampering. There is no credible evidence of the latter two at all, and perjury is much more difficult to establish and prove than most people think. On the matter of "high crimes and misdemeanors", history clearly suggests that only the most serious crimes against the nation and the constitution fall into that category. (Recall that Nixon’s tax evasion was not considered a "high crime and misdemeanor"). Certainly sex, lies, and videotape should not substitute the eloquently vague text of the Constitution!. REMEMBER, this is not just about Bill Clinton, but the Constitution itself.

Either way, Clinton makes it until the end of his term...unless there’s a recession, more damaging evidence from other portions of Starr’s inquisition, or if the liberal Democrats bail on him. (The lingering question, however, is how many people should suffer from one person’s foolish indiscretion?)

 

III. Constitutional Implications

  1. The Independent Counsel operates "in an area where so little is law and so much is discretion," that "what would normally be regarded as a technical violation ...may in his or her small world assume the proportions of an indictable offense" in "highly publicized investigations". Justice Antonin Scalia, dissenting in Morrison, 1988.
  2. "A legal Frankenstein who is accountable to nobody, with an unlimited bank account, [and] a comprehensive charter" Henry Hyde, 1997, on the OIC.

While everyone is rushing to judgment on the President, we have failed to judge the process by which the Office of Independent Counsel (OIC) operates. Sure, we have judged Starr, but love him or hate him, he has generally operated within the parameters of the OIC statute.

As with the electoral college, we have accepted the attitude that "if it ain’t broke, don’t fix it". The question now is whether current events demonstrate that the process is broken. I would argue that they do, but for more reasons than the public identifies. If you forget the irony that the Democrats designed this as part of the Ethics in Government Act of 1978, the $40 million spent to date, and the general consensus that Starr has gone too far, we must recall that this is also a matter of Constitutional Law.

Setting aside all the future debates we will have about due process, fair trials, personal privacy, and whether such proceedings are healthy for American Democracy, we have to assess the Constitutional validity of the OIC as it presently exists.

 

The arguments on either side rest on the US Constitution’s Appointments Clause:

  1. The OIC statute is based on the premise that the Independent Counsel is an "inferior officer".
  2. The scholarly community –and, ironically, one of the Court’s most conservative members, Antonin Scalia– is largely of the opinion that the Independent Counsel actually operates as a "principal officer".
  3. Consequently, the appointment of Independent Counsel itself is Constitutionally impermissible: You cannot empower a principal officer according to the procedures governing inferior officers!

So, the two questions are: (1) How does one become an Independent Counsel?, and (2), How do we distinguish inferior officers from principal officers?

 

QUESTION #1:

  1. The Attorney General conducts a preliminary investigation;
  2. Upon completion (or after 90 days has elapsed) she reports to the "Special Division" of the Court of Appeals of the District of Columbia Circuit (it consists of 3 circuit court judges appointed by the Chief Justice of the US for 2 year terms);
  3. If the Attorney General believes that further investigation is warranted, she applies to this Division for the appointment of Independent Counsel;
  4. The Special Division appoints Independent Counsel and defines its prosecutorial jurisdiction.
  5. The Ind. Counsel is provided "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice" to conduct grand jury and other investigative functions, and all functions pertaining thereto.

QUESTION #2:

  1. The Appointments Clause is vague --it does not define inferior officers.
  2. The Court has tried to define the distinction in three cases during the 1800s --US v. Hartwell, US v. Germaine, and US v. Eaton-- but the apex came with the 1988 case of Morrison v. Olson.
  3. In Morrison v. Olson, the Court developed a 4-part test, emphasizing:

Removability (Presumes inferior status. Shy of impeachment, Ind. Counsel can only be removed for "cause").

Scope of Duties (Duties must be limited in nature. Evidence above suggests that Ind. Counsel’s scope of duties is not limited),

Scope of Jurisdiction (Must be limited, yet the ‘78 Act permits expansive & expandable jurisdiction), and

Tenure of Office (Limited and temporary, yet the ‘78 Act permits investigations and prosecutions to run until completion)

  1. Unfortunately, the Morrison Court eschewed their own formulation and upheld the Independent Counsel Law –much to the dissatisfaction of Antonin Scalia.
  2. In May of 1997, however, in the case of Edmond v. US, the Court –led in opinion by Scalia– narrowed the test to simply determine inferior status, i.e.–under supervision, subject to review, and limited in duties and scope –and genuine removability.
  3. It is clear that under the Edmund rule the OIC would be declared a principal office, the appointment of whose members would violate Article II, Section 2 of the Constitution.

As with most things judicial, the day of reckoning for the OIC is coming. The movement will begin because of the OIC’s unpopularity, but office’s demise may ultimately result from its unconstitutionality. While the Court sits in waiting, the Congress can –and should– diffuse the judicial (and political) time-bomb by revisiting the 1978 Ethics in Government Act. It should clarifying the status of the OIC as a principal officer and amend the appointment methods accordingly, or restrict its operations to those properly befitting an inferior officer.Anything less would permit an unconstitutional agency to do great harm to the republic.