The Future of the Clinton Presidency:
Predictions and Constitutional Implications
Brian Smentkowski, Ph.D.
Department of Political Science
Southeast Missouri State University
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 Clintons deposition and ask yourself who he is appealing to and how?
3. Could the nexus of law and politics be any more clear???
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 wouldnt 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 Presidents 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 States 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 theres 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 Nixons 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 theres a recession, more damaging evidence from other portions of Starrs inquisition, or if the liberal Democrats bail on him. (The lingering question, however, is how many people should suffer from one persons foolish indiscretion?)
III. Constitutional Implications
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 aint broke, dont 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 Constitutions Appointments Clause:
So, the two questions are: (1) How does one become an Independent Counsel?, and (2), How do we distinguish inferior officers from principal officers?
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. Counsels 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)
As with most things judicial, the day of reckoning for the OIC is coming. The movement will begin because of the OICs unpopularity, but offices 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.