Punishment Yes, Impeachment No

It is now (I write shortly before Thanksgiving Day) virtually certain that Bill Clinton will not be removed from office. And, however reluctantly, I find myself in agreement with those who argue that the impeachment process should not go forward.

Consider, first, where we are. According to every poll, the American people overwhelmingly oppose impeachment, and the situation in Congress—Republican majorities in both Houses notwithstanding—inevitably reflects the weight of opinion. If the House Judiciary Committee forwards articles of impeachment, it is far from certain that the whole House will approve them, and if it does it will be on party lines and by the narrowest of margins. In any case, the Senate will certainly not muster the two-thirds majority needed to convict. That being the case, it makes no sense for GOP leaders in Congress to continue a process that will hurt the party, divide the country, and cannot succeed in any event. The path of prudence for the Republicans is to come to an agreement with the White House on the severest form of punishment possible short of impeachment.

A number of people whose opinion I respect oppose that argument on principle. The President, they say, has violated his oath of office to faithfully execute the laws of the nation. He has without doubt committed perjury and almost without doubt obstructed justice. He is therefore guilty of the “high crimes and misdemeanors” that constitutionally require his removal from the presidency. To allow him to remain in office unchallenged would do grave damage to the rule of law and to the political and moral health of the nation.

Talk of striking a deal, this argument continues, is, at the very least, premature. There may in any case be no deal available. People speak of censure, but the Constitution provides no basis for Congress to censure the President. Any such action would likely violate the provision in Article I, Section 9 forbidding bills of attainder. Even if censure is constitutionally permissible, it would set a bad precedent for future relations between Congress and the President. We are likely faced with a situation, therefore, of impeachment or nothing. Let the process run its course. If impeachment fails, it fails. Congress will have followed its political and moral duty, and those responsible for letting the President go unpunished will have to answer to the nation and to history for the consequences of their actions.

There is much to be said for this argument. In taking with grave seriousness Clinton’s offenses, it answers the sophistries of the President’s defenders. They insist that this whole matter is simply about sex between consenting adults and in a more sophisticated society would have remained a private matter unworthy of note except among the morally unenlightened. To which the necessary response is, first, gratitude that most Americans, while conceding any individual’s ordinary right to privacy, remain unsophisticated enough not to be indifferent to flagrant adultery once it becomes public; and, second, recognition that the matter became public because of the President himself.

Here we enter on the role of Kenneth Starr. Defenders of the President have portrayed him as a sex-obsessed ideological zealot determined to bring down the President at any cost. But it seems clear that the independent counsel ventured into Clinton’s private life—with, it must be emphasized, the approval of the Justice Department and the court overseeing his investigation—only as it became entangled with very public matters of lying under oath and obstructing justice. President Clinton is in trouble today not because he had sex but because he lied about it and tried illegally to cover it up.

The smearing of Kenneth Starr attendant on the White House’s scorched-earth defense of the indefensible has been morally odious. It is true that, under the Independent Counsel Act, Starr has dangerously broad and virtually unanswerable powers, but that is the fault of the Act itself—which, it should be noted, was first passed by a Democratic Congress and renewed at the insistence of the Clinton Administration.

Given all this, why oppose impeachment? For the simple and overwhelming reason that the American people are not ready for it, and their opinion on this matter must be attended to. They believe, rightly or wrongly, that the President’s infractions of the law do not rise to the level of impeachable offenses. The law, of course, ought not be determined by public opinion, but impeachment is not simply a legal matter. It is both legal and political in nature. The rule of law requires that the President be punished; it does not require that he be removed from office.

The exercise of prudential political judgment is not merely appropriate here, it is essential. The American people do not want the impeachment or forced resignation of Bill Clinton. Under present circumstances, they would view his departure from office not as justice accomplished but as the illegitimate product of an obsessive partisan vendetta. The political climate of the nation would be poisoned for decades to come.

Many conservative commentators have expressed puzzled dismay at the public’s failure to rise up in wrath over the President’s behavior. Where, they wonder, is the outrage? But perhaps the public is wiser and more discriminating in its judgments than this view suggests. To begin with, the constitutional argument that the President’s offenses require impeachment, while plausible, is not open-and-shut. A case can be made that the Founders intended impeachment for only those kinds of presidential wrongdoing that occur in the exercise of his official duties and not, as in this case, over matters related to his private life.

Nor do the President’s continued high approval ratings presumptively indicate public indifference to his moral shortcomings. The same polls that show his high popularity as President record the public’s low estimate of his moral standards. To borrow from the classic 1066 and All That, the American people view Bill Clinton as a good king but a bad man. In an ideal world, of course, we would have a good king who is also a good man, but we seldom enjoy the luxury of ideal times. Things in general are going well in America, and the public inevitably, if not necessarily correctly, attributes much of our present prosperity and sense of well-being to the President’s policies. Their Burkean disinclination to risk radical upheaval in non-radical circumstances deserves more respectful consideration from conservative intellectuals than it is currently receiving.

This is not to buy into the argument of many Clinton defenders that moral leadership is no part of a President’s duties. It cannot be emphasized too strongly that Clinton’s behavior has brought disgrace not just on himself, but on his office and his country. We are lessened by our apparently unavoidable acquiescence in his shamelessness, and one wishes that the American people would experience more uneasiness over that than they apparently do. Their cynical—if too often correct—populist assumption that all politicians are knaves or fools exacts a high cost in standards of civic decency. President Clinton ought not be forced to resign, but if he were a man of honor he would long since have resigned voluntarily. But he is not such a man, and we are stuck with him.

How make the best of that bad bargain? By shaming and punishing him as severely as circumstances allow. The constitutional impediments to censure are not necessarily insurmountable. And concern over precedent, while proper, should not override other considerations. These are—or so one fervently hopes—unique circumstances. The public’s current indulgent mood might tempt the President to try to avoid punishment altogether, but a reminder of the possibility of indictment after he leaves office should concentrate his mind. The public wants him retained in office, but not let off scot-free.

Perhaps a bad bargain is the most a nation that twice elected so transparently hollow a man as Bill Clinton deserves. A few years after David Dinkins unseated Ed Koch as mayor of New York, a reporter asked Koch if, given the subsequent disillusionment with Dinkins, he would try to regain the office. “No,” quipped Koch, “the people voted me out and the people must be punished.” Well, the people voted Bill Clinton in, and for that too, it seems, the people must be punished.

James Nuechterlein is the editor of First Things.