its Constitutional and Political Compulsions
Memo to Greta van Susteren and Roger Cossack: for the Burden of Proof show
I am a political scientist. My wife and I are enthusiastic viewers of Burden of Proof which we watch every morning, enjoying the format and your discussion of interesting legal issues. However, your recent shows that focus exclusively on the impeachment issue strike me as one-sided in the sense that they treat as primarily a legal question what I see as fundamentally political and constitutional issues. Should there not be more input from non-lawyers who see the legal side in its non-legal political context? And why ignore the underlying Constitutional context?
The last show dealt with grounds for considering a president's actions to be impeachable. It sounded like a technical discussion of the difference between murder and manslaughter as though one could establish logical criteria that should significantly affect the decisions Congress will make. However, I believe that members of Congress will decide that the President's actions were impeachable if they think it will benefit them politically, but not impeachable if they don't see any such benefits. Of course, they will talk a lot about these criteria and the public interest, but such rhetoric hides the real criteria that determine how they vote: in fact, they have already indicated that their hearings will be more of an academic exercise than a decision-making process.
This is truly unfortunate, but after all Congress is not a Court of Law. Politicians think primarily about politics, and how their careers are affected -- even if they happen to be lawyers, which many are not. Consequently, their decisions are governed by political considerations. This point is starkly evident in current complaints about members of the Judiciary Committee going home to campaign when they should (!!) be at work trying to establish clear criteria for impeachment. No doubt all members of Congress give lip service to the need for such criteria while only using them to rationalize their ultimate decisions after they see how the tide is flowing: after evaluating the election results and opinion polls, they will vote on the basis of whether or not their constituents will support the decisions they make about impeaching the president. After all, they have been elected to represent constituency interests, not to serve as judges: their decision to campaign at home shows what their priorities are.
Behind these present-day political considerations, however, lies the Constitution which your panelists so often speak about. However, they refer only at those parts of the Constitution that support the Rule of Law or some issue they want to stress. They fail notice how the Constitution sets the trap into which we have all fallen -- it's like a gigantic whirlpool that sucks everyone into its vortex and victimizes them -- indeed we are all its victims. It was this trap that destroyed Nixon, undermined Bush, now threatens Clinton, and will assuredly vitiate the effective leadership of many future presidents unless we recognize the problem and talk about what can be done to cope with it. Consider the following items:
The Constitution requires us to keep our chief executive in office for a fixed term -- he cannot be ousted by a no-confidence vote of a legislative majority who oppose his policies, as can all modern industrialized nations except ours. We view our Constitution as though it were Divine Writ, and the Founding Fathers knew infallibly in the 18th century what would be best for us in the 20th -- or 21st! In fact, that's another trap -- we cannot seriously evaluate the Constitution without questioning it and appearing thereby to be traitors to our democracy.
The opposite side of this coin: any president facing an opposition majority in Congress cannot govern effectively since s/he faces probable gridlock on many important executive policy initiatives. That naturally angers presidents, leading to impatience and manipulations designed to overcome the opposition in Congress. Sadly, this just reinforces resistance by the majority party.
The only remedy prescribed by the Founders involves flaws in the president's conduct, "High Crimes and Misdemeanors." Such flaws have little or nothing to do with public policy, but much to do with the personality and possible misdeeds of a human being who happens to be chief executive. Formerly, Congressional committees conducted hearings to inquire into such flaws, but now the Independent Prosecutor act empowers a formidable opponent, with unlimited resources, to seek out every flaw in a President's character as possible grounds for impeachment.
Such a quest can create situations that trap the president into impeachable behavior. Thus the attacks on Nixon provoked him to responses like the Watergate break-in and moved him to such intemperate conduct that even members of his own party had to repudiate him. The civil suit by Paula Jones (which the Supreme Court could easily have prevented) provided a pretext to suck the President into testimony that furnished Kenneth Starr with grounds for impeachment -- he and the Republicans now claim they are not seeking impeachment for infidelity but, instead, for perjury and subornation. Yet without the traps they set, his infidelity would have remained as private as that of many of his predecessors, and he would have had no occasion to tell cover-up lies. Unless the doctrine that one can bring civil suits against a president is repudiated, we face many future cases in which enemies of the president can create grounds for h/er impeachment. I see no Constitutional basis for this Supreme Court decision, but if it can be shown to be a real requirement of the Constitution, then surely we need an Amendment to protect future presidents..
The rule that a two-thirds majority is needed in the Senate to actually impeach a president sets up another trap that is unfolding even now. Your guests often compare the process of impeaching Nixon with the current scenario without, I think, identifying the most significant difference: it hinges on the two-thirds vote requirement. When a substantial number of members of the President's party think he should be impeached, the opposition majority has a strong motive to be bi-partisan in order to gain enough support to win in the Senate.
However, when most members of the president's party oppose his impeachment, the House majority may decide that impeachment will not ultimately be feasible, making it irrelevant to seek support from the minority party. Having a majority in the House enables them to press for impeachment so as to humble the president and weaken h/er party, a process they think will help them win re-election and add to their numbers in Congress -- it might even help them elect the next president. Whether or not they actually vote to impeach the president will be determined by political calculations rather than by the presidents wrongful actions. Indeed, the House majority may impeach the president precisely because they know the Senate will not ratify their decision.
Here we find an irony that should surely be exposed. I suspect that the Republican leadership does not really want to impeach Bill Clinton because that would bring Al Gore into the White House. Since he is likely to be the next Democratic candidate for president, they know they will face a tougher opponent if he has been president rather than only the vice president. However, in the House the majority need not worry about this contingency so long as they can count on at least one-third of the Senators to vote against impeachment. Indeed, this might be a good reason for members of the majority (Republicans or Democrats) to antagonize their partisan opponents so as to make sure they will not actually support impeachment! On such grounds I expect the current Republican majority in the House actually wants to flout the Democrats so as to make sure they will block the impeachment process in the Senate. Hence the partisanship of the present proceedings: Republicans arguing for impeachment do not, I believe, actually want the president to be impeached. We need to distinguish between the apparent and the hidden agenda.
When Nixon was impeached, by contrast, the House majority really wanted to oust him and they therefore took pains to build support among minority members, thereby increasing the likelihood that less than a third of the Senators would vote against impeachment. Instead of complaining about the partisanship of the current process, why not expose its self-contradictory motives. The Republican majority pretends to seek impeachment so as to weaken the president and his party. Their real intentions are revealed by their disinterest in gaining Democratic support? It strikes me that these are the anomalies that need clarification on Burden of Proof.
Why accept and even promote a facade that conceals the hidden agenda of the president's opponents. Of course, the Republican majority in Congress are also victims of the constitutional vortex that frustrates them as much as it victimizes the president. Since we now hear so much about the Constitution, why not identify its structural dynamics. They actually create the kind of self-imposed tragedy that now faces the American people and also an increasingly precarious and interdependent world system in which strong American leadership is desperately needed. I think there are ways to deal with this problem, but I cannot discuss them here. However, when there is more widespread recognition of the real problem we need to solve -- not just its symptoms which preoccupy us today -- we should be talking about the measures that are feasible to prevent future recurrences of this impeachment nightmare. I have written about them elsewhere as anyone can see who opens my Home Page Here one may find information about research that informs the conclusions offered above.
See linked pages:  Some thoughts on the constitutional basis for presidential impeachments
An analysis of the relative capacity of different constitutional systems
A bibliography of works by Riggs 
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