To the Editor:

Your op-ed piece by President Gerald Ford (4 October) astutely and patriotically proposes that Congress rebuke the President publicly and, in the national interest, the pursuit of impeachment be terminated. I fully agree, but Mr. Ford has not gone far enough. There are underlying constitutional reasons for the current crisis that have occurred in the past -- as when Nixon was impeached, an episode that put Ford himself into the presidency -- and that are likely to trouble future presidents as well, especially whenever they confront an opposition majority in Congress.

I have written President Ford to urge him to send you a second piece that would explore these underlying issues. He can easily explain them because they derive from our Constitution, from its basic provisions that are well known but never mentioned in the current discourse. There is a great deal of public discourse about the need to follow the Constitution, yet no talk about the rules that produce the current spectacle and others sure to follow -- unless, hopefully, we think about the implications of these provisions and figure out how to keep such impeachment disasters from recurring. I cannot explain these provisions here but I have spelled them out in my open letter to Ford [copied below]

Since your slogan, all the news that's fit to print, is a noble goal, I urge you to put into perspective the president's offenses, which are admittedly disturbing though not, I think, impeachable, by comparison with those of his accusers. Consider, for example, the recent testimony of Air Force Gen. Michael Ryan in Congress when he asserted that there was no need for the 20 C-130 transport planes that Congress had ordered up -- they were built in Speaker Gingrich's district and cost us (the taxpayers) a billion dollars! Since the Air Force does not want or need them, Congress decided to park them at bases in Mississippi, the home state of Senate Leader Trent Lott.

How do you evaluate the scandal of a billion dollars of tax money wasted as political pork to enhance the electoral prospects of the two most visible leaders of Congress by contrast with the private sins of a president which, we may assume, are indeed hurtful but do not directly harm us as taxpayers. Were it not for the Congressional inquisition, the president would not have lied, something many citizens who have been unfaithful themselves can easily understand. Yet how newsworthy do you think the unmentioned billion dollar misuse of public funds by Gingrich and Lott is by comparison with the vast publicity now visited on the private sins of our president?

Dear President Ford:

Many thanks for your important proposal (NYTimes, 4 October) for a process that could end the destabilizing impeachment crisis by bringing the President before Congress for a harsh rebuke. There is no doubt that Bill Clinton has dishonored himself, his family and the nation by his conduct. But I also agree with you that pursuing the impeachment process would subject our nation to "further turmoil" that can only bring harm to all of us. We live in a turbulent world where executive leadership is crucial for solving so many pressing problems that we can ill afford to continue hampering the constitutional process that enables our democracy to work.

Would you be willing to extend your remarks in a follow-up statement that would call attention to the constitutional provisions that are also responsible for our current difficulties? There is a lot of talk these days about what the Constitution requires us to do, but absolute silence about its most fundamental provision, the "separation-of-powers." In addition to supporting the rule of law and democracy in America, our Constitution imposes a burden that has come increasingly to threaten our fundamental interests. Consider the fact that in no other industrialized democracy is a parliamentary majority in opposition to the chief executive barred from discharging the Government by a simple vote of no confidence. The fixed term of our president imposed by the separation-of-powers principle makes this impossible. Consider also that no democracy based on our constitutional principles has successfully industrialized -- apparent exceptions like South Korea, Chile, and Argentina have industrialized themselves under military dictators who seized power when their democracies collapsed. Industrialization can occur under dictatorships -- our problem is how to maintain democracy in a complex industrialized society. That was scarcely a problem facing our founding fathers in the 18^th century!

Instead of holding our chief executive politically accountable so that public policies can be expeditiously made and implemented, our Constitution makes the president vulnerable to the threat of impeachment for "crimes and misdemeanors," personal transgressions rather than policy differences. During the first century and a half of our history, most presidents were content to sign laws adopted by Congress even if they did not like them. This saved them from the threat of impeachment. However, for more than half a century now, the urgent political crises confronting our country and the growing interdependence of the world have made decisive governmental action increasingly necessary. This has also increased the risks to democracy and the general welfare that result from the disruption that an opposition majority in Congress can impose on a president bound, under our system, to stay in office until his four-year term ends.

Under these conditions, the threat of impeachment has escalated, generating problems that will not end with the Clinton presidency, no matter how we deal with the crisis now facing us. The independent prosecutor has merely raised the stakes in a fierce contest of wills that is sure to persist and grow in the future unless we confront the problem, acknowledge that it has a constitutional basis, and deliberately think about how we can deal with it. All presidents are human: consequently, any prosecutor with unlimited funds and grim determination who perseveres long enough will surely find personal weaknesses that might be viewed as grounds for impeachment.

In this context, your story about Bella Abzug and Carl Albert is especially telling. She apparently thought that a partisan approach could help the Democrats gain power, but Albert was willing to place the national interest above partisanship. We now face a political situation in which I cannot believe that the Republicans in Congress really want to have Gore replace Clinton, thereby creating a more formidable opponent in the next presidential election. Instead, as you yourself indicate in your statement, the present course is designed to humiliate and weaken the president for partisan reasons. Without the support of a substantial number of Democrats, will it be possible for the Senate to secure the two-thirds support for impeachment that, again, our Constitution requires?

In the Nixon case, the impeachment process was carefully bi-partisan so as to assure success in the Senate. A genuine impeachment effort requires bi-partisan support, does it not? If so, then I would guess that the current partisanship in the House reflects more interest in the coming elections than in the eventual impeachment of the president. If the majority in the House Judiciary Committee really wanted to impeach Clinton, would they not be more solicitous of the concerns expressed by their Democratic colleagues? Although they wave the flag of impeachment, is not their hidden agenda an effort to inflame public opinion -- as by releasing vast quantities of sensational information -- so as to gain a larger majority in the coming elections?

My impression is that although there was bi-partisan support, ultimately, for Nixon's impeachment, the "crimes" that he committed were actually provoked by the constitutional dynamics of partisanship peculiar to any separation-of-powers regime. Nixon simply over-reacted to the pressures generate by the Democrat majority in Congress -- typified by activists like Bella Abzug -- and allowed himself to be sucked into irrational and self-destructive behavior. If not for our constitutional system, Nixon would never have committed the crimes that led to his impeachment. Similarly, Clinton, if he were not being harassed for partisan reasons, would never have lied about having an affair -- it would have remained as private as did the similar indiscretions of many presidents who preceded him.

I have been depressed by the unwillingness of our media, our politicians and lawyers, and even our academics, to confront the constitutional dynamics of this crisis which, I believe, threaten our system. That this concern is not just imaginary can be demonstrated by the fate of all the other countries that have followed our model. The NYTimes on August 30 carried a frightening story about the fate of constitutional democracy in Latin America where, it reported, twelve countries have had a dozen or more constitutions since they were born (WK p.5). Larry Rohter, the author, attributes this instability to caudillismo and the Hispanic culture rather than to the fact that all these countries, in their efforts to restore democracy, following its collapse and periods of authoritarianism, had to write a new constitution. When doing so, however, they re-created our separation-of-powers system without considering the fact that its fundamental internal contradictions may have been largely responsible for the earlier collapses.

A current example provides even more telling evidence, showing that the recurrent problems of Latin American democracies were not a product of cultural differences. On the same page of the NYTimes for August 30, there is a story by Michael Weinstein that contrasts Poland's flourishing economy with the collapse of Russia's. He attributes the difference to policies that encouraged new starts in Poland's free market system, whereas the Russians protected oligarchs who had acquired large state enterprises that are now being run inefficiently and corruptly, requiring huge subsidies. What Weinstein failed to note was that Poland had developed a parliamentary system that empowered its regime to act against the oligarchs whereas, in Russia, our separation-of-powers system has produced continuing clashes between the President and the Duma that blocked the implementation of policies like those of Poland: Yeltsin's earlier efforts to establish such policies were stoutly resisted by the oligarchs whose ability to survive was made possible by their strength in the Duma.

This conclusion is not just my personal opinion. Jerzy Wiatr, an internationally know Polish sociologist who has been a member of parliament and minister of education, recently sent me a paper examining the fact that the post-communist countries which adopted parliamentary constitutional models have been relatively successful whereas those that chose our separation-of-powers design have faced violent and insoluble problems. He says that, "Violent disruptions of the public order, even civil wars, have taken place exclusively in those post-communist states which have opted for the presidentialist [separation-of-powers] system." By contrast, he writes, "... parliamentarism is by far a safer arrangement than the presidential."

Wiatr's paper will soon be published in Los Angeles by COMMUNIST AND POST-COMMUNIST STUDIES, a UCLA journal, but meanwhile he has authorized me to distribute the draft which I could send you if you would like to see it. His findings are persuasive. Our unwillingness to confront the inherent problems in our constitutional system not only blinds us to the underlying causes of our current impeachment crisis, but they hamper our ability to understand and help other countries whose problems can be traced to similar causes -- we are all alarmed, for example, by the threat that Russia's current crisis poses for the world, but unaware that our example, and even our advice, helped undermine Moscow's ability to find a Polish solution for the problems of moving from communism to democracy.

I'm afraid my views as a university professor will carry little weight but if you were to raise this question, I'm sure it will generate serious discussion. In your concluding paragraph, you mention Lincoln's assertion that The occasion is piled high with difficulty... You say we should be guided by this thought. Great. Let us do so by identifying the constitutional reasons for our current crisis. Unless we do so, we will continue to be haunted by similar difficulties, with devastating consequences, for many years to come.

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Updated: 29 October 1998