Allegations that President Clinton had a sexual relationship with White House intern Monica Lewinsky, and urged her to lie under oath, have become subjects of a criminal investigation and spurred talk of impeachment. This happened because two laws -- the Independent Counsel Act and the Constitution's impeachment clause -- confer extremely broad powers with few legal checks.
When such power is used in ways not faithful to the purposes for which it was created, our constitutional structure is imperiled.
Once appointed, an independent counsel is legally and politically hard to remove, and may exercise the full formidable powers of the Justice Department to investigate and prosecute matters within his jurisdiction. If he asks to expand his mandate, the attorney general must "give great weight" to his recommendation (and the judicial panel that oversees the independent counsel must rubber-stamp the attorney general's decision). The extension of Kenneth Starr's jurisdiction to include the Lewinsky affair and possible subornation of perjury in a civil suit was, thus, lawful.
But what is legal can be irresponsible. The Independent Counsel Act was adopted primarily to ensure that investigations of serious crimes committed by the president or other high officials would not be thwarted by further abuses of their power to impede "non-independent" prosecutors in the Justice Department. For the act's drafters, Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox was the paradigm. Starr's new inquiry focuses on matters that are, at best, tenuously related to the types of abuses of power and disregard for the Constitution that prompted the Independent Counsel Act.
The same pattern of sweeping power, weak legal constraint, and need for self-imposed fidelity to the law's purpose marks the impeachment clause. The Constitution gives Congress the power to impeach and remove the president for "treason, bribery, or other high crimes and misdemeanors."
Impeachment is a political process. The House prepares articles of impeachment detailing the offenses warranting the president's removal. If a majority in the House votes to approve the articles, the president is impeached and faces a trial in the Senate. Although this trial is broadly judicial and adversarial, the Senate is not constrained by the rules of evidence, burden of proof requirements, or the need to find the elements of a crime that would apply in a court. If two-thirds of the Senators vote to convict, the president is removed.
What is constitutionally permissible, however, may be constitutionally irresponsible. The integrity of our structure of government -- including the independent executive that distinguishes the American system from a parliamentary system in which the executive serves at the legislature's pleasure -- depends on members of Congress upholding and interpreting faithfully the Constitution, including the impeachment clause. When the Constitution was written, and to many of those who wrote it, "high crimes and misdemeanors" meant, roughly, offenses against the system of government, serious abuses of official power or gross malfeasance in office. True, the charge that Clinton has obstructed an independent prosecutor's investigation echoes the articles of impeachment prepared against Richard Nixon. But the investigation that Nixon impeded focused directly on activities that, if proven, were clear grounds for impeachment and basic offenses against our system of government.
On this score, Paula Jones's sexual harassment suit, and even Whitewater, are a far cry from the subjects of the Watergate special prosecutor's probe. Clinton's alleged actions thus present, at most, a weak case of the "political" offenses that the impeachment power -- and the Independent Counsel Act -- are designed to address.
Jacques deLisle, assistant professor of law, served in the Office of Legal Counsel in the U.S. Department of Justice.
Originally published on February 12, 1998