The Clinton presidency has arrived at the juncture of lesser evils. If he stays, it will be bad for the country. If he goes, it will also be bad. The country cannot escape unscathed from the predicament Clinton has created. As Americans realize this, they will judge him increasingly harshly, as they should. Still, I believe that–all things considered–he should stay.
This is not because majorities of the public oppose impeachment or resignation, though public opinion is important. If Clinton is evicted or hounded from office–against the wishes of most Americans–the authors of his removal will have to alter public attitudes or risk a dangerous backlash. Nor do I think Clinton should stay because I excuse his behavior. Clinton is a practiced liar. But his fate ought to hang on more than bad character.
What is at issue is overturning an election: the ultimate expression of democratic legitimacy. In 1996, 47.4 million Americans voted for Clinton; that was 8.2 million more than voted for Bob Dole. Clinton’s departure is not a sporting event or soap opera, which is how it’s being treated in Washington. In other societies, the repudiation of elections often occurs through military coups. Although many will dismiss this comparison as inflammatory, it illuminates what’s actually happening.
If Clinton leaves office, of course, he will do so in some legal fashion. This gives the process a veneer of respectability. But meanwhile, it has been driven largely by unelected elites. No one elected independent counsel Ken Starr to anything; no one elected the press to anything. The pressure for the impeachment–and the terms on which it would occur–originate largely with a small group of unelected people.
This did not start with Ken Starr. Investigations–by independent counsels and others–have become weapons in the arsenal of politics. Most investigations are set in motion by allegations of wrongdoing by one group of politicians against an enemy. Further, the investigations interact with the growing maze of laws that govern almost everything. To take two examples: sexual harassment, as law, didn’t exist 25 years ago; neither did most campaign-finance law.
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As a result, we are criminalizing–in spirit and fact–the excesses or errors of much ordinary life, politics and government. If investigated long enough, many people can be found to have violated some legal or moral code. And investigations often create crimes, as the targets dodge or deny charges that may be politically embarrassing even if they ultimately involve no illegality. The process invests prosecutors and the press with power that the Constitution never intended them to have–and more than is wise.
What we have, then, is a muddle: an abusive process has caught a man of bad character doing bad things. What now?
Keeping Clinton would breed disrespect for law. He lied in legal proceedings. At the least, some form of censure may be inevitable. But that would not truly punish Clinton and, by deepening his disgrace, would bolster the case for removal. The strongest argument now to be rid of him is not moral, but practical. It is that he has so compromised his moral authority and power that he has lost the capacity to govern. He is detested by his adversaries and distrusted by his allies. He may not be able to lead at home or command respect abroad.
But these dangers are outweighed by the case for abiding by the election. Investigations focus on narrow issues. Elections allow voters to judge many considerations and reach an overall view of a candidate. Everything Starr has shown about Clinton’s character was knowable in 1996: his womanizing; his lying. Most voters ignored the evidence or subordinated it to his policies, his charm or the check he exerts on the Republican Congress.
So the lesser evil is to keep Clinton and, thereby, temper the madness of runaway investigations. Until the 1970s, impeachment was used only against one president, Andrew Johnson. Many scholars thought it a dead letter. Now it has been deployed twice in 24 years (even if impeachment is not voted, it has been unsheathed as a weapon). Democrats who supported the Iran-contra counsel hoped it might snag Ronald Reagan or George Bush. Vice President Al Gore faces a possible investigation by an independent counsel over an arcane aspect of campaign finance law (Janet Reno is now considering an appointment). He, too, might be impeached.
The Founders almost certainly did not expect impeachment–or its threat–to be used so casually. They focused more on major crimes against the state than on personal failings or political disputes. Through overreaching law, modern America is unwisely blending these matters.