Think What You Will About Our Sleazeball President. It's Still Time To Dump The Special Prosecutor.
By Emil Franzi
MARCH 15, 1999: FORGET THE personalities, forget the issues, forget guilt or innocence, forget what the Founding Fathers and the public thought the criteria for removal from public office was--and is. Look at the process used in the impeachment of President William Jefferson Clinton. It virtually guarantees a similar result--no removal--should another president become embroiled in much of anything.
The creation of an independent counsel has made it simultaneously easier to impeach for a marginal offense and harder to remove for a major transgression.
The reason for this major, but subtle, constitutional shift is the replacement of the relatively open and bipartisan process of the Congressional investigation with the secret procedures of the independent counsel. In an attempt to remove partisan politics from what is by definition a political process, we have made the process even more political and certainly more partisan.
It couldn't have happened any other way. Once an independent counsel is appointed, that person, regardless of who makes the appointment and who is targeted, will behave like a prosecutor. Those who consider Ken Starr overzealous forget that Starr behaves like every other prosecutor. Those who are shocked at what can happen to a president should save some of their surprise for what can--and does--happen to ordinary citizens every day.
EVER HEAR A prosecutor apologize for sending the wrong person to death row, or winning a shaky conviction in a criminal trial that was later thrown out when the real culprit was caught?
Prosecutors constantly attempt to justify past mistaken convictions, even when new evidence, lately mostly DNA, proves them wrong. Expecting Ken Starr or any other special prosecutor to behave differently is like expecting an attack dog not to bite whoever approaches it.
Furthermore, expect any special prosecutor once named to discover impeachable or indictable offenses and recommend that the target of the investigation be impeached or indicted--regardless of the quality of the case. Many think that's what occurred this time with Clinton. But regardless of the merits of the case against him, it was all that could have happened.
Worse, a much stronger case against a future target would draw the same complaints. Because the independent counsel, regardless of party affiliation, will be seen as a partisan antagonist by the party of the target--indeed, even if the independent counsel comes from the party of the target. The House GOP Counsel selected by Henry Hyde was David Schippers, a life-long Democrat who, once he acquired the prosecutor's role, was just as implacable as Hyde or Starr. And Schippers was considered just as partisan an enemy by his fellow Democrats.
MUCH CLAPTRAP HAS been discussed about the intentions of the founding fathers when it comes to impeachment, but everybody missed one obvious point: It was never the founders' intent to warp the process by dealing off the investigatory function of a possible impeachment, much less the initial decision concerning guilt or innocence, to a pseudo-executive office totally apart from the Congress. In allowing an outside agent to make that determination with no congressional involvement, the practical result of the independent counsel has been to intensify the partisanship, not reduce it.
Traditionally, an impeachment was begun in the House Judiciary Committee, which allowed evidence to be gathered in front of members from both parties and their respective attorneys. There was no grand jury, no secret witnesses, no lengthy report, no pile of evidence dropped on Congress with no time to digest or even read it, and no secret room containing extra evidence that couldn't be distributed to House members. Most importantly, there was an open process to gather evidence which allowed members from both parties to participate, including hearing and cross-examining witnesses.
If there were closed hearings, or evidence taken in secret, even that was done in front of a sufficiently broad-based group of House members to determine its validity--or lack thereof--first-hand. Members of Congress developed the evidence themselves, thus giving it much more institutional validity than anything from an outside source, and in the process diminishing that evidence's partisan nature.
In Slick Willy's case, it was no surprise that the members of the target's party balked at accepting the Independent Counsel's conclusions. Starr's very "independence" meant his case against Clinton would have credibility problems right from the start with those who didn't contribute to its findings. This independence gave partisan opponents an excuse to reject, beyond its truth or relevance, the case--a ploy we'll see again, unless the whole independent prosecutor system is scrapped.
Had the current system been in place during Richard Nixon's era, his chances of survival would've been much higher, because GOP members would've had considerably more cover from which to attack the charges and conclusions--and considerably more reason to doubt the accusations, as well as the motives of those presenting them.
The only other presidential impeachment trial in history, Andrew Johnson's, was a political aberration, a fact that was scarcely noticed during this last go-round. Johnson was a unique creature, a vice president from the opposition party chosen for political reasons who inherited the presidency. Also uniquely, he was surrounded by a large congressional majority of the opposition party, because he had, for one election and for a specific purpose, been allied with that party. The odds against another president finding himself so badly outnumbered in Congress by the other party again are immense. The ratio will remain somewhere close to what we currently have--well under two-thirds of the Senate not from the president's party. Unless a president is so bad that most of his own party votes for removal, removal won't occur.
Conversely, as long as those not directly controlled by the political process are given the power to decide that transgressions are great enough to require a trial, then impeachment is much more likely to be attempted--regardless of how obvious it might be that the final votes aren't there to convict.
THERE ARE THOSE, mostly ex-prosecutors, who still try to justify the need to retain the Independent Counsel Act. They ask, "But who would gather evidence and determine things like probable cause?"
The answer is obvious: The same folks who always did, from the first judicial impeachment to Nixon--Congress itself.
It's past time to do what is always the keystone of any genuine reform--namely, repeal a bad law. In this case, Congress should simply allow it to expire later this year.
That would make the whole Clinton impeachment process worth the time and expense, regardless of which side of the impeachment question you were on.
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