Think What You Will About Our Sleazeball President. It's Still Time To Dump The Special Prosecutor.
By Emil Franzi
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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