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How Republicans Twist the Meaning of the Constitution in Their Zeal to Get Bill Clinton
Tuesday, December 8, 1998

Can you lie about sex with a whore?

You might be surprised to learn the the very word "impeachment" is mentioned only six times in the Constitution of the United States.

The first mention gives the House the sole power of Impeachment -- yet impeachment itself is not defined.

2.2 "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."
The second mention gives the Senate sole power to try impeachements with the Chief Justice of the Supreme Court presiding in a case where it is the President who is the subject of impeachment. We assume that each Senator sits as a juror and trier of fact. This paragraph also requires that no person, including the president can be convicted without two thirds of the "members present" being in concurrence.

This is an interesting issue. If, for some reason, only half the Senate showed up at the impeachment, then two thirds of those in attendance could convict the President. In a tight situation, Republicans wishing to defeat any guilty verdict without voting could simply not appear on the floor during the vote, or feign sickness or the like. Of course, in this case, all Senators would appear unless gravely ill -- and of course, Republicans -- even if voting en bloc, still require nearly half the Democrat Senators to vote guilty and this seems impossible at this juncture.

2,3 ."The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."
The third mention requires that impeachment only applies to removal from office and nothing else, but also allows for indictment after successful impeachment. However an argument could be made that once the President is tried by the Senate and not convicted, he would be unable to be tried in criminal court. Notice that the Constitution says that a party "convicted" shall be liable to indictment. Was this a way of insulating those subject to impeachment, including the President from being tried a second time by what one might presume is a "lower" court? In fact, the Senate, when holding an impeachment trial could be said to be the highest court in the Land, as there is no appeal to the Supreme Court on impeachment matters.
2.3 " Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
The fourth mention disallows following presidents from pardoning a president impeached before he or she took office. This appears to be a simple matter needing no explanation. Of course, if the following president could pardon the president before, then we would have two presidents! However the language had to be added to make it clear that presidential reprieves and pardons did not apply.
"2.2 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
Only the fifth mention of impeachment in any way defines what it takes to be removed from office. It tells us, the now famous words:
2.4 "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
The sixth mention allows that Impeachment trials do not require a trial by jury. We suspect that the Senate itself is considered thus.
3.2 "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
It is so very clear, not only from the history and arguments of the framers, but from the adopted language itself; that lying about sex -- in any forum -- is not "treason," "bribery or (an) other "high crime and misdemeanor." If the framers wished those who might be removed from office to be so -- for any crime -- they would most certainly have said so.

The modern ultra right Republican argues that the framers left it up to future congresses to decide the definition of treason, bribery or other high crimes and misdemeanors. To their minds, lying under oath, anywhere, and at anytime is enough to impeach a president or any other officer of the United States whether appointed or elected.

In fact, logic dictates that some perjury might be impeachable. For instance, what if the President lied under oath and said that he did not give a $50 million contract to his cousin to renovate the White House in exchange for a new Mercedes SL600.? That might be impeachable perjury - but it is also bribery. Or, what if the president lied under oath about being a spy for Pakistan, when in fact it was proven he was? Certainly that kind of perjury is impeachable. Why? Because it is linked to treason.

In both cases, the nation is threatened. In the first, or any like it, the treasury is socked for millions of dollars because the president wants to favor his relative and also wants a new car. In the second the nation is put at risk for obvious reasons.

There are other moot cases as well, of course. How about a President who is found to have been a bank robber, an arsonist, or a rapist while in office -- and lied about it during his criminal trial. Well, bank robbery, arson and rape are high crimes and felonies in all jurisdictions and are all severely prosecuted. Impeachable? Yes. But not for the lie alone, but for the underlying crime about which the lie was told.

Thus, the key to deciding whether perjury is an impeachable offense is to examine the proved underlying crime which elicited the proven lie. In the case of Paula Jones, the President was, in fact, never tried for any crime connected thereto, nor accused of any crime by any prosecutor in that regard. Even Paula Jones did not accuse him of any crime.

Of course, I believe the President did not lie either to Jones' lawyers or to the Starr Grand Jury. Certainly he was extremely careful and perhaps even deceptive in his answers -- after all, he is a well-schooled lawyer himself. But technically he did not commit perjury, nor would he -- being so cognizant of the law, not only through his personal knowledge but through that of his top-drawer legal staff.

Why it isn't obvious to everyone -- Republicans included -- that Bill Clinton did not lie under oath is only prima facie proof that this is a political witch hunt.

Clinton can define sexual relations anyway he wishes, and many, including me, share his definition. If a prosecutor asked me had I engaged in "sexual relations" with a prostitute where that activity was limited to her performing oral sex, I would answer, "No." That, to my mind is not a "relationship" nor is it "relations." Sex with Monica Lewinsky was nothing much more. She flaunted herself as a prostitute might, and she performed one-way acts of pleasure on Mr. Clinton by her own admission much as a prostitute does -- even when engaging in intercourse. Her payment? To be nearer to the most powerful man in the world than most.

Little more than a whore? Maybe.

But, perhaps not as honest?

    - Mac MacArthur

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ISSN No. 1523-1690