Impeachable Logic


I was eating lunch with some friends one warm afternoon in early
2001. The new administration was riding high at the time, drawing
wide praise for their ethos of clean living, respectful business
attire, punctuality, and other Bushian virtues that were held up as
not-so-subtle counterpoints to the disgraced Clintonites. It was
all too much to bear. One of my disgusted companions suggested, "We
need a scandal."The group agreed, but we fell out over the specifics. I told the
table that only one possible Bush scandal could give us the
emotional satisfaction we craved: lying under oath about sex with
interns. My reasoning was that, regardless of what sort of scandal
could arise, President Bush's defenders would doggedly explain it
away. It wouldn't matter if he were caught on videotape selling
heroin to schoolchildren so he could funnel the proceeds to the
North Korean atomic bomb program; conservatives would defend him,
maintain that Bill Clinton was worse, and the whole thing would
break down along predictable partisan lines.

Alas, the scandal currently rocking the Bush administration--over
who leaked the identity of CIA agent Valerie Plame--does not
involve sex or interns. And, as The New Republic went to press,
Special Counsel Patrick Fitzgerald had yet to announce any
indictments. But there was widespread speculation that Fitzgerald
might bring perjury charges, which has produced some entertaining
apologetics. The administration's allies have come forward to insist
that perjury is a deeply misunderstood--even, if you think about it
in the proper light, rather benign--activity. Republican Senator
Kay Bailey Hutchison articulated this line last Sunday on NBC's
"Meet the Press." "I certainly hope that, if there is going to be
an indictment that says something happened, that it is an
indictment on a crime and not some perjury technicality where they
couldn't indict on the crime and so they go to something just to
show that their two years of investigation was not a waste of time
and taxpayer dollars," Hutchison reasoned.

It's usually a mistake to impute intelligent thought to the
utterances of senators in general, and Kay Bailey Hutchison in
particular. Yet I couldn't help but notice that there seemed to be
a deviously clever arc to the construction of her answer. At the
beginning of the sentence, she was describing perjury as a
"technicality." By the end, she was defining "crime" in such a way
that it excluded perjury altogether. We are meant to think of
perjury as a trifling matter akin to jaywalking. By next week, it
could even be considered a heroic form of civil disobedience!
(Needless to say, Hutchison vigorously supported impeaching
Clinton, thundering at the time, "Something needs to be said that
is a clear message that our rule of law is intact and the standards
for perjury and obstruction of justice are not gray.")

Of course, this argument holds a certain appeal for principled
liberals who opposed Kenneth Starr's open-ended prosecution of
Clinton. New York Times columnist Nicholas Kristof wrote, "We don't
know what evidence has been uncovered by Patrick Fitzgerald, but we
should be uneasy that he is said to be mulling indictments that
aren't based on his prime mandate, investigation of possible
breaches of the 1982 law prohibiting officials from revealing the
names of spies. Instead, Mr. Fitzgerald is rumored to be considering
mushier kinds of indictments, for perjury, obstruction of justice
or revealing classified information."

It's certainly true that not even Karl Rove deserves to go to prison
for accidental or inconsequential misstatements. But, if Rove
didn't do anything illegal in the first place, then why would he
obstruct justice or perjure himself in some substantive way?
Clinton's motive for lying was perfectly clear: He wanted to avoid
the personal and political embarrassment of confessing his
perfectly legal affair with Monica Lewinsky. Indeed, a whole strand
of Starr's investigation was set up in order to trap Clinton into
lying under oath about his sex life. What motive would Bush's men
have to lie except to thwart the prosecution?

The conservatives who crusaded for impeachment, on the other hand,
don't want to equate Clinton's perjury with the potential perjury
of Bush's aides. They want to argue that the two are very, very
different things and that the contrast redounds to the benefit of
this administration. Unfortunately for them, it's not immediately
obvious why lying about sex is worse than lying about the exposure
of a CIA operative. A battalion of conservative intellectuals have
thrown themselves heroically into this logical breach.

The most spectacular efforts have come from Weekly Standard Editor
William Kristol, a confirmed advocate of Clinton's impeachment (or,
as conservatives used to call it, the "rule of law"). A key
distinction between the two episodes, Kristol argues, is that "the
Clinton White House mounted an extraordinary--and
successful--political campaign against the office of the independent
counsel and the person of Kenneth Starr." The Bush White House, on
the other hand, "has been fully cooperative with, even deferential
to, the Fitzgerald investigation."

It is true that the Bushies have said nicer things about Fitzgerald
than the Clintonites ever said about Starr. Yet, as the prospect of
indictments has grown more likely, the Bush administration has
grown markedly less chummy toward Fitzgerald. The New York Daily
News reported that administration "defenders have launched a
not-so-subtle campaign against the prosecutor." The paper quoted
one Bush ally calling Fitzgerald "a vile, detestable, moralistic
person with no heart and no conscience." And, of course,
administration officials may have lied to Fitzgerald and conspired
to obstruct his investigation. But, other than that, they've been
utterly cooperative and deferential.

Another Kristol editorial rages against prosecutors, including--but
by no means limited to--Fitzgerald, who are "criminalizing
conservatives." This charge may be insane, but--unlike the standard
Republican claim that Democrats are "criminalizing politics"--at
least it's not hypocritical. Whatever prosecutorial excesses Starr
engaged in, "criminalizing conservatives" was not one of them. This
could be the principle the right rallies behind during the Plame
scandal: No criminalizing conservatives! The beauty of this
principle is that it holds up no matter what. Even if their man is
found to have lied about sex with interns.

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