"It is either impeachment or nothing," Gary McDowell, the conservative legal scholar, told the House Judiciary Committee on November 9. "Thus, the current suggestion that Congress might censure the president is to assume a power not given by our Constitution." Many of the scholars who testified during the opening hearing of the House impeachment inquiry agreed with McDowell, but they were overstating the case against censure. Now that the election returns seem to have short-circuited the impeachment effort, there are, in fact, several ways that Congress could censure the president without violating the Constitution.
The constitutional case against censure is rooted in Article I, Section 9, which prohibits Congress from passing bills of attainder. The Supreme Court has defined bills of attainder as laws that single out an individual or group for punishment without a judicial trial. In his classic book, Three Human Rights in the Constitution of 1787, Zechariah Chafee describes what was, for the American Founders, a paradigmatic case of an unconstitutional attainder: the English Parliament's crusade against the Earl of Strafford in 1641. Initially, Strafford was impeached for treason and tried in the House of Lords. But, because the real reason Commons impeached him was his excessive loyalty to King Charles I, the attempt to convict him of treason narrowly failed. The House of Commons then decided to pass a bill attainting Strafford of treason, which carried the same penalty as an impeachment but took the form of a legislative rather than a judicial punishment, and thus gave Strafford no chance to defend himself at trial. After the king agreed to sign the bill to fend off an impeachment crusade against his wife ("Put not your trust in Princes," Strafford wryly observed), the earl was beheaded before 200,000 spectators on Tower Hill.
The Strafford case suggests that the House and Senate can't constitutionally punish Clinton by passing a censure bill and enacting it into law over his veto, whether or not it contains some additional penalty, like a fine. That would be a textbook case of a bill of attainder. But, of course, there's little possibility, after November 3, that the House and Senate could muster the two-thirds majority necessary to pass a censure bill over Clinton's veto. Does the constitutional picture change if Clinton voluntarily agrees to sign a censure bill because he fears the political consequences of a veto? The answer depends on how the bill is framed.
If Clinton signs the censure bill under duress, without receiving any explicit benefit from Congress in return, then the purpose of the bill would still be punitive, and bill of attainder problems would remain. As Laurence Tribe of Harvard Law School points out, the right to be free from punishment by a legislature can't evaporate simply because a president, when threatened with impeachment, says, "Please censure me instead." (The masochist says, " Hit me," Tribe notes, and the sadist says, "No.") Because it's hard to distinguish between censure to which the president has reluctantly acceded in order to avoid harsher treatment and censure that the president has enthusiastically requested for the same purpose, Tribe argues, both are legislative punishments and are constitutionally unacceptable.
But, as Vikram Amar of the University of California at Davis argues, there is a subtle, but meaningful, distinction between censure accepted as a lesser punishment and censure granted as a conditional amnesty. Congress can almost certainly draft a bill that tells Clinton, "If you do X, Y, and Z (apologize to us, and, perhaps, pay a fine), then you won't be impeached." Such a bill looks less like a bill of attainder than a plea bargain. Think of the House's role in impeachment cases as analogous to that of a grand jury in ordinary criminal cases. The House has the power to indict the president and, therefore, also has the power not to indict. (In this sense, Gary McDowell and Henry Hyde are wrong to suggest that the House has no prosecutorial discretion to endorse a solution short of impeachment.) And the Senate's power to convict must include the power to grant clemency.
There would be just one problem with a censure bill that took the form of a conditional amnesty. The only representatives and senators who could vote for the bill in good faith would be those who believe that Clinton has, in fact, committed impeachable offenses. But many--if not most--Democrats have already endorsed the proposition that Clinton's behavior doesn't rise to the level of an impeachable offense. No one who takes that position could conscientiously vote for censure as an alternative to impeachment. One way of solving this problem would be for Congress to offer Clinton some other benefit in exchange for his signature--immunity from future prosecution, for example, or a guarantee that decisions about whether to indict him after he leaves office will be made by the Gore or Bush Justice Department rather than the seething special prosecutor. But a deal like this, although clearly constitutional, might be too soft on Clinton even for congressional Democrats.
The House and Senate could, of course, avoid the constitutional difficulties of a formal censure bill by passing concurrent resolutions of censure denouncing Clinton. Because these resolutions wouldn't be presented to Clinton for his signature, they wouldn't be formal bills at all; and, therefore, most scholars, including Tribe, agree that they couldn't be attacked as bills of attainder. When the Whig Senate passed a resolution censuring Andrew Jackson for abusing his office in 1834, Jackson responded by filing a "protest" challenging the constitutional authority of a single branch of Congress, "for the purposes of a public censure, and without any view to legislation or impeachment," to "decide upon the official acts of the Executive." But Jackson's objection was based on the claim that the Senate had unfairly accused him of an impeachable offense--vetoing the Bank of the United States. The Constitution, he insisted, required all charges of official misconduct to be aired in a formal impeachment proceeding. By contrast, if the Senate and the House make clear that they don't believe Clinton's private misdeeds rise to the level of impeachable offenses, they could certainly pass concurrent resolutions expressing their disapproval. These resolutions would have no more legal weight than a petition declaring that Clinton was a bad person, which any member of Congress would have the right to sign under the First Amendment.
Last month, former President Ford suggested in The New York Times that Clinton should humble himself in the well of the House, ask for forgiveness, and accept Congress's condemnation. But, if Clinton has committed no offense against Congress, he owes Congress no apology. Indeed, the vision of the president humbling himself before the House calls to mind a much older legislative shaming ritual--the formal humiliations that colonial legislatures imposed on journalists and other riffraff who dared to criticize them. In prosecutions for seditious libel, the guilty party was summoned before the assembled legislators. He was then forced to apologize on his hands and knees in an elaborate show of abasement, sometimes placing his knuckles under his knees to show special contrition. In addition, he was expected to pay costs. Why Congress would presume to impose a similar shaming ritual on Clinton isn't clear.
The problem with a resolution of censure isn't constitutional but political. Without exception, all of Congress's previous censure cases involved offenses against Congress itself, beginning with Senator Thomas Pickering, who was censured in 1811 for reading secret government documents aloud on the Senate floor. By contrast, even the most serious of Clinton's offenses--his alleged lies before the grand jury--implicate neither the presidency nor its relation to Congress but at worst constitute an arguable breach of public trust. And the American people don't seem to be clamoring for more apologies.
There is also the practical question of what, precisely, a resolution of censure would be designed to accomplish. Ordinary shaming punishments can serve different purposes. By forcing an offender to abase himself, they can prepare the way for his reintegration into the community, or they can brand the person as a pariah, expelling him from the community of moral agents entirely. (In England, the classic shaming punishment for attainder involved ritualistic disembowelment after execution.) But Congress has no standing to banish Clinton or to forgive him. That power belongs to the people alone.
In a metaphorical sense, the Starr investigation itself might be seen as a kind of shaming punishment, the modern equivalent of the ordeal that people with questionable reputations were forced to endure in the Middle Ages. To prove the truth of their oaths, the least respected members of the community had to carry a hot iron for several paces. Their hands were then bandaged, and, if blisters appeared, the suspects were deemed to have sworn falsely. The fact that scalded citizens were often given the benefit of the doubt when it came time to examine their blisters suggests that the real purpose of the ordeal was punitive, not investigative. (We're not sure whether or not he swore falsely, the theory seemed to be, but at least we burned the hell out of his hand.) When people say that Clinton has already been humiliated enough, they may be responding to the indignity of treating the president of the United States as if he were a medieval chicken thief.
The real reason that it seems odd to impose a shaming punishment on Clinton is the sense that he's beyond shame. "You could name it the Clinton shaming bill, and he'd say, 'Thank you for naming it after me,'" suggests William Miller of the University of Michigan Law School, who has written books on disgust and humiliation. Miller notes that what anthropologists identify as shaming cultures--those that are exquisitely sensitive to questions of honor and deference--tend to be relatively egalitarian communities, like law-school faculties, where wealth and power are fairly equally distributed and tiny gradations of respect are fiercely contested. "He's triumphed in a world of politicians, which is largely shameless, because, as shameless as all these other guys are, they couldn't go as low as he did," Miller suggests. "You're the man, they're saying to him. They're kind of in awe."