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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

 

Punishing the President?

I am grateful for the information on your site. It has helped me begin to frame a personal response to the troubling issue of what, if anything, is a proper punishment for the President's actions in the Lewinsky affair.

From all I have read and seen, the notion of impeachment for President Clnton does not seem appropriate because I do not see his actions as outlined by Kenneth Starr as actionable under the "high crimes and misdemeanors" standard. (I also have no desire to see him punished on anything that hinges on a morality issue --God help us!). But Bill Clinton, the individual, did allegedly break several laws. . . . [I]t seems to me the most egregious, and most important to ascertain, are the charges that he lied to a Grand Jury. Do any of his statements about the Monica Lewinsky affair, so far as you know, qualify under the burden of proof demanded by 18 U.S. Code sec. 1621 or 18 U.S. Code sec. 1623 (which you cited in an earlier question on punishment for lying before a Grand Jury)?"

Response: Perjury is very difficult to prove. In his grand jury testimony, the President argued that he did not lie in his Paula Jones deposition because his answers conformed to the definition of sexual relations that had been agreed upon for that proceeding. If his answers were consistent with that definition, or if he can claim that he believed his answers were consistent with that definition, then that would not be perjury. (And that ignores the whole problem of whether the answers were relevant to a judicial proceeding, given what later happened to the case).

As to the other matters he discussed in his grand jury testimony, the government would have to show that he lied in the statements he made in those areas, and I have not seen anything yet which would suggest they can carry that burden. So, I have my doubts. I suspect that's one reason (in addition to his obvious political agenda) why Starr is so determined to bring all this up in the context of an impeachment proceeding rather than trying to indict the President, i.e., Starr may think he has a better chance of shoehorning the answers into a "high crimes and misdemeanors" theory than into a criminal prosecution for perjury.

This case has been politicized all out of recognition. As a life-long liberal Democrat, I view with grave suspicion the Republicans' attempt to turn this into an ideological struggle. But something did happen. I'm equally troubled that my own party is guilty in not seeking to hone in on the substantial issues that should concerning us all, party and ideological considerations aside. I'm not an attorney, but I am a relatively well-informed citizen, and I fear that a terrible precedent will be set in American justice if we do not fully determine whether a crime was clearly committed; if so, the level on which it should be judged (a Presidential crime vs. an action taken by Bill Clinton as an individual); and an appropriate punishment.

Assuming that a felonious act could be proven, since the courts have clearly indicated a sitting President can be held to account for his actions as a private citizen, why should not punishment be meted out to him in his persona as a private citizen? Even if punishment was imposed after the end of his term of office, would that not be appropriate as a remedy to truly apply justice in this case?

Response: For a time, there was a theory (only a theory) that a sitting President could not be indicted. The major basis for the theory was the premise that facing a criminal trial would distract the President from his/her important duties, to the country's detriment. Robert Bork developed this theory in a memo he wrote then-President Nixon, who was concerned about the possibility of indictment. Bork conceded that the vice president could be indicted, but claimed the President could not, for this reason. But the U.S. Supreme Court held, in the Jones case, that a sitting President can be required to defend him/herself in a civil proceeding, and that seems to seriously undercut the Bork theory. . . which would seem to leave the President at least open to the possibility of being indicted and tried.

If a President were to be indicted and tried, we would then have to decide if he/she would have to be allowed to serve out the remainder of his/her term before being punished. I suspect that, if this were to happen, we'd see an immediate and rapid impeachment process, with the convicted President being removed from office, which would open the way up for the imposition of punishment.

Like you, though, I hope we do not see any of this, not even an impeachment. I think what's already happened has been very destructive for the country, and I hope it goes no further. I think what Starr has done has set a bad de facto precedent for using a grand jury to pursue a political agenda (but, of course, that's only my two cents!). I hope Congress seriously re-thinks the Independent Counsel statute, as that would be one way to reining in the kinds of things we've seen this year.

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