No Censure

NOW THAT President Bill Clinton has been acquitted by the Senate after impeachment by the House of Representatives, it is frustrating for some, me included, to see Clinton, a man who the evidence clearly demonstrated is guilty of lying under oath and obstruction of justice, supposedly escape without formal condemnation. There is a sense of justice not served similar to the moral revulsion accompanying O.J. Simpson's acquittal for murder. However, a formal censure of the President by Congress, no matter how satisfying it might feel, is unwise.

The Constitution does not prohibit the censure. Certainly the Senate could elect to pass a resolution of censure without fear that it would be overturned by the Supreme Court. Nonetheless, it is outside the scope of what the Senate ought to do out of a decent respect for the separation of powers.

The proper operation of government relies on a vigorous chief executive. Alexander Hamilton in Federalist #70 wrote:

"Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. It is not the less essential to the steady administration of the laws..."

The Presidency is inherently limited in formal authority. Its power derives from persuasive ability and moral authority. For the President to be censured would be to rob him of part of the requisite authority for him to function, while leaving him responsible for the duties of office. Censure keeps the President in office, while hobbling his power. Impeachment by the House of Representatives is certainly implied censure, but Senate acquittal serves to renew and revalidate Presidential authority. After impeachment by the House, the Senate options are either to convict or acquit.

Censure is problematic in another sense. There are two reasons that Senators could have opted to acquit in Clinton's case. The first is that they could have found, erroneously in my opinion, but nonetheless found, that there was insufficient evidence to convict of perjury, obstruction of justice or any other public matter. If the evidence is not sufficient, censure is not appropriate. Censure, under this circumstance, would appear to punish Clinton for private lewdness, not public sins.

The second possibility is that Senators are persuaded of his guilt, but chose to excuse perjury and obstruction of justice because it is politically expedient. Making formal by censure this latter proposition is more pernicious than no censure at all. It affirms that popularity is protection from prosecution, that politics trumps the rule of law, that justice is power, and that truth is infinitely malleable. It excuses the President from the positive obligation to insure that the laws are faithfully executed. Let us preserve at least the illusion of fidelity to the law.

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