Washington Times-May 30, 2000
With impertinence and privilege
Bruce Fein
The case for disbarment of President William Jefferson
Clinton by the Arkansas Supreme Court is as simple as simple
addition and as ethically compelling as the biblical injunction
against false swearing.
The president was saddled with a constitutional duty to take
care that the laws be faithfully executed, not circumvented. A
parallel moral obligation of honesty under oath was likewise
attached.
The Chief Executive is the nation's chief role model. He
teaches by example. Mr. Clinton's derelictions require stern
sanctions because of their incalculable damage to the rule of
law, which is the cornerstone of civil society. Youngsters and
adults alike are inclined to imitate presidential lawlessness on
the theory no one is required to be holier than the Pope in Rome.
As U.S. District Judge Susan Webber Wright explained in her
contempt citation of President Clinton for giving intentionally
"false, misleading and evasive answers that were designed to
obstruct the judicial process" in the Paula Jones sexual
harassment lawsuit, "[s]anctions must be imposed, not only to
redress the president's misconduct, but to deter others who might
themselves consider emulating the president of the United States
by engaging in misconduct that undermines the integrity of the
judicial system."
Judge Wright was not plowing virgin territory. A New York
court disbarred President Richard M. Nixon in 1976 for his
Watergate cover-up misconduct, though he had been pardoned by
Gerald Ford. The Appellate Division elaborated: "The gravamen of
[Nixon's] conduct is obstruction of the due administration of
justice, a most serious offense, but one which is rendered even
more grievous by the fact that in this instance the perpetrator
is an attorney and was at the time of the conduct in question the
holder of the highest public office in this country and in a
position of public trust."
Mr. Clinton's defenders might argue that Nixon's wrongdoing
impaired a criminal investigation, whereas Mr. Clinton's
prevarications that occasioned Judge Wright's civil contempt fine
thwarted a less serious private civil suit. The distinction is
unpersuasive because Mr. Clinton repeated his lies under oath to
Judge Wright virtually verbatim before a federal grand jury
investigating the president's alleged criminality: perjury,
witness tampering, and obstruction of justice.
Mr. Clinton's wrongdoing, moreover, is compounded by his
strutting impenitence over Monicagate and continuing
counterfactual distortions. He persists in denying that he lied
under oath in denying a sexual relationship with Monica Lewinsky,
a fact that Judge Wright had held would be pertinent to the Paula
Jones suit. After all the due process in the world, the federal
district judge found by clear and convincing evidence that the
president's testimony was knowingly false and calculated to
subvert the judicial process. She expressly offered Mr. Clinton
an opportunity to present exculpatory testimony. He declined.
Neither the law nor experience knows any more reliable method of
proving facts than that employed by Judge Wright. Yet Mr. Clinton
audaciously insists before the public and the Arkansas state
disciplinary authorities that her unchallenged fact-finding was
flawed, bettering the instruction of Alger Hiss' lifelong denial
of perjury before Congress in the face of a criminal conviction
and layers of judicial appeals.
In addition to scorning contrition, Mr. Clinton's false
swearing and attempt to derail justice was aggravated because the
unclouded prohibition forecloses any claim of ignorance of the
law. Under Rules 8.4 (c) and (d) of the Arkansas Model Rules of
Professional Conduct, attorneys are enjoined from "conduct
involving dishonesty, fraud, deceit or misrepresentation," or
"prejudicial to the administration of justice." The U.S. Supreme
Court made unmistakably clear in Nix vs. Whiteside (1986) that a
political vendetta, right-wing conspiracy, or other circumstance
does not excuse false testimony. Indeed, the idea was so
outlandish that it prompted then Chief Justice Warren Burger to
remark that a right to lie under oath in any circumstance "has
never been responsibly advanced."
In sum, what is astonishing about the initiation of
disbarment proceedings against President Clinton in an Arkansas
circuit court last week by the Committee on Professional Conduct
of the Supreme Court of Arkansas is not the ethics indictment
itself, but the criticism of some who should know better. Sen.
Charles Schumer, New York Democrat, for instance, who voted
against Mr. Clinton's impeachment as a House Member and after
elevation to the Senate refused recusal at the impeachment trial,
fumed to the New York Times that the disciplinary panel was "a
kangaroo court" unworthy or respect. The senator was cleverly
juggling the record to influence public opinion since even the
president himself did not dispute his full defense presented by
rich and powerful aristocrats of the bar. Mr. Schumer deserves
credit, however, for exercising heroic restraint in declining to
fashion a fable that former independent counsel Kenneth Starr had
covertly manipulated the panel by tainted money from wealthy
troglodytes or otherwise.
Mr. Clinton's disbarment case will be heard by one of five
circuit court judges who sit in Little Rock, all of whom are
registered Democrats. An appeal to the Arkansas Supreme Court
will be available if Mr. Clinton loses. At the least, the
proceeding itself discredits Judge Starr's detractors who teemed
with accusations of a politically motivated plot to transform a
trivial presidential legal sin into a capital offense.
Bruce Fein is a lawyer and free-lance writer specializing in
legal issues.
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