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Forum: The misrule of law

Republican rhetoric about `the rule of law' sounds high-minded, writes John T. Parry, but it can't justify a political impeachment process

Sunday, October 11, 1998

According to House Judiciary Chairman Henry Hyde, Ken Starr's impeachment referral requires Congress "to vindicate the rule of law." Hyde equates the rule of law with the principle that no one is "above the law." To him, the rule of law is "the only alternative to tyranny" and "anarchy."

  John T. Parry teaches constitutional law at the University of Pittsburgh School of Law. 

Strong words, but already forgotten in the partisan whirlwind that envelops the capital. Even under Hyde's definition, the events set in motion by the referral are more likely to undermine the rule of law than to uphold it.

If members of Congress sought to advance Hyde's version of the rule of law, they would not deride President Clinton for making "legalistic" defenses to the independent counsel's claim of perjury. Perjury has a specific legal definition that explains its reach - and its limits. If we take Hyde at his word, the president has a right to rely on those limits to defend his conduct. To make matters worse, House investigators have now shifted the charge from perjury to "false testimony under oath," which is not a specific federal crime. The reason for the change may be to let Congress judge the president's truthfulness by a political or "realistic" standard rather than by a legal standard. But the rule of law traditionally has existed to prevent those kinds of judgments.

If the Judiciary Committee supported the rule of law, it would not have rushed the release of confidential grand jury materials - including the videotape of the president's testimony - to the public. The American people may have a right to the evidence, but the rule of law requires Congress to consider the president's rights as well.

Grand jury materials are considered secret for an important reason: They are one-sided and untested compilations of information designed to advance a prosecutor's view that a crime may have been committed. They are not proof. If the Judiciary Committee was serious about the rule of law rather than about embarrassing the president, it would not release these materials until they were tested in adversarial hearings in which the president could confront and cross-examine the witnesses against him and present a complete defense.

If the independent counsel cared about the rule of law, he would not have allowed his staff to leak information. He also would have followed Leon Jaworski's example and presented the evidence to Congress without a narrative that aims at public humiliation and minimizes compelling exculpatory evidence (such as Monica Lewinsky's testimony that the president never asked her to lie). Nor would we suddenly be hearing that Mr. Starr is continuing to investigate the president and may make a second impeachment referral. Parceling out charges suggests that the motive of Starr's first referral was not to enforce the rule of law but to harm the president in advance of the November elections, perhaps to ensure a strong Republican Congress to preside over the impeachment process. Starr's blindness to the rule of law supports the president's claim that he is the victim of a political prosecutor who has lost all sense of perspective or judgment.

Yet President Clinton can take small comfort in the excesses of his enemies. He, too, has failed the rule of law. If the president respected the rule of law, he would not have misled the American people for so long and would not have allowed his minions to attack Ken Starr as harshly as they did. And, if the evidence proves he committed perjury in his grand jury testimony, the president will have failed the rule of law in a profound sense.

What emerges from all of this? Contrary to Chairman Hyde's claim, the rule of law is more than applying the letter of the law. To be legitimate, the rule of law also requires the kind of judgment that is tempered by wisdom and even compassion. These qualities are in scarce supply in Washington today. Certainly, wisdom was absent from the president's conduct, and neither wisdom nor compassion appears in the responses of Ken Starr and Congress. As most Americans have concluded, the impeachment inquiry is about politics, not the rule of law.

It is telling that a large majority of African Americans continues to support the president through this crisis. Perhaps their own experiences in seeking justice in the face of the law have forced them to confront the harsh truth that rule-of-law rhetoric can be used to mask unjust purposes. Of all people, they know that the rule of law is not always measured by the law itself, but by the motives of the individuals who invoke the law and by the justice of the results.

Both Congress and the independent counsel would do well to heed this lesson. Instead of addressing the harm caused by the president, they are in danger of magnifying it. If they use the law to mask partisan goals, they risk undermining the rule of law and the legitimacy of the current Congress. In the end, the rule of law is only as good as the people who apply it.

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