Is Gra­ham con­sis­tent or a hyp­ocrite on im­peach­ment?

The Island Packet (Sunday) - - Front Page - BY EMMA DUMAIN edu­[email protected]­clatchydc.com

On Jan­uary 16, 1999, a South­ern politi­cian with a mop of faintly gray­ing hair stood on the floor of the United States Se­nate and made a strik­ing procla­ma­tion about what it meant to im­peach a pres­i­dent.

“You don’t even have to be con­victed of a crime to lose your job in this con­sti­tu­tional re­pub­lic if this body de­ter­mines that your con­duct as a pub­lic of­fi­cial is clearly out of bounds in your role,” the politi­cian said. “Im­peach­ment is not about pun­ish­ment. Im­peach­ment is about cleans­ing the of­fice. Im­peach­ment is about restor­ing honor and in­tegrity to the of­fice.”

That man was South Car­olina’s own Lindsey Gra­ham, then a 43-year-old, third-term Re­pub­li­can Con­gress­man. The pres­i­dent in ques­tion was Bill Clin­ton.

Twenty years later, those words are com­ing back to haunt Gra­ham, now a 63-year-old Re­pub­li­can sen­a­tor and chair­man of the Se­nate Ju­di­ciary Com­mit­tee, from crit­ics who con­tend he isn’t ap­ply­ing this same stan­dard to Pres­i­dent Don­ald Trump — who, like Clin­ton, is be­ing scru­ti­nized for be­hav­iors that many ob­servers, in­clud­ing Wash­ing­ton law­mak­ers, have said dis­honor the pres­i­dency.

In 1999, Gra­ham blasted Clin­ton for ly­ing un­der oath about whether he had an af­fair with Mon­ica Lewin­sky, and for go­ing to great lengths to get oth­ers to lie for him, too. In 2019, Gra­ham is un­in­ter­ested in any con­gres­sional in­ves­ti­ga­tion that might be able to de­ter­mine that Trump also went to great lengths to cover up for any mis­deeds.

Dur­ing Clin­ton’s im­peach­ment pro­ceed­ings, Gra­ham re­called that Pres­i­dent Richard Nixon made him­self vul­ner­a­ble to im­peach­ment when he re­fused to com­ply with con­gres­sional sub­poe­nas, ef­fec­tively tak­ing away Congress’ abil­ity to con­duct over­sight.

Last week, Gra­ham rec­om­mended Trump’s el­dest son, Don­ald Trump Jr., ig­nore a sub­poena from the Se­nate In­tel­li­gence Com­mit­tee.

Democrats and Re­pub­li­can “Never Trumpers” are call­ing Gra­ham — one of Trump’s staunch­est op­po­nents be­fore be­com­ing his loyal de­fender — out for hypocrisy. In the wake of Gra­ham’s de­fense of Trump Jr., #Lind­seyGra­hamRe­sign be­came a na­tion­ally trend­ing hash­tag on Twit­ter.

A vet­eran lawyer who was ac­tu­ally one of the man­agers for Clin­ton’s im­peach­ment trial in the Se­nate, Gra­ham in­sists he has been en­tirely con­sis­tent.

“Be­cause they want to get Trump, they’re us­ing my words to get Trump,” Gra­ham said in a re­cent in­ter­view with McClatchy. “This doesn’t bother me one bit.”

Ac­cord­ing to con­sti­tu­tional law ex­perts, an ex­am­i­na­tion of the cir­cum­stances sur­round­ing

both pres­i­dents and Gra­ham’s own words paint a pic­ture of how the sen­a­tor maybe hasn’t changed af­ter all — but also maybe how he has.

‘TO BE DETERMINED’

Speak­ing with McClatchy last week, Gra­ham made one thing clear: If White House spe­cial coun­sel Robert Mueller had con­cluded that Trump defini­tively ob­structed jus­tice, it might have been a dif­fer­ent story.

As it turned out, Gra­ham said, Mueller’s re­port drew no con­clu­sions — ei­ther about whether Trump col­luded with Rus­sia to in­flu­ence the 2016 elec­tion or if the pres­i­dent sought to ob­struct jus­tice to thwart Mueller’s in­ves­ti­ga­tion.

This is un­like the re­port pre­pared by Mueller’s coun­ter­part dur­ing the Clin­ton in­ves­ti­ga­tion, then-in­de­pen­dent spe­cial coun­sel Ken Starr, who did con­clude that Clin­ton per­jured him­self dur­ing le­gal pro­ceed­ings.

Im­peach­ing Trump based on an in­con­clu­sive spe­cial coun­sel re­port, Gra­ham rea­soned, “would be like us im­peach­ing Clin­ton when Starr said he didn’t do any­thing wrong.”

Susan Low Bloch, a con­sti­tu­tional law pro­fes­sor at the Ge­orge­town Univer­sity Law Cen­ter, agreed that the record did sug­gest that Clin­ton had lied un­der oath, which could con­sti­tute an im­peach­able of­fense. But she wasn’t im­pressed with Gra­ham’s ex­pla­na­tion.

First of all, Bloch said, “im­peach­ment isn’t about ‘cleans­ing the of­fice.’ That’s what an elec­tion is for. Im­peach­ment (in the House) and con­vic­tion (in the Se­nate) is about re­mov­ing some­one who has com­mit­ted high crimes and mis­de­meanors. Im­peach­ment is not just a way to at­tach a scar­let let­ter to an of­fi­cer who be­haved badly.”

The House ul­ti­mately voted to im­peach Clin­ton, but the Se­nate did not vote to con­vict him, mean­ing he was ul­ti­mately not re­moved from of­fice.

Sec­ond, Bloch con­tin­ued, “if Mueller had said, ‘yes, Trump ob­structed jus­tice,’ then it would have been harder for Gra­ham to say he didn’t. But Mueller didn’t not find obstructio­n. He said it might be there, and he left it for Congress to eval­u­ate. If so, it’s still open for Congress to an­a­lyze those 10 in­stances that Mueller out­lined of pos­si­ble obstructio­n. … And so to an­swer the ques­tion, ‘is there any­thing to jus­tify im­peach­ing Trump now,’ I would say the an­swer is for the House to de­ter­mine.”

Gra­ham, Bloch con­tin­ued, should want to find the an­swer, too.

‘IT DOESN’T HAVE TO BE A CRIME’

The Con­sti­tu­tion states that a pres­i­dent “shall be re­moved from of­fice on im­peach­ment for, and con­vic­tion of, trea­son, bribery, or other high crimes and mis­de­meanors.”

But 20 years ago, Gra­ham him­self pointed out that a pres­i­dent need not have com­mit­ted a crime to be im­peached.

“It doesn’t have to be a crime,” he re­peated last week. “And I’m say­ing it now: It doesn’t have to be a crime.”

Bloch said Gra­ham was right. She ex­plained that le­gal schol­ars and prac­ti­tion­ers of the law gen­er­ally agree with the in­ter­pre­ta­tion that the framers of the Con­sti­tu­tion al­lowed for im­peach­ment for of­fenses that wouldn’t be for­mally listed in crim­i­nal statute. For in­stance, she said, if an elected of­fi­cial sat around all and did lit­er­ally noth­ing, it could qual­ify as im­peach­able.

But when Gra­ham first said a pres­i­dent need not be con­victed of a crime to qual­ify for im­peach­ment, he was ac­tu­ally mak­ing this state­ment in the con­text of Congress’ power to de­ter­mine a pres­i­dent’s fit­ness for of­fice. In a lengthy speech, Gra­ham was de­scrib­ing how the U.S. Se­nate had re­moved fed­eral judges in the past by ex­er­cis­ing con­gres­sional au­thor­ity, even if other law­mak­ing bod­ies had not reached the same con­clu­sions.

Also in that 1999 speech, Gra­ham said this: “What’s a high crime? How about if an im­por­tant per­son hurts some­body of low means? It’s not very schol­arly. But I think it’s the truth. I think that’s what they meant by high crimes. Doesn’t even have to be a crime. It’s just when you start us­ing your of­fice and you’re act­ing in a way that hurts peo­ple, you have com­mit­ted a high crime.”

That stan­dard is what Gra­ham ap­plied to Clin­ton: “Don’t cheat in a law­suit by ma­nip­u­lat­ing the tes­ti­mony of oth­ers. Don’t send pub­lic of­fi­cials and friends to tell your lies be­fore a fed­eral grand jury to avoid your le­gal re­spon­si­bil­i­ties. Don’t put your le­gal and po­lit­i­cal in­ter­ests ahead of the rule of law and com­mon de­cency. If you find that these are high crimes, that is the bur­den you’re plac­ing on the next of­fice holder.”

‘I BE­LIEVED IN WHAT I DID’

But if Gra­ham ap­pears to be defin­ing “high crimes” ac­cord­ing to his own in­ter­pre­ta­tion of the Con­sti­tu­tion and the law, that wouldn’t be out of bounds, ac­cord­ing to Michael Ger­hardt, an­other con­sti­tu­tional law scholar who teaches at the Univer­sity of North Car­olina at Chapel Hill.

“One of the things we have to un­der­stand is, in the con­text of im­peach­ment, all the crit­i­cal de­ci­sions are made by mem­bers of Congress who are politi­cians,” Ger­hardt said Thurs­day. “The framers (of the Con­sti­tu­tion) ex­pected us to make de­ci­sions that were a mix­ture of po­lit­i­cal and con­sti­tu­tional con­sid­er­a­tions. So you’re get­ting that from Gra­ham. And it’s not in­ap­pro­pri­ate.”

The idea of discretion sets up the very con­cept of im­peach­ment as in­her­ently po­lit­i­cal. While few peo­ple dis­agreed that Clin­ton had bro­ken the law when he lied un­der oath, there were ma­jor dis­agree­ments about whether that lie war­ranted im­peach­ment. For Gra­ham, it did.

In 1999, Ger­hardt ex­plained, Gra­ham was mak­ing a judg­ment call when he de­cided Clin­ton should be im­peached based on hav­ing com­mit­ted a crime.

“The mis­con­duct of the pres­i­dent, in the minds of the pub­lic, did not rise to the level we thought it did,” Gra­ham re­cently ac­knowl­edged of the pub­lic back­lash at the time. “But I be­lieved in what I did.”

Gra­ham is mak­ing a sim­i­lar judg­ment call now that Trump should only be im­peached un­der sim­i­lar cir­cum­stances.

This un­der­stand­ing of the role of discretion in im­peach­ment pro­ceed­ings could al­low Gra­ham, at some later date, to still ar­gue that Trump should not be im­peached even if ev­i­dence shows he broke a law. He could just say he didn’t think the crime rose to the level of an im­peach­able of­fense.

Gra­ham has even sug­gested he was more dis­turbed by the ac­cu­sa­tions of Rus­sian col­lu­sion than the al­le­ga­tions that Trump sought to fire Mueller and FBI Di­rec­tor James Comey.

“I told (Trump), and I told ev­ery­one, if (col­lu­sion) hap­pened, then it’s prob­a­bly the end of your pres­i­dency,” Gra­ham said.

‘BE MY GUEST’

Gra­ham told McClatchy he had a mes­sage for his crit­ics.

“All of you be­lieved I was wrong about Clin­ton, and I’m not telling you that you’re wrong. I’m telling you I don’t see a case for im­peach­ment be­cause of what Mueller did. And if you want to im­peach him, do it, and you want to use my words

— it doesn’t have to be a crime, and it’s nec­es­sary to cleanse the of­fice — be my guest.”

To Democrats specif­i­cally, Gra­ham said, “if you think, even though it’s not tech­ni­cally a crime, that’s suf­fi­cient to im­peach Pres­i­dent Trump, just do it.”

Gra­ham has been harshly crit­i­cized for his lack of in­ter­est in con­duct­ing an in­ves­ti­ga­tion through the Se­nate Ju­di­ciary Com­mit­tee into whether sce­nar­ios in the Mueller re­port might have con­sti­tuted Trump ob­struct­ing jus­tice. The Demo­cratic-con­trolled House is cur­rently in the midst of vig­or­ous over­sight on the mat­ter.

If Gra­ham is in­con­sis­tent, Ger­hardt and Bloch both agreed, it’s that 20 years ago he stood be­fore his col­leagues and ex­pounded on Congress’ cru­cial obli­ga­tion to con­duct over­sight of the ex­ec­u­tive branch — and now he’s all but dis­miss­ing the House’s in­ves­ti­ga­tion as a par­ti­san ex­er­cise.

“It’s in­con­sis­tent, if not hyp­o­crit­i­cal, to say there is no jus­ti­fi­ca­tion now” for in­ves­ti­gat­ing, Ger­hardt said. “And by the way, it is per­fectly con­sis­tent with the Con­sti­tu­tion to do so.”

But, again, Gra­ham is not tech­ni­cally wrong to say, in essence, House Democrats can do what­ever they want and leave him out of it.

First, Gra­ham is mak­ing a judg­ment call. Sec­ond, the House al­ways acts first in an im­peach­ment pro­ceed­ing — the House is the cham­ber that ac­tu­ally im­peaches a pres­i­dent; the Se­nate’s job is to con­vict.

If any­thing, it’s fur­ther proof that Gra­ham knows ex­actly what he’s do­ing when he talks about im­peach­ment.

Still, in 1999, Gra­ham in­sisted he was mov­ing for­ward with im­peach­ment free of po­lit­i­cal con­sid­er­a­tions.

“What brought us here is not par­ti­san­ship,” said Gra­ham at the time, “but the con­duct of one man who hap­pens to be the pres­i­dent.”

HIS­TORY OF PRES­I­DEN­TIAL IMPEACHMEN­TS

No pres­i­dent has ever been forced out of of­fice through im­peach­ment pro­ceed­ings, but two have been for­mally sub­jected to the process:

Pres­i­dent An­drew Jack­son was im­peached by the House in 1868 on the grounds that he broke the law by re­mov­ing a fed­eral ap­pointee from of­fice and re­plac­ing him with­out con­sult­ing Congress – the fi­nal straw for law­mak­ers af­ter a se­ries of clashes be­tween the ex­ec­u­tive and leg­isla­tive branches.

The Se­nate voted to ac­quit him of charges, and the Supreme Court later ruled that Jack­son was within his rights to dis­miss the ap­pointee.

Ul­ti­mately, the law Jack­son pur­port­edly dis­obeyed was re­pealed.

Pres­i­dent Bill Clin­ton was im­peached by the House at the end of 1998 on grounds he lied un­der oath and ob­structed jus­tice to hide his af­fair with Mon­ica Lewin­sky, a young White House staffer. The Se­nate voted to ac­quit him in early 1999.

One pres­i­dent would likely have been im­peached had he not re­signed first:

Pres­i­dent Richard Nixon was be­ing in­ves­ti­gated by Congress for his in­volve­ment and at­tempted cover-up of a suc­cess­ful op­er­a­tion of his own re­elec­tion cam­paign to break into Demo­cratic Na­tional Com­mit­tee head­quar­ters at the Water­gate in Wash­ing­ton, D.C.

In the sum­mer of 1974, the House Ju­di­ciary Com­mit­tee filed three ar­ti­cles of im­peach­ment against Nixon on grounds that he had com­mit­ted “high crimes and mis­de­meanors.” Nixon re­signed just weeks af­ter that.

Lindsey Gra­ham

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