New York Times
SO MUCH FOR THE IMPERIAL PRESIDENCY
Arthur Schlesinger Jr.
A quarter century ago I wrote "The Imperial Presidency," which argued that the American Constitution envisages a strong Presidency within an equally strong system of accountability. When the constitutional balance is upset in favor of Presidential power and at the expense of Presidential accountability, the office can be said to become imperial.
This exaltation of the Presidency, as Madison presciently observed two centuries ago, is most likely to be justified by "provisions against danger, real or pretended, from abroad." The more acute the international crisis, the more power flows to the President. The half century of protracted crisis from Pearl Harbor to the breakup of the Soviet Union came close to institutionalizing the imperial Presidency. "When the President does it," as Richard Nixon told David Frost in a television interview about his Watergate crimes, "that means that it is not illegal."
But President Nixon carried this doctrine a little far. The result was resignation to escape impeachment. A reaction against the imperial Presidency set in. In 1978 Congress passed the Independent Counsel Act, a statute so loosely drawn as to enable special prosecutors to conduct dragnet investigations with no limit on time or budget and no formal accountability. The fall of the Soviet Union completed the revolt against the abuse of Presidential power. Because it was the creation of international crisis, the imperial Presidency collapsed once that crisis came to an end.
Today we see a Presidency harried and enfeebled by an obsessed special prosecutor. Kenneth Starr's original charge was to look into a shady land deal 15 years ago in Arkansas. This turned out to be a dry well, at least as far as President Clinton was involved. Then Mr. Starr, through some form of sleight-of-hand intelligible only to lawyers, managed to transform the Whitewater inquiry into an investigation of the President's sex life.
In the process he has succeeded in eliminating protections of Presidential privacy heretofore unchallenged. Over the protests of the director of the Secret Service and even of Mr. Clinton's predecessor, George Bush, Mr. Starr has obtained a court ruling compelling Secret Service personnel to testify before his grand jury.
As well as protecting Presidents, Secret Service personnel must now serve as spies for the special prosecutor. Mr. Starr has also obtained a ruling that Government lawyers cannot invoke the attorney-client privilege in a criminal inquiry, thereby compelling the deputy White House counsel to testify about his confidential talks with Mr. Clinton. It is now difficult to see with whom the President can discuss private matters -- save for his wife, who cannot be compelled to testify against her husband.
Mr. Clinton's wounds are to a considerable degree self-inflicted. If he did what he is accused of, he should not have done it. But it is demeaning for Americans and seems idiotic and stupefying to the rest of the world that a crisis of the American Presidency should turn on the definition of sexual relations.
Most Americans, judging by the most recent polls, still think that even if what a President does in his private life is deplorable, it is his own business. When they elected Mr. Clinton in 1992 and re-elected him in 1996, they did not think they were sending a choirboy to the White House. They see him as a bright and effective President who has been doing a pretty good job in his official duties. "If Hillary doesn't care," proclaimed a sign in a crowd greeting Mr. Clinton, "neither do we."
If Mr. Clinton is not being truthful, his deceptions have to do with his sex life. Catholics draw a distinction between "venial" -- that is, forgivable -- sins and "mortal" -- unforgivable -- sins. Many Americans regard the denial of a sexual affair as a venial sin. Most people have lied about their sex lives at one time or another. You lie to protect yourself, your spouse, your lover, your children. Gentlemen always lie about their sex lives. Only a cad will tell the truth about his sexual affairs. Many people seem to feel that questions no one has a right to ask do not call for truthful answers.
The indignation some Republicans have shown over alleged Presidential sexual waywardness would be more impressive if they had shown retrospective indignation about President Harding's sexual adventurism, so fascinatingly documented in Carl Sferrazza Anthony's new biography of Florence Harding -- or if they had shown equal indignation about President Ronald Reagan's statements during the Iran-contra imbroglio.
On Nov. 6, 1986, President Reagan said that the story about trading arms for hostages "has no foundation." A week later he called the story "utterly false," and added, "We did not -- repeat -- did not trade weapons or anything else for hostages." Mr. Reagan's falsehoods had to do with his official duties, not with his private life, and were a gross dereliction of his executive responsibility. The same is true of President Nixon and the Watergate scandal, which involved Presidential sanction of burglary, wiretapping, political dirty tricks, forgery, hush money, perjury and obstruction of justice.
Mr. Starr's pretext for the prurient invasion of Presidential privacy is the possibility of nailing Mr. Clinton for perjury, witness tampering and obstruction of justice. Presumably his goal is to prepare the way for impeachment.
But surely the last thing Republicans would wish is to replace Mr. Clinton with the fresh, honest face of Al Gore, who would then have a head start on the Presidency. They much prefer to spend the rest of the term dealing with a weakened and discredited President Clinton. They would probably find it much easier to beat Vice President Gore in 2000 as the defender and heir of a disgraced Administration than to beat a President Gore armed with two years of experience in the White House.
The Republicans may also try to do what Henry Clay succeeded in doing in the Senate in March 1834 -- that is, to pass a resolution of censure of President Andrew Jackson. It was expunged three years later when the Democrats regained control of the Senate. No President has ever been thus censured since.
President Clinton, for all his own waywardness, has been sublimely lucky in the enemies he has made -- Newt Gingrich, Dick Armey, Tom DeLay, Trent Lott and, above all, Kenneth Starr. One would some day like to see a detailed and specific accounting of how Mr. Starr has managed to spend $40 million or so of the taxpayers' money.
His pursuit of Mr. Clinton has rightly been compared to Captain Ahab's monomaniacal "quenchless feud" with the White Whale.
"All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick. He piled upon the whale's white hump the sum of all the general rage and hate felt by his whole race from Adam down; and then, as if his chest had been a mortar, he burst his hot heart's shell upon it."
Captain Ahab versus the American Presidency: if Mr. Starr's quenchless feud continues, he may well do permanent damage to the American system of government. Enough is enough.