Censure? The Perjurer-in-Chief Deserves Jail

Wall Street Journal
December 28, 1998 Andrew C. McCarthy

Not for commercial use. Solely to be fairly used for the educational purposes of research and open discussion.

By Andrew C. McCarthy, an attorney in Connecticut who formerly served as chief trial counsel at the U.S. Attorney's Office in Manhattan and was the lead prosecutor in one of the World Trade Center bombing cases.

Over the past few weeks a boundless number of made-for-media pro-Clinton lawyers, all brandished by their TV hosts as "former federal prosecutors," have harangued viewers with the latest theme in their campaign to stave off the president's removal from office: the asserted need for "proportionality." As they see it, proportionality is the concept that the punishment prescribed by law should be ignored because it seems too severe under the circumstances. Specifically, Mr. Clinton's defenders argue that it would be disproportionate to remove him "merely" because he subverted the judicial proceedings he is sworn to preserve, protect and defend.

In fact, no responsible federal prosecutor would refrain from bringing felony charges in the president's case. Moreover, to the extent it might honestly be said that removal would not be a "proportional" punishment, that is true only insofar as it might be deemed inadequate. For the president, removal would simply deprive him of a trust he has profoundly betrayed. Any other citizen (and certainly any other public official) in the U.S. would go to jail for what the president has done.

This is not to say that there isn't a genuine need for proportionality in the administration of criminal justice. Federal prosecutors have traditionally enjoyed broad discretion in determining when, and against whom, charges should be levied--a practice that sensibly allows scarce resources to be allocated by those best positioned to gauge their appropriate use.

Nevertheless, proportionality has never been what the president's myrmidons would have Americans believe. It is not, as they suggest, episodic justice for the individual considered in isolation; rather, it must take social impact into account. If society decides it is a good thing to turn loutish behavior into a civil tort like sexual harassment, it no longer has the liberty to turn a blind eye when a particular case--especially a high-profile one such as Mr. Clinton's--turns out to be "private" and embarrassing. If the rule of law is to prevail, individual consequences must take a back seat to social ones. Circumstance and sympathy do not change that.

The idea of proportionality also comes with an important caveat: Law-enforcement officials who break the law must be subject to harsher punishment than ordinary citizens. The reasons are obvious. Such positions are public trusts, invested in those who take solemn oaths. When the trustee acts criminally, he does more than merely break the law; he also betrays the trust. A punishment that reflects only the lawbreaking is not proportionate to the harm that is done. Proportionality demands that the trustee be held to a stricter standard.

None of this is new. In fact, it is so firmly established that when the U.S. Sentencing Guidelines went into effect in 1987--creating a formula based on criminal history and various material aspects of the defendant's conduct in an effort to bring uniformity to federal sentencing--the Sentencing Commission enacted an "enhancement" called "Abuse of Position of Trust."

So how does proportionality apply to Mr. Clinton's situation? Unlike most defendants, who may cost the government a few thousand dollars, the president's obdurate lying and stonewalling have cost us several million dollars. He has torn asunder the sexual harassment laws. He has made it exponentially more difficult for the government to justify prosecuting those who lie under oath. And his behavior raises the specter of a compliant Justice Department redefining the legal definition of perjury to suit the administration's interests.

Taken together, Mr. Clinton's actions could easily justify several charges aggregating to well over 15 years of potential jail time. But let's confine the accusation to a single count of grand-jury perjury, an offense carrying a statutory maximum of five years' imprisonment. The guidelines that control federal sentencing initially compute this at "level 12," which translates to a jail sentence of 10 to 16 months for a first offender.

The guidelines, however, also tell us to add three levels if the perjury resulted in a "substantial interference with the administration of justice" and two levels if the defendant abused his position of trust. This moves us up on the sentencing grid to "level 17," which calls for a prison term of between 24 and 30 months. And mind you, for the sake of proportionality our prosecutor has ignored other possible guideline enhancements (such as obstruction of justice and an "aggravating role" in the offense) that could drive the sentence much closer to the five-year maximum.

Mr. Clinton would almost surely be headed to jail were it not for that small matter of being president. Would it really be "disproportionate" to remove him from office? Common sense says the White House should not impede the way to the jail house, especially when the crimes are an assault on the very justice system the president has sworn to protect. How in good conscience does the Senate allow such a person to fill vacancies on the federal bench? In the Justice Department? At the federal law-enforcement agencies?

But perhaps the most fundamental point is this: The trust that is the U.S. presidency is not a right of Bill Clinton's; it is a benefit he is accorded as president. Rights are not grants of government, and government may deny them only by a compelling demonstration of need--as the right of freedom is removed only by proof beyond a reasonable doubt of criminal guilt. Benefits, on the other hand, are creatures of the state, privileges that organized society confers--or takes away--for its overall betterment.

The constitutional process of impeachment and removal is not to be undertaken lightly, Serious people must conscientiously weigh all the circumstances applying to the president's case. Proportionality, however, is not a persuasive contention for Mr. Clinton's apologists, for it is the very soul of proportionality to withdraw a benefit whose conferral now brings only discredit to government and its laws.

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