Bob Barr: Trump shouldn’t be impeached, but Bill Clinton’s impeachment was justified – Here’s why

Some House Democrats who are calling for impeachment proceedings against President Trump on a charge of obstruction of justice claim that President Clinton was impeached in 1998 for far less serious misconduct. As a leader of the Clinton impeachment effort, I disagree.

I still believe the Clinton impeachment was justified. But based on what is now in the public record, I don’t believe a Trump impeachment is warranted.

Clinton, of course, remained in office after the House impeached him on charges of perjury and obstruction of justice because the Senate acquitted him in a trial. Even if the Democratic-controlled House impeached President Trump, he would also likely stay in office after a Senate trial.

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Impeachment simply means the House charges the president with serious misconduct it considers to be what the Constitution calls “high crimes and misdemeanors.” The phrase is not defined in the Constitution, and in a sense can mean whatever a simple majority in the House says it means.

However, there are two instances in which sitting presidents have been impeached – Andrew Johnson and Clinton – and one in which President Nixon almost certainly would have been impeached had he not first resigned. Looking at these cases gives us clear guidance that there needs to be a very substantial and substantive basis set forth on the record in order for the impeachment process to have the credibility it merits.

With Democrats in majority control of the House – holding 235 seats, compared to the 197 seats held by Republicans – odds are that the Democrats can impeach Trump if they want to.

Congressional Democrats opposed to President Trump have every right to vote against his legislative proposals, to challenge his actions in office with lawsuits, and to work to defeat him in the November 2020 election. But right now they don’t have grounds to impeach him.

But an impeached president can be removed from office only if 67 members of the 100-member Senate vote to convict him of “high crimes and misdemeanors.” Since Democrats (and two independents aligned with them) hold only 47 seats in the Senate, the odds of them getting support from 20 Republican senators to tell Trump “you’re fired” seen insurmountable, based on what we know today.

In 1998, when I served in the House as a Republican representing a district in Georgia, I was one of the leaders of the successful effort to impeach President Clinton for perjury and obstruction of justice.

I’m sure many Democrats would say my motives were purely partisan in the case of Democratic President Clinton, and my views are purely partisan in saying Republican President Trump should not be impeached. But that’s not the case.

For one thing, during my tenure as the U.S. Attorney for the Northern District of Georgia from 1986 to 1990 (appointed to that post by President Reagan), I lead the prosecution of a sitting Republican congressman from Georgia for perjury. That’s right, the same offense for which Democrat Bill Clinton was impeached.

In the month since Attorney General William Barr (no relation to me) released his letter summarizing conclusions of the report by Special Counsel Robert Mueller on Russia’s interference in our 2016 presidential election, America has become a nation overflowing with self-proclaimed “experts” on the law of obstruction.

Not even during the height of the Clinton impeachment in December 1998 did the level of debate over what constitutes obstruction of justice reach the level of scrutiny and intensity currently on display across our country.

One important difference between allegations of obstruction against President Clinton and those now leveled against President Trump is paramount.

The case against Clinton was based on extensive and detailed evidence of explicit acts by the then-president, constituting a pattern of activity intended clearly to corruptly influence actual legal proceedings against him then underway.

In stark contrast, the “case” against Trump is based on evidence of disparate actions subject to clearly differing interpretations, but all relating to an allegation – collusion between the Trump campaign and Russia to elect Trump – that Mueller determined is not fully and clearly supported by evidence.

As the redacted version of the Mueller report released last week by Barr stated: “The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government on its election interference activities.”

And of critical importance, there were no court cases taking place for Trump to obstruct. While Mueller and federal prosecutors in the Southern District of New York filed charges and obtained guilty pleas and convictions against some Trump associates, the crimes in those cases had nothing to do with election collusion with Russia – the legal focus of Mueller’s investigation.

A quick refresher course in the 1998 impeachment hearings before the House Judiciary Committee is in order to show the differences with the calls today for the impeachment of President Trump.

The impetus of the hearings involving President Clinton was a report submitted to the House in September 1998 by the Office of Independent Counsel headed by former federal judge Ken Starr.

Starr was an independent counsel, operating under a different law (since expired) that gave him more independence from the Justice Department than Mueller had as a special counsel.

Independent Counsel Starr was required by law to submit his report to the House. In contrast, Special Counsel Mueller was required to submit his report to the attorney general. Both men complied with the different laws under which they were appointed.

The report on Clinton set forth in detail “substantial and credible evidence” – the criteria in the independent counsel law – that the then-president had committed 11 impeachable offenses, including instances in which he perjured himself and obstructed justice.

The House Judiciary Committee conducted extensive hearings on the charges against President Clinton, focusing on the federal laws of obstruction, how those laws had been interpreted over the years, and examination of numerous cases in which individuals had been convicted under circumstances similar to those involving Clinton.

The Judiciary Committee then approved a resolution stating that Clinton should be impeached on four articles, including ones alleging perjury and obstruction of justice. This resolution then went to the full House.

The context for the obstruction article of impeachment against President Clinton was a legal proceeding in federal court involving the sexual harassment case brought against Clinton by Paula Jones, in which former White House intern Monica Lewinsky was a witness.

The predicate evidence developed in the Judiciary Committee hearings, which included the detailed material in the Starr report, established clearly that Clinton had lied under oath and had engaged in a deliberate, intentional series of acts designed for one purpose only – to cover up his sexual relationship with Lewinsky and to corruptly influence her testimony against him.

As noted in the “Report of the Committee on the Judiciary” on the impeachment matter (submitted to the full House in December 1998), “although the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment, some if not all of his actions clearly do.”

These actions included, among many other detailed offenses: corruptly attempting to cause a witness against him (Lewinsky) to “execute a sworn affidavit … he knew to be perjurious, false, and misleading.”

The House Judiciary Committee hearings established as well, and also among other offenses, that Clinton “corruptly engaged in … a scheme to conceal evidence that had been subpoenaed in a federal civil rights action brought against him.”

Contrast the extensive record of specific acts by President Clinton to corruptly influence ongoing legal proceedings in federal court (the Paula Jones case and the independent counsel grand jury proceedings), with the obstruction currently alleged to have been committed by President Trump.

All allegations of obstruction leveled at Trump arise from something far less legally substantive than the circumstance under which Clinton was impeached. There is no legal proceeding against Trump in which he has been alleged to have corruptly acted; there is only an investigation (of collusion with Russia) by Mueller that found nothing prosecutable against the current president.

Moreover, there are no civil proceedings targeting President Trump in which he is alleged to have corruptly acted, as existed in the 1998 case against President Clinton.

Clinton did far more than lash out at his tormentors, who included Starr. And Clinton’s actions went far beyond indirectly urging his tormentors to stop mistreating him and those in his administration. These allegations are the essence of the obstruction charges House Democrats now seek to advance against Trump.

I realize all this is complicated and may be hard to follow. But the bottom line is this President Clinton interfered in a judicial proceeding against himself, and President Trump did not. For this reason, Clinton deserved to be impeached but Trump does not.

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The Founding Fathers deliberately made the impeachment process very difficult. They did not want impeachment used as a tool to enable Congress to easily remove the president over policy and political disagreements.

Congressional Democrats opposed to President Trump have every right to vote against his legislative proposals, to challenge his actions in office with lawsuits, and to work to defeat him in the November 2020 election. But right now they don’t have grounds to impeach him.