Commentary: Impeachment: Does The Rule Of Law Really Rule?

It's hard not to wonder, these days, what made Republicans think they could win the battle for the hearts and minds of the American public. In spite of polls showing that voters want Clinton to stay in office, the GOP clung to the belief that it could convince people the President has done something serious enough to warrant removal. Party leaders hoped to do this by arguing that the impeachment wasn't about Clinton's private life but about a holy principle: the rule of law. Day after day, House prosecutors hammered away at the same theme: that if Clinton were to get away with his alleged crimes, it would undermine the principle that no person is above the law and cause people to lose faith in the American legal system.

Maybe so. But before betting the future of the party on this proposition, Republicans should have looked more carefully at what the rule of law really stands for. Henry Hyde & Co. used the phrase as a bumper-sticker slogan, but it's actually a highly evolved philosophical concept. Essentially, the term describes a legal system in which people are governed by impartial, fixed rules, in contrast to the arbitrary rule of man.

CLOSED DOORS. In his classic 1964 book on the topic, The Morality of Law, Harvard Law School Professor Lon L. Fuller determined that eight criteria need to be met for the rule of law to exist. In vastly simplified form, they are as follows: First and foremost, there have to be rules. Second, the rules should be created in a public forum and widely disseminated. They also have to be (3) stable, (4) consistent, (5) clear, and (6) impartially enforced. Moreover, the rules (7) should not retroactively punish people for actions that were legal when committed or (8) attach blame unless a person acts intentionally or negligently.

While most Americans probably couldn't articulate Fuller's eight principles, they have a deeply ingrained sense of when these edicts are being violated. And almost from the beginning, the impeachment trial made a mockery of the ideals that constitute the true meaning of the rule of law. The procedure was basically made up as it went along, in private, and in complete disregard for ordinary notions of due process.

That's not entirely the Republicans' fault. The Constitution requires that impeachment be a political rather than a legal procedure. But because the trial strayed so far from rule-of-law ideals, the GOP never had much of a chance of using it as a vehicle to change the public's mind. No matter how strong a case the House prosecutors made, citizens were unlikely to accept the process as legitimate.

Start with the fundamental requirement that the law should be fixed and stable. There's good reason for this principle: If the people in power got to invent the law as they went along, we'd have the very rule of men that we strive to avoid. Yet in the impeachment trial, many key procedural decisions--such as what type of evidence would be admitted and whether there would be witnesses--were made on the fly.

PROVE WHAT? What of the requirement that the law should be clear? In criminal trials, judges offer juries a precise definition of the crime charged, and jurors are supposed to apply that standard literally to the facts of the case. But the key term in the impeachment trial, "high crimes and misdemeanors," is notoriously vague. Worse yet, nobody can agree whether prosecutors need to make a "clear and convincing" case or to meet a tougher "beyond a reasonable doubt" test.

Impartiality is another cornerstone of the rule of law. Neither judge nor jurors should have any bias against the accused. But in this case, senators on both sides of the aisle have a stake in the outcome. Observes Harvard Law School's Alan M. Dershowitz: "One of the great things about a real trial is that the jurors don't run for reelection on the basis of the verdict."

Does all this mean that the impeachment proceeding has been illegal? Not necessarily. Senate Majority Leader Trent Lott (R-Miss.) had broad freedom to structure the trial as he saw fit, and there was never any requirement that it be like a typical criminal case. But what happened was so far from a typical legal proceeding that the impeachment never had a chance of attaining any moral authority. In hindsight, it appears that the Republicans got things exactly backward. The problem wasn't that Americans didn't know what the rule of law meant. It was that they did know.

France actually read The Morality of Law a decade ago at Stanford University Law School.

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