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Friends, Romans, Countrymen | The Nation

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Diary of a Mad Law Professor

Friends, Romans, Countrymen

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The networks are busy interviewing everyone with a law degree about what to expect from the impeachment trial of President Clinton. And in what would otherwise be a most amusing spectacle, the lawyers are hemming and hawing; some are even tongue-tied in the effort to explain what in the world is going on. This is, of course, partly because the process is more a political than a legal one but also because this particular proceeding has become something of a religious trial--in fact if not form, in theme if not name. And that is very confusing.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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When Henry Hyde wound up the House managers' presentation to the Senate, he employed the rhetorical form of a classic jeremiad, a form perfected by our Puritan forefathers and characterized by polemical lament. But for all the power of that style, Hyde's speech was devoid of legal content and devoid of constitutional import.

I tried to be a good lawyer listening to that speech. I began my career as a prosecutor, so I was ready to put my training to the test. As Hyde spoke, I took notes. By the end of the speech, I found I had written on my trusty yellow pad the following words: Sacred honor. The Ten Commandments. Mosaic law. The judgment of God. Faith. There was that astonishingly unlegal characterization of the presidency as the office not of the Chief Executive but of the "trustee of the national conscience." And there was that third grader's opinion that the President had lied. Never mind that hundreds of law professors and historians have signed statements to the effect that the President committed no impeachable offense. For, as between a warbly-voiced third grader and a cohort of scholars, the third grader always wins. (In any event, unlike the vengeful Mr. Hyde, for whom 60,000 pages of persecution are not enough, the third grader recommended that Mr. Clinton be punished by writing a 100-word essay by hand--a suggestion Hyde conveniently omitted. Then, the boy wrote, "I will believe him again.")

So, here we are, left to analyze notions of the sacerdotal rather than civil law; of a little child's faith and God's almighty judgment.

A theologically inclined friend of mine maintains that this spectacle is less an example of American Puritanism than of Donatism. The Donatists, a fourth-century Christian sect arising in North Africa, believed that the validity of church sacraments depended on the spiritual state of the priest. If he sinned, the condemnation was not limited to him but rendered illegitimate every sacrament, from baptism to burial, he had ever performed. This fundamentalist and broadly exclusionary doctrine is in marked contrast to the catholicity of view that replaced it and that has endured to this day, which regards holiness as something that is not destroyed by the presence of unworthy members but rests upon the divine foundation of the church, the gift of the Holy Spirit and the communication of grace through the priesthood.

The reason Donatism didn't survive is that it made the personal purity of its priests a matter upon which the very validity of the broader community depended. Few remained worthy enough. Similarly, the House managers have repeatedly cast our ship of state as a church, and the church as a fundamentalist cult of person rather than a public office. This recasting of the presidency brings us perilously close to becoming a sleazy theocracy, with Larry Flynt and Matt Drudge as its unlikely acolytes, gleefully casting the stones that will pick off our public servants. And do we really think this will end here, O ye citizens who are so continually surprised that this didn't end months ago? If Clinton stepped down tomorrow, would we be shocked if Scaife and Starr turned up secret witnesses who swore they heard Al Gore muttering lustful thoughts to Buddy the Dog?

This will go on. And who will be left standing?

In France, the word the press is using for impeachment is destitution. It is a term that, to my English ear, conveys the weight of what this Congress is doing. We are putting ourselves in a position of public destitution. Obviously, it is related to what we might more connotatively describe as "deinstitutionalization." But both words relate to the Latin root of stand, standing, stability. By this process, in other words, we deinstitutionalize our President, and destabilize ourselves. We diminish ourselves as much as the President.

Henry Hyde said political prisoners and war-weary soldiers would understand best why the House managers want to impeach Bill Clinton. As he spoke, forty-five Albanians were being slaughtered in Kosovo by Serbian forces. Somehow I just couldn't imagine any of them caring whether Bill Clinton got to first base in the pantry, second base in a broom closet, or whether he did the whole hoo-hah while swinging from a trapeze. I suspect the greater fear of all political prisoners and politicians, of weary warriors and us plain old citizens is a government run by intolerant moralists who can abide no human error and whose taste for punishment knows no plumbed depths.

There was a report recently about Jerry Falwell, the leader of a so-called moral, so-called majority with whom so much of this Congress has found itself in bed--figuratively, I grant you. Falwell is worried that the Antichrist is alive and moving among us today, gearing up for the millennium. "Of course, he'll be Jewish...," Falwell intoned. "If he's going to be the counterfeit of Christ, he has to be Jewish."

Personally, I think that the most terrifying counterfeits who walk the earth are those who are so certain in their judgments that they presume to know the face of divinity and demonize all who do not live up to that imagined standard.

It is for this reason our founding fathers set up a government of men, not false gods, under which, as Alexander Hamilton wrote in The Federalist, No. 65, impeachable offenses must be "of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself." If we settle for less, then I very much fear, as a citizen in Shakespeare's Julius Caesar put it, "there will a worse come in his place."

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