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.
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.