KC Johnson

Partisanship and the Party System: Impeachment, 2000

Bill Clinton denies sexual relations with Monica Lewinsky:

Clinton testifies under oath before the Starr grand jury:

The Daily Show does an impeachment retrospective:

Vodpod videos no longer available.

The debate over “hanging chads,” 2000 recount:

Laura Dern as Katherine Harris in Recount (HBO). The general sense among those who worked with Harris is that Dern underplayed Harris:

Florida results map, 2000 election:fl-00

Bush v. Gore:

Law professors Ronald Dworkin and Charles Fried debate the Supreme Court ruling, in the NY Review of Books:

Volume 48, Number 1 · January 11, 2001

A Badly Flawed Election

By Ronald Dworkin

The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices—Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas—over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote that was already in progress, and then declaring, in one of the least persuasive Supreme Court opinions that I have ever read, that there was no time left for the recount to continue. It is far from certain that Gore would have been elected if the recounts had been completed; some statisticians believe that Bush would have picked up more additional votes than Gore. But the Court did not allow that process to continue, and its decision ensured both a Bush victory and a continuing cloud of suspicion over that victory.

Though it took six opinions for all the justices to state their views, the argument of the five conservatives who voted to end the election was quite simple. The Florida Supreme Court had ordered a recount of “undervotes” across the state, but instead of adopting detailed rules about how the counters were to decide whether a ballot that the counting machine had declared to have no vote for president was actually a vote for one candidate—rules that might have specified, for example, that if not a single corner of the “chad” of a punch-card ballot had been detached, the ballot could not count as a vote—the Florida court had directed only that counters count a vote if they found, considering the ballot as a whole, a “clear intention” of the voter to vote. The five conservatives noted that this more abstract standard had been applied differently by counters in different counties, and might be applied differently by different counters within a single county, and they therefore held that the use of the standard denied voters the equal protection of the law that the US Constitution’s Fourteenth Amendment requires.

The natural remedy, following such a ruling, would be to remand the case to the Florida court to permit it to substitute a more concrete uniform counting standard. Breyer, in his dissenting opinion, suggested that course. “[The] case should be sent back for recounting all undercounted votes,” he said, “in accordance with a single uniform standard.” But the conservatives declared that since the Florida legislature intended to take advantage of the “safe harbor” provision of federal law, which provides that election results certified by states to Congress by December 12 are immune from congressional reexamination, any further recount the Florida court ordered would have to be completed by that date—which ended two hours after the Supreme Court handed down its judgment. The conservatives had remanded the case to the Florida court, for “proceedings consistent with” their opinion, and then told them that no proceedings could possibly be consistent with their opinion. The election was over, and the conservative candidate had won.


The 5-4 decision would hardly have been surprising, or even disturbing, if the constitutional issues were ones about which conservatives and liberals disagree as a matter of constitutional principle—about the proper balance of authority between the federal and state governments, for example, or the criminal process, or race, or the character and extent of individual rights, such as abortion rights or rights of homosexuals, against state and national authorities. But there were no such constitutional issues in this case: the conservatives’ decision to reverse a state supreme court’s rulings on matters of state law did not reflect any established conservative position on any general constitutional question. On the contrary, conservatives have been at least as zealous as liberals in protecting the right of such courts to interpret state legislation without second-guessing by federal courts, and on the whole less ready than liberals to appeal to the Fourteenth Amendment to reverse state decisions.

It is therefore difficult to find a respectable explanation of why all and only the conservatives voted to end the election in this way, and the troubling question is being asked among scholars and commentators whether the Court’s decision would have been different if it was Bush, not Gore, who needed the recount to win—whether, that is, the decision reflected not ideological division, which is inevitable, but professional self-interest. The five conservatives have made this Supreme Court the most activist Court in history. They aim to transform constitutional law not, as the Warren Court did, to strengthen civil liberties and individual rights, but rather to expand the power of states against Congress, shrink the rights of accused criminals, and enlarge their own powers of judicial intervention.[1]

For three of them—Rehnquist, Scalia, and Thomas—the agenda presumably includes finally abolishing the abortion rights that were first established in Roe v. Wade over a quarter of a century ago, a decision they have never ceased insisting should be overruled. The prospects of future success for the conservatives’ radical program crucially depend on the Court appointments that the new president will almost certainly make. Those appointments will determine whether the conservatives’ activism will flourish (even adding, perhaps, the two new votes that would be needed to overrule abortion rights so long as O’Connor and Kennedy refuse to take that particular step) or whether it will be checked or reversed. Bush long ago signaled, in naming Scalia his favorite justice, his intention that it flourish.


We should try to resist this unattractive explanation of why the five conservative justices stopped the recount process and declared Bush the winner. It is, after all, inherently implausible that any—let alone all—of them would stain the Court’s reputation for such a sordid reason, and respect for the Court requires that we search for a different and more creditable explanation of their action. Unfortunately, however, the legal case they offered for crucial aspects of their decisions was exceptionally weak. Their first major ruling, on Saturday, December 9 (soon after the recounting began), was to halt the recount even before they heard argument in Bush’s appeal of the Florida Supreme Court decision ordering those recounts. That ruling was in itself lethal for Gore. Even if the Court had ultimately rejected Bush’s appeal, and allowed the recount to resume, it could not possibly have been completed by December 12, the date which the conservatives later declared the final deadline.

Scalia argued that this serious injury to Gore was necessary to prevent irreparable harm to Bush: he said that Bush would be harmed if the recounts continued because if the Court later decided that the recount was illegal, the public’s knowledge of the results would cast a “cloud” over “the legitimacy of his election.” That bizarre claim not only assumes that Bush would have lost in the recount, but also that the public is not to be trusted. Public knowledge that Gore would have won, if the recounts had continued and been accepted, would produce doubt about a Bush election only if the public disagreed with the Court’s judgment that the recount was illegal; and it is constitutionally improper for the Court to keep truthful information from the public just because the information might lead it to conclude that the election was a mistake or that the Court was wrong.[2]

The conservatives’ second major decision was that the Florida court’s “clear intention of the voter” standard for manual recounts violated the equal protection clause because different counties and counters would interpret that standard differently. Two of the more liberal justices—Breyer and Souter—agreed,[3] but the other liberal justices, Ginsburg and Stevens, rejected the argument, and they had the better case. The equal protection clause forbids voting procedures or arrangements that put particular people or groups at an electoral disadvantage. The Court has struck down poll taxes that discriminated against the poor, for example, and, citing a “one-person-one-vote” electoral standard, has prohibited electoral districts of very different size because these give each voter in larger districts less impact on the overall election result than voters in smaller districts have. But a general standard for counting undervotes that may be applied differently in different districts puts no class of voters, in advance, at either an advantage or disadvantage. If a voter’s county uses a more permissive test to determine “clear intent,” then he risks having his ballot counted when he did not intend to vote; if it uses a strict standard, he risks having his ballot ignored when he did intend to vote. One cannot say, in advance, that either a permissive or strict test is more accurate, and therefore cannot say that a system that combines both within a single state puts any identifiable group at an automatic disadvantage.[4]

As Gore’s counsel, David Boies, pointed out in oral argument, Florida’s use of different voting machinery in different counties is much more arguably a violation of equal protection, because some types of machine are well known to be much less accurate than others. Punch-card ballot readers, which are used in counties with a high minority population such as Miami-Dade, ignore more than three times as many ballots as optical ballot readers do, and therefore give voters in those counties systematically less chance of having their votes counted.

The Court’s equal protection decision is surprising in another way. The one-person-one-vote principle applies not just to presidential elections but to elections for every federal and state office, major or minor, across the country. I do not know how many states use nothing more concrete than a “clear intent of the voter” standard for manual recounts, but several do, and the Supreme Court has now declared that they have all been acting, no doubt for many decades, unconstitutionally. This ruling alone may require substantial changes in the nation’s electoral laws, and the Supreme Court may well regret having made it.


The conservatives’ equal protection claim is defensible, however, and, as I said, two of the more liberal justices also accepted it. But the conservatives’ third major decision, and by far its most important, is not defensible. The most natural remedy for the supposed equal protection violation, as all the dissenters insisted, would be to remand the case to the Florida court so that it could establish uniform recount standards and attempt to complete a recount by December 18, when the Electoral College votes. But the conservatives held that since the Constitution gives the Florida state legislature authority over its own election law, and since that legislature would wish to take advantage of the federal “safe harbor” law that guarantees a state certification of presidential electors immunity from congressional challenge if the certification is made by December 12, any recounts beyond that date, even those necessary to insure that all valid votes were counted, would automatically be unconstitutional.

But the safe harbor provision is not mandatory; it does not provide that a state loses its electoral votes if these are not submitted by December 12, but only that its votes, if submitted after that date, might conceivably be challenged in Congress, if reason can be found to challenge them. Certainly the Florida legislature would wish to meet the December 12 deadline if it fairly could, and its legislation should be interpreted, as the Florida Supreme Court said that it did interpret it, with that aim in mind.

But it goes far beyond that safe assumption to declare, as the five US Supreme Court conservatives did, that the Florida legislature meant to insist that the optional deadline be met at all costs, even if it was necessary to ignore the principles of accuracy and fair treatment that underlie the rest of the election code. That would be a bizarre interpretation of any state’s election law—what legislature would wish to be understood as purchasing an immunity it would almost certainly never need at the cost of sacrificing its basic commitments of justice?—and there is no evidence that the Florida legislature has ever made that choice.[5] Even if the conservative justices thought this bizarre interpretation plausible, moreover, it would still be wrong for them to impose that interpretation on the Florida Supreme Court, which, according to the most basic principles of constitutional law, has final authority in interpreting its own state’s law so long as its interpretation is not absurd. The conservatives should, at most, have asked the Florida court to decide for itself whether Florida law, properly understood, declares that the safe harbor must be gained no matter what unfairness to Florida voters is necessary to gain it.

Even the two dissenters who had agreed with the majority that the Florida court’s recount scheme violated the equal protection clause thought it absurd to insist on the December 12 deadline, and all of the dissenters feared the impact on the Court itself of so weak an argument for so politically divisive a decision. Justice Stevens said the decision “can only lend confidence to the most cynical appraisal of the work of judges throughout the land.” “We do risk a self-inflicted wound,” Breyer added, “a wound that may harm not just the court, but the nation,” and he also noted, pointedly, that the time pressure the conservatives cited was “in significant part, a problem of the [Supreme Court’s] own making.”[6] We must try, as I said, not to compound the injury to the Court with reckless accusations against any of its members. But those of us who have been arguing for many years that the Supreme Court makes America a nation of principle have a special reason for sorrow.

2.

The deeply troubling Supreme Court decision in Bush v. Gore makes even plainer the urgency of radically changing how we elect our presidents. Our present system is an eighteenth-century antique: it presupposes a starkly elitist conception of government that was popular then but which no politician would dare endorse today. The Constitution’s authors did not trust the people to elect the president directly; they expected the members of the Electoral College to be distinguished and independent citizens who would make up their own minds, after collective deliberation, about who the president and vice-president should be. It was not as important as it later became how those electors were chosen, because, in principle, the selecting body would have no control over or even confidence in the opinions of the independent electors they chose. There was nevertheless some initial disagreement at the Constitutional Convention about the selection of electors: some delegates wanted them elected by popular vote, some by Congress, and some by the state legislatures.

The Convention finally decided, by way of compromise, not itself to establish any electoral method, but to delegate the choice of methods to the state legislatures. Each state was assigned a number of electors equal to the total number of that state’s representatives and senators in Congress (that formula was a concession to smaller states which had fewer representatives but the same number of senators as much larger states) and the state legislatures were directed to decide how their state’s electors would be chosen. A majority in the legislature might select the electors themselves, or provide for a popular vote within the state to select them (which might be by a statewide vote for all the electors, or by districts, or by proportional representation). Or, presumably, it might direct that electors be selected by lot. Once all the electors were selected in whatever ways the various state legislatures chose, they would meet in their states, deliberate, and vote for a president; if no presidential candidate received a majority of their votes, then the House of Representatives would choose a president with each state delegation having one vote, so that the smallest state had as much influence as the largest.

America has long since rejected the intellectual premises of this baroque system. Now we embrace the very different principle that the point of elections—and particularly the election of a national president, the one office we elect all together—is to determine and reflect the people’s will. Electors are no longer expected to exercise their own judgment: it is candidates, not electors, whose names are on the ballot and it would be a scandal if the electors chose someone other than the candidate to whom most of them were pledged. A partisan majority in a state legislature still has the constitutional power, under Article II, to cancel presidential elections in its state and choose the state’s electors by themselves. But if any legislature tried to exercise that power its action would undoubtedly provoke a constitutional amendment ending that power.


We have been lucky not to have been seriously damaged by the Electoral College system long before this election made its anachronism intolerable. It is dangerous to retain a constitutional structure when its principled base has been so thoroughly repudiated, because the structure then becomes a legal loose cannon. It generates pointless complexities and obstacles, and it is vulnerable to partisan manipulation and bizarre interpretation that cannot be checked by appealing to the structure’s purpose, since it now has none. The legal battles in Florida and in the Supreme Court were dominated by a series of deadlines—the Court elected Bush by insisting on the importance of December 12—that are significant only because the eighteenth-century arrangement decreed a stately series of certifications, meetings, and pronouncements that are now only charades. The Republican strategy in Florida of delaying recounts through any means possible, including not only legal challenges but noisy demonstrations outside counting rooms, was made possible only by those pointless deadlines. It makes no sense to demand that a breathtakingly close election be finally decided by any magic date in December in order that a new president be chosen by January 20.

The original decision to leave the manner of presidential elections to state legislatures corrupts elections in a different way. The one-person-one-vote principle would suggest, as I said, that we elect presidents through uniform voting methods, with at least roughly equal accuracy, supervised by a national election commission under principles established by Congress. The eighteenth-century compromise guarantees, to the contrary, that different methods of recording votes, which vary dramatically in their accuracy, will be used not only in different states but in different counties within states. It also guarantees that inevitable uncertainties and ambiguities in election law will have to be faced anew in each close election, because even if Florida’s law is clarified now, the next set of contests will arise in an entirely different state with an entirely different structure of law and ambiguity.

The present system means, moreover, that politics will play an inevitably ugly role in close elections. It is surely unacceptable that the Florida state legislature, dominated by Republicans, should have the power themselves to elect a set of electors pledged to the Republican candidate whenever they deem this to be necessary because the result of the election is uncertain. Many of the most consequential decisions in Florida were made by political officials whose future might depend either on who won the presidential election or on whether powerful Florida politicians, including Bush’s brother, who is Florida’s governor, would approve what they had done. Katherine Harris, the Florida secretary of state whose several erroneous rulings contributed enormously to the delays that prevented a fair recount, had been co-chairman of Bush’s campaign in Florida, and The New York Times reported that the Democratic mayor of Miami had been subject to a great deal of local pressure just before the Miami-Dade canvassing board reversed itself and decided to halt manual recounts. [7] It would be a mistake to assume wrongdoing or improper motives in any such case, but it would certainly be better to vest critical decisions in nonpartisan federal election officials who would be much less likely to attract suspicion.


We now have the best chance ever to junk the anachronistic and dangerous eighteenth-century system. The public should demand that Congress begin a process of constitutional amendment that would eliminate that system, root and branch, and substitute for it the direct election of the president and vice-president by a plurality of the national popular vote. The amendment should direct Congress to establish uniform election procedures and machinery across the nation and that body might then design and finance voting computers with screens that clearly display a voter’s tentative choices and ask the voter to confirm his votes before they are recorded.[8] (It might be possible to allow people with computers, including absentees, to vote through them at home, although special digital identification and security precautions would have to be developed, and care taken to avoid unfairness to voters with no access to a computer.)

Congress should further require that voting booths be open for the same twenty-four-hour period across the different time zones of the country, so that voting stops simultaneously everywhere, and the television networks do not report results in one time zone while voting continues in another; and it should establish a national elections commission with general supervisory power over national elections. Challenges and disputes would no doubt still arise, but these could be adjudicated by officials of such an agency, who would be appointed to provide nonpartisanship, subject to review by federal judges with life tenure, rather than by state political officials and elected state judges.

The nation would benefit in other ways from the change. It does not matter, under the Electoral College system, who won the national popular vote, but that fact is nevertheless widely reported and widely thought significant; a president who has won in the Electoral College but lost the popular vote, even by a relatively slim margin, is thought by many people to be less legitimate for that reason. Making the popular vote decisive would end the possibility of such a situation. Would we lose anything by the shift? It is said to be a benefit of the Electoral College system that it forces candidates to campaign across the nation rather than only in a few highly populated regions with huge media markets and the largest number of potential votes. But in fact the system does not produce genuinely national campaigns. Candidates wholly ignore states that they are very likely either to win or to lose—few presidential campaign ads appeared in the New York media market in this election, for example—and devote most of their time and money to those relatively few states in which the race appears to be close. If the national popular vote were decisive, they would not campaign just in the major population centers—there are too many votes elsewhere—but wherever they thought they could persuade a substantial number of as yet undecided voters.

It has also been said that the Electoral College is necessary to protect regional interest groups that are powerful within certain states, and so important to those states’ electoral votes, but not large nationally. But interest groups are now much more dispersed across the nation than they once were: many states that were formerly dominated by agricultural interests, for example, now have a more mixed economy, and farmers might be better protected by voting rules that made their absolute number important even if they were geographically dispersed.

It might appear that the Electoral College system reduces the number of post-election challenges and contests in close presidential races because candidates have no incentive, under that system, to seek to correct mistakes in a state that the other candidate won so heavily that he would take its electoral votes anyway. Under a popular vote system, however, a candidate who lost the popular vote by a very small margin might canvas the entire country looking for a series of challenges that could yield only a few votes in each case, but might change the overall result collectively.

But there is no reason to think, in advance, that a change from the Electoral College to a popular vote standard would produce more post-election challenges or contests. If a national election is close, then the election in states whose electoral votes are crucial is also likely to be close, and many fewer vote changes are needed to make a difference in the state than in the nation. Gore needed only to add a few hundred votes in Florida through challenges, but, even in this exceptionally close popular vote contest, Bush would have had to add more than 300,000 votes to his total to win, and there is no indication of irregularities elsewhere in the nation that affected, even cumulatively, that many votes.

The moment seems propitious, as I have said, for pressing for a constitutional amendment: politicians in either party would have great difficulty claiming that the system we have has worked well, or supplying any principled rationale for it. But we must recognize that it is extremely difficult, and normally takes many years, to amend the Constitution. Short of a new constitutional convention, an amendment requires a two-thirds vote of both houses of Congress, and then approval by the legislatures of three quarters of the states, and the pressure for an amendment may weaken before that long process has been completed. In any case, no amendment can succeed without the consent of many of the smaller states whose citizens benefit unfairly, in the ways I have described, from the Electoral College system that the amendment would end.


It is therefore important to consider how much of the gain that an amendment would bring could be achieved at once without one, or while one is pending. One gain I described—a twenty-four-hour election day ending simultaneously across the country—could be adopted by Congress now, because the Constitution assigns it authority to fix the time of presidential elections. More could be achieved through a Model Uniform Election Code which Congress might endorse and propose to the states, agreeing to finance elections for national office, including providing accurate electronic voting machinery, for those states that adopted that code. The model code would no doubt be adopted in somewhat different form in different states, but Congress could identify core provisions that guaranteed uniform voting machinery and mechanisms of challenge and review, for instance, that could not be changed without forfeiting the benefits Congress offered. There could be no objection under Article II to a state legislature adopting the model code; a legislature would of course be free to repeal the code later, but it would presumably face great political pressure not to do so.

These are extraordinary measures, and many people will be understandably timid about altering a constitutional structure that has been, as a whole, dramatically successful. But the Constitution’s original design for elections, rooted in an elitism which is no longer tolerable, has proved its most unsuccessful feature. We have had to amend it before—in 1913, when the power to choose senators was taken away from the state legislatures that originally had that power, and given to the people—in order to keep faith with our most basic constitutional conviction, which is that the Constitution creates and protects genuine democracy. We have now witnessed new and frightening challenges to that assumption, culminating in a deeply regrettable Supreme Court decision, and we must again change the Constitution in order to sustain our deep respect for it and for the institutions that guard it.

—December 14, 2000

Notes

[1] For a detailed account of this conservative activism, see Larry Kramer, “No Surprise. It’s an Activist Court,” The New York Times, December 12, 2000.

[2] Scalia also said that since “it is generally agreed” that further handling of the ballots might degrade them, Bush might suffer irreparable harm if that degradation made a further, more accurate, recount impossible. But there is no evidence (only Republican allegations) that a recounting of ballots by judges is likely to injure those ballots, no request by the Bush team for any further recounting, and no real prospect of the Supreme Court ordering one.

[3] The New York Times suggested that they agreed in hopes, which failed, of constructing a compromise decision to send the case back to allow the Florida court to set more concrete counting standards. See Linda Greenhouse, “Bush Prevails,” December 13, 2000, p. A1.

[4] The Florida Supreme Court had adopted the “clear voter intent” standard from the Florida statutes. In his dissenting opinion, Souter said that he could see no rational basis for using such an abstract test for inspecting ballots. But a state might rationally decide that accuracy would be improved overall by using a general standard rather than trying to anticipate in detail all the evidence that a ballot might present: a set of concrete tests might not have allowed, for example, for the Florida voter who wrote “I vote for Al Gore” across his otherwise unmarked and unpunched ballot.

[5] This interpretive question asks not whether the present Florida legislature, dominated by Republicans who seemed anxious to deliver their state to Bush in any way possible, would make that choice, but whether it would be justified by sound legal interpretation of existing Florida law, which cannot appeal to partisan political motives of that character.

[6] When on December 4 the Court vacated the Florida Supreme Court’s initial decision extending the time for manual recounts, and asked for clarification of the ground of that decision, several commentators praised the Court for a minimally interventionist decision, noting that the liberal justices could join in that minimal opinion to achieve unanimity. But it was not a minimally interventionist decision: it laid the ground for a dubious understanding of the constraints on state judges interpreting their state’s election law that might well have accounted, as Breyer noted in his dissent, for the Florida Supreme Court’s reluctance to stipulate more concrete counting standards, for fear that the Supreme Court would declare that it was making new law.

[7] See Don van Natta Jr. and Dexter Filkins, “Contesting the Vote: Miami-Dade County,” The New York Times, December 1, 2000.

[8] Advanced electronic voting devices might, of course, malfunction, though it seems unlikely that they would be subject to as many of the failings that have now been documented in machines and ballots now used, and software could be designed to detect malfunction immediately.

Volume 48, Number 3 · February 22, 2001

‘A Badly Flawed Election’: An Exchange

By Charles Fried, Reply by Ronald Dworkin

To the Editors:

I cannot claim to be a disinterested observer of the events Ronald Dworkin comments upon in his essay “A Badly Flawed Election” [NYR, January 11]. I was counsel of record to the Florida Legislature in the two Supreme Court cases spawned by the tabulation of the vote in Florida. In our second brief my Harvard colleague, Einer Elhauge, and I presented arguments that closely paralleled the Court’s opinion as well as the concurring opinion of the Chief Justice. In spite of that involvement—maybe because of it—I readily concede that this was a difficult case with two sides. Quite unjustified, however, is Professor Dworkin’s high dudgeon and barely concealed innuendo that the Court had acted injudiciously out of a partisan zeal to protect its own agenda against future unsympathetic appointments. On the contrary, I see the Court as having reluctantly done the job its commission required of it.

In its first opinion of December 5 the Court reminded the Florida Supreme Court that its work in this matter was not solely a matter of state law (as Professor Dworkin repeatedly suggests) but that it was the Constitution (in Article II, §1, ¶2, dealing with the choice of the President) that committed the matter to the state Legislature and a federal statute, 3 U.S.C. §5, that assumed that disputes regarding presidential electors were to be resolved by rules established prior to the particular election in question. So it was a premise of that first opinion that the faithfulness of the Florida Supreme Court to the directions of the state legislature and to preexisting rules was a question of federal law and thus ultimately a proper subject for review by the Supreme Court of the United States. That opinion was unanimous. I say the Court showed a proper reluctance about becoming involved because it was at pains to achieve unanimity and because having issued its reminder, it remanded the case to the Florida Supreme Court.



The second opinion, which Professor Dworkin writes about, came a week later, when the Florida court, to which the Supreme Court had shown traditional deference, had—so it seemed to many, including three of the seven Justices of the Florida court—refused to take the hint, and come down with a decision that merits at least as much criticism as Professor Dworkin directs at the Supreme Court of the United States. True it is that the second time around the Court showed a good deal less deference to the Florida court, but that is often the case when a lower court appears to the Justices to be taking its direction in less than a wholehearted spirit.[1] Thus Professor Dworkin’s repeated characterization of this being an unprecedented and unwarranted interference in a matter of state law is misleading and incorrect.

Professor Dworkin writes that it is “difficult to find a respectable explanation of why all and only the conservatives voted to end the election in this way,” and, becomingly, that “we should try to resist this unattractive explanation”: that the Court majority was acting only to protect its own radical “conservative” agenda. Professor Dworkin does not try hard enough. Instead he relentlessly casts the disagreement as one between the five “conservative” and the four “liberal” Justices, with only the former moved by partisan motives. Even if the divide were as neat as he says, one wonders why exactly the same charge of partisanship could not be leveled against the four dissenters. But in fact the divide is not at all neat. For instance, on the most bitterly contested issue dividing the Court for several decades now, the right to choose established in Roe v. Wade, two members of the majority are committed to a version of the same position Professor Dworkin espouses and the dissenters favor. Indeed, there are ideas and whole phrases in the O’Connor, Kennedy, Souter joint opinion in the Casey case that might have come straight out of Professor Dworkin’s writings. The same might be said about Justice O’Connor’s opinion in the “right to die” cases. Surely neither she nor Justice Kennedy can fairly be readily relegated to some caricaturial conservative pigeonhole. And for that matter Justices Scalia and Thomas are a good bit more “liberal” (if one must use these degraded and inaccurate labels) than Justices O’Connor and Breyer on a number of issues, such as free speech. Many commentators who share Professor Dworkin’s outrage cite, as if it proved something, Justice Stevens’s dissent saying that the Court’s decision will endanger public respect for the judiciary. But this is just the kind of thing he and Justice Scalia are sometimes inclined to say when they lose (e.g., Scalia in Evans v. Romer, the Colorado anti–gay rights initiative). Vehemence in dissent is traditional, but fouling your own nest always seems desperate.


Dworkin disagrees with the Court’s judgment that the kind of recount ordered by the Florida Supreme Court was a denial of equal protection because it “puts no class of voters, in advance, at either an advantage or disadvantage.” But the Supreme Court has made clear—as recently as last year in a unanimous opinion in a jejune case involving one family’s sewer connection[2]—that disparate treatment may violate the Constitution’s guarantee of equal protection even if no identifiable class of persons is the target of the intentional disparity. The Florida court had explicitly ordered a procedure to take place which treated persons’ votes in a senselessly variable manner.[3] Dworkin argues that in fact there was one, general uniform standard: whether each ballot, taken as a whole, showed a clear intent to vote for one or another of the candidates for president. Discerning intent from a will or contract, a statute, or even the Constitution, taken as a whole, is a familiar and appropriate task for legal interpretation. Like Professor Dworkin, I too am a fan of hermeneutics applied to such texts. Applied by many scores of variously trained, instructed, and supervised ballot counters to punched pieces of cardboard, such a concept is manifestly out of place, to say the least.[4] In such stylized settings only a stylized system will do, and that system can and therefore should be uniform. But this is, for some of the reasons Dworkin gives, a question with two sides. In the end only two Justices agreed with Dworkin, so this is hardly a cause for fulmination, dire warnings of the sort issued by Justice Stevens, or imputations of dishonestly partisan motives.

Although Dworkin finds the equal protection argument “defensible,” agreeing with Justices Souter and Breyer, he argues that the Court’s decree shutting down the election was not. The Court based its conclusion on what it discerned as the intent of the Florida law on no account to miss the December 12 safe harbor deadline, a deadline that evidently would not allow a second try by the Florida Supreme Court on that very day. This was the least convincing portion of the Court’s opinion but it too does not justify the depth of Dworkin’s or the dissenters’ scorn. They would have had the Court remand the case to the Florida Supreme Court to fashion a remedy that met the equal protection objection. But Dworkin and the two Justices who dissented from the Court’s remedy take it as a given that a recount on those terms would in any event have to have been completed by December 18, the day on which by federal law the electoral votes must be reported. But such a recount could not be completed in six days any more than in twenty-four hours. That is because that recount would go forward under the contest provisions of Florida law, and those envisage not a simple tally, but a full-blown legal process, complete with briefing, oral argument, and a full recourse to appellate process. Such contests in Florida have been known to require sixteen months. So imagine what would have happened if Dworkin’s and Breyer’s solution had been adopted. There would have been further arguments in the Florida Supreme Court on remand, followed by an opinion from that court—which may have occasioned further review in the Supreme Court of the United States. Then the recount would have taken place and there would have to have been still more process about that. If miraculously all this had been compressed into six days that fact itself would have occasioned a complaint to the Supreme Court that the Florida court had once again failed to comply with the preexisting standards of Florida law.[5] Would such a continuation of the legal proceedings, inevitably leading to an indeterminate outcome, really have been more a satisfactory course? Surely if that was the alternative, the Court did well to shut the thing down then and there.


Finally, I think that the three concurring Justices, whose views Professor Dworkin does not discuss, were on sounder ground than the seven who found an equal protection violation. They argued that the Florida Supreme Court had not just interpreted some ambiguous language in the Florida statutes in a questionable way—a disagreement which perhaps the Supreme Court would have been well advised to let lie—but had turned that scheme completely on its head. Since fidelity to pre-existing Florida law is a requirement of federal law—both statutory and constitutional—such a radical departure called for correction. The argument about Florida law is intricate, but its crux—as Professor Elhauge shows in the portion of our brief for which he was principally responsible—is the Florida Supreme Court’s premise that an interpretive manual recount is always preferable to a mechanical one and that in a close election an interpretive recount must always be had even if there was no evidence of fraud or mechanical breakdown. To argue that Florida law requires such a recount whenever the outcome might be affected (that is, every close election) is to beg the question. Florida law insists that all legally cast ballots be counted, and it was the contention of the Secretary of State that all such votes had been counted, while the famous undercounts with imperfectly perforated chads were by hypothesis not legal votes.

But in the end all this high dudgeon is unjustified for a deeper reason. This election, as any statistician will tell you, was in effect a tie. A difference of 0.5 percent in an election in which a hundred million votes were cast—at various times, under diverse circumstances, by a wide variety of means—exceeds our present capacity for accurate tabulation. The mantra of the Gore people, that we should keep counting until we can be sure that every vote had been registered, would have brought us more and more laborious recounts, with different results from each, but no greater accuracy.[6] So I agree with Professor Dworkin’s proposals that for the next time we standardize and modernize the machinery, schedule, and procedures of our presidential elections. (Such improved machinery might have seen Richard Nixon and not John F. Kennedy President in 1960, but we rarely hear that the latter’s presidency was illegitimate.) As for this election, what we saw was a range of institutions—from local canvassing boards to the Supreme Court of the United States—struggling with a freakish situation beyond the capacity of any to resolve to everybody’s satisfaction.

Charles Fried

Harvard Law School

Cambridge, Massachusetts

Ronald Dworkin replies:

In the article to which Professor Fried responds, I recommended a constitutional amendment abolishing the Electoral College and providing for the direct election of the president. Many readers warned, as I had myself suggested, that the smaller states, which have more electoral votes per citizen than the larger ones, would block that amendment because it would eliminate that advantage. But small states would not have that reason for rejecting the Uniform Model Electoral Code I also recommended, which would be offered for adoption to states one by one in return for federal financing of advanced voting machinery.

The Model Code would provide that each state’s present number of electoral votes be split among presidential candidates as near as possible in proportion to the popular vote for each in that state. If most states adopted that provision, the national electoral vote would match the national popular vote much more closely than it does now, and the risk that the winner in the popular vote would lose in the Electoral College would be much reduced. If Florida had enacted a code with that provision, then even without a recount Gore would have won twelve of the state’s twenty-five electoral votes, and would therefore have won the presidency.

Other readers expressed disappointment that I was not more critical of the five Supreme Court Justices who made Bush president; it is disingenuous, they said, to try to find creditable explanations for what was so obviously a crude political decision. But the sense of legitimacy that the Supreme Court enjoys—demonstrated, once again in this case, by the fact that no one hesitated to accept its verdict even though a great many thought that verdict plainly wrong—is very important to the rule of law and principle in America, and we should not jeopardize that legitimacy out of anger at one apparently indefensible decision. It may well be, as one reader suggested, that whatever the five Justices do in the rest of their careers they will be remembered, by the public and in the academic literature, mainly for their part in this decision. But that makes it all the more important to find what I said I could not yet find: at least an ideological rationale rather than one of mere self-interest for what they did.

I therefore looked forward to the comments of Professor Fried, who was Reagan’s solicitor general and later a judge on the eminent Supreme Judicial Court of Massachusetts, before he returned to the Harvard Law School. Fried was a coauthor of one of the many “friend of the court” briefs that urged the Supreme Court to overturn the Florida Supreme Court’s recount order. Unfortunately, his letter does not provide the defense I had hoped for, and his failure will only deepen suspicion that no decent defense can be found.


The conservative majority made two claims: first, that the Florida Supreme Court’s recount order, which specified only that ballots were to be inspected to determine the “clear intent” of the voter, violated the Fourteenth Amendment’s requirement of equal protection of the laws for everyone, because different vote-counters would interpret that abstract standard differently, and, second, that any new recount, conducted in accordance with more concrete standards, would have to be completed by December 12, which was the very day on which, late in the evening, the Supreme Court issued its opinion.[7] Fried attempts to defend both of these holdings, at least in substance, and then argues that, because the election was anyway so close, it does not really matter whether the Court was right in either of them.

The equal protection clause, as I pointed out, was designed to protect people against discrimination: it condemns, not any difference in the way a state’s law treats different citizens, but only certain distinctions that put some citizens, in advance, at a disadvantage against others.[8] The Florida court’s “clear intention” standard (taken from Florida statutory law) puts no one at a disadvantage even if it is interpreted differently in different counties. Voters who indent a chad without punching it clean through run a risk that a vote they did not mean to make will be counted if they live in a county that uses a generous interpretation of the “clear intent” statute; or they run a risk that a vote they meant to make will be discarded if they live in a county that uses a less generous interpretation. But since neither of these risks is worse than the other—both threaten a citizen’s power to make his or her vote count—the abstract standard discriminates against no one, and no question of equal protection is raised.[9]

It was a striking embarrassment for the conservative majority’s equal protection ruling that it cited not a single case in which a nondiscriminatory law had been held to violate the equal protection clause.[10] In his letter, Fried cites Willowbrook v. Olech, in which the Court held that a town had denied a homeowner equal protection when it demanded a thirty-three-foot easement over her property, as a condition for connecting a water supply to the house, although it demanded only a fifteen-foot easement in the case of other houses.[11] But this citation shows that he has misunderstood the problem. The town had certainly discriminated against the homeowner in that case—Justice Breyer, in his concurring opinion, noted, as important, the fact that the homeowner had alleged that the town wanted deliberately to injure her because she had sued it in another case.

Many people have said that, even if it was not unconstitutional for the Florida court to have used the abstract “clear intention” standard, rather than a more precise set of instructions about chads and indentations, using such an abstract standard was nevertheless unnecessary and unwise.[12] They believe that even though the law often instructs judges and juries to determine a person’s intention with no more precise directions—to determine the intention of a deceased testator in writing the will he did, for example—such an abstract standard is out of place, as Fried puts it, “applied by many scores of variously trained, instructed, and supervised ballot counters to punched pieces of cardboard.”

But judges and juries are also variously trained and supervised, and the difference between a ballot and a will is at best a matter of degree. Indeed, it might well be harder to set out in advance sensible criteria for interpreting the visual clues on a “punched piece of paper” than for interpreting the words of a will: it might be reasonably obvious from comparing a slight depression next to the name of a presidential candidate with the much more forceful indentations elsewhere on the ballot that a voter did not mean to vote for president, for example, though very hard to formulate, in a mechanical rule, a test for the comparative force of indentations. Legislatures must often choose between the imprecision of an abstract standard, like “clear voter intent,” which risks differing interpretations, and the opposite dangers of a mechanical test that is almost certain to produce mistakes in particular cases. The claim that it is irrational to make either of these choices whenever the evidence in question is visual rather than verbal is surely wrong. Many states besides Florida, we must remember, have chosen the same abstract standard for manual recounts.


In any case, the question for the Supreme Court was not whether the Florida court’s choice of standard was wise but whether it violated the equal protection clause, and Fried has done nothing to support the majority’s holding that it did or to cast doubt on his own earlier decision, while a Massachusetts judge, upholding and applying the very standard that he now believes to violate the Constitution.[13] His failure, indeed, persuades me that the majority’s decision was not even defensible, as I said it was. He next discusses the Court’s even more plainly indefensible decision that any new recount under a single standard would have had to be completed by the end of December 12 so that any new recount was therefore made impossible. Fried concedes that this critical holding “was the least convincing portion of the Court’s opinion,” and does not try to defend it. But he insists that the Court’s error made no difference because, he says, a new recount could not even have been concluded by December 18, six days later, when the Electoral College was scheduled to vote.

His judgment about the feasibility of a recount in six days is speculative: the Florida Supreme Court might well have heard arguments and declared new standards within a day or two, and it could then have ordered that new recounts proceed as expeditiously as possible, and that these recounts continue while any party who objected to the new standards appealed to the Supreme Court yet again. In any case, however, it would have been wrong for the Court to prejudge the question whether a December 18 deadline could have been met. Florida already had a slate of electors pledged to vote for Bush, and they would have voted for him on that date if the recount had not been completed. If it were completed after that date, and showed that Gore had actually won, then a rival set of electors might have sent their votes to Congress, and that body would then have decided whose electoral votes to accept. That is the procedure the Constitution specifies, and the Court had no right to subvert it.

Fried next suggests that the strongest argument for what the Court did was one that in fact appealed only to the three most conservative justices, Rehnquist, Scalia, and Thomas. They said, and he agrees, that the Florida Supreme Court did not simply attempt to interpret Florida law, as it had a responsibility to do, but instead radically revised it. The Florida statute provides, as one ground for contesting an election, that the certified count has rejected a “number of legal votes sufficient to…place in doubt the result of the election.” The key question is whether that provision permits a court to order a manual recount to determine how many of the ballots that the vote- counting machines had rejected because of imperfect perforation actually demonstrated a clear intention to vote for one candidate or the other. Fried’s brief argued (relying mainly on a debatable interpretation of provisions governing not the challenge stage of a post-election proceeding but the earlier protest stage) that the Florida statute assumed “by hypothesis” that imperfectly perforated ballots were not legal votes, so that the Florida court “begged the question” by assuming that a manual recount of such ballots was permissible even in a challenge proceeding.

But the Florida court’s contrary interpretation is surely, at a minimum, defensible. That court attributed a perfectly sensible purpose to the challenge provisions of the statute: those provisions aimed, it supposed, to ensure that machine limitations should not change the result of a very close election by rejecting ballots that were legally cast and showed a clear intention to vote. That interpretation is attractive in itself and fits comfortably into the contest part of the Florida scheme, where success requires showing that the alleged error would have changed the overall result. Bush’s own witness in the contest trial, John Ahmann, admitted that the machines used to tabulate punch-card ballots, which he had helped design, often make mistakes, so that manual recounts are desirable in close elections.[14] If we accept that understanding of the statute’s purpose, such ballots are indeed “legal votes,” and it is Fried, not that court, who begs the question. He and his colleague, Professor Elhauge, may think their own interpretation better. But they have no basis for the extraordinary conclusion that the Florida court’s interpretation was so demonstrably wrong as not to count as an interpretation at all.[15]


Fried’s closing observations are unfortunate. He says that it does not really matter whether the Supreme Court’s decision was defensible because the election was so close anyway that it might as well have been Bush. He treats the fact that five of the nine Supreme Court justices are political conservatives as, in effect, a tie-breaker like a coin flip. But it will make a very great difference to people everywhere that it is Bush rather than Gore who is America’s president. Bush’s cabinet appointments (which include, as attorney general, John Ashcroft, the candidate of the religious right) have already refuted the optimistic assumption that he will try to govern from the middle, and there is ample reason to worry that his future Supreme Court appointments will be equally aimed at pleasing the extreme right of his party.

When a presidential election is close, particularly when so much turns on the outcome, it is more and not less important that the rules in place be followed punctiliously in deciding who actually won. If Gore has won not only the national popular vote but the popular vote in Florida, and hence the Electoral College, as well, then it is not only unfortunate that we will be governed by Bush’s policies and constituencies, but unfair. Florida’s vote-counting machines, many of which are conceded to be inaccurate, particularly in counties with a high proportion of minority and poor voters, declared 3 percent of the state’s ballots non-votes. (The average in the rest of the country was 2 percent.) Fried insists that it is beyond “our present capacity” to achieve a more accurate tabulation. But the careful unofficial recounts now being conducted separately by The Miami Herald and by a group of other prestigious newspapers, which Fried declares a foolish exercise, will presumably show that his surprising pessimism is unfounded.

Notes

[1] I offer only one example, but there are many: in 1992 in the Harris case, the Supreme Court in one night set aside three stays issued in a death case by the Court of Appeal for the Ninth Circuit, and finally ordered that court to issue no more stays without permission of the Justices.

[2] Village of Willowbrook v. Olech, 120 S. Ct. 1023 (2000).

[3] That this variable method was sanctioned after the election had taken place, and when it was reasonably thought by the Bush forces to favor their opponent, makes the Florida court decree more, not less, offensive.

[4] Thus, for instance, some counters would decide whether an indentation was meant as a vote from whether it appeared next to the name of the presidential candidate of the same party as candidates for other offices for whom that voter had unambiguously voted. This is not an absurd inference in a forensic exercise or if doing history. I suggest that as a way to determine an election it is absurd, although as a Justice of the Supreme Judicial Court of Massachusetts I participated in just such a process in the Delahunt case.

[5] I am glad Dworkin does not make anything of two frequently heard specious arguments. It is said that not even December 18 was a true deadline and that Florida might have delivered its vote right up to the January date when the electoral votes are counted in Congress. Support for this is drawn from Hawaii’s having once reported its votes well after the December deadline, but that was in an election where nothing turned on the Hawaii votes. Others have also complained that by stopping the recounts that were then in progress the Court created the very impossibility which they urged to justify their conclusion. This is nonsense. Assuming, as this complaint does, the equal protection violation, the recounting halted by the Court was invalid and would have had to be repeated in any event.

[6] The tabulation now underway by various news media, assisted by national accounting firms, is for this reason a particularly foolish enterprise.

8

AP/Wide World/Alan Diaz

The New York Review

February 22, 2001

[7]Fried objects to my description of all five of the Justices in the majority of the Court’s decision as “conservative” and the four dissenters as “more liberal.” I agree that the opinions of Justices Kennedy and O’Connor are less predictable than those of Justices Rehnquist, Scalia, and Thomas, and I have praised decisions of the former Justices about, for example, abortion and homosexual rights in past articles in these pages. See Chapter Four of my book Freedom’s Law (Harvard University Press, 1996) and Chapter Fourteen of my Sovereign Virtue (Harvard University Press, 2000). But the large and growing number of 5–4 Supreme Court decisions, in which the five Justices I called conservatives have united, justifies my informal description.

[8] I describe the contemporary debate among judges and scholars about the correct interpretation of the equal protection clause in Chapter Fourteen of my book Sovereign Virtue. All sides to that debate have agreed that the clause only condemns differences that discriminate against someone.

[9] It is, I think, arguable that Florida’s use of markedly more inaccurate vote-counting machines in some counties than others denies equal protection to those in the former counties, particularly since those are counties with a higher proportion of minority and poor voters. But that holding would have benefited, if either candidate, Gore rather than Bush.

[10] It was also a striking embarrassment that the conservatives found it necessary to declare that their bizarre interpretation of the equal protection clause “is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” It is of the essence of the legal process that decisions be based on generally applicable principles, and the remarkable statement that this decision would be precedent for no future ones seems almost a confession that the majority’s equal protection argument was a bad one.

[11] The Court properly held, in that case, that the equal protection clause protects single individuals as well as groups from discrimination.

[12] As many commentators have noted, and as Fried’s comments about the impermissibility of courts setting electoral standards not already in the state statutes suggest, the Florida court had reason to fear that if it did specify more precise standards for a recount than the Florida statute stipulated a Supreme Court majority would have overruled it on that ground.

[13] See Delahunt v. Johnston, 423 Mass. 731 (1996). In that case, which Fried mentions in his letter, he agreed, as a member of the court, that “if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot…effect must be given to that intent….” He and the other judges understood that different inspectors would interpret that standard differently—they themselves arrived at a vote count different from the total the lower court judge had reached—but gave no suggestion that any of them detected the slightest equal protection problem in endorsing that standard for all Massachusetts elections.

[14] Mr. Ahmann had written in a patent application that “incompletely punched cards can cause serious errors to occur in data-processing operations using such cards.” See David Barstow and Dexter Filkins, “For the Gore Team, a Moment of High Drama,” The New York Times, December 4, 2000, p. A1.

[15] Another reader, Robert Lochner, suggested that the three-judge concurring opinion, which he agrees was based on unacceptable premises about the Florida statute, can only be understood as manifesting a lack of trust by those Justices in the Florida judicial system. He may be right—as he points out, Justice Stevens in his dissent made the same suggestion—but that distrust does not provide even an ideological defense of that opinion, because the deference that those three Justices have consistently argued is owed to state decisions supposedly extends to state judicial as well as to legislative and executive officials.

The conclusion of the Starr Report, recommending impeachment (the entire report is here):

XI. There is substantial and credible information that President Clinton’s actions since January 17, 1998, regarding his relationship with Monica Lewinsky have been inconsistent with the President’s constitutional duty to faithfully execute the laws.

Before, during, and after his January 17, 1998, civil deposition, the President attempted to conceal the truth about his relationship with Ms. Lewinsky from the judicial process in the Jones case. Furthermore, the President has since lied under oath to the grand jury and facilitated the provision of false information to the grand jury by others.

The President also misled the American people and the Congress in his public statement of January 26, 1998, in which he denied “sexual relations” with Ms. Lewinsky. The President misled his Cabinet and his senior aides by denying the relationship to them. The Cabinet and senior aides in turn misled the American people and the Congress by conveying the President’s denials and professing their belief in the credibility of those denials.

The President promised in January 1998 to cooperate fully with the grand jury investigation and to provide “more rather than less, sooner rather than later.” At that time, the OIC was conducting a criminal investigation and was obligated to report to Congress any substantial and credible information that may constitute grounds for an impeachment.

The President’s conduct delayed the grand jury investigation (and thereby delayed any potential congressional proceedings). He asserted, appealed, withdrew, and reasserted Executive Privilege (and asserted other governmental privileges never before applied in federal criminal proceedings against the government). The President asserted these privileges concerning the investigation of factual questions about which the President already knew the answers. The President refused six invitations to testify voluntarily before the grand jury. At the same time, the President’s aides and surrogates argued publicly that the entire matter was frivolous and that any investigation of it should cease.

After being subpoenaed in July, the President made false statements to the grand jury on August 17, 1998. That night, the President again made false statements to the American people and Congress, contending that his answers in his civil deposition had been “legally accurate.” The President then made an implicit plea for Congress to take no action: “Our country has been distracted by this matter for too long.”(466)

The President has pursued a strategy of (i) deceiving the American people and Congress in January 1998, (ii) delaying and impeding the criminal investigation for seven months, and (iii) deceiving the American people and Congress again in August 1998.

A. Beginning on January 21, 1998, the President misled the American people and Congress regarding the truth of his relationship with Ms. Lewinsky.

On January 21, 1998, the day the Washington Post first reported the Lewinsky matter, the President talked to his long-time advisor Dick Morris. With the President’s approval, Mr. Morris commissioned a poll that evening. The results indicated that voters were willing to forgive the President for adultery but not for perjury or obstruction of justice.(467) When the President telephoned him that evening, Mr. Morris explained that the President thus should not go public with a confession or explanation.(468) According to Mr. Morris, the President replied, “Well, we just have to win, then.”(469)

The next evening, the President dissuaded Mr. Morris from any plan to “blast[] Monica Lewinsky ‘out of the water.’” The President indicated that “there’s some slight chance that she may not be cooperating with Starr and we don’t want to alienate her.”(470)

The President himself spoke publicly about the matter several times in the initial days after the story broke. On January 26, the President was definitive: “I want to say one thing to the American people. I want you to listen to me. I’m going to say this again: I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time. Never. These allegations are false.”(471)

The President’s emphatic denial to the American people was false. And his statement was not an impromptu comment in the heat of a press conference. To the contrary, it was an intentional and calculated falsehood to deceive the Congress and the American people.(472)

B. The First Lady, the Cabinet, the President’s staff, and the President’s associates relied on and publicly emphasized the President’s denial.

After the President lied to the American people, the President’s associates argued that the allegations against the President were false and even scurrilous.

Mrs. Clinton forcefully denied the allegations on January 27, 1998, one day after the President’s public denial. She admitted that the American people “should certainly be concerned” if a President had an affair and lied to cover it up. She acknowledged that it would be a “very serious offense.” But she emphasized that the allegations were false — a “pretty bad” smear. She noted that the President “has denied these allegations on all counts, unequivocally.” And Mrs. Clinton shifted the focus away from the President, indicated that “this is a battle” and stated that “some folks are going to have a lot to answer for” when the facts come out.(473)

The most senior officials in the Executive Branch served as additional (albeit unwitting) agents of the President’s deception. The Cabinet and White House aides stated emphatically that the allegations were false. For example, White House spokesperson Michael McCurry was asked whether the President’s denial covered all forms of sexual contact, and Mr. McCurry stated that “I think every American that heard him knows exactly what he meant.”(474) So, too, White House Communications Director Ann Lewis said on January 26, 1998: “I can say with absolute assurance the President of the United States did not have a sexual relationship because I have heard the President of the United States say so. He has said it, he could not be more clear. He could not have been more direct.”(475) She added: “Sex is sex, even in Washington. I’ve been assured.”(476)

After a Cabinet meeting on January 23, 1998, in which the President offered denials, several members of the Cabinet appeared outside the White House. Secretary of State Albright stated: “I believe that the allegations are completely untrue.”(477) Coupled with the President’s firm denial, the united front of the President’s closest advisors helped shape perception of the issue.

C. The President repeatedly and unlawfully invoked the Executive Privilege to conceal evidence of his personal misconduct from the grand jury.

When the allegations about Ms. Lewinsky first arose, the President informed the American people that he would cooperate fully. He told Jim Lehrer that “we are doing our best to cooperate here.”(478) He told National Public Radio that “I have told people that I would cooperate in the investigation, and I expect to cooperate with it. . . . I’m going to do my best to cooperate with the investigation.”(479) He told Roll Call “I’m going to cooperate with this investigation. . . . And I’ll cooperate.”(480)

Such cooperation did not occur. The White House’s approach to the constitutionally based principle of Executive Privilege most clearly exposed the non-cooperation. In 1994, White House Counsel Lloyd Cutler issued an opinion that the Clinton Administration would not invoke Executive Privilege for cases involving personal wrongdoing by any government official.(481) By 1998, however, the President had blended the official and personal dimensions to the degree that the President’s private counsel stated in a legal brief filed in the U.S. Court of Appeals for the District of Columbia Circuit: “In a very real and significant way, the objectives of William J. Clinton, the person, and his Administration (the Clinton White House) are one and the same.”(482)

After the Monica Lewinsky investigation began, the President invoked Executive Privilege for the testimony of five witnesses: Bruce Lindsey, Cheryl Mills, Nancy Hernreich, Sidney Blumenthal, and Lanny Breuer. These claims were patently groundless. Even for official communications within the scope of the privilege, the Supreme Court ruled unanimously in 1974 in United States v. Nixon(483) that the Executive Privilege gives way in the face of the compelling need for evidence in criminal proceedings.

The President’s assertion of Executive Privilege for Ms. Hernreich, an assistant who manages the secretarial work for the Oval Office,(484) was frivolous. At the time that the President was asserting Executive Privilege for one assistant, the President’s other assistant (Betty Currie) had already testified extensively.

Based on Nixon, the OIC filed a motion to compel the testimony of Hernreich, Lindsey, and Blumenthal. The United States District Court held a hearing on March 20. Just before the hearing, the White House — without explanation — dropped its Executive Privilege claim as to Ms. Hernreich.(485)

On May 4, 1998, Chief Judge Norma Holloway Johnson ruled against the President on the Executive Privilege issue.(486) After the White House filed a notice of appeal, the OIC filed an expedited petition for certiorari before judgment in the Supreme Court. The President thereupon dropped his claim of Executive Privilege.

The tactics employed by the White House have not been confined to the judicial process. On March 24, while the President was traveling in Africa, he was asked about the assertion of Executive Privilege. He responded, “You should ask someone who knows.” He also stated “I haven’t discussed that with the lawyers. I don’t know.”(487)

This was untrue. Unbeknownst to the public, in a declaration filed in District Court on March 17 (seven days before the President’s public expression of ignorance), White House Counsel Charles F.C. Ruff informed Chief Judge Johnson that he “ha[d] discussed” the matter with the President, who had directed the assertion of Executive Privilege.(488)

The deception has continued. Because the President withdrew his Executive Privilege claim while the case was pending in the Supreme Court of the United States, it was assumed that the President would no longer assert Executive Privilege. But that assumption proved incorrect. White House attorney Lanny Breuer appeared before the grand jury on August 4, 1998, and invoked Executive Privilege. He would not answer, for example, whether the President had told him about his relationship with Monica Lewinsky and whether they had discussed the gifts he had given to Monica Lewinsky.(489) On August 11, 1998, Chief Judge Johnson denied the Executive Privilege claim as a basis for refusing to testify, and ordered Mr. Breuer to testify.(490)

On August 11, 1998, Deputy White House Counsel Cheryl Mills testified and repeatedly asserted Executive Privilege at the President’s direction.(491) The breadth of the claim was striking: The privilege was asserted not only for Ms. Mills’s communications with the President, senior staff, and staff members of the White House Counsel’s Office — but also for Ms. Mills’s communications with private lawyers for the President, private lawyers for grand jury witnesses, and Betty Currie.(492)

On August 17, the President testified before the grand jury. At the request of a grand juror, the OIC asked the President about his assertions of Executive Privilege and why he had withdrawn the claim before the Supreme Court. The President replied that “I didn’t really want to advance an executive privilege claim in this case beyond having it litigated, so that we, we had not given up on principal [sic] this matter, without having some judge rule on it. . . . I strongly felt we should not appeal your victory on the executive privilege issue.”(493)

Four days after this sworn statement, on August 21, 1998, the President filed a notice of appeal with respect to the Executive Privilege claim for Lanny Breuer that Chief Judge Johnson had denied ten days earlier (and six days before the President’s testimony). In addition, Bruce Lindsey appeared again before the grand jury on August 28, 1998, and the President again asserted Executive Privilege with respect to his testimony — even though the President had dropped the claim of Executive Privilege for Mr. Lindsey while the case was pending before the Supreme Court of the United States in June.(494)

The Executive Privilege was not the only claim of privilege interposed to prevent the grand jury from gathering relevant information. The President also acquiesced in the Secret Service’s attempt to have the Judiciary craft a new protective function privilege (rejecting requests by this Office that the President order the Secret Service officers to testify). The District Court and the U.S. Court of Appeals for the District of Columbia Circuit rejected the privilege claim. The litigation was disruptive to the Secret Service and to the grand jury. The frivolity of the claim is evidenced by the Chief Justice’s decision to reject the Secret Service’s request for a stay without even referring the matter to the full Court. All of that litigation would have been unnecessary had the President testified in February instead of August, or had he taken the position that relevant facts should be fully available to the grand jury.

D. The President refused six invitations to testify to the grand jury, thereby delaying expeditious resolution of this matter, and then refused to answer relevant questions before the grand jury when he testified in August 1998.

>This Office extended six separate invitations to the President to testify before the grand jury. The first invitation was issued on January 28, 1998. The OIC repeated the invitations on behalf of the grand jury on February 4, February 9, February 21, March 2, and March 13. The President declined each invitation. His refusals substantially delayed this Office’s investigation.

Finally, in the face of the President’s actions, this Office asked the grand jury to consider issuing a subpoena to the President. The grand jury deliberated and approved the issuance of a subpoena. On July 17, 1998, the OIC served the subpoena, in accordance with the grand jury’s action, on the President’s private counsel. The subpoena required the President to appear on July 28.

The President sought to delay his testimony.(495) Shortly after a hearing before the District Court on the President’s motion for a continuance, the President and the OIC reached an agreement by which the President would testify on August 17 via live video feed to the grand jury. In a Rose Garden ceremony on July 31, 1998, the President stated to the country: “I’m looking forward to the opportunity . . . of testifying. I will do so completely and truthfully.”(496)

At the outset of his grand jury appearance, the President similarly stated: “I will answer each question as accurately and fully as I can.”(497) The President then read a prepared statement in which he admitted “inappropriate intimate contact” with Ms. Lewinsky.(498) Despite his statement that he would answer each question, the President refused to answer specific questions about that contact (other than to indicate that it was not intercourse and did not involve the direct touching of Ms. Lewinsky’s breasts or genitals).(499)

E. The President misled the American people and the Congress in his public statement on August 17, 1998, when he stated that his answers at his civil deposition in January had been “legally accurate.”

The President addressed the Nation on the evening of August 17, 1998, after his grand jury appearance. The President did not tell the truth. He stated: “As you know, in a deposition in January, I was asked questions about my relationship with Monica Lewinsky. While my answers were legally accurate, I did not volunteer information.”(500) As this Referral has demonstrated, the President’s statements in his civil deposition were not “legally accurate,” and he could not reasonably have thought they were. They were deliberate falsehoods designed to conceal the truth of the President’s sexual relationship with Monica Lewinsky.

The President’s claim that his testimony during the civil deposition was legally accurate — which he made to the grand jury and to the American people on August 17 — perpetuates the deception and concealment that has accompanied his relationship with Monica Lewinsky since his first sexual encounter with her on November 15, 1995.

F. Summary

In this case, the President made and caused to be made false statements to the American people about his relationship with Ms. Lewinsky. He also made false statements about whether he had lied under oath or otherwise obstructed justice in his civil case. By publicly and emphatically stating in January 1998 that “I did not have sexual relations with that woman” and these “allegations are false,” the President also effectively delayed a possible congressional inquiry, and then he further delayed it by asserting Executive Privilege and refusing to testify for six months during the Independent Counsel investigation. This represents substantial and credible information that may constitute grounds for an impeachment.

Prof. Dworkin criticizes the Starr inquiry:

Volume 46, Number 1 · January 14, 1999

A Kind of Coup

By Ronald Dworkin

The power to impeach a president is a constitutional nuclear weapon and it should be used only in the gravest emergencies. It gives politicians the means to shatter the most fundamental principles of our constitutional structure, and we now know how easily that terrible power can be abused. A partisan group in the House, on a party-line vote, can annihilate the separation of powers and send a lawfully elected president of the opposite party to a drawn-out, humiliating, televised trial, a trial that would frighten markets, usurp the scarce resource of national attention for months, and damage presidential leadership and policies for even longer. Such a group can even, if it dominates the Senate as well, remove a president from office in spite of the fact that he is the only official in the nation who has been elected by all the people, and even if he still enjoys extensive support.

Nothing—nothing—can stop a party of politicians with enough votes and that ambition. They can, as Gerald Ford warned, declare anything they want a “high crime or misdemeanor.” They can ignore, as the House has ignored, the most fundamental provisions of due process and fair procedure. No court can review their proceedings, their declaration, or their verdict. No public outcry can stay their hand. Nothing can stop them but their own constitutional conscience: their own respect not just for the Constitution’s detailed text but for its deeper structure and philosophy.

The Republican House leadership claims that it has had that respect: it says that it has acted not with glee but out of a solemn sense of responsibility. We must examine that claim with the greatest care. They say that the President must not be above the law, that he must be treated like any other citizen. But the way to treat him like any other citizen is not to impeach him: in two years Bill Clinton will be a private citizen, and he can be prosecuted, by Kenneth Starr or any other appropriate officer, for anything, in a court of law where he will have the same rights of a criminal defendant that any other citizen has.

The leadership says that the President is guilty of the “high crimes and misdemeanors” that the Constitution requires for impeachment. What does that obscure phrase mean? The Founding Fathers thought that it meant a crime against the Constitution or the state: a president acting beyond his rightful authority or otherwise betraying the public trust. They repeatedly gave the example of a president who is in the pay of a foreign power. Even if we put history aside, and try to interpret the obscure phrase so that it makes good sense within the Constitution’s structure as a whole, we reach the same conclusion.


Trying a president, let alone removing him, is a seismic shock to the separation of powers that is the Constitution’s spine. When is that shock necessary—when is it not good enough to wait until the president’s term has ended? The answer seems obvious. It is not good enough to wait only when there is a constitutional or public danger in leaving a president in office, only when he has subverted public force or funds to illegal use, for example, or hounded political enemies with illegal acts, or taken a bribe, as the founders feared, or sent soldiers to war for personal gain.

Presidents may do many bad things that do not make them constitutional threats. They may turn out to be morally disappointing, not people we would want our children to copy. They may cheat on their income tax, which is very far from a trivial crime, or they may lie under oath, which is very bad but often no worse. These flaws can wait for history; those crimes can wait for judgment when a president leaves office.

True, an official who has committed heinous private crimes, like murder, reveals such inherent wickedness, and such contempt for human life, that it is dangerous to allow him to continue to exercise his powers, which include, for example, the power to send soldiers into war. But a congressman who thinks that lying to hide a sexual embarrassment, even under oath, is on the same moral scale as murder—that it shows comparable wickedness or depravity—has no moral capacity himself, and is a more dangerous threat to the nation than a president who lies, even under oath, to keep his sex life to himself.

So anyone with a constitutional conscience would shrink from impeaching President Clinton on the record the Judiciary Committee has compiled, and we must count the Republican leadership’s claim of a sad duty to impeach as either hypocrisy or constitutional blindness. The position of the so-called Republican “moderates,” who say they will vote for impeachment but would not do so if the President had confessed to a crime, is no less bizarre. Impeachment, which judges whether it is dangerous to leave a president in office, is not an occasion for a plea-bargain. If lying about sex under oath is an impeachable offense, then no amount of confessing would make it less so; if it is not, then no amount of stubbornness makes it one.

John Conyers said, at a particularly absurd and exasperating point in the House hearings, that he was beginning to smell a coup. In the familiar sense of that word, he was wrong, of course. But it is a kind of coup to use constitutional formulae to subvert constitutional principles: if any acts in this sad story are high constitutional crimes, it is the acts of those politicians who hate the President and his policies enough to push the Constitution out of the way when they see a chance to humiliate and weaken him.


Nothing in the long, sad story is so revealing of that partisan fury as the initial and reflexive accusation by Trent Lott, the Senate majority leader, and other members of the Republican congressional leadership that the President’s decision to bomb Iraq was a ploy designed to delay the impeachment process. Bombing may or may not have been the right response to the inspection commission’s report of Saddam’s latest noncompliance. But if it was—and few in Congress deny that it was—then the case seems strong that it was better to begin bombing at once, before any new Iraqi evasive action or diplomatic maneuver, and in the short window of time before the holy Ramadan month began, than to wait until that month had ended.

In any case, however, it is grotesque to suggest that the timing of a delicate military action should wait upon Congress’s impeachment schedule rather than the other way around. A Senate trial cannot begin until next year anyway, and nothing can explain the leadership’s inevitably damaging accusation, made when American pilots are at risk and when the reaction of other nations to the American strike is both uncertain and crucial, except a petulant anger that their vengeance will be delayed—or, perhaps, a chilling fear that the decision will somehow be postponed to the next House, which was elected last November and will therefore be more representative of the public’s choice, but in which the Republicans will have five fewer votes.

Suppose they succeed in impeaching the President, sooner or later. The greatest damage may be the lasting damage: whatever happens in the Senate, the precedent they will have created will be both a terror and a temptation for a long time to come. We must do what we can to hasten the day when that precedent is unanimously denounced as a mistake not to be repeated. We must cultivate a long memory. Most of those who vote for impeachment will run for office again in two years, and we must encourage and support opponents who denounce them for what they have done, in any way we can, including financially. The zealots will have stained the Constitution, and we must do everything in our power to make the shame theirs and not the nation’s.

December 17, 1998

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: