“If a President Trump defies the judiciary outright, he would be the first president in recent memory to do so.”
Those words came Stuart Taylor, Jr. of the Brookings Institute, and were delivered in his June 7, 2016 Politico.com article: “Why Trump’s Assault on the Judiciary Is the Most Dangerous Thing He’s Done: The GOP presumptive nominee has already made a long step toward authoritarian rule”
With apologies to Mr. Taylor, there absolutely was a U.S. president in “recent memory” who outright defied the judiciary. In fact, his misconduct generated global headlines and triggered a constitutional crisis, which ultimately led to his impeachment.
This president’s last name was Clinton.
The salacious details of the blue dress, cigars, stains and “sexual relations with that woman, Miss Lewinski,” have overshadowed the legal basis of Bill Clinton’s impeachment. That’s unfortunate, because the underlining legalities are extraordinarily relevant to today’s headlines.
Bill Clinton was impeached because he used the political powers of the Executive Branch to wage war against the Judicial Branch – and unlike Donald Trump, Bill Clinton wasn’t a private citizen at the time (or a businessman questioning the biases of a judge), but the President of the United States of America. And no, Clinton’s impeachment wasn’t “just about sex”: Clinton conspired to falsify legal documents, claimed nonexistent presidential privileges and was caught committing perjury, in a brazen attempt to deny a woman her constitutional right to a fair trial. Furthermore, this woman had the legal right to go to court because enough evidence indicated that Bill Clinton had sexually harassed her – and it was the laws that Clinton had specifically championed that gave her legal standing!
Sort of makes you wonder about the “War on Women.”
It all began in 1991: Anita Hill tried to torpedo Clarence Thomas’ Supreme Court nomination by claiming Thomas had engaged in hostile sexual behavior when he was her supervisor. Alas, not enough senators in the Democrat-majority Senate believed Ms. Hill, and Thomas was confirmed to the Supreme Court anyway. But feminists were outraged: How dare these senators not believe a woman! Her accusation was true! Women don’t lie! Therefore, sexual harassment laws must be changed!
Feminists (rightly) noted that sexual harassment in the workplace usually doesn’t occur in a vacuum; the harasser often exhibits a pattern of deplorable behavior, and in a he-said/she-said legal dispute, the preponderance of evidence is deeply relevant to establishing guilt; this necessitates revealing the harasser’s previous conduct with other subordinates. But in the early 1990s, the courts often prohibited the introduction of the harasser’s workplace history. (The legal rationale was that past behavior, or introduction of other misdeeds, would be too prejudicial, or would be irrelevant to the current case.)
Governor Bill Clinton of Arkansas, then a candidate for president, seized onto this issue with great gusto: The republicans were “anti-woman!” They “just didn’t get it!” A woman’s accusations must be believed! And so, Clinton campaigned to change the law for sexual harassment, arguing that the accused’s previous workplace history can and should be introduced into evidence.
It was a remarkably effective wedge issue for then-candidate Clinton: Unmarried women gave him a 22-point edge over President Bush in 1992, and a whopping 34-point edge over Senator Dole in 1996.
Fast-forward to 1994: Paula Jones accused President Clinton of sexual harassment. Under the laws that Clinton himself championed, she had the right to introduce into evidence how Clinton behaved around other female subordinates. And thus, she subpoenaed Monica Lewinski.
Clinton then decided to directly defy the judiciary, and plotted with Miss Lewinski to falsify legal documents and commit perjury. He claimed executive privileges that were purely fictional. He launched a PR war against the Judicial Branch. He instructed White House operatives to battle against the special prosecutor and the judiciary, and it was a particularly ugly time in American history.
Our Founding Father’s greatest fear was tyranny. To prevent tyranny, they created a system of government with divided powers: Three coequal branches that placed rules and restrictions on the others – the Executive Branch, the Legislative Branch and the Judicial Branch. They hoped this would prevent any one person from accumulating too much power.
As legal scholar Jonathan Turley wrote in The Role of the House of Representatives in the Impeachment of an American President, “Alexander Hamilton referred to the separation of powers as that ‘celebrated maxim’ for free and fair government.” And Hamilton wasn’t alone: Our nation was born by rebellion in 1776, and for our Founding Fathers, the horrors of a tyrannical government weren’t theoretical, but barbarically real.
This is what separates the actions of Trump from the actions of Clinton:
Not as a private citizen, but as the President of the United States, Clinton deliberately attempted to misuse the power of the Executive Branch to emasculate the Judicial Branch… because the Judicial Branch had the audacity to obey the laws that he himself campaigned on, and wanted to subject others to!
It was shamefully – and embarrassingly – hypocritical of Clinton, to say the least.
But more importantly, it also led to a constitutional crisis, because the legal precedent of allowing the Executive Branch to falsify evidence and commit perjury would effectively defang the judiciary, elevating the Executive Branch in such a way that the division of powers would no longer be coequal. Without being challenged, the Executive Branch under Clinton would have claimed the right to disregard court edicts for arbitrary, personal or political reasons.
The end-result would be precariously close to a dictatorship.
Compare this to the recent actions of Donald Trump, a private citizen without title or government apparatus, who used his First Amendment right to criticize a government employee. Mr. Trump claimed that Judge Gonzalo Curiel, who is presiding over his Trump University civil case, had treated him unfairly, and Trump openly questioned whether the judge’s background or political affiliations could be the explanation why.
Is this a reasonable allegation?
Supreme Court Justice Sonia Sotomayor, our nation’s first-ever Hispanic Supreme Court Judge, proclaimed that the ethnicity of a judge “may and will make a difference in our judging,” which, of course, she believes is a very good thing: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
However, what’s “better” in a courtroom is often highly subjective – hence Trump’s criticisms.
So was Trump wholly out-of-bounds to conclude that Judge Curiel’s heritage had influenced his rulings? Perhaps: It wasn’t politically helpful, and Trump failed to introduce specific evidence that established a quid-pro-quo between Judge Gonzalo Curiel’s ethnicity and his judicial decisions. From the left or the right, race-based allegation shouldn’t be haphazard, but surgically-precise.
Regardless, those rushing to admonish Trump for “defying the judiciary” are lacking a sense of proportion:
Trump clumsily questioned a judge’s biases, but he’s still obeying the judge’s decisions. Yet President Clinton went far beyond questioning a judge’s biases: He used the powers vested in the Executive Branch to wage war on the judiciary. He broke the law. He violated his oath as an attorney. He conspired to falsify evidence. He sought to cheat a woman out of her constitutional rights. And most egregiously, he schemed to undermine the Judicial Branch and overrule the Founding Fathers’ longstanding separation of federal powers… because it was politically advantageous to do so.
So is it Trump or Clinton with the history of “defying the judiciary”?
I guess it comes down to what the definition of is, is.