Document Type

Article

Publication Date

2001

Abstract

Watergate made me a lawyer. On August 8, 1974, Richard Nixon resigned the office of President of the United States.1 Three weeks later, I returned to college to begin my junior year. I was a pre-med biochemistry major scheduled to spend most of the fall semester surrounded by beakers, spectrophotometers, test tube racks, glass slides, and fumes of formaldehyde and acetone. During the summer, as the evidence against the President mounted and impeachment moved from the realm of the fantastic to virtual certainty, the prospect of a life among the petri dishes grew less and less alluring. I will confess that some of this disenchantment undoubtedly arose from a persistent inability, demonstrated in two passes through organic chemistry, to grasp the molecular configurations made possible by the hexagonal geometry of the carbon atom. Nonetheless, the most powerful source of my disquiet was the realization, growing for a year and more as I watched the televised hearings before Senator Sam Ervin's Watergate Committee, and then the proceedings of the House Judiciary Committee as it agonized toward a vote on articles of impeachment, that I was far more interested in what these men and women were doing than in all the cytosis, osmosis, and symbiosis of all the microorganisms ever spawned.2 *6 It was not merely the theater of Watergate that drew me in, though the drama of the thing was undeniable. After all, one can be mesmerized by the grisly spectacle of a train wreck without feeling any urge to become an engineer. What captivated me was the people of Watergate, principally the legislators on the Senate and House committees, but also members of the Watergate Special Prosecutor's Office, and even members of the Nixon administration itself--elected or appointed officials, partisan politicians mostly, and certainly no saints--who, on balance, acted with firmness, integrity, and restraint. As a Democrat and no special fan of Richard Nixon,3 my particular heroes were the obvious ones: Archibald Cox, Sam Ervin, Peter Rodino, Barbara Jordan. But I think even then I admired them as much for their caution and their obvious and unfeigned sense of the gravity of the task they had undertaken as for their investigative prowess, their rhetoric, their wit, or their ultimate success in forcing a flawed and corrupt president from office. And even back then, despite my instinctive rooting interest in the Democrats, I came away from Watergate with a deep respect for those Republicans in and out of Congress who--despite the personal and political cost--insisted on finding the truth, refused to blink at what they found, and finally, sadly, repudiated their own leader.4 I wanted to be like these people, wanted a part, however small, in the high drama of American public life. The immediately obvious point was that nearly all of the players in Watergate (both the heroes and the villains) were lawyers. And so, in the fall of 1974, I abandoned the study of the natural world, took up the study of history and politics, and resolved to go to law school. Twenty-five years later, after law school, two decades of practice as a trial lawyer, and at the beginning of a second career as a legal academic, to my immense surprise, I found myself playing a (very) small part in the second presidential impeachment of my lifetime as the co-author of the official statement of the National Association of Criminal Defense Lawyers to the House Judiciary Committee on the meaning of “high Crimes and Misdemeanors.” *7 5 Of course, we know how that came out. President Clinton was impeached by the House of Representatives and acquitted by the Senate.6 By the time this Article reaches print, he will have completed his term. Irremediably stained, but defiant. Disgraced and diminished, but persistently, almost perversely popular. The fall of Richard Nixon was tragedy in the classic sense. A commanding personality clawed to the heights of power and was then brought low when crippling flaws in his character led him into conduct that was a serious affront to democratic government. The Clinton impeachment was vulgar farce.7 A surpassingly agile politician with an adolescent sex drive and an urge for self-preservation that far outstripped any sense of personal honor was attacked by opponents who missed their quarry and destroyed or diminished themselves by trying to elevate a squalid extramarital sexual encounter into an affair of state. For me at least, the effect of watching Nixon's descent was all that the ancient Greek commentators on the drama could have wished for in the spectator of a tragedy: pity, terror, catharsis, enlightenment, an aspiration to nobler things. By contrast, the dominant emotion inspired by Bill Clinton's escape from early retirement was *8 the urge to bathe with strong disinfectant soap--and then to retreat into the countryside to take up beekeeping, or some other occupation as removed as possible from the contemplation of American law and politics. This radical contrast in my reactions to the impeachment controversies that stand at either end of my life in the law so far has led me to ask three questions. First, were the Nixon and Clinton affairs truly as different as my memory makes them? Were the villains of Watergate as villainous and the heroes as heroic as I remember them? Were nearly all the players on both sides of l'affaire Lewinsky as shallow and fatuous as they seemed? Or to put the question in broader historical context, was the impeachment of Bill Clinton truly distinct, not only from Watergate, but from all of the other (fortunately few) occasions on which a president was seriously threatened with removal from office? Second, if the Clinton impeachment really was as bizarre, unprecedented, and unsettling an event as it seemed, how could such a thing have happened? Finally, what are the implications for the future of the presidency, and more generally, for the project of governance in America, of the incredible but incontrovertible fact that a president of the United States was impeached and nearly stripped of his office for lying about sexual infidelity?

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