Set Presidency Back on Course

The opening of congressional debate about the independent counsel law addresses only the first of three tasks the country must face to rescue the presidency from the damage done in the last year. All three are important.

Abolishing the independent counsel is the easiest, since the legislation expires in June and we cannot avoid confronting the issue. This discredited institution had its origin a quarter-century ago in our revulsion against what was perceived as an irresponsible “imperial presidency.”

But the Cold War is over, the extraordinary danger from the Soviet Union is gone, and so should be the leftover perception of a dangerous presidency that must be hamstrung. On the contrary, the presidency is now weaker relative to the other two branches than it has been for many years.

Those who oppose abolition of the independent counsel law evidently retain a visceral fear of allowing the presidency to return to the form practiced over the first 180 years of the republic. But that fear is today exaggerated, unreasonable and anachronistic.

Over most of our history, the most important coercive factor against presidential misbehavior has traditionally not been an extra-constitutional overseer but rather the power of public opinion, which today is at least as strong a weapon as it has ever been. The prospect of bad election consequences for a misbehaving president and his party should also be an important deterrent. And in truly extreme cases, there remains the remedy provided in the Constitution, which is impeachment.

Meanwhile, a second, harder task that cannot be ignored is to eliminate the consequences of the 1998 court ruling that a president may be sued while in office. This decision has opened a vista of unending legal harassment of future presidents by political opponents ready to bankroll such suits and then endless revenge-seeking in subsequent administrations. We should not deceive ourselves--in this lawsuit-ridden society, anyone is vulnerable.

Conceivably, this court decision might be overruled by congressional legislation, with appropriate safeguards, such as, for example, a provision extending the statute of limitations on a suit against the president until after he or she had left office.

An important obstacle might be the reluctance of conservative Republicans to acknowledge, even indirectly, that there was something wrong with the sequence of events that cornered Clinton. Nevertheless, the implications for the future are sufficiently vivid so that a bipartisan consensus behind such legislation could eventually materialize. One might expect Texas Gov. George W. Bush, for example, to see reason to endorse the proposal.

The third unfinished business is the question of impeachment. Surely most people would now agree, in view of our recent experience, that the principle of consensus in this matter should never again be violated. If the Republicans are chastised by the voters in the next election, both parties may be inhibited for some time from acting again with so blatant a disregard for consensus. Yet the potential to do just that will remain, particularly if the cultural war continues in American life and partisan hostility intensifies.

Of the three tasks, this is the most difficult. If the Democrats win the House in 2000, they might conceivably pass a resolution demanding consensus in any future impeachment proceedings, but that could be readily ignored if passions reignite a decade later. Only a constitutional amendment can permanently resolve the issue. Such an amendment might provide, for example, that no president could be impeached by the House without a majority of all political parties that hold, say, at least 10 seats in the House.

An amendment enforcing impeachment consensus certainly could not be passed by the Congress and ratified by the states without very substantial Republican support. It is unfortunately unlikely that enough such support will emerge until those who decided to do without consensus in 1998 have passed from the scene--and until the leadership of their party has passed to people of a different kind. Nevertheless, the effort to win support for such an amendment should begin now. Otherwise, although this problem may be in abeyance now, it may eventually return to afflict us with redoubled venom.

The danger of presidential excess is now outweighed by the danger of endless partisan revenge-seeking in the use of the devices harassing the presidency that have emerged over the past 30 years. To avert perpetual vendetta, both parties should consent to join in giving up the devices bedeviling the presidency that have lent themselves to grave political abuse.