Rule of law victim of impeachment trial


THE ONE sure outcome of the impeachment trial is that the rule of law has been diminished as much by Republicans as by Democrats. And, to the chagrin of many of his constituents, House Judiciary Chairman Henry Hyde has become its chief detractor.

According to a recent Chicago Tribune poll of Mr. Hyde's conservative Illinois district, 35 percent of the respondents said their opinion of the congressman had dropped because of his handling of the impeachment proceedings.

In his opening statement to the Senate, Mr. Hyde cited the case of Sir Thomas More, a former lord chancellor who was executed in 1535 for refusing to swear an oath that the king of England was supreme over the pope.

Quoting from "A Man for All Seasons," a play and Academy Award-winning movie, Mr. Hyde argued that More epitomized the rule of law when he went to his death rather than take an oath in vain.

Yet while Mr. Hyde extolled More and the rule of law, his House managers excoriated President Clinton for "legal hairsplitting." Even Democrats have joined in the refrain at times. But legal hairsplitting is at the heart of the rule of law, and More is the perfect example of that. Indeed, one could argue that More was the Bill Clinton of his day.

Lawyerly wit

As portrayed in the movie "A Man for All Seasons," More uses all his lawyerly wit to avoid directly answering the king's inquiries about his fealty. When informed that he must swear an oath about the king's marriage to Anne Boleyn, More plies his daughter Meg about the oath's wording.

"What do the words matter?" asks Meg. "We know what it will mean."

"It will mean what the words say," replies her father. "An oath is made of words. It may be possible to take it." God created man, said More, "to serve him wittily, in the tangle of his mind." Only when God allows no escape must humans "clamor like champions." Instead, More said, "our natural business lies in escaping. If I can take this oath, I will."

To More, the rule of law was a very pragmatic thing, beyond philosophy and morality, and therein lies its protection. It is not designed to punish bad people or reward good people, but to apply the same rules to all people, good or bad. The rule of law is therefore not conditioned on a human being's subjective determination of right and wrong -- which, of course, can vary as often as the king's taste in women.

At one point in the movie, More is urged to arrest a man who could prove treacherous (and indeed will). "Father, that man's bad," cries More's daughter, Meg.

"There's no law against that," says More. When informed that being bad violates God's law, More replies: "Well, then, let God arrest him."

The devil's due

Accused by his son-in-law, Will Roper, of giving the devil the benefit of law, More retorts: "What would you do? Cut a great road through the law to get after the devil?"

Roper, also a lawyer, is quick with his answer: "Yes, I'd cut down every law in England to do that."

"Oh?" says More, "And when the last law was down and the devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, man's laws not God's, and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of law for my own safety's sake."

This is one of the most eloquent statements of what the rule of law really means. So it's disingenuous for Republicans and Democrats to criticize the president for "legal hairsplitting" when making defenses he is entitled to under the law.

It was no more Mr. Clinton's job to help Paula Jones' attorneys prove their case than it was More's to help the king convict him of treason. Crafty and even misleading use of language is not perjury, and the Supreme Court has said so.

Perjury is difficult to prove, not to let scoundrels go free, but rather to limit the power of government. That is the purpose of written laws, and that's why Americans have been insisting on them since we broke away from England. It is what makes us unique as a nation.

Defending the rule of law means defending the power of language to limit the power of government. It is the heart of the lawyer's enterprise, as evidenced by Mr. Clinton's famous formulation of "what the meaning of 'is' is." We deny him that argument at our own peril, as More would be the first to say.

Personally, I think Mr. Clinton is a liar and unfit to serve as president. That's why I didn't vote for him in 1996. But the question before the Senate is whether he is guilty of perjury, and on that question I think he has a valid claim to innocence.

For my own safety's sake, I'm willing to give him the benefit of the law.

Linda R. Monk is the author of "The Bill of Rights: A User's Guide," which won the American Bar Association's Silver Gavel Award.

Pub Date: 2/11/99

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