What High Crimes Warrant a Presidential Impeachment?

Show: FRESH AIR
Date: DECEMBER 16, 1998
Time: 12:00
Tran: 121601np.217
Type: FEATURE
Head: Jeffrey Toobin
Sect: News; Domestic
Time: 12:06

TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross.

Tomorrow, the House of Representatives begins its debate leading to a vote on whether to impeach President Clinton. If he is impeached he faces trial in the Senate. My guest, Jeffrey Toobin, is writing a book about the Clinton sex scandal and the impeachment process.

He is a staff writer for "The New Yorker," and legal analyst for ABC News. Toobin practiced law before becoming a journalist, he was assistant counsel to special prosecutor Lawrence Walsh in the trial of Oliver North.

He covered the O.J. Simpson trial for "The New Yorker," and wrote the bestselling book "The Run of His Life." In the O.J. era, Toobin analyzed what the divisivness over the verdict revealed about race and class in America.

I asked him what he thinks the split in opinion over impeachment reveals about America.

JEFFREY TOOBIN, ABC NEWS LEGAL CORRESPONDENT; WRITER, "THE NEW YORKER": Actually the more I think about this story, the more I think it has a lot to do with the '60s and the legacy of the '60s. I think the anger that I saw everyday in the House Judiciary Committee against Clinton, to me, was so viscerally directed at Clinton as much as who he is, but what he represents.

He, to the Republicans on the Judiciary Committee and to many of his critics, I think, is a draft dodging, dope smoking, lie telling, sleaze; who got away with everything when other people were playing by the rules. And I think that has been the subtext of so much of the scandals about Clinton, and I think that really is the core division about how people feel about him.

GROSS: Do you think that that '60s subtext was expressed in the House Judiciary Committee impeachment trial?

TOOBIN: Absolutely. One of the most remarkable things, to me, about the Judiciary Committee was just looking at the members of the committee. You just walked into that room and to Henry Hyde's right, literally and figuratively, there were 20 middle aged white men, 13 of whom wore glasses, and Mary Bono.

To his left were six Jews, three blacks, four women -- I think I'm doing those numbers right. But they were coming from such different places in our culture that the debate, though often entertaining, never really was engaged.

They really were talking past each other. The Republicans were saying these are lies, these really matter, and the Democrats were not really engaging so much about whether they were lies or not, but really about whether this is a matter of high consequence for the nation. And that was the theme that was really throughout the debate.

GROSS: Republican Congressman Bob Barr who was calling for Clinton's impeachment even before the Monica Lewinsky story, he was one of the people who led the charge against homosexual marriage and against medical use of marijuana. Do you see that as kind of fitting into the '60s pattern that you're talking about?

TOOBIN: There was a great moment at the end of the debate when everyone was pretty exhausted and a little punchy, and Barney Frank, as was often the case, was asking to be recognized and Chairman Hyde said, well, now I'm going to swing over to Mr. Frank.

And Frank said, well, Mr. Chairman I'm glad to have you swinging my way. And, obviously, as everyone in the committee knows and I'm sure many of your listeners know, Frank is gay. And it really broke up the room, everyone laughed, and Bob Barr did not crack a smile. He was even the only Republican who didn't crack a smile.

And I think Barr exemplifies the cultural split that undergirds this committee's deliberation. Now, of course, it must be said about Bob Barr that he's also on his third marriage so he's experienced some of these tensions himself. But, the fact is, he is an emblematic figure of that clash, I think.

GROSS: The votes were all down party lines with the exception of Lindsey Graham breaking rank with his Republican Party on one of the articles of impeachment. All along Lindsey Graham was saying that he'd have to decide whether this was Peyton Place or Watergate.

And if it was Peyton Place he'd vote against impeachment, if it was Watergate he'd vote for it. And he was just waiting for more information so he could decide. I'm wondering if you have any idea what it was that made him decide that this was more like Watergate than Peyton Place.

TOOBIN: Prolonged exposure to Lindsey Graham has bred me -- in me a considerable skepticism for his supposed independence. And I have to say, if you look at his history -- everybody knows Bob Barr was one of the original sponsors of impeachment even before the Lewinsky scandal broke. Lindsey Graham signed that too.

So, the idea that Lindsey Graham was in any sort of doubt about how he was going to vote on impeachment struck me as totally wrong. And I think, you know, his "no" vote on the second article struck me more as an attention getting device than any great principled stand because, frankly, his grounds for drawing a distinction there were a mystery to me as they were to his Republican colleagues.

GROSS: If you're just joining us my guest is Jeffrey Toobin, staff writer for "The New Yorker," and legal analyst for ABC. Now, the Democrats on the House Judiciary Committee were working really hard to defend the president against impeachment. I'm wondering, though, if they are also very angry at the president for getting the other Democrats into this mess in the first place.

TOOBIN: I think that's a feeling that I sensed before the election much more than after. I didn't sense a tremendous anger at the president. Once the Democrats saw that the voters were not going to penalize Democrats for the Clinton scandal, and almost gave Democrats an advantage because of it; I felt that the tremendous anger against Clinton dissipate among Democrats.

In a funny way, I know there were some congressmen, and I think of Jerry Nadler, the liberal from the Upper Westside, in particular who were almost gleeful about this fight because -- he is so used to being on the losing side in these debates, and he's so used to having sort of the rest of the country -- middle America against him.

He and other Democrats feel they were on the winning side here. They feel this issue is an electoral winner for them, and they are almost not afraid to lose the vote in front of the full House. They want to run on this issue in 2000.

And so, I didn't sense the kind of anger and frustration that I sensed before the election. Although, let it be said, that everyone thinks Clinton did a really terrible thing by getting involved with Monica Lewinsky and lying about it. But that sort of deep anger was gone.

GROSS: Do you think that there's a game of brinkmanship being played? I'm thinking that, in a way, I don't know how many people really expected the impeachment process to get this far.

And I'm wondering if you think both sides expected -- if it's like a game of chicken with each side expecting that the other side was going to do something to end it. You know, that Clinton would resign or that the Republicans would back down or that there would be a censure vote by now.

TOOBIN: You know, I speak as someone with considerable expertise on the issue of being wrong about how impeachment was going to play out. I mean, I really thought that the election results would kill it.

I think everyone, especially me, underestimated the depth of Republican anger at Clinton. And the degree to which the center of gravity in the Republican Party is on the conservative side, and the Clinton hating side.

And right after the election there were about five Republicans who came forward, Peter King prominently among them, saying, let's do censure. Let's get it over with. And a lot of people, myself included, assumed that many Republicans would follow suit. Well, that number has been at five for a very long time, and it may actually even be going down.

GROSS: Have you spoken to any of the Senators, and do you have any sense how Democrats and Republicans feel about the impeachment being passed on to them? You know, the possibility of facing a Senate trial of the president?

TOOBIN: I have not spoken to many senators. Just a few, and not in great depth. In part, because I've just been on the House side so much, in part because the senators haven't been around. You know, the Senate -- one of the interesting subtexts here is there's always been a great deal of tension since '94 when the Republicans took over the House between the Senate Republicans and the House Republicans.

The Senate Republicans view themselves as the grown-ups, the serious people, the players, the realists; and they view the House Republicans as the bomb throwers and the irresponsible ones. This dynamic will be very important, I mean, you have Orrin Hatch who is, again, very much at the center of the Republican Party in the Senate saying that, you know, the Senate is not going to look for a trial if there's no realistic possibility of conviction. A deal can be worked out relatively promptly.

But, here again, I think, you know, based on my own sad experience it's very dangerous to make predictions that, oh, there'll be a deal. There won't be a trial. Clinton won't be thrown out. Because, as we've seen here, the process has a momentum of its own, and if Clinton's impeached there will be a trial scheduled. And there will have to be a considerable bit of legislative energy devoted to getting a trial off the rails for this process to be stopped.

GROSS: If you're just joining us my guest is Jeffrey Toobin. He's a staff writer for "The New Yorker," and a legal analyst for ABC. Jeffrey, let's take a short break here and then we'll talk some more.

This is FRESH AIR.

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GROSS: My guest is Jeffrey Toobin, he's a staff writer for "The New Yorker," a legal analyst for ABC, and he's in the process of writing a book about the Clinton sex scandal and the impeachment process.

Jeffrey, Republicans are saying that, you know, the president committed perjury and he must pay the price. We can't let a president get away with that. You're a lawyer, and you worked as a prosecutor on the Iran-Contra trial, and I'm wondering if you suspect that there was any lying or perjury during that trial.

TOOBIN: Well, that's an interesting question. You know, Jimmy Breslin, the great columnist in New York, describes courthouses as places people go to lie. Virtually every trial I've ever been a participant in has some people telling lies. It's almost built into the system.

When we talk about a he said, she said case or where we talk about a credibility test. What we mean is juries determining which party in the suit is lying and which party is telling the truth. That being said, prosecutions for perjury are still extremely rare when you consider the amount of lying that goes on in courtrooms everyday.

So, I think, you know, as one of the prosecutors, I think Oliver North was not truthful on the witness stand. I think some of the witnesses were not truthful, but it never occurred to us or anyone else to bring cases for perjury.

GROSS: Why not?

TOOBIN: Because they are very really brought. Basically -- I was an assistant U.S. attorney, and the last big case I tried before I left was perjury case, and almost always perjury cases have a underlying crime at their cause. Lying about something that is an illegal activity to start with.

That's why one of the most impressive panels that the Democrats put forward in the Judiciary Committee was some former prosecutor's making the point that this is not a case, the case against Clinton, that any prosecutor would bring.

And just to sort of make what I'm saying concrete, when I prosecuted a corrupt personal injury lawyer and the lies that he was prosecuted for were, were you involved in these frauds? Were you involved in these fraudulent cases? Answer, no. We prosecuted and for perjury.

But fundamentally what we were doing was prosecuting him for being involved in the frauds. Here, what makes this case so anomalous is that Clinton is being, in effect, prosecuted for lying about activity that may be immoral, may be distasteful, may be inappropriate in any number of ways, but was not illegal. And that's what makes this such -- one of several reasons that makes this such an unusual perjury prosecution.

GROSS: Republicans are saying Clinton perjured himself. If he admits that he that he perjured himself, we'll be more lenient. Such as in a criminal court, if somebody pleads guilty they are often given a lesser sentence than they otherwise would be given.

What are some of the behind the scenes opinions that you know of about what the outcome might be or might have been if Clinton actually decided to say, yes, I perjured myself. I lied. I'm sorry.

TOOBIN: This is a subject that brings White House lawyers and people affiliated with them to fits of incredible rage because they feel like Clinton is being, and that they are being blamed, for not doing something that in their view wouldn't do any good anyway. They basically have two views on this, one is, that no one will ever be satisfied with any statement of contrition he makes.

Remember, after his August 17th speech which was very defiant and not very apologetic there was a great deal of demand for him to apologize and say he was sorry. Well, he did that and that was -- that became unacceptable, and now he's supposed to say he lied. And the White House supporters are absolutely certain that whatever he said would never be satisfactory.

The other point that they raise, and I think you really have to keep this in mind always when you're talking about lawyers, is that ultimately its decline in charge. The client, especially when he's the President of the United States, if he says he didn't lie, he's not going to say he lied. And I think at this late date it would be sort of preposterous for him to say, well, you know, now that I think about it I really did lie.

Clinton believes that he was evasive, he was unhelpful, a word Clinton uses often to describe his own testimony, but he did not lie. And I think you can make that argument credibly for almost every statement that Clinton made. Some of them, like the questions about whether he was ever alone with Monica Lewinsky, I think those are pretty much hopeless causes for him.

GROSS: What do you mean?

TOOBIN: In the sense that they really do seem like lies. They don't seem like evasions. They don't seem like, you know, threading the needle of unhelpful answers. When he's asked in his deposition in the Paula Jones case, in several different ways, were you ever alone with Monica Lewinsky?

And he dances around it, but fundamentally what he says is no. And there is no way you can say he forgot, there's no way you can say that he, you know, didn't -- wasn't alone with her. I mean, I don't care how rich and full a life you have led, if you're having sex with someone that many times you're going to remember it. And his arguments are simply just not credible to me on those particular sets of questions.

GROSS: One of the Republican talking points drafted by the Judiciary Committee is that the richest and most powerful people in our society should be held to the same legal standards as the weakest citizen. Is there a difference between the legal standards that the president and that regular citizens are held to?

TOOBIN: There are very different standards. There are very different proceedings. Remember, we're talking about, at this point anyway, not a criminal prosecution we're talking about impeachment which has as its standard; bribery, perjury or other high crimes and misdemeanors. And no one -- only powerful people can get impeached because they're the only people to whom it applies.

And I think it really is one of the weaker Republican arguments that, you know, we have to treat Clinton like any other defendant when it comes to impeachment. The fact is the authors of the Constitution have ideas about what these, you know, this famous phrase "high crimes and misdemeanors" meant. And we can have debates about what those -- what the phrase means, but clearly they did not mean it's just perjury like any other citizen in terms of the standard. I mean, it's just different and its higher.

GROSS: If you're just joining us, my guest is Jeffrey Toobin. And he's staff writer for "The New Yorker," legal analyst for ABC, and he's in the process of writing a book about the Clinton sex scandal in the impeachment process.

Jeffrey, you are a lawyer, and you got your start in journalism writing about courtroom law such as the O.J. Simpson trial, and you also wrote about the Iran-Contra trial. You were a prosecutor in that, and I'm wondering how reporting on Congress right now -- how covering, and witnessing, the Judiciary Committee hearing compares to what your used to in the courtroom.

TOOBIN: I've been very struck by one contrast in particular. Courts have rules, courts have both statutes, law book rules and common law rules. Traditions that, though -- trials are different and there fair or not fair, but basically there are certain standards that simply have to be followed.

Congress is so different. It is so much more a political process, and, you know, I don't say that out of any sort of complaint. But you just have to keep in mind how different they are.

High crimes and misdemeanors, if you were to go to a court and have an interpretation of that phrase the way courts interpret statutes in the Constitution all the time, you'd probably come to a fairly narrow, clear definition. Not free of ambiguity, but fairly clear.

Was it 36 members of the judiciary committee, I think there are probably close to 36 definitions of that term among them, and now we're heading to the House of Representatives where they'll be 435 definitions of it. And they will use history as their guide, legal precedent as their guide. They'll also use the number of phone calls they're getting, their polling data, what they read in a newspaper.

I mean, it's much more of a floating crap game in Congress. And that's why, I guess, I have so much trouble with -- in the political process when people throw around legal terms. For example, perjury which is something the Republicans accuse the president of committing. Once you use a term like that, it has a very specific legal definition. And Clinton supporters have used some narrow definitions of the law to say, look, this isn't perjury.

For example, they've said well, the Paula Jones deposition wasn't material to the larger case so the case would be thrown out. Well, the Republicans say, oh, that's just a technicality. But if you're going to accuse someone of perjury which is a specific crime, you got to let them raise the technicalities in defense. That's why these defenses exist. So, those are some of the contrasts that hit me.

GROSS: Jeffrey Toobin is a staff writer at "The New Yorker," and legal analyst for ABC TV. He'll be back in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross.

Back with Jeffrey Toobin. He's writing a book about the Clinton sex scandal and the impeachment process. He practiced law before becoming a journalist, and was assistant legal counsel to special prosecutor Lawrence Walsh during the trial of Oliver North.

Toobin has been covering the Clinton-Lewinsky story as a staff writer for "The New Yorker," and legal analyst for ABC TV.

You wrote a "New Yorker" article a few months ago about the implications for sexual harassment law. And I'm wondering now that the story has advanced a little bit more what you're thinking the implications of this Clinton story is going to be on the future of sexual harassment law.

TOOBIN: See, I think the original sin, as it were, of this whole case was Judge Susan Webber Wright's decision on the scope of cross examination -- the scope of Clinton's definition.

Judge Wright had to do decide, well, what can Clinton be asked about? And she made a decision which I think is correct under the prevailing law, though I think of all is wrong, that Clinton could be asked about his consensual sexual activity. Which, God knows, his relationship with Monica Lewinsky certainly was.

And, I think, the notion of sexual harassment has become merged into consensual sexual activity, and I think that is really a pernicious development. I think a good and valuable law has really been perverted, and it's only because the law allowed Clinton to be questioned about Lewinsky that we are at this moment.

Now, it needs to be said, once he was asked he had the obligation, duty, moral, legal and otherwise to answer honestly. But I think there was a terrible original sin here in allowing this questioning to go forward at all.

GROSS: Is it fairly standard procedure in sexual harassment cases to ask a person who is being accused of sexual harassment about consensual sexual relationships?

TOOBIN: There is, and it's not intuitively obvious why. But it is, and this is the thinking: it's that Clinton was asked whether he had consensual sex with anyone who worked in the government. And the theory was -- not that they were discriminated against because they had been sexually harassed, obviously it was consensual.

It was trying to create a model where people who had sex with him got ahead, and those who allegedly refused, like Paula Jones, didn't. That's why it was relevant. But I think that is such an attenuated form of legal reasoning, and that the costs to people's privacy are so great of allowing that kind of questioning that it's not worth whatever value that evidence has. But that's the theory why it was admissible or at least why they could ask about in the deposition.

GROSS: If you're just joining us, my guest is Jeffrey Toobin he's legal analyst for ABC, staff writer for "The New Yorker," and he's in the process of writing a book on President Clinton, the sex scandal, and the impeachment process.

In the current edition of "The New Yorker" you have a piece on William Ginsburg who was Monica Lewinsky's first lawyer when the sex scandal broke. Why did you decide to kind of pay visit on him now and figure out -- try to figure out how this story has effected his life?

TOOBIN: Well, I have to say I thought that he was one of these great larger than life characters who seem to pop up in these sagas, and he was almost comically ubiquitous for a while. He set the world freestyle talk show appearance championship; he appeared on all five Sunday morning TV talk shows in one day, and then he vanished from the scene in June. And, you know, leaving behind him a trail of ridicule and embarrassment.

And I actually thought that, while he was justly mocked for his ego and his strange things he would say in the press sometimes, he actually did a pretty good job as a lawyer for Monica Lewinsky. And even beyond that I thought his insight into the case was actually a view that came to be shared by really, I think, a majority of the American people.

That this romance between these two people, if you want to call it that, was misbegotten, it was a bad idea, it was embarrassing, it was stupid, but it was not the stuff of crime, not the stuff of impeachment. That it was essentially a private matter between, and among, the Clinton and Lewinsky families. And that, I think -- he deserves some credit for being out front on that issue.

GROSS: You also say in the piece that William Ginsburg is no longer on speaking terms with Monica Lewinsky's father. Do you know why?

TOOBIN: Well, I think there was a feeling on the part of the Lewinsky family that Ginsburg used this -- turned this representation into a vehicle for personal aggrandizement rather than representation of Monica alone. And, I think, they were really angry about that. Though I am sympathetic to Ginsburg, he did make an incredible spectacle of himself and the family got angry at him.

GROSS: Do you spend a lot of time hanging around with the press corps during the Judiciary Committee hearing?

TOOBIN: I certainly do. It's one of the great joys of covering a story like this.

GROSS: I'm wondering what the mood has been among people you've been hanging with.

TOOBIN: It's funny, I think -- you know, people of my generation --I'm 38 so that means I was 14 when the Judiciary Committee voted articles of impeachment against Richard Nixon. And it was really sort of the formative political experience of my youth, and I felt like there would never be as dramatic political events as those.

And I think, you know, many of my peers were struck, as was I, by the kind of lack of sense of history, and the sort of unemotional and unhistoric nature of the debate. Not that it wasn't interesting, but I guess in part because of the seedy nature of the facts of this scandal, and because there is this overwhelming sense that Clinton somehow will never be forced from office because of it. It seemed like not that great, not nearly as historic as Watergate.

GROSS: Jeffrey Toobin, thank you very much.

TOOBIN: My pleasure.

GROSS: Jeffrey Toobin is a staff writer for "The New Yorker," and legal analyst for ABC TV.

This is FRESH AIR.

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Dateline: Terry Gross, Washington, DC
Guest: Jeffrey Toobin
High: Jeffrey Toobin is the legal correspondent for ABC News and a staff writer for "The New Yorker" magazine. He will discuss the impeachment vote.
Spec: Media; Politics; Television and Radio; Government; Justice; Trials; Jeffrey Toobin

Please note, this is not the final feed of record
Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Jeffrey Toobin

Show: FRESH AIR
Date: DECEMBER 16, 1998
Time: 12:00
Tran: 121602NP.217
Type: FEATURE
Head: Michael Beschloss
Sect: News; Domestic
Time: 12:36

TERRY GROSS, HOST: Presidential historian Michael Beschloss has been closely following the impeachment process, and examining how other presidents have been held accountable for their misdeeds.

Beschloss is the author of four books about the American presidency, including "The Crisis Years: Kennedy and Khrushchev," and "Kennedy and Roosevelt: The Uneasy Alliance." His latest book, "Taking Charge: the Johnson White House tapes," is out in paperback. Michael Beschloss is also a regular commentator for "The NewsHour with Jim Lehrer" on PBS.

I asked Beschloss if he thinks the four articles of impeachment represent impeachable offenses.

MICHAEL BESCHLOSS, PRESIDENTIAL HISTORIAN; AUTHOR, "TAKING CHARGE": One thing that has been a constant through history is that every generation has to interpret what that phrase in the Constitution really means, "high crimes and misdemeanors."

In a way, the framers let us down because they left it very much open for each Congress that had to grapple with this to try to decide what they really meant. And the good side of that is here's a case in which the Constitution is infinitely applicable to a society, in this case, 200 years later that they could not have ever imagined.

The problem with it is that if you've got offenses that fall into that gray area, as probably we're dealing with right now, the result is that unless a lot more people are persuaded you could have a situation which a president is impeached by the House, but still there is a very big number of people in the country who are very angry about that verdict.

GROSS: I think the thing that the people who support impeachment, whether it's the people in Congress or American citizens, the thing that they find most abhorrent is that the president lied to them. And they say that the president lied under oath as well, and I'm wondering if your studies of earlier presidents show that presidents in the past have lied as well too. Whether that was under oath or not.

BESCHLOSS: Well, there isn't much of a case of lying under oath because presidents, in history, have rarely had to testify under oath. And actually one of the canards, I think, that's grown up this year is that there has been this great history of all sorts of presidents telling lies, and that for presidents to tell the American people or tell Congress an untruth is sort of more of the same.

And there certainly have been cases in which it has seemed almost that way. One case that is raised, for instance, is Dwight Eisenhower after the downing of an American U-2 spy plane in 1960. That was at a time when that plane went down in the Soviet Union, the American government announced a cover story. They said that this was a weather plane that had strayed, accidently, into Soviet airspace.

That was later disproved, but the point is not that Eisenhower told that lie, but actually that Eisenhower was not allowed to utter that lie. The people around Dwight Eisenhower said, it is much too important for the president's word not to be shadowed. Therefore if we have to hand out a cover story, do it from a lower level, make sure that no untruth passes the lips of Dwight Eisenhower because the president's connection to the American people is a vital national resource.

GROSS: You edited the LBJ tapes -- the private tapes that he made during his White House years, and there were a lot of surprises in those tapes. I'm wondering if, when you were going through those tapes, you felt, well -- at any point, well, President Johnson lied to the public at some point because what he said on these private tapes doesn't gibe with what he told the public or told the Congress.

BESCHLOSS: In Johnson's case, certainly. He, throughout the Vietnam War, conveyed that he was a lot more optimistic about our ability to win the war in Vietnam than he really was privately. And those tapes certainly bear that out. But in Johnson's case, as with Eisenhower's, they were very careful not to have the president utter declarative sentences that could be, later on, disproved.

Because Johnson, as a 30 year veteran of Congress, knew that if that happened his connection with the American people and his connection with Congress would snap. And two of the most vital things that a president can draw on is his ability to persuade the American people to do things that, perhaps, they might not want to do like go to war, perhaps pay higher taxes at times.

And the same thing was true with Congress, one of the most important things a president does with Congress is to persuade members of the House and Senate to do things that they might not, at first, want to do as well. And the second that your word is clouded, it's awfully hard for a president to do those things.

GROSS: I was reading that Republicans are saying -- the Republican leadership is saying that they expect Republicans in the House to vote their conscience on impeachment, but they expect Republicans to kind of vote with the party on the issue of censure. That's the official word.

And I'm wondering if you look historically at Andrew Johnson or Richard Nixon -- how much pressure there was to vote the party line for Democrats and Republicans?

BESCHLOSS: In the case of Andrew Johnson, there was a lot of pressure on the radical Republicans to vote against Johnson in the Senate trial. There was a feeling that Johnson was standing in the way of a harsh policy toward the South. And it was said, for instance, about Senator Edmund Ross the senator whose vote actually cleared Johnson in 1868, that in casting his vote to acquit Johnson he was looking into his open grave. And the grave had been opened by people who wanted Johnson out of office for ideological reasons.

Nineteen seventy-four is a little bit different. By the first week of August 1974 the smoking gun tapes, that demonstrated that Richard Nixon was undeniably guilty of the things that he had been accused of, were public. It was very hard for even the most diehard Nixon supporter to stay on his side.

And so, the result was that when John Rhodes (ph) the House Republican leader, and Hugh Scott the Senate Republican leader, and Barry Goldwater went to Richard Nixon to talk to him and tell him what his chances were. Goldwater said, I think you've got a chance of about 10 or 15 votes in the Senate, and I doubt that I'm going to be one of your votes.

GROSS: Edmund Ross, who you mentioned, was the congressman who was undecided until -- officially undecided until the last minute. He was approached by both parties to vote their side. Both parties pursued him; he voted against the impeachment, saving the Johnson presidency. Do you know what the Democrats and Republicans did to try to convince him to vote their way?

BESCHLOSS: Oh, it was not a very noble episode. There were all sorts of offers that were made, a greater patronage if you voted one way or another -- better committee assignments. This was a case in which there was a lot of horse trading involved, and a noble case because here's one of the big moments in American history in which a leader on whom everything turned decided to side with principle rather than these crass self interests. And, indeed, he was defeated for re-election.

GROSS: What else happened to him?

BESCHLOSS: He wound up one of the profiles in courage in John Kennedy's book published in 1956. Kennedy felt that if Ross had lost his office, at least Kennedy you would try to redeem him as an example of someone who was able to take a very big political risk. So, in the end, at least a century later Ross became, at least for awhile, a household word.

GROSS: What message do you think the Edmund Ross story might have to House members today who are about to cast their vote on President Clinton's impeachment?

BESCHLOSS: What the Edmund Ross case suggests is that this is the moment on which many House members, years from now, will probably be judged by history, and they really should vote their gut instinct.

GROSS: What do you think are some of the most history making moments of the Judiciary Committees impeachment of President Clinton? History making moments beyond the final vote? What was said? How people behave? What they examined? How they examined it?

BESCHLOSS: I think it's not just memory. When you look at the Judiciary Committee over the last few weeks and compare it to the Rodino (ph) Judiciary Committee of 1974, somehow the rhetoric seems less soaring and the issues seem of less magnitude, and I think that reflects a few things.

One is that members of Congress are simply less heroic, I think, in the current age than they were even 25 years ago -- life has changed. Another is the fact that this does not have the bipartisan flavor that you saw in 1974. And another thing, I think the most poignant of all, is that in 1974 people in Congress and elsewhere were I idealistic enough about government and the presidency, for instance, that when that first vote for an article of impeachment against Richard Nixon was cast, members went into and anti-room after it was all over and actually cried.

This was even people who hated Nixon for ideological reasons. They felt that the possibility of an impeachment of a president was of such magnitude and so terrible that this was not something that they had ever expected to do as members of Congress. Nowadays, in 1998, most of us have been through this in our lifetime and it isn't so strange.

GROSS: Michael Beschloss is my guest, presidential historian. Let's take a short break here, and then we'll talk some more.

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GROSS: If you're just joining us, we're talking about the upcoming House vote on impeachment. My guest is presidential historian Michael Beschloss. His latest book, just out in paperback, is called "Taking Charge: the Johnson White House tapes."

Bob Dole had a piece in "The New York Times" offering pretty, I thought, complicated explanation for some kind of censure. Did you read that piece?

BESCHLOSS: Oh, yes.

GROSS: Maybe you could summarize it, and tell us what you think that would mean.

BESCHLOSS: It was a -- Bob Dole's formula, which has added force because this is the man who ran against Bill Clinton in 1996, and would be president now head he won. The idea is not only to censure the president as an alternative to impeachment and a Senate trial, but also to involve him in the process so that it wouldn't be a situation where, let's say, the Senate just passes a censure resolution and the White House sort of dismisses it, and it is business as usual.

It would very much involve him signing a document and going up to Capitol Hill. It's got a little bit of an echo of Richard Nixon's experience. Richard Nixon, as we know, resigned in order to avoid impeachment and conviction. And oddly enough, really never confessed or apologized for the things that he was accused of.

A month after he resigned and went back to California, he was pardoned by President Gerald Ford, and asked to issue a statement in response. And the only statement that Nixon issued was to say, that the way I dealt with Watergate was the wrong way, is a burden I'll have to bear until the end of my life.

That's hardly an apology or a confession of the things that he was accused of, and one of the things that Gerald Ford, I think, is very fairly criticized for nowadays is the following: Ford had the ability to go to Nixon and say, if you want a pardon, if you want to avoid a criminal trial that might put you in prison; I'm going to demand of you that you sign a statement confessing these crimes, saying I was guilty of them so that years from now you can't go around the United States saying, I was driven from office by a political coup for ideological reasons.

Ford didn't do that. He didn't have the instinct, I think, to push Nixon to the wall. And the result of that, sure enough, was that Richard Nixon spent the last 20 years of his life saying, I was unfairly driven out of office, these are not things that I should have been impeached or convicted for. And the result is that younger generations who were not aware during Watergate, in many cases, believed it.

So, I think what Bob Dole is suggesting is involving Bill Clinton in a process like that, in a way that will not allow him in the future to say this is something that was unfair and I was, in some way, persecuted unfairly.

GROSS: From your reading of politics, is this a politically workable proposal?

BESCHLOSS: It may prove to be too little too late. The problem with the proposal that is submitted at this point is Bill Clinton, right now, is at the knife age of impeachment. And the problem is that this is going to look like some way of evading what seems to be his very likely fate. Had it been submitted a month ago it might have been very different.

GROSS: What effect do you think this episode is going to have on the presidency, and the future of people who are living in the White House and serving as our president?

BESCHLOSS: We're right now, Terry, at the and of a period in which presidential power has declined in a very big way. I was born in 1955 and the first presidents I remember are John Kennedy and Lyndon Johnson. They were at the apex of the imperial presidency.

They seemed to be almost omnipotent in international affairs, it was a time in which power was flowing to Washington, people were very happy to have government involved in domestic affairs, and also there was a great mystique about the presidency.

For instance, in John Kennedy's case, Kennedy did not wear a hat, and it drove the hat industry into a recession because people saw Kennedy and started to imitate him; they didn't wear hats when they were walking down the street. Finally, Kennedy agreed to at least carry a hat to somehow relieve the pain of the hat industry.

That shows you how powerful and central presidents were, not only in our American political system, but also around the world. All of that has been changing over the last 10 years or so.

The Cold War is over, there is certainly no longer a mystique around the presidency as we have certainly seen in the last 11 months. And also, people are beginning to turn away from the idea of a lot of power flowing to Washington.

And I think what a future historian might say, is what we are seeing this year, and perhaps next, is another nail in the coffin of the imperial presidency. And what it could lead to is much more assertive Congresses in the future, not impeaching presidents necessarily, but the leaders of the House and Senate who, in many cases, seem to the American people to be more powerful than presidents are.

And that's been true through much of our history. Ironically, one of the legacies of Andrew Johnson was that for the next 65 years or so we saw a series of very weak presidents. Many times Speakers of the House were considered to be much more powerful than presidents were.

GROSS: Do you think that the impeachment hearings will have the result of presidents -- future presidents holding themselves to a higher standard of truth telling?

BESCHLOSS: I think that all is going to depend on how Americans view this whole investigation and what is happening on Capitol Hill, and we'll know that in a couple of years. In the case of Andrew Johnson, for instance, rather quickly Americans came to the conclusion that Johnson probably should not have been impeached, and certainly should not have been convicted. And that impeachment is not something that should be enacted against presidents, and the result that was for more than a century there was no impeachment.

In the case of Richard Nixon, Richard Nixon was on the brink of impeachment largely for telling blatant lies to the American people. And that did force a higher standard for later presidents.

One thing that we haven't seen, for instance, in the last 25 years is presidents who abused the FBI, using those secret files against their political enemies. That's something that we've had a right to expect ever since Richard Nixon.

So, I think one silver lining to a cloud like this is that when a president seems to be brought to account it does make his successors think twice.

GROSS: Michael Beschloss, I want thank you very much.

BESCHLOSS: Thank you, Terry.

GROSS: Michael Beschloss is a presidential historian. His latest book, "Taking Charge: the Johnson White House tapes," is out in paperback.

I'm Terry Gross.

This is a rush transcript. This copy may not
be in its final form and may be updated.

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Dateline: Terry Gross, Washington, DC
Guest: Michael Beschloss
High: Presidential historian Michael Beschloss discusses the upcoming impeachment vote in the House. He is the author of "Taking Charge: the Johnson White House tapes: 1963-64," now out in paperback.
Spec: Media; Politics; Government; Trials; Michael Beschloss

Please note, this is not the final feed of record
Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Michael Beschloss
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.