By Nayana
The right to privacy, debated around the world in September 1997 following the death of Princess Diana, has again become a global topic of discussion exactly one year later, due to the problems - some would say pillorying - of President Bill Clinton.

The emotional calls for a "right to privacy" that followed Diana’s death were somewhat misguided because, as this column pointed out at the time, even if there had been such a law, publicity-hungry celebrities such as Diana would have been the first to waive it. For instance, nobody forced her to make a confession of marital infidelity over BBC television.

In the same way, Clinton apologists have cleverly turned the present debate into a seemingly simple issue involving the private life of a public figure, although it is questionable whether the President’s misconduct with a White House employee while ostensibly engaged in official duties can in fact be defined as part of his private life.

Clintonesque
Though not reaching Clintonesque proportions, this country too is witnessing an emerging debate on this issue, and it is therefore not inappropriate to look in some detail at the matters raised by the Clinton scandal which, whatever its final outcome, is bound to become a case study wherever public law and ethics are discussed.

The key questions are whether the President can be "impeached" which is a legal question, although political considerations may influence the decision-makers; and whether he should resign which is a moral issue, though once again the political consequences are likely to be weighed carefully.

The United States of America has only once attempted to impeach a president and that was exactly 130 years ago. The incumbent was Andrew Johnson and the motion was defeated by a single vote in the Senate. The country was spared another such trial in 1974 by the resignation of Richard Nixon.

On the face of it, the Andrew Johnson case differed from the Clinton affair in two vital respects. Firstly, Johnson was not an elected President; he was the incumbent Vice-President who succeeded to the presidency when Abraham Lincoln was assassinated. Secondly, the events that gave rise to the impeachment involved a clash between the President and Congress over the burning issue of the day, namely the re-unification and reconstruction of America following the Civil War.

Thus the decision to move for impeachment was probably easier for the Congressmen of that day than for their modern counterparts. Yet some of the speeches made in 1868 bear a striking similarity to what might be said by today’s legislators if Congress takes the decisive step.

Procedure
According to the American Constitution, a president, vice-president and all civil officers including federal judges "shall be removed from office upon impeachment and conviction for treason, bribery or other high crimes and misdemeanours".

A motion for impeachment must originate in the House of Representatives but the trial takes place in the Senate where the decision to convict must be carried by a two-thirds majority.

The allegations against Johnson were two-fold: Firstly it was charged that he had dismissed a high State official without Congressional approval in defiance of a law passed by Congress during his term of office requiring such approval. This was countered by Johnson with a legal defence that the official in question had been appointed by Lincoln before the new law came into force.

The second allegation was an omnibus charge basically to the effect that Johnson had gone round the country making intemperate and unbecoming remarks about Congress "unmindful of the high duties of his office ..... and in disregard of the Constitution". Johnson’s answer to this charge was that he was only exercising his freedom of speech to express his opinions.

This defence position gave rise to the question whether Andrew Johnson the President was entitled simultaneously to speak as Andrew Johnson the private citizen.

Massachusetts Congressman Benjamin Butler, who emerged as the strongest figure among the group of "managers" appointed by the House of Representatives to steer the impeachment through the Senate, argued thus:

"Is it indeed to be seriously argued that there is a constitutional right in the President of the United States who, during his official life can never lay aside his official character, to denounce, malign .... and condemn the Congress of the United States?"

Butler went on to express his view that the "dignity of the [presidential] station" required the President "to observe that gravity of deportment, that fitness of conduct, that appropriateness of demeanour and those amenities of behaviour which are a part of his high official functions. He stands before the youth of the country, the exemplar of all that is of worth in ambition and all that is to be sought in aspiration."

As for the alleged slander of Congress, in Butler’s view what mattered was not the truth or falsity of the allegations but "the scandal of the scene".

However, despite the uncanny relevance of some of the language used in those 19th century proceedings, present day Congressmen will first have to decide whether President Clinton’s behaviour can in law amount to impeachable conduct. Butler’s definition of "high crimes and misdemeanours" was:

"[Conduct] in its nature or consequences subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath or of a duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for any improper purpose."

Thus the charges of lying under oath and/or attempting to obstruct the course of justice will have to be the matters on which the pro-impeachment lobby will concentrate, while Clinton supporters argue that lying about one’s private life should not be placed in the category of an impeachable offence. However, if the lying was done under oath, the law of perjury recognizes no such distinction between private and public matters.

Apart from the requirements for impeachment, there still remains the larger question of whether President Clinton is under a moral obligation to resign. Here the astuteness of Clinton’s spin doctors lies not in the fact that they have managed (up to the time of writing) to keep opinion poll support at a respectable level, but that they have succeeded in focussing public attention on the wrong issue, namely whether Clinton the twice-elected President should be hounded out of office for something he did in his private life.

Firstly, it is debatable whether admitted acts of sexual misbehaviour with an office employee, in the office, during office hours can be brushed aside as "private life". Is there any doubt that a company executive found to have done what Clinton did could have been sacked? Or, to take a more drastic example suggested by a letter-writer to "Newsweek", if Clinton were in the Army (where, unlike most of his generation, he did not serve) he could have been court-martialled.

In addition, the question for Americans is surely not whether Bill Clinton’s actions constituted a part of his private life at the time, but whether the current exposure of such acts has damaged the dignity and authority of the U.S. presidency to an extent that makes his removal necessary in the public interest.

In this connection those who criticize Kenneth Starr for his insistence on recording all the salacious details of the affair should remember that this was a consequence of Clinton’s quibbling about what constitutes "sexual" conduct.

In any event, if the private life argument was being put forward with sincerity, then the proper and logical course would have been to have admitted the affair at the outset without quibbling over technical details. In other words apology no.3 or 4 should have come at the time of partial apology no.1.

Instead Clinton first denied the whole affair, then quibbled over the details, then finally took up the private life argument only as a last resort when a full admission had been wrung from him.

His supporters are right that the issue is not about sex; it is about honesty and sincerity, and Clinton has been found wanting. It could also be said that he showed deplorable lack of judgment in failing to realize that his legal quibbling and piecemeal apologies would only serve to prolong the agony for his family, friends and the American public.

On the foreign scene, apart from the indignity of the President’s situation, suspicion has already been voiced that aggressive American initiatives such as the recent air strikes against the Sudan and Afghanistan were chiefly motivated by a desire to distract public attention from the scandal at home. However, such actions could lead to an escalation of violence in which more lives will be lost.

Thus, whichever way one looks at it, this scandal is not a matter of private life. Its consequences are very public.