Politics & Government

Is Lindsey Graham really a hypocrite on impeachment? A look at the record

On January 16, 1999, a Southern politician with a mop of faintly graying hair stood on the floor of the United States Senate and made a striking proclamation about what it meant to impeach a president.

“You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role,” the politician said. “Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.”

That man was South Carolina’s own Lindsey Graham, then a 43-year-old, third-term Republican Congressman. The president in question was Bill Clinton.

Twenty years later, those words are coming back to haunt Graham, now a 63-year-old Republican senator and chairman of the Senate Judiciary Committee, from critics who contend isn’t applying this same standard to President Donald Trump — who, like Clinton, is now being scrutinized for behaviors that many observers, including Washington lawmakers, have said dishonors the presidency.

In 1999, Graham blasted Clinton for lying under oath about whether he had an affair with Monica Lewinsky, and for going to great lengths to get others to lie for him, too. In 2019, Graham is uninterested in any congressional investigation that might be able to determine Trump also went to great lengths to cover up for any misdeeds.

During Clinton’s impeachment proceedings, Graham recalled that President Richard Nixon made himself vulnerable to impeachment when he refused to comply with congressional subpoenas, effectively taking away Congress’ ability to conduct oversight.

Last week, Graham recommended Trump’s eldest son, Donald Trump, Jr., ignore a subpoena from the Senate Intelligence Committee.

Democrats and Republican “Never Trumpers” are calling Graham — one of Trump’s staunchest opponents before becoming his loyal defender — out for hypocrisy. In the wake of Graham’s defense of Trump, Jr., #LindseyGrahamResign became a nationally-trending hashtag on Twitter.

A veteran lawyer who was actually one of the managers for Clinton’s impeachment trial in the Senate, Graham insists he has been entirely consistent.

“Because they want to get Trump, they’re using my words to get Trump,” Graham said in a recent interview with McClatchy. “This doesn’t bother me one bit.”

According to constitutional law experts, an examination of the circumstances surrounding both presidents and Graham’s own words paint a picture of how the senator maybe hasn’t changed after all — but also maybe how he has.

‘To be determined’

Speaking with McClatchy this past week, Graham made one thing clear: If White House special counsel Robert Mueller had concluded that Trump definitively obstructed justice, it might have been a different story.

As it turned out, Graham said, Mueller’s report drew no conclusions — either about whether Trump colluded with Russia to influence the 2016 election or if the president sought to obstruct justice to thwart Mueller’s investigation.

This is unlike the report prepared by Mueller’s counterpart during the Clinton investigation, then-independent special counsel Ken Starr, who did conclude that Clinton perjured himself during legal proceedings.

Impeaching Trump based on a inconclusive special counsel report, Graham reasoned, “would be like us impeaching Clinton when Starr said he didn’t do anything wrong.”

Susan Low Bloch, a constitutional law professor at the Georgetown University Law Center, agreed that the record did suggest that Clinton had lied under oath, which could constitute an impeachable offense. But she wasn’t impressed with Graham’s explanation.

First of all, Bloch said, “impeachment isn’t about ‘cleansing the office.’ That’s what an election is for. Impeachment (in the House) and conviction (in the Senate) is about removing someone who has committed high crimes and misdemeanors. Impeachment is not just a way to attach a scarlet letter to an officer who behaved badly.”

The House ultimately voted to impeach Clinton, but the Senate did not vote to convict him, meaning he was ultimately not removed from office.

Second, Bloch continued, “if Mueller had said, ‘yes, Trump obstructed justice,’ then it would have been harder for Graham to say he didn’t. But Mueller didn’t not find obstruction. He said it might be there, and he left it for Congress to evaluate. If so, it’s still open for Congress to analyze those 10 instances that Mueller outlined of possible obstruction ... And so to answer the question, ‘is there anything to justify impeaching Trump now,’ I would say the answer is for the House to determine.”

Graham, Bloch continued, should want to find the answer, too.

‘It doesn’t have to be a crime’

The Constitution states that a president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

But 20 years ago, Graham himself pointed out that a president need not have committed a crime to be impeached.

“It doesn’t have to be a crime,” he repeated last week. “And I’m saying it now: It doesn’t have to be a crime.”

Bloch said Graham was right. She explained that legal scholars and practitioners of the law generally agree with the interpretation that the framers of the Constitution allowed for impeachment for offenses that wouldn’t be formally listed in criminal statute. For instance, she said, if an elected official sat around all and did literally nothing, it could qualify as impeachable.

But when Graham first said a president need not be convicted of a crime to qualify for impeachment, he was actually making this statement in the context of Congress’ power to determine a president’s fitness for office. In a lengthy speech, Graham was describing how the U.S. Senate had removed federal judges in the past by exercising congressional authority, even if other lawmaking bodies had not reached the same conclusions.

Also in that 1999 speech, Graham said this: “What’s a high crime? How about if an important person hurts somebody of low means? It’s not very scholarly. But I think it’s the truth. I think that’s what they meant by high crimes. Doesn’t even have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you have committed a high crime.”

That standard is what Graham applied to Clinton: “Don’t cheat in a lawsuit by manipulating the testimony of others. Don’t send public officials and friends to tell your lies before a federal grand jury to avoid your legal responsibilities. Don’t put your legal and political interests ahead of the rule of law and common decency. If you find that these are high crimes, that is the burden you’re placing on the next office holder.”

‘I believed in what I did’

But if Graham appears to be defining “high crimes” according to his own interpretation of the Constitution and the law, that wouldn’t be out of bounds, according to Michael Gerhardt, another constitutional law scholar who teaches at the University of North Carolina at Chapel Hill.

“One of the things we have to understand is, in the context of impeachment, all the critical decisions are made by members of Congress who are politicians,” Gerhardt said Thursday. “The framers (of the Constitution) expected us to make decisions that were a mixture of political and constitutional considerations. So you’re getting that from Graham. And it’s not inappropriate.”

The idea of discretion sets up the very concept of impeachment as inherently political. While few people disagreed that Clinton had broken the law when he lied under oath, there were major disagreements about whether that lie warranted impeachment. For Graham, it did.

In 1999, Gerhardt explained, Graham was making a judgment call when he decided Clinton should be impeached based on having committed a crime.

“The misconduct of the president, in the minds of the public, did not rise to the level we thought it did,” Graham recently acknowledged of the public backlash at the time. “But I believed in what I did.”

Graham is making a similar judgment call now that Trump should only be impeached under similar circumstances.

This understanding of the role of discretion in impeachment proceedings could allow Graham, at some later date, to still argue that Trump should not be impeached even if evidence shows he broke a law. He could just say he didn’t think the crime rose to the level of an impeachable offense.

Graham has even suggested he was more disturbed by the accusations of Russian collusion than the allegations that Trump sought to fire Mueller and FBI Director James Comey.

“I told (Trump), and I told everyone, if (collusion) happened, then it’s probably the end of your presidency,” Graham said.

‘Be my guest’

Graham told McClatchy he had a message for his critics.

“All of you believed I was wrong about Clinton, and I’m not telling you that you’re wrong. I’m telling you I don’t see a case for impeachment because of what Mueller did. And if you want to impeach him, do it, and you want to use my words — it doesn’t have to be a crime, and it’s necessary to cleanse the office — be my guest.”

To Democrats specifically, Graham said, “if you think, even though it’s not technically a crime, that’s sufficient to impeach President Trump, just do it.”

Graham has been harshly criticized for his lack of interest in conducting an investigation through the Senate Judiciary Committee into whether scenarios in the Mueller report might have constituted Trump obstructing justice. The Democratic-controlled House is currently in the midst of vigorous oversight on the matter.

If Graham is inconsistent, Gerhardt and Bloch both agreed, it’s that 20 years ago he stood before his colleagues and expounded on Congress’ crucial obligation to conduct oversight of the executive branch — and now he’s all but dismissing the House’s investigation as a partisan exercise.

“It’s inconsistent, if not hypocritical, to say there is no justification now” for investigating, Gerhardt said. “And by the way, it is perfectly consistent with the Constitution to do so.”

But, again, Graham is not technically wrong to say, in essence, House Democrats can do whatever they want and leave him out of it.

First, Graham is making a judgment call. Second, the House always acts first in an impeachment proceeding — the House is the chamber that actually impeaches a president; the Senate’s job is to convict.

If anything, it’s further proof that Graham knows exactly what he’s doing when he talks about impeachment.

Still, in 1999, Graham insisted he was moving forward with impeachment free of political considerations.

“What brought us here is not partisanship,” said Graham at the time, “but the conduct of one man who happens to be the president.”

History of presidential impeachments

No president has ever been forced out of office through impeachment proceedings, but two have been formally subjected to the process:

President Andrew Johnson was impeached by the House in 1868 on the grounds that he broken the law by removing a federal appointee from office and replacing him without consulting Congress — the final straw for lawmakers after a series of clashes between the executive and legislative branches. The Senate voted to acquit him of charges, and the Supreme Court later ruled that Johnson was within his rights to dismiss the appointee. Ultimately, the law Johnson purportedly disobeyed was repealed.

President Bill Clinton was impeached by the House at the end of 1998 on grounds he lied under oath and obstructed justice to hide his affair with Monica Lewinsky, a young White House staffer. The Senate voted to acquit him in early 1999.

One president would likely have been impeached had he not resigned first:

President Richard Nixon was being investigated by Congress for his involvement and attempted cover-up of a successful operation of his own reelection campaign to break into Democratic National Committee headquarters at the Watergate in Washington, D.C. In the summer of 1974, the House Judiciary Committee filed three articles of impeachment against Nixon on grounds that he had committed “high crimes and misdemeanors.” Nixon resigned just weeks after that.

Emma Dumain works out of the McClatchy Washington bureau, where her reporting on South Carolina politics appears in The State, The Herald, The Sun News, The Island Packet and The Beaufort Gazette. She was previously the Washington correspondent for the Charleston, South Carolina Post and Courier. Dumain also covered Congress for Roll Call and Congressional Quarterly.