If the international community is generally agog at the shenanigans in the Clinton trial, how much moreso Australian lawyers tutored in the fundamental principles of the English common law? Amused mutterings have turned to scorn as a cartoon cast of zealots have filed across our pay-TV screens. Kenneth Starr, whose investigation makes the parliamentary inquiry into Carmen Lawrence appear congenial, will no doubt lie in wait until impeachment fever has moderated and the President attends to ceremonial duties as the spouse of Senator Hillary. Perhaps it's all showbiz, the American fascination with the external, or is my abhorrence a function of values nourished in the draughty quadrangle of the University of Melbourne Law School? For this Australian lawyer, and I suspect many of my fraternity, the impeachment trial resembled the surreal drama of a Luis Bunuel movie, let's call it "Monica's Obscure Object of Desire" ("Monica's Obscur Objet du Desir"). No winners, losers all, and heaven help anyone who tries to apply generally accepted principles of law. A quick primerStarr is called an independent counsel, and given his demeanour, that's a little like an independently minded member of One Nation. Unlike his more neutral Watergate predecessor, Mr Starr became a proponent of impeachment to the House of Representatives, a role more akin to the office of the public prosecutor in this country. Clearly in the American legal lexicon, independent is not analogous to impartial. Starr's powers apparently include the right to usurp generally accepted, if not legally protected, rights to confidential political consultation. Imagine the uproar if a Senate inquiry subpoenaed a Prime Ministerial aid to testify about the boss's discourses whilst reclining on the chesterfield? Or a member of the security detail who witnessed a Prime Ministerial indiscretion in the private courtyard? And Starr's excesses included discussions of an immunity deal with Ms Lewinski without her attorney present, in itself the result of a sting operation arranged by her erstwhile friend Linda Tripp, who ironically is accused by Lewisnki of a betrayal she never suggested of the President. What of the Articles of Impeachment, the indictment handed to the Senate in pursuit of "high crimes and misdemeanours"? In the law, it is necessary for the prosecution to prove all elements of a crime, and that proof is applied according to a standard, commonly called the burden of proof. In our system the prosecution bears the burden of proving the guilt of an accused beyond a reasonable doubt, the oft quoted "golden thread" that runs through the history of English common law. Obviously that standard is a very high one. What bothers?There are a number of aspects to this case that offend my lawyerly sensibilities. It's not as though the President continued to deny the relationship with Lewinski, at least not beyond some understandable tap dancing when ambushed in a deposition in a case that never saw the light of day (testimony taken in the now settled Paula Jones case in January 1998). And perjury is rarely prosecuted in a civil case. Not to mention the "reasonableness" or otherwise the President claims in the name of linguistic subtlety - he says "sex" meant something more than the strictly oral variety, and perjury is, to some extent, dependent on the mindset of the accused at the time he allegedly perjured himself. Clinton said he was sorry, admitted some fancy footwork, and even mentioned the anguish suffered by his family. "At no time did I ask anyone to lie, to hide or destroy evidence or to take any unlawful action," Clinton said, and those closest to him have generally yielded to this assertion. It seems to this lawyer, with even a modicum of criminal law experience, that plain citizen William Clinton would never have faced criminal charges on such shaky evidence. It doesn't mean that there is no case to answer, but "beyond a reasonable doubt"? After four years of investigation by the relentless Starr? When the best he could do was an allegation of lying about sex? Come on, let's get real! Okay, you say, but what is the burden of proof in a presidential impeachment, which is clearly a different type of case to an everyday criminal proceeding? Yes, the impeachment proceedings in the Senate run on parallel political and legal tracks. Nevertheless the prosecution is still looking to prove its case, and the jury (members of the Senate) have to weigh up the evidence. But the language of the American Constitution, so murky that the standard of proof required for impeachment is entirely unclear, makes any analogy to the English common law a long stretch. And fundamentally, the case should never have proceeded to the Senate because constitutional experts, distinguished friends and foes of Clinton alike, could not agree whether the nature of the charges were sufficient for impeachment in the first place. Think about this. There was serious debate amongst equally qualified constitutional experts about the very basis of the proceedings in the Senate. Reasonable legal experts could disagree on the basis for the whole shebang. In other words, there was reasonable doubt that the prosecution in the Senate should have taken place at all! Had Clinton accepted a bribe from a potential military supplier, or conspired to share State secrets with an alien enemy, there would have been unanimity amongst constitutional experts that an impeachment was appropriate. But dubious crimes (that may not in themselves be proved on the criminal burden of proof) in a civil case? The experts could not agree. Any way you look at it, there was reasonable doubt. They should have...This is what they should have done. The President appears on national television, but this time he speaks to the children of America. "My fellow American children, yes, I sometimes fudged the truth, and as your parents tell you, that is bad. And so, in every American city that I visit, from this day till the end of my presidency, I will attend an assembly of junior schools and talk about the truth. I will explain why you should not do the same as me, why you should not follow my example, how I did wrong. I will do this on my own time, it doesn't count as work, and at the end of each session, in front of the assembly, I will write fifty times on a blackboard: I must be honest." Let the punishment fit the crime. What do you think? Have your say. Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information. |