Censure is a Bad Idea

From: Marc Perkel

309 North Jefferson #220

Springfield Mo. 65802

email: marc@perkel.com

To: Bettie Currie / President Clinton / Orson Porter / David Kendall / Greg Graig

Dear Clinton Legal Staff,

Thank you for taking the time to read this. I know you are very busy working on a defense strategy for the upcoming Senate trial. I am a strong supporter as well as the former Democratic candidate for United States Congress here in the 7th district of Missouri. I would like to contribute my legal skills to our cause of defending the President and I hope that you will find my arguments to be useful and that we can put this atrocity behind us and get on with the business of the people.

In this brief I will first discuss the issues of Censure from a legal perspective, and then I'll discuss it from a political perspective. I hope that the combination my of legal skills, my political skills, and the logical disciplines my of being a computer programmer will allow me to offer a usable defense strategy to serve the President. I believe that you should take the option of censure off the table and stop pursuing it. My reasons include that there is no constitutional basis for censure other than by agreement, you're not going to get that agreement, lobbying for it makes the President look guilty, a trial is bad for Republicans, a trial is unavoidable, and I think the President can win on the merits. In the heat of battle it is often easy to lose track of reality. I believe, in fact, that getting back to reality is the way to win this.

Impeachment and the Constitution

In spite of Senator Byrd's pontifications, the Constitution does not give the Congress the power to censure the President. The only power the Congress has is to remove the President from office. To allow the Congress and the President to pretend that there is a censure option is to allow the Constitution to be ignored and will create a false constitutional precedent that will someday be abused by future congresses to censure the President as part of the process of overriding a veto.

In spite of the temptation to do so, you just can't make up rules that don't exist because it's politically convenient. For those who disagree with me I challenge you to show me in either the Constitution or the Federalists Papers the legal basis for censure. If I'm wrong then write a legal argument showing me I'm wrong. It is important to realize that you can't create law by consensus where everyone pretends that law exists when it doesn't. That's the kind of thinking that has cause the judicial system to be in as sorry shape that it is.

Censure by Agreement / Plea Bargain

Having said that, the only similar possibility, which is being called censure, is more accurately a "plea bargain". What you are really doing is offering by agreement to make a deal to call off the trial by agreeing to a lesser punishment. In this case the Senate will not be censuring the President. The Senate will be agreeing to drop charges and the President will be agreeing to submit to some form of punishment. The important issue here is that this is done by agreement, and that the Senate does not have the right to impose punishment on the President. Such a right would clearly violate the separation of powers and would clearly be unconstitutional.

I believe a plea bargain would be a serious mistake. A plea bargain is an admission of guilt with respect to the charges of impeachment. Quite frankly, the President is wholly innocent of the charges against him and a plea bargain is effectively a lie. In fact, many innocent people in America are forced to plead guilty to things they didn't do because they don't have the will or the financial resources to fight the government for their rights. People are often abused by police and then the victim of the police abuse is charge with a crime as a form of government intimidation so that the people won't assert their constitutional rights against abuses by the state. The way I see it, it would set a very bad example for the President to enter a guilty plea and set an example that the people should submit to the abuse of crooked prosecutors, and that it is somehow OK for the judiciary to allow Ken Starr to break the law with impunity. I am a strong supporter of the President, but I will lose respect for him if he pleads guilty when he knows he is not.

In September of this year I was personally arrested in my home in the middle of the night by two cops without a warrant on a city ordinance infraction. I was really arrested as part of an investigation of a friend of mine, and the local prosecutor, a Democrat, and a friend of the Governor, decided that he was going to use "Kenneth Starr techniques", relying on immunity, decided that constitutional rights don't matter and he was going to jail me as a means of torturing information out of me. But I didn't wuss out and I fought it and now that prosecutor is defending a Title 42 Section 1983 civil rights lawsuit.

If Kenneth Starr can break the law and get away with it when prosecuting the President of the United States, then any prosecutor can break the laws prosecuting any citizen. This example must not be allowed to stand. I believe that my arrest was a result of the bad example that Ken Starr has set for prosecutors across the nation. And it is morally imperative that Mr. Starr be denied the fruits of his dishonesty. The President must not be allowed to wuss out on a guilty plea.

Censure Agreement just isn't going to Happen

I read in the news, and who knows if it's true, that the President feels it was a mistake that he didn't push for censure harder in the house. I find it amazing that after dealing with the Republicans for 6 years that the President continues to be foolish and naïve and actually believes that he can strike a deal with "moderate Republicans". Those Republicans who claim to have been undecided were not undecided. They just did that to sucker the President into begging, so that it looked to the public like he had something to hide. The President falls for that one every time. It's like the old Charlie Brown cartoon strips where Lucy talks Charlie Brown into kicking the football time and time again and every time she jerks it away at the last minute. When is the President going to quit falling on his butt?

Lobbying for a censure deal makes the President look like he has something to hide. It makes him look like he's guilty, and that he's trying to bypass the Constitution and beat the system. Not only that, but it makes him look wet behind the ears because he hasn't figured out that there's now way in hell that the Republicans are going to make a censure deal. It just isn't going to happen and they are just holding it out to make the President look stupid. Don't fall for this!

The problem in your thinking is that you are trying to apply logic to a situation that is ruled by emotions. You assume that because the Republicans are taking a beating in the polls, and that this is political suicide for them, and that they are scared to death of a trial, and that there's no way they can get 67 votes, and it has already cost them two Speakers of the House, that the Republicans are going to make a reasonable compromise to save their own hides. Wrong! What you fail to see is that right wing forces that are hell bent on getting the President no matter what it takes, dominate the Republican Party. In the House you would have thought that after the 1998 election and the resignation of Newt that they would have figured out that impeachment was a bad idea. However, the right wing Republican insanity dominated and the impeachment vote occurred. I don't understand this insanity, but I think that you can assume that the same forces that caused the Republicans to be insane in the House is alive and well in the Senate. You're wasting your time because a censure agreement just isn't going to happen!

The Best Plan is to Go to Trial

The best argument as to why the President should go to trial is that it is what is going to happen and there's no way to avoid it. It would be nice to spare the country a lengthy and embarrassing trial in the Senate. It's like catching a stomach flu. At first you think you can avoid vomiting, but at some point you realize it's going to happen and you accept it and look forward to getting it over with. It's just a matter of time before the President realizes that there's no other option.

But there are other reasons to go to trial. The President is wholly innocent of the charges against him. This has been from the beginning an impeachment in search of a crime. The President should stand up and fight because it is the right thing to do. He has a strong case and it takes 67 votes to convict. His approval ratings are 72% and climbing. This is winnable both legally and politically. And I think it would be a better victory and lay the issue to rest if you have a trial on the merits and win your case.

Think of the political implications of this statement: "The President is wholly innocent of all the impeachment charges against him. Rather than seek censure, the President feels that in the interest of fairness and justice that he should face trial and settle this issue up or down. That the President is not afraid of the face of justice and will not be coerced into a guilty plea. The (lame duck Republican) House of Representatives has voted for an impeachment trial and therefore the Senate is obligated to try the President. The President is ready to face trial and to be vindicated of the charges against him."

Not only is this winnable for the President, but it is a sure loss for the Republicans. In reality the Republicans are scared to death of a Senate trial. If you say you want to go to trial the Republicans will be begging you for a censure agreement. This trial process will tear the Republican Party apart. The Republicans are losing, and will continue to lose, the politics of personal destruction. I think it will be good for Republicans to continue to experience Larry Flint doing to them what they did to the President. I think Larry Flint should keep up the good work until the Republicans admit that the politics of personal destruction is wrong. They say they want a trial, lets give them a trial. It's time quite frankly to make the Congress suffer over this. Let's see how willing they are to defy the will of the voters. The public needs to see how far the Republicans are willing to go. This should be allowed to play out. This process will draw out into the open the forces that enslave the Republican Party and give the Republican's an opportunity to purge these elements that control them. As strange as this may sound, it's good for America.

I know the President feels strongly about getting this behind us so that we can do the people's business, and I agree with that. But it's only an illusion that such an option really exists. The reality is, this is going to happen and there is no way around it. But it doesn't have to be a bad thing. The judicial system is broken and needs to be fixed. This process will expose those flaws and give us the opportunity to address those issues. In the last two years of the Clinton Presidency, we are blessed with the unique opportunity to correct some constitutional flaws that have been plaguing this country for 200 years. The President doesn't realize it yet but this impeachment is a blessing. History will reflect that President Clinton was one of the all time best presidents ever because of what he is about to do as a result of this impeachment. The President must stop running from this process and embrace it. I believe his finest moment is about to unfold.

Reality, the way it Really is

This whole battle has been reality vs. illusion. Strong forces that I don't understand are trying to pull us away from seeing reality the way it really is, and into a complex world of illusion of conflicting rules that don't make sense. The freedoms, liberties, and immunities of all Americans are riding on this process and it is important that we make a strong commitment to reality, and not compromise away justice a little at a time. Mr. President, we want you to fight this. We the people will stand with you because you represent all of us and our freedoms. If they can do this to you then they will do this to everyone. We are all on trial with you, and if you walk away and give up, you are walking away and giving up for all Americans. If you plead guilty you are pleading guilty for all of us. We can not and will not allow that to happen.

Further Reading

I have a web page on impeachment at:


And, my Republicans for Clinton page is at:



My 2 cents…Good Luck!



Marc Perkel


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