Hillary Clinton
American Spectator articles from the "topics" department.
- Hillary May Be Unconstitutional
Hillary Clinton is President-elect Barack Obama's choice for the nation's top diplomat. Setting aside the wisdom of such an appointment -- putting aside ideology, does she have both foreign policy expertise and a good working relationship with the incoming president? -- it appears that there may be genuine constitutional problems with her nomination to be Secretary of State.
To wit, article I, section 6, clause 2 of the Constitution reads: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time…."
That is, under this "Emoluments Clause," members of Congress are expressly forbidden from taking any federal position which was created or whose pay has been increased during their current term of office. Now, as irony would have it, President Bush signed an executive order in January of this year that raised the Secretary of State's salary. He did this not willy-nilly but in accordance with a statute from the 1990s that addressed cost of living adjustments for certain federal officials. The order's effect, however, is to constitutionally prohibit any then-serving senator, including the junior senator from New York, from taking charge of Foggy Bottom. (Sen. Clinton's current term began in January 2007 and expires in January 2013.)
Not surprisingly, this is not the first time such a conflict has arisen in executive appointments and nominations and, predictably, Congress has on several occasions legislated around it. To enable one of its own to assume executive office, Congress simply decreases the pay of that office to the pre-raise level for the full tenure of that specific appointee.
Although this legerdemain has been around since at least the Taft Administration, the move is called the "Saxbe Fix" after Sen. William Saxbe, whom President Nixon nominated to be Attorney General. Before Congress last week passed such a Fix for Sen. Clinton, it was most recently employed by her husband, when he picked Sen. Lloyd Bentsen to be his Treasury Secretary.
While clever, the Saxbe Fix is not uncontroversial. Steptoe and Johnson partner John O'Connor, then a captain in the Marine JAG corps, concluded in an exhaustive law review article in 1995 that it is inadequate for circumventing the Emoluments Clause. To O'Connor's thinking, while simply lowering the salary -- resulting in no "net" increase for the duration of the appointment -- does prevent the nominee from directly benefiting from a vote he or she cast (perhaps in collusion with the president), the Saxbe Fix does not substantively address the Framers' intent to limit the size and scope of the federal government. If, contrary to the express terms of the Emoluments Clause, Congress can restore its members' eligibility for appointment simply by reducing an office's salary, the clause ceases to serve its function as a constitutional disincentive for regular expansion of federal offices and their corresponding budgets.
Ten Democratic senators voted against the Fix in Saxbe's case -- including the only one still in office, president pro tempore (then and now) Robert Byrd of West Virginia, who said that "we should not delude the American people into thinking a way can be found around the constitutional obstacle." Reagan administration officials declined to select Sen. Orrin Hatch for a Supreme Court vacancy in deference to such qualms (leading to the nominations of Robert Bork, Douglas Ginsburg, and Anthony Kennedy, and thus indirectly to our dysfunctional confirmation process).
While the interpretation that has traditionally carried the day is that net increases during the relevant term of legislative office are the key consideration, it is thus hard to ignore the Emoluments Clause's plain meaning: a decreasing offset does nothing to change the constitutionally problematic fact that pay and benefits "have been encreased."
One could argue that Hillary Clinton never sat in a Congress that increased anybody's salary; it was that long-ago Congress that even gave that option to the president -- and only in the form of an across-the-board cost of living adjustment, not some shady or opportunistic self-dealing. And it is fantastic to imagine that President Bush and Sen. Clinton joined in some sort of vast both-wing conspiracy to expand the trappings of the Secretary of State. But, of course, if we are to be honest about what we read in the Constitution, there is no exception for offices whose emoluments have been increased "by a non-shady COLA granted via statutorily-enabled executive order."
Whether anyone could challenge Hillary Clinton's appointment in the courts is another matter. Most likely such a challenge would have to be filed after the fact: Perhaps someone denied a passport, or who has had some other adverse action done to them by a Clinton-led State Department, would have standing to sue. In any event, in this time of constitutionally questionable bailouts, we cannot afford to be less than vigilant even about the most obscure text from our nation's governing document.
- Don't Confirm Her!
The idea of Hillary Clinton as Secretary of State ought to make conservatives tremble with foreboding. It is truly bizarre to see so many on the right unquestioningly accepting a notion that just a year ago would have been laughable, namely that she is a relative "moderate" on foreign policy. And it's even more astonishing that any reasonable news organization, or any serious senator, would consider her manifold ethical lapses as being anything other than immediately disqualifying for such a lofty appointive position.
The more comprehensive case against her appointment remains to be made, sometime between now and when she faces Senate hearings. But as a tip-of-the-iceberg, almost top-of-the-head review, consider all these reasons why she ought to be overwhelmingly rejected for the job.
* Hillary Clinton was nearly fired from the Watergate Committee staff for outrageously unethical behavior.
* Hillary Clinton was directly cited for false testimony by an independent counsel, who used prosecutorial discretion not to actually seek the indictment she deserved for prevaricating about her role in the White House Travel Office firings.
* Hillary Clinton was the recipient of the moral equivalent of bribery (every bit as bad as the $100,000 apparent payoff to U.S. Rep. "Dollar Bill" Jefferson of New Orleans) in making off with just shy of a cool 100K in her preposterous dealings in cattle futures. For more on this issue, see the excellent work of Deroy Murdock as published earlier this year in The American Spectator's print edition.
* Hillary Clinton probably deserved to be indicted in one of the facets of the Whitewater investigation, but the infamous Rose Law Firm billing records with her fingerprints on them mysteriously disappeared until produced, quite conveniently, just days after the statute of limitations had run out on the charges that could have stemmed from the clear evidence those records contained.
* Hillary Clinton was caught on tape engaging in legally dubious coordination of campaign fundraising activities that led to charges against several others involved in the big Hollywood event at issue. For more, see "Hillary: The Movie," by Citizens United.
* Hillary's roles in a plethora of scandals as she and her husband left the White House were so egregious that even liberal news organizations pronounced her positively "unfit" for office. For a voluminous record of her skullduggery since the beginning of 2000, read Spectator founder R. Emmett Tyrrell's 2007 book, The Clinton Crack-Up.
* Hillary's presidential campaign was caught red-handed accepting huge sums of money bundled and/or donated from convicted felon Norman Hsu. In many ways the sneaky dealings with Hsu were reminiscent of other odiferous dealings with a host of other Asian donors and influence peddlers through the years, from the Riadys to Johnny Chung to John Huang to Pauline Kanchanalak to Charlie Trie.
Again, that's only a sampling of the turgid record of Hillary Clinton's skunkery (to coin a word) on matters of ethics. And that's not even getting into the myriad conflicts of interest inherent in her husband's apparent acceptance of donations for his presidential library and his eponymous foundation from numerous foreign sources, including perhaps (we will find out soon enough) the Saudi royal family. And that's not to mention the foreign speeches, at tens of thousands of dollars a pop, paid by foreign sources, that are included in the $100 million or so the Clintons have racked up in recent years. How could such entanglements not distort Mrs. Clinton's behavior if she is made Secretary of State?
Meanwhile, Hillary is no moderate. The evidence for that strange proposition comes only from her careful positioning, while a senator, to maintain her "viability" as a presidential candidate. Yet for every bit of hemming there