By David Kurlander

President Biden stayed largely out of the fray last week during the second Senate impeachment trial of former President Donald Trump. Two decades ago, however, then-Senator Biden played a vocal role in the impeachment trial of President Bill Clinton. Biden’s position in the Clintonian struggles—from his arguments over witnesses, to his confrontations with Republican House managers, to his anguished condemnations of Clinton’s relationship with Monica Lewinsky—provides a window into a very different political moment and into the persistent legal uncertainties of removing a president. 

First, at the risk of simplifying a convoluted national incident with painful moral valences that have shifted over time: In late 1997, Special Counsel Ken Starr—who had started investigating President Clinton over strange Arkansan land dealings from the 1980s, but who was also looking into Paula Jones’ sexual harassment lawsuit  against the President—learned of a multi-year affair between Clinton and the then-22-year-old White House intern Monica Lewinsky. The story leaked bigtime. Clinton privately and publicly denied the charges until August 1998, when he admitted an “improper physical relationship” with Lewinsky during a videotaped Grand Jury deposition, but denied having had “sexual relations” with her. He made a similar admission that night on national television. 

On September 11th, 1998, the much-anticipated Starr Report arrived. The 500-page document bolstered intensifying calls for impeachment by House Republicans, who argued that Clinton’s deposition answers—and his guidance surrounding Lewinsky’s denials and in securing her a job at Revlon—could constitute Perjury and Obstruction of Justice charges. 

Behind closed doors, Delaware Senator Joe Biden was among the Democrats most critical of Clinton. As Peter Baker reported in The Breach, his 2000 book on impeachment, Biden excoriated Chief of Staff Erskine Bowles and Deputy Chief of Staff John Podesta on September 15th: “[Biden] expressed the sentiments of many in the room when he told the visiting aides that the caucus would be better off if Clinton resigned. If it were up to them on a secret ballot, Biden said, there was no question how it would come out.”

Biden’s frustration with Clinton, though, soon seemed to pale in comparison to his distaste for the increasingly unhinged House impeachment process. A cascading series of sexual revelations overtook those most aggressively gunning for Clinton. First, on September 17th, Salon revealed that House Judiciary Chairman Henry Hyde—effectively the leader of the inquiry—had carried on a long-term affair in the 1960s. Hyde stayed on. But in early November, following unexpectedly bad GOP midterm results, House Speaker Newt Gingrich suddenly resigned (he only admitted later that he was also having an affair). A few weeks later, Hustler Magazine publisher Larry Flynt threatened to out the past infidelities of Gingrich’s proposed successor as Speaker, Bob Livingston. Livingston responded with an emotional House speech announcing that he, too, would resign, and asking Clinton to follow his lead. There was a lot of anger. 

Biden by this point had started to preach restraint. On November 18th, 1998, he delivered a lecture before the National Press Club entitled, “The Need for Bi-Partisanship in the Impeachment Process.” Biden had consulted with Constitutional law scholars and relayed that the “overwhelming majority” believed that “the offenses alleged thus far are not impeachable.” Even still, he promised that he would be impartial, and invoked eminent Yale Law School professor Charles Black’s ideal of the Senate juror’s “principled political neutrality.” 

Biden delivered his lecture in a measured tone. During the Q&A portion of his appearance, however, he became emotional as he tried to balance his Constitutional arguments with his distress over the harm Clinton had caused Monica Lewinsky. In response to a question about whether Clinton’s treatment of Lewinsky might be enough in itself to violate his oath of office, Biden responded, voice rising, “Maybe…He is immoral in my view. He is outrageous in his behavior. Were it my daughter…I would be looking for the man. I’m not joking. Those who know me know I’m not joking. I’d be looking for him to give him a straight right.”

Despite his personal remonstration, Biden continued to express caution about the impeachment process. He took to CNN in early December to expand upon his luncheon concerns about partisanship: “What I’m worried about now—and I wouldn’t have said this three months ago because I didn’t think we’d get this far—is what happens the next time around? What happens when you’ve got a Republican president and you have blood lust on the part of Democrats?” He summed up: “This is high-risk poker we’re playing here, man.” 

The House pushed through the two impeachment articles on December 18th, 1998. When the Senate came back into session on January 5th, 1999 to orchestrate Clinton’s trial, Biden circulated a memo—acquired by Politico during former President Trump’s first impeachment trial last year—that used historical precedent to argue against witnesses and for a brief trial. Biden cited the 1986 impeachment of Federal Judge Harry Claiborne, in which Judiciary Chairman Hyde himself had advocated for limited Senate proceedings.

The House Managers—made up primarily of further-right GOP members—were livid and submitted a lengthy live witness list. “A good deal of this on the part of the House guys is a search for personal vindication,” Biden said on January 10th.

Biden found an unlikely ally in Republican Senate Majority Leader Trent Lott. Lott and Clinton had an oddly positive relationship, collaborating in the lead-up to Clinton’s 1996 re-election on a welfare reform bill that served to bolster Clinton’s centrist appeal. Moreover, Lott recognized the damage—and the likely lack of benefits, given the solidity of Clinton’s Democrat support—of extensive witnesses. Lott wrote in his own memoir, Herding Cats, “From a purely political standpoint, I could have pushed for a full and lurid trial. But the outcome would have been the same.” 

Lott didn’t prioritize live witnesses, and ultimately worked with a group of six Senators, including Biden, to broker a larger compromise for key players (including Lewinsky) to offer taped interviews. The House managers felt betrayed. House legal counsel David Schippers even wrote a full book about the gambit, titled Sellout. He had choice words for Biden, with whom he sparred during the negotiations. “When Biden smiles, you’ve got trouble,” Schippers wrote, recounting a meeting near the start of the trial during which Biden supposedly told him, “We want to work with you, even though, technically, you don’t have a say in the matter.” In mid-February 1999, the Senate, as expected, acquitted Clinton on both charges. 

Former President Trump’s impeachments were of a markedly different sort. But clearly, as Senator Biden and the rest of the Washington establishment navigated President Clinton’s misconduct, they recognized that political partisanship, constitutional interpretation, and sexual morality were shifting rapidly, and that those changes would only accelerate as the new century began…

The full Washington Post portal on the Clinton impeachment is freely accessible online. Be sure to check out the full text of Biden’s closed-door trial statements. For an incisive overview of the Clinton impeachment’s legal dynamics, pick up Richard A. Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. For riveting cultural essays about the impeachment, read Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle, edited by Leonard V. Kaplan and Beverly I. Moran.

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