Editorials
Monday, December 21, 1998

Negotiating censure
terms could be critical

PRESIDENT Clinton's refusal to resign in the face of impeachment by a bitterly divided House forces the Senate to confront the charges preferred against him. A plea bargain resulting in censure rather than a vote on the issue of removal from office would clearly be preferable.

But whether the terms of censure can be negotiated is far from certain. Those terms must satisfy the need to administer a sufficiently stern rebuke to a president who has disgraced his office. It is not clear from Clinton's response after he became the second president to be impeached that he is even now willing to fully admit his misdeeds -- the House majority considered them crimes, as well they may be -- without further hair-splitting evasions.

The president appeared to be encouraged by the near-unanimous rejection by the House Democrats of the articles of impeachment and by the members' urging him to reject erstwhile Republican Speaker-elect Bob Livingston's appeal to Clinton to follow him in resignation. If Clinton and his allies insist on weak language in the censure resolution that he can shrug off as a figurative rap on the knuckles, agreement may be impossible. In that case the only recourse would be a trial in the Senate, a prospect that no one welcomes.

The conventional wisdom is that Clinton would be acquitted, because the two-thirds majority required by the Constitution for conviction is out of reach. But if public opinion turns against the president, anything can happen. Most senators have insisted on maintaining a posture of impartiality in anticipation of service as jurors.

As momentous as these prospects seem, in a sense anything that happens now will be anti-climax. Clinton has already destroyed himself with his reckless and cynical behavior. The only issue is how he should be punished -- censure or ouster from office. Even if he succeeds in negotiating censure or if he survives a Senate trial, he will be a discredited figure incapable of commanding respect or leading the nation for the rest of his term.

Whether Clinton committed "high crimes and misdemeanors," in the arcane language of the Constitution, is a question upon which reasonable persons differ. Many such persons, both Democrats and Republicans, voted in the House of Representatives Saturday, with evident sincerity. Others, unfortunately, were blinded by partisanship. The votes generally followed party lines, but many Republicans voted against two of the four articles of impeachment, resulting in their defeat.

This was not a debate over whether Clinton had behaved badly -- Minority Leader Dick Gephardt again called his conduct "reprehensible" -- but only over the appropriate degree of punishment. The argument that Clinton's behavior should be condoned because adultery is widespread in this permissive society -- including the president's accusers -- was not an option. If it were, there would be no reason even for censure.

Clinton's misconduct went far beyond adultery, to potential perjury and obstruction of justice. He must be punished accordingly -- but how? Clinton could end the national agony by resigning, but he won't. Whatever the outcome, the nation will survive.

Bad appointments

BEN Cayetano has demonstrated his insensitivity to First Amendment rights by two appointments: Rey Graulty to the state Circuit Court and Wayne Metcalf as state insurance commissioner.

Metcalf was the governor's first insurance commissioner but was appointed to the Senate in 1997 to fill the unexpired term of the late Richard Matsuura. Graulty, who had been defeated in a bid for re-election to the Senate in 1996, was then named insurance commissioner.

Metcalf in turn was left without a government job when he lost his bid to retain his Senate seat this year, making him available again for the post he formerly held.

While in the Senate, Graulty was instrumental in the passage of a bill in 1995 requiring the two Honolulu daily newspapers to submit to the state financial information required of no other business. This was an attempt to harass the newspapers and somehow overturn the Newspaper Preservation Act, a federal law over which the state has no jurisdiction. The ultimate purpose was to break up the newspapers' joint operating agreement, which is protected by the federal law. Cayetano let the bill become law without his signature.

The newspapers sued in federal court. District Judge Samuel P. King ruled the law unconstitutional, in violation of the equal protection clause with the potential to violate freedom of expression. He upheld the newspapers' contention that the federal law preempted state authority in this area.

As insurance commissioner, Metcalf in 1995 accused State Farm Insurance Companies of engaging in a deceptive trade practice by sponsoring misleading advertising. In fact, the companies had merely exercised their First Amendment rights by running a series of ads supporting bills in the Legislature aimed at strengthening the no-fault auto insurance law.

There was nothing in the ads promoting sales of State Farm policies, which would have brought them within the insurance commissioner's jurisdiction. However, the Cayetano administration advocated abolition of no-fault, and State Farm was in conflict with that position.

The state hearing officer dismissed the charge, but no further State Farm advertisements on the issue subsequently appeared. This newspaper and the Honolulu Community-Media Council denounced the insurance commissioner's action as a violation of the First Amendment.

Nevertheless, Cayetano rewarded Metcalf with an appointment to the Senate. Now the governor is nominating Graulty to a circuit judgeship and giving Metcalf his old job back. Evidently political loyalty counts for more than dedication to free speech and press in this administration.

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Rupert E. Phillips, CEO

John M. Flanagan, Editor & Publisher

David Shapiro, Managing Editor

Diane Yukihiro Chang, Senior Editor & Editorial Page Editor

Frank Bridgewater & Michael Rovner, Assistant Managing Editors

A.A. Smyser, Contributing Editor