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THE IMPEACHMENT TRIAL
Statement of Sen. Bryan (D-Nev.)

Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.

Mr. BRYAN. We are about to embark upon a roll call vote that only one other Senate in the history of our Republic has been called upon to cast. It is a weighty decision. We have taken an oath that requires us to render `impartial justice according to the Constitution and the laws.' By so doing each of us has undertaken a solemn obligation to be fair to the President, fair to the American people, and faithful to our constitutional responsibility.

One hundred thirty one years ago, the 40th Congress faced a similar decision. Then, as now, the Nation was divided. Then, as now, the passions of the day raged across the land. Then, as now, the critics of the President were in the majority in the Senate. Confounding the cynics of that day, the Senate rose above itself by the slenderest of margins, a single vote, and acquitted President Andrew Johnson. More than a century later, that decision has stood the test of time.

The Senate's acquittal reaffirmed a basic constitutional doctrine that the Executive branch, and the Legislative branch shall be separate and co-equal; and that the Executive Branch should not be subservient to the prevailing views of a Congressional majority.

How different the course of our constitutional history might have been had President Andrew Johnson been convicted. Our system of government today might be more like a parliamentary system undermining the independence of the chief executive.

Future Presidents may have been forced to operate within the omnipresent shadow of impeachment whenever a legislative majority was hostile to their views or policies. I think it is fair to conclude the office of the Presidency would be a profoundly different one had Andrew Johnson been convicted. It is in that historical context we meet.

In this century, there have been five judicial impeachments that have reached the Senate. In each of those proceedings, the actions of the House and Senate were decided by a bipartisan vote, and all five judges were convicted, and removed from office.

In the history of the Republic, there have been but two presidential impeachments, that of Andrew Johnson and William Jefferson Clinton. Each Presidential impeachment, however, has come to the Senate under an ominous cloud of partisanship.

The Constitution wisely imposes a heavy burden of proof upon the House of Representatives to convict and remove a duly elected President. And when that constitutional process is tainted by partisan actions, the Articles of Impeachment must be subjected to an additional measure of scrutiny.

The Constitution provides in Article II, Section 4 that `The President . . . shall be removed from office on Impeachment for the Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'

What constitutes impeachable conduct, as contemplated by the Constitution, is the central issue of this trial.

The Framers of the Constitution labored at some length to fashion an impeachment article. As their guide, they looked to the English experience in their parliamentary system. They followed that history in deciding to involve both the House of Representatives and the Senate giving them different roles--the former to charge and impeach, and the latter to convict or acquit.

Unlike the British parliamentary system with its monarch, the Framers decided impeachment would apply against its highest office holders, expressly including the President. Further, the Framers determined that impeachment would in and of itself be limited. Rather than including capital punishment and other criminal penalties as a part of

impeachment as Britain did, the Framers limited impeachment to the removal of the individual from office upon conviction.

As the drafting of the Constitution's impeachment clause proceeded, the drafters struggled with how to characterize the offenses for which a president could be impeached, convicted, and removed from office. Initially, offenses such as `malpractice', `neglect of duty', and `corruption' were considered. As the Constitutional Convention drew to a close, the Convention's Committee of Eleven proposed `treason or bribery' as the appropriate standard.

George Mason suggested the addition of `maladministration' due to his concern that limiting the offenses to only treason or bribery would still allow a president to commit `many great and dangerous offences' which would not be subject to impeachment. [The Records of the Federal Convention].

However, James Madison believe `maladministration' was `. . . [s]o vague a term [it] will be equivalent to a tenure during [the] pleasure of the Senate.' [The Records of the Federal Convention]. George Mason then proposed the addition of `high crimes and misdemeanors against the State', which the Committee on Style modified by deleting `against the State' believing that language unnecessary.

Alexander Hamilton in Federalist Paper Number 65 argues that the Senate could convict and remove a President only for `those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.'

Nearly two centuries later, Charles Black explained in his `Impeachment Handbook', the purpose of impeachment is to protect the nation, rather than to punish the individual holding the office of president. Thus, the behavior at issue must reach a level of endangering the state.

The House voted to impeach President Clinton on two Articles; perjury before the Grand Jury, and obstruction of justice. Two other Articles accusing the President of perjury in a deposition in a civil case, and of abusing his power by not responding to the 81 requests for admission made on November 5, 1998 in a manner the House desired were not approved.

Article I charging perjury is poorly and rather vaguely worded. Nevertheless, it appears to contain 11 separate allegations. The House Managers in their presentation in Article II allege seven acts of Presidential misconduct constituting obstruction of justice.

The Office of Independent Counsel was authorized by the Attorney General of the United States to conduct an investigation of the President's relationship with Ms. Lewinsky. Mr. Starr has 25 attorneys and 5 non-FBI investigators on his personal staff, and access to the virtually unlimited resources of the FBI. The investigation continued for eight months culminating in a record of over 60,000 pages of materials including sworn testimony from Grand Jury appearances, depositions, and sworn statements.

That the relationship between the President and the Office of Independent Counsel was a contentious one, is beyond dispute. Mr. Starr has been as aggressive Special Prosecutor. Many believe that his prosecutorial zeal violated any reasonable standard of fairness. He has been no shrinking violet in his pursuit of the President.

Yet even Mr. Starr and his staff, after careful analysis, concluded that 8 of the 11 allegations of perjury before the Grand Jury, and one of the allegations of obstruction of justice lacked sufficient prosecutorial merit to be submitted to the House. Certainly, it cannot be contended that these allegations can sustain the burden of proof to establish the President's guilt, or to rise to the level of impeachable conduct necessary to remove a duly elected president.

The Constitution's impeachment process was not created to mete out punishment against the individual serving as President. Rather, the impeachment process is to protect the nation from a President who has brought grave harm to the office and to the country. These are distinctly different goals.

As is so often the case, the American people have a clear understanding of the circumstances that bring us together.

The President had an improper relationship in the White House with a 22-year-old intern.

The President lied to his family, his staff and the American people in denying the existence of the relationship.

The President pursued a course of conduct to conceal his improper relationship with the White House intern.

The President's conduct was wrong and it was immoral. It remains for us to determine the constitutional consequences, if any, to be attached to this conduct.

The House Managers rely heavily upon circumstantial evidence and draw from that evidence a series of inferences which lead them to conclude that the President is guilty of perjury and obstruction of justice.

The President's counsel artfully attack the weaknesses in the Managers' case and assert that exculpatory direct evidence raises sufficient doubt under the law, and therefore, the President is entitled to be acquitted.

On this record, as one of the House prosecutors pointed out reasonable people can differ as to the conclusions they reach.

It is acknowledged that the House Managers have the burden of proof in establishing the President's guilt under legal definitions. Open to question is the standard of proof to be applied, a mere preponderance of the evidence as in a civil trial, clear and convincing evidence as in alleging fraudulent behavior, or beyond a reasonable doubt as in a criminal case.

The House alleges that specific crimes have been committed, to wit perjury and obstruction of justice as defined in law. Under these circumstances, I believe the appropriate standard is the criminal standard--proof beyond a reasonable doubt.

But is it impeachable conduct? Does it rise to the constitutionally required standard of bribery, treason or other high crimes and misdemeanors. I think not.

The President's conduct is boorish, indefensible, even reprehensible. It does not threaten the Republic. It does not impact our national security. It does not undermine or compromise our position of unchallenged leadership in international affairs.

Although I conclude that the evidence presented in this case does not reach the standard commanded by the Constitution to convict and remove a President, it does not follow that we are precluded from registering our strong disapproval of the President's personal conduct.

There is a way. After our vote on these Articles of Impeachment, and assuming, as most believe, there are not the votes to convict the President--the Senate should proceed immediately to adopt a bipartisan resolution of censure.

It is important for us to do this. There are two reasons. First, the American people need to hear from us in strong and unambiguous language that the President's personal conduct is unacceptable and unworthy of the President of the United States.

The record of these proceedings must also reflect that the acquittal of the President can in no way be construed as an exoneration of his conduct. A censure resolution should not be embarked upon lightly or for political reasons, but it should be used in this case.

And finally, a response to the injunction that we have frequently heard over the past several weeks: that no man is above the law. That is a core value. It goes to the very essence of our beliefs as Americans. No violence is done to this sacred principle by pursuing the course of action I have chosen.

For those who believe that the President is guilty of perjury and obstruction of justice--criminal offenses--there is a forum available for that determination. It is our criminal justice system and William Jefferson Clinton may be called to the bar of justice to respond to these criminal charges--armed with no greater legal protection than that accorded the most humble among us. And that is how it should be.


© Copyright 1999 The Washington Post Company

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