Senators Exploring Censure Hit Obstacles
Washington Post Staff Writers
Thursday, January 28, 1999; Page A17
With conviction of President Clinton now seemingly out of reach, many senators of both parties are anxious to ensure that Clinton does not emerge unscathed and unpunished from his Senate trial.
"The president's behavior was indefensible, not impeachable," Senate Minority Leader Thomas A. Daschle (D-S.D.) said yesterday. "The president should not and will not be removed from office. The president should and will receive sanction and rebuke."
There is no consensus on how that should happen, but several approaches have been floated. One would be to censure the president after the trial is concluded; another would be to adopt "findings of fact" that would detail his alleged misconduct in the Monica S. Lewinsky affair before a final vote on the two impeachment articles.
Yet there are serious political and legal obstacles to each. The findings-of-fact proposal, proposed by Republicans, has drawn sharp attacks from some Democratic leaders and the White House.
"It's a crass political cheap shot, that's all it is," one Clinton adviser said.
And while House and Senate Democrats overwhelmingly favor censuring the president once the trial is over, many conservative Republicans argue that censure is unconstitutional and say they would oppose it.
Legal experts say any proposal for separate votes on whether Clinton is actually guilty of particular charges and whether he should be removed from office likely would be forbidden.
While the Constitution gives little guidance on how to run an impeachment trial, it makes clear that if the president is convicted of "high crimes and misdemeanors" he must be ousted. Article II, which deals with the executive branch, says the president "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." Article I, which covers the Senate's part, says that the penalty for impeachment "shall not extend further than to removal from office."
Many constitutional scholars say that means if the Senate were to find Clinton guilty of the House charges, he automatically would be expelled. "The sanction for conviction is removal from office," said University of Virginia law professor John C. Jeffries Jr. "That is not 'if the Senate wishes.' That's the constitutional command."
Yesterday a GOP task force headed by Sens. Pete V. Domenici (N.M.) and Olympia J. Snowe (Maine) met twice to complete a draft of a proposed "findings of facts" resolution, one that closely parallels the details of the House's allegations of perjury and obstruction of justice against Clinton but that lacks the force of the impeachment articles themselves.
"We have a number of senators who have said they abhor what has happened . . . but that they don't think they could vote to remove him," Domenici said.
Senate Majority Leader Trent Lott (R-Miss.) and other leaders have indicated that the resolution might be offered for consideration prior to the Senate's final vote on the two articles of impeachment. Republicans, who hold a 55 to 45 vote edge, believe they could push it through with a simple majority. However, some White House advisers contend it would take a two-thirds majority to suspend the rules to allow consideration of such a measure, and Democrats are expected to mount vigorous opposition.
"That's not going anywhere," Sen. Tom Harkin (D-Iowa) said. "And I don't think it will fly with all the Republicans either."
The proposed findings would cover certain elements of perjury and obstruction of justice but would not present any conclusions regarding the offenses, according to Domenici.
"Many of us are very concerned about the message that would be sent to the American public and to the White House if there is a vote to acquit the president in the face of evidence that he may have, in fact, committed some obstruction of justice," said Sen. Susan Collins (R-Maine), an advocate of this approach. "So we are looking for ways to separate the issue of whether or not the president committed offenses such as obstruction of justice from the issue of whether or not the offenses are sufficient to warrant his removal from office."
At the same time, Sens. Dianne Feinstein (D-Calif.) and Robert F. Bennett (R-Utah) are promoting a harshly worded censure resolution that condemns the president for wrongful and willful misconduct but that carries no sanctions. The resolution, which requires neither the concurrence of the House nor the signature of the president, would be offered immediately following the conclusion of the trial.
During last month's House impeachment debate, GOP leaders blocked Democrats from offering a censure resolution as an alternative to impeachment.
Conservative GOP leaders have dismissed the censure proposal as a Democratic excuse for not facing up to the president's wrongdoing. They also argued that it would be unconstitutional for Congress to attempt to punish the president for his conduct in the event the Senate concluded the impeachment charges were not justified.
"There's going to be reservations on both sides of the aisle," said Sen. Tim Hutchinson (R-Ark.). "It's got a lot of problems attending it."
Feinstein contends that a Senate censure resolution that neither fines the president nor requires his signature would pass constitutional muster, and others on both sides of the aisle agree.
William and Mary law professor Michael Gerhardt, who has written a book on impeachments, said, "it's going to be difficult to have it both ways." He said any language that implies guilt or endorses the House articles could cross a constitutional line. "I find this approach of a separate vote unnecessary and clearly motivated by an effort to add something to the impeachment and to take away from any acquittal," he said.
But Brigham Young University law professor Frederick Mark Gedicks said that while there is no precedent for the "findings of fact" approach, there is nothing in the Constitution that would prevent it. "The Senate could say, 'We find that the president lied under oath but we also find that this act does not rise to the level of high crimes and misdemeanors.' That would not be unlike a censure measure."
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