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Many Scholars Say Censure Is an Option

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  • By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, December 15, 1998; Page A19

    House Judiciary Committee Chairman Henry J. Hyde insists that censuring President Clinton would be unconstitutional. Speaker-designate Bob Livingston agrees it cannot be an alternative to impeachment. And Republican Whip Tom DeLay says supporters of a Democratic censure proposal should "go back to their Constitution and read it."

    In their decision to remove censure as an option in the debate over how to punish the president, House Republican leaders have found comfort and cover in the Constitution, arguing that voting on the lesser penalty would violate the separation of powers and create a precedent not envisioned by the framers of the Constitution.

    But the reality, according to scholars and the historical record, is that there is no clear evidence that censure is unconstitutional. A handful of presidents have faced censure threats, beginning with John Adams in 1800, and the Constitution does not forbid it. And many scholars say that if the House were to pass a resolution criticizing Clinton, the action would be constitutional.

    "Plain censure, nothing more than a resolution, is obviously constitutional," Michael J. Gerhardt, a law professor at the College of William and Mary, said yesterday. "It's pretty much open-and-shut in my opinion." Gerhardt testified before the Judiciary Committee last month on the history of impeachment at the invitation of both Democrats and Republicans.

    Democrats who support censure as an alternative to impeachment believe it is a more measured response to Clinton's misconduct. They argue that Clinton deserves rebuke, but that he should not be removed from office because his behavior falls short of imperiling the nation.

    The censure proposal rejected in the House Judiciary Committee on Saturday declared in part that the president should be an example of high moral conduct and that Clinton "has egregiously failed in this obligation and . . . violated the trust of the American people."

    Rep. William D. Delahunt (D-Mass.), proposing a censure alternative, said a recent survey of the 19 scholars who appeared last month before the Judiciary Committee indicated that 14 of the professors say censure would not violate the Constitution.

    The Rev. Robert F. Drinan, a professor at Georgetown University Law Center and a former Democratic member of Congress who was on the Judiciary Committee that recommended the impeachment of Richard M. Nixon, testified last month that censure would set a dangerous precedent. But he said yesterday that while he believed censuring Clinton would weaken the presidency, "It is not unconstitutional."

    Congress's own research division recently issued two reports that concluded that a censure resolution would be constitutional.

    "It is well accepted that the only instance in which Congress has censured a sitting President occurred when the Senate took such action against Andrew Jackson in 1834," the Congressional Research Service wrote. "Less well known is that attempts were initiated in Congress to censure other sitting Presidents on at least five occasions."

    Congress's past handling of censure, the research service found, suggests Congress has settled the question: "In the case of . . . federal officials," such as the president, "censure would be an exercise of the implicit power of a deliberative body to express its views, just as Congress may also express judgments of other persons or events."

    To bolster their case, Republicans have pointed out that the Constitution does not specifically say the House can censure the president. Congressional researchers and law professors -- as well as Democrats trying to turn the tide away from impeachment -- have responded by noting that courts have interpreted the Constitution to extend beyond the specific powers and rights it delineates. For example, no specific authority exists for other established House and Senate powers, including the ability to adopt a resolution or express an opinion or disapprove of government officials.

    In the past, when the House or Senate have adopted resolutions expressing disapproval they have not been accompanied by fines or formal punishment -- both of which would trigger serious constitutional problems if applied to the Clinton case, scholars say. Congress is prohibited from passing what is known as a "bill of attainder," which is a law that assesses an individual's guilt and metes out a punishment. Hyde (R-Ill.) has said he considers censure a bill of attainder.

    Yeshiva University law professor John McGinnis, who was a witness before Hyde's committee last month, invited by the Republicans, said yesterday that the House "could pass a resolution simply criticizing the president." But he added that if the House's rebuke had the potential to diminish Clinton's reputation, it could constitute a "punishment" by the Congress and raise constitutional problems.

    "It is a thin difference," McGinnis said, adding that the Constitution's framers intended for the president to be protected from harassment by the other branches.

    The censure question will not die if the House ends up impeaching Clinton and the matter is moved to the Senate for a trial. In that chamber, a two-thirds majority is necessary to convict. But a simple majority can decide that the trial should be abandoned and a censure option pursued.

    For its part, the Supreme Court has said that questions of impeachment procedures and how the chambers carry out their own forms of discipline are political questions that courts should not touch. It is therefore unlikely that the judiciary would ever say conclusively whether censure was constitutional.

    © Copyright 1998 The Washington Post Company

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