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Panel Unclear on Impeachment Role

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  • By Ruth Marcus
    Washington Post Staff Writer
    Sunday, December 6, 1998; Page A8

    As the House Judiciary Committee this week takes up articles of impeachment against President Clinton, members will clash not only over their assessment of the evidence against him but also about their proper constitutional role in making such a weighty decision.

    Judiciary Republicans have likened their task to that of a grand jury issuing an indictment: The proper standard, they say, is a determination that there is probable cause to believe a crime has been committed. The Senate, not the House, should assess the strength of the evidence against Clinton and determine whether it warrants his removal from office.

    As Rep. George W. Gekas (R-Pa.) put it during a committee hearing on perjury last week: "That's what our duty is, to determine whether there's enough evidence, sufficient and credible, to be able to present to the trier of fact" -- that is, the Senate, which would conduct a trial of the president if the House were to vote to impeach him.

    Chairman Henry J. Hyde (R-Ill.) made a similar point as the committee prepared to hear from independent counsel Kenneth W. Starr last month. "Our Founding Fathers wisely determined that one chamber should accuse and the other should judge," he said.

    Democrats do not take issue with that general description of the constitutional division of labor. But they argue that the House should be careful not to set the bar too low as it considers whether to take the dramatic step of beginning to remove an elected president from office. They have been making the case against what Rep. Martin T. Meehan (D-Mass.) termed the "Ham Sandwich Theory of Impeachment" -- referring to the adage that grand juries are so accommodating to prosecutors that they could be convinced to indict a ham sandwich.

    Meehan and others argue that the House has a duty to gather facts for itself, rather than relying on the evidence amassed by Starr. And, they say, the House should set a higher threshold than probable cause before it acts, such as "clear and convincing" evidence.

    Since voting to impeach the president is effectively voting for his removal from office, these Democrats say, members have a responsibility to consider themselves as more than a grand jury.

    "For the House of Representatives to impeach a president and subject the country to the trauma of a four- or six- or seven-month trial in the Senate is one heck of a thing . . . to do, and we should not do it simply on probable cause," said Rep. Jerrold Nadler (D-N.Y.) "To adopt the contrary view . . . would be to say that the role of this committee of the House is a mere transmission belt or rubber stamp for the special prosecutor."

    Democrats complain in particular that it is outrageous for the committee to proceed against Clinton without hearing directly from any of the key witnesses against him. They point to the committee's handling of President Richard M. Nixon's impeachment, when nine witnesses testified in closed sessions and White House lawyers had an opportunity to question them. But Republicans say it is reasonable at this stage to rely on the extensive, sworn record developed by Starr and to leave the actual witnesses to the Senate, if the matter proceeds that far. "That's where you've got a trial," said Rep. Bill McCollum (R-Fla.)

    These differing assessments of the House's role are likely to be debated at length this week as the panel takes up articles of impeachment. Already, the dispute has been foreshadowed in some of the committee's hearings, including last week's session on perjury, as panel members and legal experts thresh out the issue.

    Former attorney general Elliot Richardson warned Judiciary members of the grave potential consequences of their acts. "A vote to impeach is a vote to remove," he said. "If members of the committee believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach because if they do vote to impeach, the matter is out of their hands, and if the Senate convicts, out of its hands."

    Harvard Law School professor Alan Dershowitz also cautioned the panel against engineering "a legislative coup d'etat" without laying an adequate foundation. "You need to hear evidence," he said. "You need to make credibility determinations. You need to ask yourself the question . . . Has it reached a level of clear and compelling evidence?"

    Federal appeals court Judge Charles Wiggins, who sat on the Judiciary panel as a Republican member when it approved articles of impeachment against Nixon, took an even more complex view, saying that the responsibility of the Judiciary Committee was "much narrower" than that of the full House: "conducting an investigation of the facts to ascertain whether or not there is probable cause to believe that the president has committed a high crime or misdemeanor."

    Once the matter reaches the House floor, "the question is fundamentally a different one," he said. "I do not believe that the full House is limited to a narrow legal conclusion but can judge the matter in a broader sense. It may view the question of whether the president is not only vulnerable, but whether he in fact should be impeached."

    As a result, Wiggins said, if he were still a committee member he would vote to impeach Clinton, but "that doesn't preclude my second guess as a full member of the House." He said he would probably switch his vote at that stage.

    While there is plenty of expert advice, the decision about what standard to employ in considering the evidence against the president will be up to individual lawmakers. There are no fixed rules, although during the Nixon impeachment inquiry most members who addressed the question concluded that the standard should be higher than probable cause.

    "This idea that all they need to have is probable cause is in my mind ahistorical," said William & Mary law professor Michael Gerhardt. "I do think that members, at least historically, have demanded more in terms of the kind of evidence that has to exist to initiate formal impeachment proceedings against the president and also to trigger a trial."

    David Stewart, who represented former federal judge Walter Nixon when he was impeached and removed from office in 1989, said the House was better compared to a prosecutor, who can exercise discretion in considering whether to bring charges or not, than to a grand jury. "They ought to take into consideration all the factors that a prosecutor would in whether to bring a case, and a big one is: Can I win?" he said, noting that there is little prospect that the Senate could muster the necessary two-thirds majority.

    McCollum agreed with that assessment of the likely Senate outcome but said that was all the more reason for the House to proceed. "Members can fairly look at this with a reasonable expectation that the Senate will not convict and plausibly may not even try him," McCollum said. "But if they believe the president should be branded and given the scarlet letter, the ultimate censure -- impeachment -- is the way to do that."

    © Copyright 1998 The Washington Post Company

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