GOP Split Over Trial Of Clinton
Washington Post Staff Writers
Sunday, January 3, 1999; Page A01
When Congress comes back to work this week, its first order of business will be the impeachment trial of the president of the United States, resuming a divisive process that has already brought months of anguish to the nation and its leaders.
But as the venue changes from impeachment in the House to trial in the Senate, so, too, does the nature of the conflict. Before the Christmas intermission, the battle was joined on almost purely partisan grounds, as House Republicans, with minimal help from the Democratic minority, voted two articles of impeachment against President Clinton.
Now, the fight is within the Republican Party itself, with Senate Majority Leader Trent Lott (R-Miss.) trying to forge a bipartisan compromise on trial procedure in the face of opposition from the House prosecutors, some conservative senators and the conservative interest groups who form much of the party's political base of support.
It is still unclear how Lott's dilemma, a crucial test of his own and possibly his party's political future, will be resolved. In addition to consulting with his colleagues, Lott has been talking with House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) about ways to proceed.
There are likely to be many twists and turns -- and other alternatives vetted -- in a process that has been tested only once before in U.S. history, and in that case 130 years ago.
"We're all in uncharted territory here," Rep. Charles T. Canady (R-Fla.), one of the House impeachment managers, said in an interview last week. "None of us has ever done this before."
Lott has indicated that he will formally convene the trial as early as Jan. 11. As called for by the Constitution, Supreme Court Chief Justice William H. Rehnquist will preside, and will swear in the senators as jurors.
The Constitution gives the Senate virtual carte blanche on how it conducts the trial. Also, any senator may move to end or suspend the trial at any time, and needs only a simple majority, or 51 votes, to accomplish it. Rehnquist would break ties.
This reality -- as well as the knowledge that it takes a two-thirds majority to convict a president and remove him from office -- is motivating Lott to seek some sort of compromise that both Democrats and his own conservative colleagues can stomach.
Lott's plan, apparently supported by most Democratic senators and an uncertain number of Republicans, envisions a procedure in which senators, after initial arguments from both sides, would vote almost immediately on whether the alleged offenses committed by Clinton over his involvement with former White House intern Monica S. Lewinsky rise to the level of removal from office.
The trial would proceed only if two-thirds of the senators agreed. Otherwise, the Senate would move immediately toward consideration of some kind of resolution censuring the president for his alleged misconduct.
By contrast, the House prosecutors, known as "managers," argue that only with a full-scale trial, complete with witnesses, will the Senate be able to make an informed judgment in the case and comply with its obligations under the Constitution. Such a trial would make it likely that the nation for the first time could see and hear direct testimony from Lewinsky, her former friend Linda Tripp and other figures in the perjury and obstruction of justice case against Clinton.
Here is how the two leading options might be put into effect, as well as what might happen should the Senate, as is frequently the case, fail to reach a quick consensus on a course of action:
The Lott Plan
Lott's office has emphasized that there is nothing final about his proposal, first conceived by Sens. Slade Gorton (R-Wash.) and Joseph I. Lieberman (D-Conn.) as a bipartisan method of quickly disposing of impeachment while giving both sides a fair opportunity to present their cases.
Under the plan, the House managers would present their case for conviction and removal from office on Monday, Jan. 11, and the White House would present its defense on Tuesday. On Wednesday, the Senate would ask questions of the two sides, by passing them to Rehnquist, as the Constitution requires, who will read them. On Thursday, the Senate will vote on whether the offenses alleged rise to the level of conviction and removal from office.
With no Democrat now known to support removal, it appears unlikely that the measure will receive anything close to the two-thirds majority necessary to proceed to a full-scale trial. At that point, the likeliest outcome is that the Senate will close the trial and consider a censure resolution.
This procedure responds to an early proposal by Sen. Orrin G. Hatch (R-Utah) that a "hard count" to determine the senators' views be taken early in the proceeding. The count would serve as evidence to support the view expressed by many senators that the nation not be treated to an unseemly public discussion of the president's sexual habits when the votes to convict do not exist.
Many sources say, however, that Lott would be unlikely to press forward with his plan unless he could get a majority of the Senate's 55 Republicans to support it, along with what would likely be almost all of the 45 Democrats. If the plan is dropped, sources point out that an early straw poll of sorts could be conducted in any number of other ways.
Any senator could immediately move to end the trial, or the White House could move to dismiss the proceeding on grounds that the alleged offenses do not rise to the level of conviction. In either case, the Senate would vote on the measure, and if two-thirds of the senators did not oppose it, the result could be regarded as de facto evidence that there is not enough support for conviction.
If the Lott option, or something similar, succeeds, the Senate would then quite likely begin debating censure, an idea that presents its own set of difficulties. A fine or other concrete punishment presents difficulties because of a constitutional ban on "bills of attainder," sanctions against an individual. This restriction could, perhaps, be circumvented, if Clinton agreed to the punishment beforehand.
Financial penalties mentioned thus far include fines up to the cost of the Lewinsky investigation, loss of pension and the withholding of funds for Clinton's presidential library. Still, support for a financial penalty appears lukewarm at best. Daschle said in a recent television interview that he was opposed to it, and suggested that Lott was also. "I don't think a fee will be part of the final solution," Daschle said on NBC's Meet the Press.
The Senate must also decide whether a censure proposal would require Clinton to admit that he lied under oath, a demand of many Republicans and one the president has so far resisted. Former senator and 1996 GOP presidential candidate Robert J. Dole, among others, has suggested putting the two impeachment articles in a joint censure resolution, passing it in the Senate and House, and having Clinton sign it "at a public ceremony," effectively making him acknowledge that he lied.
Some sources have also argued that the resolution should include the substance of the articles of impeachment; others say simply that it should be toughly worded. There is disagreement over whether it should require a presidential signature.
Formal, Full-Scale Trial
House managers say they are sympathetic to the public desire to be done with impeachment as rapidly as possible, and maintain that a full-scale proceeding need not consume the country for months. Rep. Asa Hutchinson (R-Ark.) suggested last week that the trial could be over in two to three weeks, even with testimony from 10 to 15 witnesses.
Some say that's overly optimistic. Under Senate rules, the White House must be given a significant period of time to respond to the charges read by the managers. Faced with the prospect of a full-scale trial, it seems unlikely that the president's counsel would forgo this preparation period -- probably 30 days -- or that the House managers would forgo the subsequent two weeks allowed by the rules for them to prepare their own response.
And once the trial begins, it is difficult to see how the calling of witnesses could fail to prolong it. Democrats have long warned of looming gridlock should all three branches of government be preoccupied with a months-long impeachment trial.
In the absence of the Lott plan, however, the Senate has infinite ways of controlling the proceeding, probably by passing a resolution or resolutions governing procedures. The resolutions could disallow witnesses, shorten periods for presenting evidence or even demand a vote on conviction.
Even if the Lott plan leads to an early determination that the trial should not continue, senators may choose to suspend the proceeding, rather than end it, with the assumption that it could resume if the White House fails to cooperate on censure.
But what if the Senate cannot agree on censure details? There are some Democrats, including Sen. Tom Harkin (Iowa), as well as some Republicans, such as Sen. John D. Ashcroft (Mo.), who don't like censure. Sen. Arlen Specter (R-Pa.) has said censure "isn't worth a tinker's damn," and if enough senators agree with him, Clinton could end up with the Senate inflicting no punishment whatsoever.
There is also no assurance that Clinton will agree to a confession.
If he continues to refuse, and Republican senators continue to insist, the proceeding could reach an impasse with the trial still pending.
Finally, if more evidence of Clinton wrongdoing surfaces, or if his poll ratings go into free-fall, his Senate support could erode enough for conviction to occur if the offenses are egregious, but enough in almost any case to complicate efforts to craft a censure resolution.
Any of these possibilities, or a combination of them, could leave the trial dangling, putting the Senate into a parliamentary "twilight zone," where it has frequently found itself with filibusters in times past: not enough votes to convict, and not enough votes to do anything else.
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