Search Continues for Bipartisan Way Out
Washington Post Staff Writers
Monday, February 1, 1999; Page A10
Republican and Democratic senators talked yesterday of finding a bipartisan way to conclude the impeachment trial of President Clinton, as some lawmakers suggested that not even a majority of the Senate will vote to convict the president, much less the two-thirds needed to remove him from office.
House "managers" meanwhile continued to argue the need for live witnesses to prosecute their perjury and obstruction-of-justice case against Clinton in the Senate.
As members of Congress debated Clinton's impeachment trial on the Sunday television talk shows, Monica S. Lewinsky, whose affair with Clinton is the source of the impeachment charges, waited in a downtown hotel to be deposed today. Lewinsky, Clinton friend Vernon E. Jordan Jr. and White House aide Sidney Blumenthal will be questioned on successive days this week by House prosecutors and White House lawyers.
Senators, many of whom are looking to end the trial by Feb. 12, said they were troubled by a report that independent counsel Kenneth W. Starr has concluded that he has the constitutional authority to indict a sitting president. The report, in the New York Times yesterday, said Starr has not yet decided whether to do so.
Several senators talked yesterday of finding a bipartisan approach that would leave no doubt that Clinton had committed serious wrongs without forcing him from office. But there was little agreement on how such a resolution should be written.
Both Maine senators, Republicans Susan Collins and Olympia J. Snowe, argued for "findings of fact" that could be voted on before the Senate cast final votes on the two articles of impeachment.
"We will not be using the words perjury and obstruction of justice. We will not be voting on whether or not the president's guilty or not guilty," Snowe said on CBS's "Face the Nation."
Collins, on NBC's "Meet the Press," said "findings of fact" were important because senators "may well believe that he lied under oath but did not reach the legal definition of perjury."
Collins, Snowe and Sen. Pete V. Domenici (R-N.M.) are leading the GOP search for an ending to the trial that both Democrats and Republicans can agree to. Sen. Joseph I. Lieberman (D-Conn.) said he has advised his Democratic colleagues to wait and see how the proposed findings are worded. "The big distinction here is not to find guilt according to criminal law," he said.
But other senators dislike the approach. "I think it's a bad idea. . . . We don't have a precedent for it," Sen. Richard C. Shelby (R-Ala.) said on NBC, while Sen. Richard J. Durbin (D-Ill.) dismissed the finding-of-fact approach as "an attempt to find some explanation for a vote."
White House spokesman Jim Kennedy said, "Our concern is for something prompt, fair and bipartisan. This seems to be having more of a divisive effect than a unifying effect."
The search for a way to end the impeachment trial began shortly after the Senate on Jan. 27 defeated a Democratic motion to dismiss the case by 56 to 44 well short of the two-thirds majority needed to convict Clinton, with one Democrat, Sen. Russell Feingold (Wis.), joining all 55 Republicans.
Sen. John Breaux (D-La.) predicted the president would fare even better in a vote on the charges. "You'll have probably 12 or so Republicans that would think that the charges do not merit conviction," he said on NBC.
Shelby said there were "perhaps fewer than 50" votes to convict Clinton on the perjury charge although more would vote to convict on obstruction of justice.
Although there have been several reports in the past that Starr had concluded he could indict a sitting president, yesterday's New York Times article was a major topic of conversation on the talk shows. Republicans clearly signaled they were not pleased to hear another report to that effect. Several House managers said the report might make it even harder to convict the president, while Democrats attacked it as further evidence of Starr's alleged excesses.
Rep. Asa Hutchinson (R-Ark.), one of the House managers, said the timing of the Starr report was "not helpful at all because many people in the Senate or some defenders of the president say, well, there's no sense impeaching him because he can be held accountable when he leaves office. And so it just takes the focus off of a very important decision that the senators have to make."
Durbin said: "It's beginning to sound like 'Fugitive II.' There's no end to what this man is willing to do to continue to pursue the president."
Clinton's lawyers jumped on the Times report as the latest example of what they claim is illegal leaking of grand jury information by Starr. Lawyers for the White House plan to file a "show cause" motion in federal court today asking chief U.S. District Judge Norma Holloway Johnson to add the Times story to her investigation of whether Starr violated grand jury secrecy rules, according to a source familiar with the plan.
Whether a sitting president could be indicted or even brought to trial is one of the great unresolved questions of constitutional law.
During the investigation of President Richard M. Nixon, lawyers for Watergate special prosecutor Leon Jaworski concluded that Nixon could be indicted while still president. But then-Solicitor General Robert H. Bork, in rejecting Vice President Spiro T. Agnew's assertion that he was immune from prosecution while in office, took a different view. Bork said the vice president did not enjoy such immunity, although the president did.
Starr consultant Ronald D. Rotunda, a University of Illinois law professor, argued in a 1997 column that the Supreme Court's ruling in Jones v. Clinton lent support to the notion that a sitting president was subject to prosecution. In the Jones case, the justices ruled that the president could be subjected to a civil lawsuit stemming from his actions before becoming president. The decision, Rotunda wrote, suggested that "the Constitution provides no bar to the indictment, trial, and conviction of a sitting president for a federal crime, although the trial court might not be able to impose a sentence until the president's service of office is completed."
House Republican managers, meanwhile, continued to press their arguments for live witnesses..
"There's no substitute for live testimony," Rep. James E. Rogan (R-Calif.) said on NBC. Senators should hear the witnesses, "see their demeanor, gauge the credibility of the witnesses and do that in person."
Hutchinson acknowledged the House team faces "a heavy burden" to persuade the Senate to approve witnesses, but said they would make "a more powerful presentation."
Rep. Lindsey Graham (R-S.C.), on "Fox News Sunday," said the House team also hopes to bring out "a Watergate side of the story" showing how Clinton used aides to portray Lewinsky "as being the predator" and coached presidential secretary Betty Currie on how to couch her testimony before the grand jury.
"This is Watergate-like when you start telling stories out of the mouth of the president to portray a potential witness in a bad light. When you encourage people to go out and tell those same stories to the grand jury. When you use the White House press office to suggest that this young lady . . . is not quite all there mentally, is unstable, that she is stalking the president and he is a victim of her," Graham said.
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