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House Takes Up Impeachment Task With Time Short

By Ruth Marcus
Washington Post Staff Writer
Sunday, November 15, 1998; Page A2

The House Judiciary Committee this week takes up the solemn task of weighing whether to impeach a president while faced with a ticking clock, an unhappy public, and a growing desire by members on both sides of the aisle to craft a way out.

But members of Congress seeking to punish President Clinton without removing him from office may find some vexing legal obstacles in their path.

Impeaching and ousting a president is the political equivalent of imposing the death penalty, and more than a few House members have questioned whether such capital punishment befits Clinton's alleged crimes. Over the next few weeks, the House will have to wrestle with the tension between the desire to express its disapproval of Clinton's conduct and the uneasiness of some members about exercising what Alexander Hamilton called the "awful discretion" of impeachment.

With the House speaker-in-waiting, Rep. Bob Livingston (R-La.), determined to have the matter disposed of before he assumes the reins in January, the House is on a sprint that could have the issue dealt with by year's end.

On Friday, one lingering cloud -- the sexual harassment lawsuit by Paula Jones that spawned the impeachment proceedings -- was erased with a settlement. At the same time, independent counsel Kenneth W. Starr, who on Thursday will be the judiciary panel's first and perhaps only witness, tossed some new facts into the mix when he sent to the House two boxes packed with information about Clinton's involvement with former White House volunteer Kathleen E. Willey.

But for members of Congress who want to dispose of the whole mess with an outcome short of impeachment and removal, the potential difficulty lies in the fact that the framers of the Constitution did not provide -- at least explicitly -- for lesser punishments. And legal scholars of varying political stripes have questioned whether alternatives such as censuring the president would be constitutionally permissible or whether, as conservative professor Gary L. McDowell told the House Judiciary Committee last week, "It is either impeachment or nothing."

The most constitutionally doubtful alternative is imposing what has been called "censure-plus" on the president, with Congress not only expressing its condemnation of his conduct but exacting some kind of monetary penalty.

Some scholars also question whether Congress could even pass a simple resolution of censure, as it has done over the years with its own members, to formally place its disapproval of the president on the record. They argue that would infringe on the president's authority. The Rev. Robert F. Drinan, a former House member who sat on the judiciary panel during the Watergate proceedings and now teaches law at Georgetown University, warned it would, "establish a dangerous precedent which would weaken the institution of the presidency."

The question of congressional latitude to impose censure is to some extent academic, because if Congress and the president were to agree on a disposition that would likely be the end of the matter. At the same time, lawmakers' sense of their own constitutional constraints could result in some self-imposed restrictions on their flexibility to deal with the situation. "The options are limited constitutionally," said Rep. Asa Hutchinson (R-Ark.).

One area of debate is whether the House can simply exercise its "prosecutorial discretion," as Rep. Thomas M. Barrett (D-Wis.) put it at the hearing, and choose not to approve articles of impeachment even if it deems Clinton's conduct to rise to the level of impeachable offenses, or whether that decision is more properly left to the Senate, which would be charged with acting on impeachment articles forwarded to it and conducting a trial of the president, overseen by Chief Justice William H. Rehnquist.

Experts also differ over whether any so-called "plea bargain" to which the president would agree should happen at the House or Senate stage. House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) has suggested that only the Senate sitting as a jury can mete out a punishment short of ouster, such as censure or reprimand, though he has not ruled out its ultimate use by the House.

Others argue that the moment for brokering a deal between Congress and the president is now, and that -- if the House were to vote out articles of impeachment -- Clinton would be duty bound to fight to the finish. "If the House impeaches President Clinton, failing to press for full Senate acquittal would be an unconscionable betrayal of the office of the presidency," said University of Pittsburgh law professor Peter Shane.

The resolution authorizing the committee to act appears to provide leeway for recommendations short of impeachment. It provides that the committee shall report "such resolutions, articles of impeachment, or other recommendations as it deems proper."

Critics of censure note that the framers of the Constitution did not include the impeachment provision as a way to punish a misbehaving officeholder but to protect the country against being governed by an unfit individual.

They point to the language of the Constitution, which gives each house the authority to discipline its members but does not by its terms provide for lesser remedies than ouster in dealing with impeachment. The constitutional scheme of separation of powers, such scholars argue, limits Congress to removing the official or judge and disqualifying him from holding further office.

Opponents also argue that censure as a lesser sanction would also inevitably weaken the president in favor of Congress. "I can envision that almost every election cycle we would have the Congress censuring the president if he were of a different party," Drinan said.

Yeshiva University law professor John McGinnis, a Republican witness, agreed. If lesser penalties were permitted, he said, "it would no longer be an awesome weapon" deployed in only extraordinary circumstance and "Congress might be able to use it to harass executive officials."

Indeed, the only president to be directly targeted for censure, Andrew Jackson in 1834, rejected it as "not only unauthorized by the Constitution but in many respects repugnant to its provisions and subversive of that distribution of the powers of government which the Constitution has ordained and established." Jackson, a Democrat, was censured by the Whig-controlled Senate (impeachment was not an option because the House was in Democratic hands) in a dispute over national banking legislation; the censure was expunged three years later when Democrats took over.

Others believe Congress has more options.

"The prerogative of this Congress to express its dismay or despair or indeed condemnation of the contemptible conduct that characterized Mr. Clinton's backing and filling . . . is surely within your constitutional discretion," said Duke University law professor William Van Alstyne.

William and Mary law professor Michael Gerhardt noted that, in addition to Jackson, four other presidents have been targeted for some kind of official congressional criticism.

Still, some Republicans who demand a forceful response to Clinton's conduct may balk at a simple censure because its effect is rhetorical. "It's no more binding than a declaration of National Venetian Blinds Day," said Shane, who supports the approach.

Legal experts see even greater difficulty, however, with the concept of "censure-plus," some expression of congressional disapproval of Clinton's behavior driven home by a monetary penalty. The experts said the idea of a fine would run afoul of the constitutional prohibition on bills of attainder, or legislation targeting a single individual, as well as the bar on ex post facto laws.

"What I find offensive . . . is that Congress's role in this is not supposed to be punitive," Shane said. "It's supposed to be a restoration of the public trust and the censure-plus model really usurps what would be the function of the court if Clinton were ever prosecuted."

Another issue for Congress is whether it can justifiably drop the matter without in some way seeming to ratify Clinton's conduct or suggesting that his misbehavior is trivial. "Your power to write out articles of impeachment and possibly impeach, like a prosecutor's decision whether to indict, is discretionary," Georgetown University law professor Susan Low Bloch told the committee.

Sen. Arlen Specter (R-Pa.) entered the debate last week with the argument that Clinton's exposure to criminal prosecution once his term ends is adequate punishment.

As Harvard Law School Professor Laurence H. Tribe made that argument in a recent op-ed piece, "There's no need to burn down the house to roast the pig, especially when the pig can be micro-waved later."

The debate will also address which body, the House or Senate, should make that call. Presidential historian Arthur Schlesinger urged the judiciary panel to conclude the impeachment proceedings in the House and "not seek to download the problem on the Senate." But George Washington University law professor Jonathan Turley contended that it was not within House members' prerogatives to consider clemency if it concludes that Clinton has committed high crimes and misdemeanors. "You can't grant exceptions," Turley said. "There's a place in which that decision is made. It is that other body. Your function is to find conduct which we cannot tolerate -- conduct that it incompatible with the president's office."

© Copyright 1998 The Washington Post Company

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