Clinton Team Considers Legal Fight Against Trial
Washington Post Staff Writers
Monday, December 21, 1998; Page A01
The White House is seriously weighing a legal assault on the legitimacy of President Clinton's impeachment by a lame-duck Congress, arguing that the new House of Representatives that convenes in January must revisit the matter and approve new articles before a Senate trial.
On the day after a president was impeached for only the second time in the nation's history, the debate over Clinton's fate shifted to territory uncharted in the Senate since 1868. Confronted with two articles accusing the president of lying and obstructing justice to conceal his affair with Monica S. Lewinsky, senators of both parties agreed on the desirability of dispensing with the matter as swiftly as possible.
But they differed sharply over whether the Constitution mandates that they conduct a full-blown trial to resolve what Sen. Patrick J. Leahy (D-Vt.) described as "the greatest test the Senate's faced in this century."
White House officials, while preparing a more aggressive defense of Clinton on the facts of the case than they mounted during the House impeachment proceedings, still held out hope of averting a trial even as they tried to persuade former Senate majority leader George J. Mitchell (D-Maine) to head the Senate defense effort.
"Senator Mitchell has been advising the president, and he's been advising me and the staff handling this matter on this and other matters for some time in an informal way, and we're continuing to talk to him," White House Chief of Staff John D. Podesta said on CNN's "Late Edition." "And I think that he will continue to serve us in either an informal or a formal capacity as we move forward in the Senate."
A day after rejecting calls for him to resign and vowing to remain in office to "the last hour of the last day" of his term, Clinton made no public comment on the historic votes against him in the House. Instead, the week's schedule will be devoted to showing the president proceeding with Christmas as usual.
But he could not escape his predicament at church yesterday. After he attended services with his daughter, Chelsea, an angry man confronted him on the steps. "Damn you, for what you've done to the nation!" the man said. "Please resign for the good of the world!" The president and his daughter ignored him but waved to about 100 cheering supporters.
The legal argument that the White House is now crafting was previewed earlier this month when Yale Law School professor Bruce Ackerman testified before the House Judiciary Committee, arguing that it would be a "big mistake" for a House whose members' terms were about to expire to vote articles of impeachment.
At the time, the White House, which had called Ackerman as one of its witnesses before the committee, said it had no plans to mount that case but would not rule it out.
Yesterday, however, Podesta said, "Our legal team will take a look at that in the days to come." Podesta added, "As you know, some of the constitutional experts who have reviewed that matter believe that it's not consistent with the Constitution to have done this in a lame-duck Congress, especially in the partisan way that they did that. So, I think we'll have to take a look at that."
Sources said yesterday that in preparation for a possible argument on the lame-duck issue, the White House has been consulting not only with Ackerman but also with other constitutional scholars and parliamentarians.
If the White House were to mount a legal challenge to having Clinton stand trial in the Senate, it could choose one of two routes: filing a motion at the outset of the Senate trial with Chief Justice William H. Rehnquist, who is charged by the Constitution with presiding over a presidential impeachment, or possibly even going to court, a move that could consume months as courts grapple with the novel legal question as well as the issue of whether they have power to review the matter at all.
But the White House hopes that it might be able to knock out at least one of the articles of impeachment through the maneuver. The article accusing Clinton of obstructing justice passed by just three votes more than the 218 needed, and there will be five fewer Republicans in the next Congress.
"One of those articles that was voted yesterday, if it was voted again in three weeks in the House, wouldn't pass," Podesta said. "It passed by such a small margin that given the changes in the Congress, it would fail."
The legal argument centers on the implications of the 20th Amendment to the Constitution. Ratified in 1933, the amendment moved the start of the new Congress to January after the election year.
The position that the White House is considering pressing is that the purpose of the amendment was to abolish lame-duck sessions of Congress in order to make the legislature more accountable to the people and that the impeachment articles must therefore be approved again by the new 106th Congress for the Senate to be able to validly consider them.
As Ackerman put it, "If we take this amendment seriously, it means that a lame-duck House should not be allowed to relieve its freshly elected successor of the most solemn obligation it could have, to pass upon an impeachment resolution."
However, the White House could face significant hurdles in mounting its case. The Congressional Research Service studied the issue and concluded that "an impeachment proceeding may be continued from one House to the next." In addition, several judges have been impeached by the House in one Congress and tried by the Senate in the next.
Indeed, appearing on CNN right after Podesta, Sen. Dianne Feinstein (D-Calif.) dismissed the idea of the White House pressing the lame-duck question. "It is my belief that this continues on through the change of sessions," she said. Feinstein was seconded by Texas Republican Sen. Kay Bailey Hutchison.
Another option being considered would be challenging the reappointment of House "managers" of the case against Clinton, 13 House Judiciary Committee Republicans led by Chairman Henry J. Hyde (R-Ill.). Theoretically, Democrats might be able to persuade enough Republicans to vote against the appointments, which might short-circuit the trial because there would be nobody to serve as prosecutors.
Such a tactic, though, could be difficult to pull off because the vote might be seen not as another statement on the substance of the impeachment charges but as a procedural matter on which party members almost always stick with their leadership.
After taking yesterday off, the president's defense team will reconvene today to begin sorting through such options. Unlike the House, where under the rules the president's lawyers had a limited role and had to rely on Judiciary Democrats to handle the fight, the Clinton team will now be fully in charge of his defense in the Senate.
As the case moves to a new stage, incoming deputy White House chief of staff Steve Ricchetti, a former Senate aide, will oversee Clinton's defense and special counsel Gregory B. Craig will take a larger role making the president's case on television, where colleagues believe he has been particularly effective. Vice President Gore, who proclaimed himself "fighting mad" about the impeachment drive last week, will also be playing a more aggressive public role, officials said.
With so little precedent to work from, the White House now finds itself struggling with a number of delicate issues including the dicey question of how much the president should be talking with senators now that they hold his fate in their hands. While Clinton has to consult with them about policy, aides believe it may be wise to limit direct conversations about his case, although they are not ruling out such discussions.
"We're going to be very careful not to offend senatorial sensibilities, so we're going to err on the side of caution," said one official. "We do not want to expose ourselves to allegations that we're tampering with jurors."
In television interviews yesterday, key senators of both parties pledged to move swiftly but disagreed over whether a trial could be averted by an early agreement to consider censure, the punishment Clinton himself has invited.
Republicans said the Senate must at least begin a trial, although several GOP senators signaled that they might consider an alternative sanction at some point during the proceedings. And none of the GOP senators appearing yesterday took up invitations to repeat the call of some Republicans including Rep. Bob Livingston (La.), who withdrew Saturday as the intended House speaker for Clinton to resign.
At one end of the argument was Majority Whip Don Nickles (R-Okla.). "The Constitution says if you receive these articles, you will have a trial," said Nickles, appearing on "Fox News Sunday." "It could be circumvented if you get 51 votes, but I would be very surprised."
Reflecting the opposite view, most Democrats argued that the Senate is free under the Constitution to opt for censure instead of trial. Appearing on NBC's "Meet the Press," Leahy, the Judiciary Committee's ranking member, said that unless the Senate finds a swift solution, "we're going to have such a polarized, politicized Congress for the next two years [that] I don't see where much of anything gets done in this country."
Somewhere in the middle were Judiciary Committee Chairman Orrin G. Hatch (R-Utah) and Rules Committee Chairman Mitch McConnell (R-Ky.), both of whom will probably play major roles in the Senate proceedings. Hatch renewed his call to Senate leaders to take an early vote count to see if a two-thirds majority, which is necessary for a Senate conviction, is possible "under any circumstances," implying that he would be open to a lesser punishment if conviction appears impossible.
McConnell said the "chances are pretty good that we will have a trial," which could be "very short . . . because it is not a complicated case." However, he said, "at some point on down the road," censure "may well be where we end up."
Republicans argued that the trial could be wrapped up in a matter of days or a few weeks unless the White House drags things out. A trial, said Nickles, "could be done in three weeks if the White House wanted to." Said McConnell, "This will not take a lengthy period of time unless the president's lawyers would like for it to, and I don't think they'll reach that conclusion."
Leahy disagreed, saying, "It would take longer than that [a few weeks] just to get geared up for the trial" a position backed by a Senate legal analysis commissioned by the chamber's leadership that noted that in the past, several weeks have been offered to a defendant in a Senate trial to prepare an answer to the charges against him, and then more time has been allowed for the House to respond before the trial begins.
The senators also disagreed about whether parts of the trial could be held in private and whether the Senate could conduct any other business while a trial is proceeding, as Majority Leader Trent Lott (R-Miss.) has suggested.
McConnell said not only that the Senate could proceed on a double track, but that some of the most salacious testimony about whether Clinton lied under oath by denying that he touched Lewinsky could be held in private. "If we actually end up having to hear from some of the more infamous witnesses we're . . . now all too familiar with, there's no prohibition under the Senate rules from hearing those witnesses in closed sessions."
But Feinstein said she strongly opposed "any kind of Star Chamber proceeding."
On the question of the Senate's doing other work while a trial is in session, Sen. Christopher J. Dodd (D-Conn.) said, "Nothing is more important than the resolution of this issue, and if you try and do a dual track here, I think it's going to complicate both matters."
Sen. Arlen Specter (R-Pa.), appearing on CBS's "Face the Nation," agreed. "I do not think that the Senate ought to function on two tracks," he said. "It is very, very important for the national interest that this matter be concluded one way or another."
Staff writer Peter Baker contributed to this report.
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