Senate Mulls Calling Clinton to Testify
Washington Post Staff Writers
Saturday, January 16, 1999; Page A15
Asking President Clinton to testify at his Senate impeachment trial would represent a dramatic departure from prior impeachment practice, but some legal experts said yesterday the Senate would be within its rights to call the president as a witness while political strategists said Clinton had much to fear from such a move.
House Republican prosecutors raised the issue of Clinton's testimony on the floor of the Senate yesterday. Rep. Bill McCollum (R-Fla.) told senators that, if they have questions about contradictions among key players in the case, they should "invite the president" to testify. But a number of GOP senators expressed reservations.
In the 14 previous impeachment trials it has conducted, the Senate has not requested that the impeached official testify. Andrew Johnson, the only president previously impeached, boycotted his Senate trial on the advice of his lawyers.
The current impeachment rules specifically contemplate that the official on trial could appear to answer the charges through an attorney. However, according to the Senate historian's office, seven of the 14 impeached officials whose cases proceeded to a Senate trial voluntarily testified as part of the defense case, including the three judges convicted during the most recent impeachment trials in the 1980s.
Although it would be far different to call the impeached official to testify rather than to allow him to do so as part of his defense, several legal scholars who generally are opposed to Clinton's impeachment and removal said yesterday that they thought the Senate had the constitutional authority to invite or even subpoena him.
Currently, most of those discussing having Clinton testify have phrased their desire in terms of inviting him rather than formally subpoenaing him to appear. But the question of whether that more drastic move would be within the Senate's power will be relevant as the debate proceeds.
Legal experts interviewed yesterday pointed most prominently to the fact that the three articles of impeachment approved by the House Judiciary Committee against President Richard M. Nixon included the accusation that he should be removed from office for failing to comply with a congressional subpoena to produce documents.
Harvard Law School professor Laurence H. Tribe said that while "there's no clear answer in the Constitution or its history," the Nixon impeachment article "strongly suggests" that the Senate "could treat the failure of the president to respond to compulsory process as itself an obstruction of its authority and perhaps an impeachable offense" in itself.
Tribe, who has been highly critical of Clinton's impeachment, added that he saw "no real basis of distinction" between the House's constitutional authority to ask Nixon to turn over documents and the question of whether the Senate could seek his personal testimony.
As a general matter, presidents have been wary of appearing before Congress other than in the constitutionally contemplated setting of a State of the Union address. After pardoning Nixon, President Gerald R. Ford took the unusual step of testifying before Congress about his decision. Still, on more than a dozen occasions, presidents have appeared before Congress -- generally on issues of their own choosing.
Legal experts said normal separation-of-powers concerns would not carry the day in an impeachment matter because the Constitution specifically contemplates that the legislative branch conduct impeachments of executive branch officials.
"My view is that the impeachment power is more than ordinary congressional power and is really an exception to any notion of separation of powers," said John Labovitz, a Washington lawyer who served on the House Judiciary Committee impeachment staff during Watergate and is generally opposed to the current proceedings.
Washington lawyer David O. Stewart, who represented former judge Walter L. Nixon Jr. in his impeachment trial and is critical of the current impeachment, also pointed to the Supreme Court's ruling in the Paula Jones sexual harassment case that the president could be required to stand trial and be deposed while in office. Stewart said that if Clinton couldn't resist a civil subpoena, "what exactly is the basis for resisting a subpoena" in the impeachment trial?
Clinton would retain his constitutional privilege under the Fifth Amendment against giving testimony that could be used against him in any future criminal proceeding, but politically he would face the same conundrum he faced when independent counsel Kenneth W. Starr subpoenaed him to testify before the grand jury. In the unlikely event that he invoked the Fifth Amendment, Congress could easily solve the issue by granting him immunity from having his congressional testimony used against him.
Despite the fact that McCollum raised the issue during his presentation yesterday, Republican senators remained cool to the idea.
Sen. Thad Cochran (R-Miss.) said he did not expect the Senate to extend such an invitation because Clinton would resist it and it may anger Senate Democrats. "I can't imagine he would come voluntarily," Cochran said. "I'm determined we are going to proceed with bipartisanship."
White House officials, meanwhile, again brushed aside suggestions that Clinton testify before the Senate. "Highly unlikely," one senior adviser said yesterday.
Clinton advisers and allies believe Republicans simply want to embarrass Clinton by forcing him to resist an offer to testify or are maneuvering to make themselves appear more reasonable if they present a scaled-down witness list.
Regardless, Clinton supporters argued that he would be foolish to appear before the Senate, citing the image of the president of the United States answering questions under oath in the well of the Senate and the unpredictability of such a high-stakes, unscripted encounter. "I think he'd be hammered to death," one Democrat said.
Neither Republican nor Democratic strategists underestimate the president's reputation for talking his way out of trouble, but they agreed that Republicans have little to lose by attempting to gain the president's testimony.
A Gallup Poll for CNN and USA Today showed that 63 percent of those surveyed said Clinton should testify before the Senate -- a slightly higher percentage than those who said Monica S. Lewinsky should be a witness.
"The American people see it as a natural thing that a person who is a defendant should be afforded an opportunity to testify in his own defense," one Republican strategist said. "Choosing not to suggests that perhaps something is being hidden."
Still, some Republicans said a decision to invite Clinton to testify might suggest weakness in the case against the president. "They are acknowledging that the information they have presented hasn't been sufficient," one strategist said. "It could be the equivalent of an impeachment Hail Mary pass."
Staff writer Juliet Eilperin and staff researcher Ben White contributed to this report.
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