THE IMPEACHMENT TRIAL
Statement of Sen. Robb (D-Va.)
Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.
Mr. ROBB. Mr. Chief Justice, colleagues, sitting in judgment of the President of the United States is not easy for any of us. It is particularly difficult for me because of the personal and political relationship I have had with this President over the last 20 years. We served together as Governors in the early eighties, as several of you did. We traveled together on foreign trade missions. We shared similar priorities for our States. At my urging, he joined the fledgling Democratic Leadership Council, which would later become an intellectual and organizational resource for his Presidential campaign.
From our earliest meetings, I recognized in him, as many of you have recognized, gifts of head and heart and a truly extraordinary range of political and communication skills that marked him with a potential for greatness. It was not as a friend, however, but as a U.S. Senator that I took an oath to render impartial justice under the Constitution in this impeachment trial. I was fully prepared to convict and remove the President from office if I concluded that the articles charged met the test of high crimes and misdemeanors as envisioned by the framers of our Constitution, and if the evidence convinced me of his guilt beyond any reasonable doubt. That is the standard I would require to remove this President or any President from office.
As we wrestle with the decisions before us today, I believe that it is incumbent upon us to reflect on the consequence of these decisions tomorrow; for while this trial is about this President, it is also about the future of this Republic. We simply cannot escape the fact that what we do today will affect the strength and stability of our Nation because the actions we take, the precedent we set, directly affects the separation of powers and the independence of the Presidency as an institution.
The writings of the framers and the overwhelming consensus of the scholarship that has followed demonstrate that the mechanism for removing a President was central to maintaining the delicate balance of power among the three branches of Government. The Founding Fathers struggled to resolve the tension between making it too difficult to remove a President, thereby creating a king, and making it too easy, thereby creating a weak Chief Executive who would serve at the pleasure of the legislature. As more than 400 scholars concluded last November, the lower the threshold for impeachment, the weaker the President.
The resolution of this dilemma--where to set the standard for removal--occupied the brilliant minds of several Virginians who took part in our constitutional debates two centuries ago. When George Mason offered specific language to define an impeachment standard, James Madison worried about making the standard too low. In worrying, he replied that so vague a term would be equivalent to a tenure at the pleasure of the Senate. After much deliberation, our founders finally agreed that the President should be removed only for committing treason, bribery, or other high crimes and misdemeanors against the United States. Thereafter, as we all know, a Committee on Style, which had no authority to make substantive changes, dropped the last four words, considering them redundant.
Alexander Hamilton defined impeachable activities as those that relate chiefly to the injuries done immediately to society itself. During the debate, Edmund Randolph, a Virginia Governor, reflected concerns. He stated that the Executive will have great opportunities of abusing his power, particularly in time of war when the military force and, in some respects, the public's money will be in his hands. Clearly, our founders created impeachment not to punish the President, but to protect the Republic. They had lived under a king and they didn't want another.
History and common sense tell us, therefore, that the threshold for impeachment should be high--very high. It should be difficult, not easy, to impeach a President of the United States because impeachment is the ultimate sanction for protecting the Republic. It is a weapon to be respected and feared, but wielded only under the most compelling circumstances. Similarly, history and common sense tell us that removing a President is not the same as removing a Federal judge. In James Madison's records of the debate at the Federal Constitution, he wrote, `The judiciary hold their places not for a limited time, but during good behavior.' The Executive was to hold his place for a limited term, like the members of the legislature.
Like them--particularly the Senate, whose Members would continue in appointment in the same term of 6 years--he would periodically be tried for his behavior by his electors, who would continue or discontinue him in trust, according to the manner in which he had discharged it. Likewise, removing a President is not the same as removing a member of the Armed Forces for violating the military code of conduct. The Uniform Code of Military Justice is required to maintain the good order and discipline for waging war and securing peace. And all of us who have served in the Armed Forces understood that we swore an oath to obey a code not required of any civilian, even those with the power to send us into harm's way--a civilian Commander in Chief, our Secretary of Defense, and Members of Congress.
Finally, removing a President is not the same as punishing a citizen in a court of law. Like any citizen, a President can be fully punished in court after he leaves office, and the failure to convict him in an impeachment trial in no way precludes a subsequent criminal prosecution.
If a President is subject to the law, then he is clearly not above it, as some have claimed.
Some also argued that since the President's oath requires him to faithfully execute the laws, any violation of those laws should thereby warrant his removal from office. While that argument may be appealing, it simply was not the standard adopted by the framers. Their standard was narrowly confined to treason, bribery, or other high crimes or misdemeanors. And it is against this standard that we are called upon to judge the conduct of this President.
I believe the President lied. When he came before the television cameras and addressed the American people, wagging his finger and denying that he had sexual relations with a subordinate employee, he lied. This offensive public conduct, which has caused me the greatest personal anguish, is an act that will be forever seared into our Nation's memory. His deception was calculated, politically motivated, and directed at each and every one of us.
Though clearly reprehensible, this lie did not violate any law and was not the subject of any article of impeachment. So, while I am convinced that the President lied to us, I am not convinced beyond a reasonable doubt that he lied to the grand jury, which is the sole basis for the first of the two impeachment articles.
Despite the apparent strength of the evidence, the House of Representatives defeated an article alleging perjury in the President's civil deposition. They voted to impeach the President for perjury based solely on his testimony before the grand jury. Article I alleges that the President willfully provided perjurious, false, and misleading testimony to the grand jury.
I listened intently to the arguments presented by both sides, and I have read the President's grand jury testimony carefully. In my judgment, the President's grand jury testimony ultimately boiled down to a few irreconcilable discrepancies, and while often slippery, hair-splitting, legalistic, and, in the words of the President's counsel, `maddening,' was not perjurious beyond a reasonable doubt.
On article I, therefore, I will vote not guilty.
Article II alleges obstruction of justice, a crime difficult to prove because it requires a determination beyond a reasonable doubt about what a person intended by his words or deeds.
In this case, it is extremely difficult to determine whether the President's intentions were to obstruct justice in a civil or a criminal proceeding, or whether his intention was to mislead his
family and the Nation about an embarrassing personal relationship. While his intent is difficult to prove, the unconstitutional bundling of charges contained in article II is clear to me.
Article I, section 3, of the Constitution clearly requires that in an impeachment trial no person shall be convicted without the concurrence of two-thirds of the Members present. The rule of law requires concurrence by two-thirds.
While article I, in my judgment, violates this constitutional requirement, at least it focuses on a single event. Article II is flagrantly worse. Drafted in the disjunctive and containing 7 subparts each alleging a separate act of obstruction of justice, the bundling of these allegations would allow removal of the President if only 10 Senators agreed on each of the 7 separate subparts. If, for example, 10 Senators voted to convict based solely on subpart 1 and a different group of 10 Senators voted to convict based on subpart 2, and so on, it would be possible to reach a total of 70 votes for conviction. But that total would not have been reached with a two-thirds concurrence on any individual subpart.
Such a pleading is not allowed under the Federal Rules of Criminal Procedure and would be thrown out by every Federal court in the land. Surely the founders did not envision removing a President from office if no more than 10 Senators could agree on a given allegation.
Trying to justify this unconstitutional bundling by citing a similar approach in the Richard Nixon case is weak because the Nixon charges were not presented to the Senate. Trying to justify this unconstitutional bundling by citing the Senate impeachment rules is no more compelling since our rules cannot conflict with the Constitution. We simply cannot remove a President from office with an article of impeachment that so clearly violates constitutional standards that we are required by law to follow.
On article II, therefore, I will vote not guilty.
Thus, I will vote not to convict on both articles because the factual, legal, and constitutional standard for removal was not met.
I am not prepared to say, however, that perjury and obstruction of justice are not impeachable offenses, because I believe it would be a mistake to attempt to do that which the founders chose not to do--to define what is impeachable with specificity.
For impeachment to remain what our forefathers intended it to be--a deterrent to misconduct and a means to protect the Republic--future generations should be free in each case to examine the facts, apply the law, and follow the Constitution and to render impartial justice. That is the impeachment process we have inherited from those who came before us, and that is the precedent we bequeath to the ongoing chronicles of American history.
The legacy of this trial, I believe, is not what becomes of one man. This trial is larger than one man. The legacy of this trial is that the Senate, sitting as a Court of Impeachment, proved worthy of the faith of our founders to render justice.
No matter what judgment is rendered, however, this trial cannot exonerate the President. A vote against conviction is not a vote to condone his lying to the American people, nor does it suggest that any Member of the U.S. Senate believes that perjury or obstruction of justice charges are anything but serious. They are very serious charges.
Sadly, the vote we are poised to take on these charges has divided our Nation. In the eyes of too many of our citizens, this vote will represent either a nonmilitary coup attempt against a duly elected President or a victory for those bent on accelerating the moral decline of the Nation. In truth, this vote represents neither. A vote for acquittal indicates nothing more and nothing less than what it says. The case to remove the President from office was not proven.
We sit in judgment today not because we are free from human failings--I certainly have my share--but because our forefathers bestowed upon the Senate the responsibility of protecting the Republic by judging the President when articles of impeachment are exhibited by the House of Representatives. In doing so, they carefully and deliberately limited the scope of our judgment.
We are judging the President in his capacity as President, and we are called upon to decide only one issue--whether he should be removed from office. The Senate does not have the duty nor the capacity to rule on the broader character of the President. In our limited role, we are not called upon to judge him as husband and father, for that is the province of his family. We are not called upon to judge him as accused citizen, for that is the province of the courts. We are not called upon to judge him as sinner, for that is the province of God. And we are not called upon to judge his legacy, for that is the province of history.
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