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'Findings of Fact' May Spark Fiercest Battle

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  • By Eric Pianin and Guy Gugliotta
    Washington Post Staff Writers
    Thursday, February 4, 1999; Page A7

    As President Clinton's impeachment trial resumes today amid wrangling over witnesses, a more fundamental question is quickly moving to center stage: how to reprimand the president without removing him from office.

    Impeachment's last great partisan battle will likely be fought over what may seem to the public a distinction without a difference. Republicans want the Senate to approve "findings of fact" during the trial, in which senators would agree on language detailing presidential misconduct before acquitting him of the actual impeachment articles. Democrats, by contrast, are pushing for a resolution condemning Clinton's behavior – but not spelling out the details and doing so only after the trial concludes.

    Both parties are looking for political cover. Republicans know the Senate will acquit Clinton, but they want a way to register their displeasure and to make sure the trial does not simply end with an acquittal – and a celebration on the White House lawn like the one that followed the impeachment vote in the House.

    Democrats also want to distance themselves from Clinton, but they do not want the GOP to reprimand him in stronger-than-necessary language in the trial, where a motion could pass by a simple majority. They would prefer a post-trial censure resolution on the Senate floor, where a filibuster threat would ensure them a voice in drafting the measure.

    Whether the Senate can bridge this gap remains the question that will dominate the proceedings that resume today. And there are signs that a fierce partisan struggle – stronger than the battles that marked the first part of the trial – is already breaking out.

    "We see the Senate now degenerating into the snake-pit stage, in which the consuming objective is to win politically," Sen. Robert C. Byrd (D-W.Va.) said in an interview yesterday. "It is becoming pure politics, and I view it with great concern."

    Yet even as senators groped for the political high ground, several spoke hopefully about the possibility of an agreement. "Of the censure motions I've seen, none of them is strong," said Sen. Tim Hutchinson (R-Ark.), one of the drafters of findings of fact. "We think this [findings of fact] would be a better approach. We would hope there are half a dozen Democrats to support it."

    In fact, many of the GOP supporters of the measure have said that without significant Democratic support, findings of fact make no sense, a view shared by University of Virginia political scientist Larry J. Sabato. "Ramming it through doesn't do a thing for them politically," Sabato said. "It just [provides] more proof to the public that it [impeachment] was a partisan witch hunt."

    Sen. Olympia J. Snowe (R-Maine) said yesterday that findings of fact needed support from "a minimum of five Democrats," but only two have expressed even a passing interest.

    Just as troubling for the GOP drafters was the question of whether findings of fact had enough support in their own caucus to pass. More than a half-dozen GOP senators have said they either opposed it or had serious misgivings.

    Offering a foretaste of what could be a bitter floor fight, Senate Democrats emerged from a morning caucus blasting findings of fact as a backdoor effort by Republicans to hurt a president they are unable to convict by a constitutionally required two-thirds majority.

    Sen. Edward M. Kennedy (D-Mass.) dismissed the GOP approach as "a desperate attempt by the Republicans to save face . . . and further embarrass the president."

    "It's a very bad precedent," added Sen. Max Baucus (D-Mont.). "The findings-of-fact route enhances the probability that there will be future impeachments because, in effect, it's easier to convict and it enhances the probability that it will be political."

    Democrats note that constitutional experts as ideologically diverse as Harvard's Laurence Tribe and former judge Robert Bork object to the approach. Moreover, White House lawyers worry that the findings of fact, if approved, could be used against Clinton in any criminal proceeding brought against him.

    Republicans cited legal experts of their own in arguing that the findings of fact proposal would pass constitutional muster. But the intensity of the Democratic assault – and their threat that they would offer numerous amendments to weaken the measure and prolong the debate – caught some Republicans by surprise.

    "I'm very sorry that the Democrats have made this a partisan issue," said Sen. Pete V. Domenici (R-N.M.), co-chairman of the GOP task force attempting to draft the motion. "I saw it as a unifying issue. The American people feel these findings are just right . . . and many senators on both sides of the aisle have spoken of these facts in much the same language."

    Democrats have promoted censure since the House first launched its impeachment proceedings. Senate Republicans were largely dismissive of the idea until a handful of moderates began devising a variation on the theme that would hold Clinton accountable for his misconduct before the conclusion of the trial.

    Initially, Sen. Susan Collins (R-Maine) proposed a two-step process in which the Senate would vote on whether the president was guilty of perjury and obstruction of justice, and then vote on whether to remove him from office.

    The approach caught the interest of Senate Majority Leader Trent Lott (R-Miss.), who has been looking for a graceful end to the trial that would enable the Republicans to register their disgust with Clinton's behavior in the Lewinsky affair even though they lacked the votes to oust him.

    But critics soon complained that the bifurcated approach was unconstitutional, and Domenici and Snowe stepped in with an alternative in which the Senate would vote on a findings-of-fact resolution that embraced the details of the House's perjury and obstruction of justice allegations but that lacked the force of the impeachment articles themselves.

    Even among Republicans, however, the approach has its critics, who argue it too is unconstitutional and might drain GOP support for the impeachment articles themselves. "What we're trying to do here is to have the ability to be on both sides of an issue – to have the ability to say we didn't remove the president but we're not saying it's okay," said Sen. Phil Gramm (R-Tex.).

    For Democrat Byrd and other opponents of findings of fact, this is impossible to do within the trial. "Impeachment is a constitutional cul-de-sac from which there is no escape," Byrd said. "This effort to resolve this matter by an easy political vote is a will-o'-the wisp."

    © Copyright 1999 The Washington Post Company

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