Advocates for Censure Turn Eyes to Senate
Washington Post Staff Writer
Monday, December 14, 1998; Page A14
With the House seemingly bent on trying to impeach President Clinton, advocates of censure are now turning their attention to the Senate as the more realistic focus of their hopes for a deal to avoid a divisive trial.
While incoming Speaker Bob Livingston (R-La.) has said that he believes the Constitution does not permit a censure vote in the House, some House leaders have suggested that's something the Senate could consider, possibly as an alternative to a trial on the impeachment charges.
"It is something that really is the Senate's province," Rep. Henry J. Hyde (R-Ill.), chairman of the House Judiciary Committee, said yesterday on CBS's "Face the Nation."
For now, senators are holding their fire. Majority Leader Trent Lott (R-Miss.), Minority Leader Thomas A. Daschle (D-S.D.) and other leaders have imposed a virtual vow of silence on themselves to avoid the appearance of meddling in House affairs or violating the oaths of impartiality that all senators will take as jurors for any impeachment trial. Only after the House approves one or more articles of impeachment, if it does, will the Senate begin to set up ground rules for a trial, Lott has said.
But speculation is mounting both on and off Capitol Hill about possible scenarios to ensure that Clinton receives some punishment if, as most lawmakers predict, the Senate were to fall short of the two-thirds majority necessary under the Constitution to remove a president from office. The most frequently mentioned alternative -- and touted privately among many Democrats -- is for the Senate to take the lead in drafting a censure resolution that could require a presidential signature, meaning that Clinton would be agreeing with Congress's findings of fault.
It could include a fine or other "censure-plus" sanction, but only if Clinton agreed, because of a constitutional prohibition against bills of attainder, which are designed to punish a particular individual.
Lott and others have said a trial should be conducted if the House votes to impeach. But the Senate could vote by a simple majority at any point -- even as the trial starts -- to end the proceedings and pursue a different course, such as censure, according to Senate experts on procedure.
Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) raised another possible scenario during an appearance on CNN's "Larry King Live" Friday night: impeachment with a bar on holding future office but not including removal from office. "That's very controversial, but I think there's enough room in the Constitution for something like that," he said.
Hatch agreed with the conventional wisdom that, "if things stand as they are . . . the Senate probably doesn't have the two-thirds vote to convict the president." But he emphasized that no one really knows for sure -- no nose-counts have been taken. Hatch added: "If I was the president, I think . . . I would want that vote as soon as I could get it in the Senate and I wouldn't want to drag it out because who knows what might happen during the intervening weeks that it's dragged out."
This is a reference to speculation about how long a trial might take -- from Lott's suggestion that it could be done in a few weeks to others' predictions that it could take most of the year and doom chances of passing any major legislation before the paralysis of a presidential election year sets in.
While a trial could probably begin early next month under the Senate's special impeachment rules, there likely would be a lapse of a month or more for the president to prepare his case and the House to respond. As in a regular trial, witnesses could be called. And the Senate nearly always takes longer than its leaders want.
But before a trial could start, there is one more procedural hurdle that could trip up the whole proceeding.
Even though the House is likely to name "managers," or prosecutors, for a Senate trial this year if it votes to impeach, it almost certainly will have to do so again after the 106th Congress convenes Jan. 6. While judges impeached by the House in one Congress have been tried by the Senate in the next, according to Senate experts on procedure, the appointment of managers does not survive into the next Congress.
The problem -- or opportunity, depending on one's point of view -- is that the House Republicans' margin of control will slip from 11 votes to 6 after the new Congress is sworn in. If the House votes to impeach this year by a margin of 6 votes or less, the House could conceivably refuse to appoint managers next year. Without prosecutors, there is unlikely to be a trial, according to Senate officials.
But as of now, the normally garrulous, often preachy Senate is abnormally quiet and circumspect. The reasons are both constitutional and political.
Under the Constitution, senators serve as jurors in a trial of any articles of impeachment brought by the House, and each is sworn individually to administer "impartial justice," an oath that most if not all of them appear to take seriously. To attempt to influence the House before it votes would be constitutionally unseemly or worse, senators have said.
Politically, a high-profile role at this point could also be dangerous, especially for those who favor censure as an alternative to a trial. If wavering House members become convinced that the Senate will opt for a lesser penalty, they may decide there is no political downside to voting for impeachment because the Senate will make it all go away anyway, according to some pro-censure senators.
"Many House Republicans may convince themselves that, because the Senate is highly unlikely to convict [the president], they can cast an impeachment vote with impunity . . . without consequences to the country . . . which is wrong," Sen. Robert G. Torricelli (D-N.J.) said in an interview.
In a measure of the Senate's newfound discipline, the press secretaries to Lott and Daschle put out a gingerly worded statement Friday saying the two leaders "will not make any official statement on the matter pending before the House Judiciary Committee unless and until the full House, by its action, makes it clear that this body has a specific, constitutional duty to consider."
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