Censure Faces Obstacles in Senate
Washington Post Staff Writers
Sunday, December 20, 1998; Page A39
With the impeachment battle lost in the House, President Clinton voiced hope yesterday that the Senate would embrace censure, but the prospect of reaching the kind of compromise deal preferred by the White House faces a variety of political and logistical hurdles.
White House aides said they hope some kind of censure compromise might be worked out over the next several weeks, though they cautioned that there are limits to what they would accept. And if negotiations are unsuccessful, one adviser said, Clinton intends to wage a vigorous defense that could take months.
"He's going to get his due," said the Clinton adviser. "If this goes to trial, we're going to have a full trial, and we'll show what this whole thing has been about from day one."
At least a half-dozen Republican senators say they are open to some kind of censure, underscoring how the idea seems to have more traction in the Senate than it did in the House. Senators are amenable to the idea because of the difficulty of getting the two-thirds majority needed to convict the president under the Constitution; Republicans hold a 55-to-45 advantage in the Senate, and few Democrats appear likely to push to remove Clinton.
Senators of both parties also wish to avoid a contentious trial that could sour public opinion and cripple any hopes of passing major legislation. Some Republicans are worried that dragging out the process any further could damage the party politically.
"The Senate is the appropriate place to consider censure," said Sen. Bill Frist (R-Tenn.), echoing the views of many members of both parties. "Our role will be to either convict or not convict, but while that process is going on, consideration of alternative punishments should be discussed."
Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) is also receptive to some other "sanction" if there is no chance of a two-thirds majority for conviction. "We should take a hard count right at the beginning . . . and if there are 34 or more senators who would not vote for impeachment under any circumstances, why put the country through this?" he asked.
But the situation is complicated because some senators believe that the Constitution requires a full-blown trial, and Senate Majority Leader Trent Lott (R-Miss.) earlier this week ruled out any "dealmaking" early in the proceedings.
"Senators will be prepared to fulfill their constitutional obligations," Lott said in a statement yesterday, after the House approved two articles of impeachment against Clinton. He said pretrial proceedings will not begin until after the Senate reconvenes Jan. 6, and that it is not possible yet to say when an actual trial will start.
"The timing will depend greatly on the president and his lawyers," Lott said, apparently reflecting concern among some Republicans that Clinton may try to drag out the preliminaries to build pressure for a negotiated deal.
Senate Minority Leader Thomas A. Daschle (D-S.D.) called the impeachment vote a "sad day for all Americans" and rejected calls for Clinton's resignation.
While "the behavior of the president in this matter was deplorable" and merits punishment of some kind, "we cannot allow any president – Republican or Democrat – to be forced from office by a party-line vote in the House of Representatives," Daschle said. He said he is committed to a less partisan process in the Senate.
Lott remains the crucial wild card. Strong-willed but prone to missteps, he was recently reelected without opposition and generally gets his way with Senate Republicans. He has fought Clinton on many issues, most recently over the administration's policy on Iraq. But he has scrupulously avoided tipping his hand about his plans, except to say some time ago that a trial could be completed in "three days to three weeks."
Lott will be torn two ways: by conservative allies who want a tough enough trial that might force Clinton to resign, and by the need felt by most Republicans, reinforced by the party's disappointing showing in November's elections, to produce dramatic legislative results on subjects from tax cuts to Social Security financing.
The conflicting pressures suggest the difficulty of predicting whether the Senate will plunge into a fight-to-the-finish trial or opt for a shorter procedure that could result in an early vote on censure.
If a deal is to be struck, many senators agree with the White House that the next 2½ weeks before Congress reconvenes will be crucial. The problem is that most senators believed until recently that the House would reject impeachment, and little of the critical political groundwork has been laid, according to several senators. Clinton has talked strategy with a few Democrats, although apparently no decisions were reached, according to a Democratic source.
Clinton has been in regular contact with former Senate majority leader George J. Mitchell (D-Maine). Some White House aides are hoping he will take a more formal role as the president's defense moves to the Senate, where Mitchell had good personal relations on both sides of the aisle.
On censure, the Clinton adviser said the president is prepared to accept some financial or other penalties, but that he is not willing to accept punishment that he believes would retrospectively deny legitimacy to his presidency. That means he would not agree to forgo a presidential pension or federal funds for a presidential library, as some have suggested. "Don't think for a second he'd agree to that," said the adviser.
Any trial itself would be virtually uncharted territory, the first time in 130 years that the Senate would be called upon to decide whether an impeached president should be convicted and removed from office.
The Senate has 26 specific impeachment rules dating to the trial of President Andrew Johnson in 1868 and updated after the Watergate scandal. But there are important questions still to be addressed by the senators themselves, such as what rules of evidence would be used in a trial, the burden of proof and what constitutes an impeachable offense. Some senators have even questioned whether the quill-pen-era rules will permit the proceedings to be carried by television, although others say they will be televised – somehow.
Chief Justice William H. Rehnquist will preside and rule on questions of evidence, but a bare majority of 51 senators can overrule him. By those same 51 votes, the Senate could force an early vote on conviction, dismiss the charges or adjourn the trial and turn to consideration of other sanctions.
In this context, pro-censure Republicans are critical because – if there are enough of them – they could combine with most, if not all, of the Senate's 45 Democrats to create a majority in favor of concluding the trial and drafting a resolution of censure. A major point of early dispute is when that moment might come.
Some Democrats would like to see it occur either before a trial or, more likely, early in the process, and at least one Republican appears open to such an approach. "I think there should be an opportunity for senators to consider and debate an alternative to a trial," said Sen. Thad Cochran (R-Miss.). Even if a trial goes ahead, he said, "I think it will be short-circuited in some way."
Others do not want censure considered until after the trial starts, possibly well into the proceedings.
Sen. John H. Chafee (R-R.I.) said any censure resolution would "have to include some kind of a penalty other than a scolding." Chafee said he was not prepared to say what that punishment might be.
Sen. Gordon Smith (R-Ore.) wants to keep all options open while the trial proceeds. "We should proceed with a trial and retain all potential remedies so we can select the one that is appropriate to the facts that the trial develops," he said. A consensus, he added, will "emerge from the middle."
A southern Republican, who asked to remain unnamed, said he would like the Senate to consider censuring Clinton but worries about "the internal debate in the [Republican] caucus between the hard-liners" and the moderates. "I held out the hope that it would never get to the Senate," he said. "Politically, this is not smart what the Republican Party is doing. I think it is marching off a cliff."
As if to illustrate those tensions, Sen. Mike DeWine (R-Ohio) said he will vigorously oppose censure or any other resolution in the murky area between acquittal and conviction. "It is bad public policy. It diminishes the presidency as an institution. It trivializes the process," he said.
Sen. Chuck Hagel (R-Neb.) agreed, saying, "It's dangerous. You could play this tit-for-tat game whenever there is a change in administrations." Sen. John McCain (R-Ariz.) said: "It sounds like a great idea until you get into the specifics . . . it's a lot more complicated than it sounds."
White House officials have been heartened by an opinion article suggesting a possible procedure for censure that former Senate majority leader Robert J. Dole (R-Kan.) wrote earlier this week in the New York Times. While some Clinton aides hope Dole will make more public statements or play a more assertive role in brokering a compromise, advisers said they have not received any assurances from Dole that he will do so. The details of Dole's proposal have received a cool response in Senate offices, and the extent of his influence over the GOP caucus is unclear.
Staff writer John F. Harris contributed to this report.
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