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Annoying Facts

The Senate is desperately seeking an endgame to the impeachment trial
which will provide members plausible deniability, and create the
illusion of having performed their constitutional responsibilities.
Something, anything,
that will play Peoria. Perception rather than reality … form rather

Dueling constitutional scholars is the latest rage. I read the
Douglas W.
Kmiec piece in the Wall Street Journal Friday, Jan. 29, and gagged up
breakfast. Kmiec claims that impeaching the president does not require
ouster. Hell-o? He claims Article I, Section 3 “appears to allow for a
lesser penalty than booting a popular but flawed chief executive.” Oh

This gaggle of spineless duplicitous senators have posited more
concepts from whole cloth than resulted from the booze parties of
Hemingway, Stein and Fitzgerald. God forbid they feel compelled to make
decision which is inconsistent with the latest public opinion poll du
If public opinion were to be the primary, or sole, catalyst for
action, guess what? Slavery would not have been abolished, Women
would not have the right to vote, and the Civil Rights Act would not be

Meanwhile we have heard the Senate claim: The House should not have
forwarded the articles of impeachment.

Well it is not their job to determine that. Thomas L. Jipping,
director of
the Center for Law and Democracy, correctly wrote, “The Senate may not
consider whether Mr. Clinton’s actions are impeachable. In Article I,
Section 2, the Constitution assigns the “sole power of impeachment” to
House of Representatives.” The “sole power of impeachment” rests with
House … the Senate (according to the Constitution) doesn’t have
to say about that power. The power of impeachment inherently includes
determination of whether a public official’s actions are impeachable or
not. The House did its job. Period. Over. End of text.

OK, the House did their job. Members fulfilled their constitutional
responsibility. Now, it’s the Senate’s turn. Article I, Section 3 of the

Constitution assigns the “sole power to try all impeachments” to the
Senate. Got it? The Senate conducts the trial. The House, as a body is
done. The Senate is a trial court to decide whether the defendant is
guilty as charged. Guilty or not guilty … that is the question. Did
William Jefferson Clinton commit perjury? Did he obstruct justice? The
Senate is not an appeals court which gets to decide whether the
was properly charged. Only the House is authorized by the Constitution
decide what is impeachable … and in case you missed it … the House
already accomplished that task.

Sens. Tom Harkin, Dianne Feinstein, and other co-conspirators have
floated the idea (which reportedly is gaining support) that somewhere
have options, and may consider whether Clinton’s actions justify
removal. This is the bogus Harkin plan of two votes: one guilty/acquit
vote, and then (apparently if or when two-thirds actually did their
job), a second vote to remove/retain the president. THAT dog don’t hunt.
At least not according to Article II, Section 4 of the Constitution. You
see, the Constitution clearly (to most) states the “President … shall
be removed from office on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors.” The Constitution
mandates/charges/commands/directs, removal upon conviction. The only
question the Senate has to address is if Clinton did what he is accused
of doing. Did the president lie under oath,
and/or did he obstruct justice?

The Senate does not (this time) have the luxury, or wiggle room, to
mitigate their responsibility because of partisan preference, concerns
about the election back home, or any personal antipathy they may harbor
the mandatory penalty prescribed.

There has been a great deal of discussion about the impeachment of
Judge Walter Nixon in 1989. Defenders of the president have tried to
suggest a judge is different than a president. They are right. They
a judge enjoys a lifetime appointment, whereas the president has a
term. They are right. However, they then suggest there is a different
standard for judges than for a president. They are wrong. The
Constitution contains just one impeachment standard for all public
officials. It is significant that 48 senators now serving in the 106th
Congress voted in 1989 to convict U.S. District Judge Walter Nixon of
giving “false and misleading statements to a federal grand jury.” These
same senators cannot (or should not) vote to acquit Clinton of the same
offense by saying/wishing the Constitution imposes a different
impeachment or removal standard for judges and presidents. It does not.

If the evidence shows the president lied under oath, or obstructed
the Senate must find him guilty, and remove him from office. If there is

not a two-thirds majority voting guilty to the articles of impeachment,
“Katie bar the door!” The harm that will result will domino:

This is not hyperbole … it is axiomatic.