With sacred oaths taken and basic organizational structure in place,
the
Senate has now begun its constitutionally mandated trial of President
Bill
Clinton under the two Articles of Impeachment (perjury and obstruction
of
justice) adopted by the House of Representatives Dec. 19.
During the first few days of these proceedings, there will continue
to be
much political, constitutional and parliamentary debate over what the
content
and duration of this historic trial will be.
No witnesses or few or many? Open testimony or closed, or some of
both?
“Test votes” to determine whether and how to proceed? Pre-determined
dates for votes on conviction-or-acquittal and on Articles of Censure?
The
sequence of these votes? An open-ended trial without brokered limits?
How much reliance on high-impact rulings by the presiding judge, Chief
Justice
William Renhquist?
The only certainty at this point is that there is so little of it.
Beneath
the bipartisan surface of the 100-0 vote in favor of the current format
of
Senate proceedings, there remains much disagreement between Senate
Democrats and Republicans and, even more so, within each of the
political parties — particularly among “censure” Republicans and those
who demand nothing less than conviction and ouster. Both the Leadership
and many rank-and-file senators on both sides of the aisle continue to
change or to “hedge” their earlier positions.
Yet, despite all the uncertainty — and despite efforts by some
worried
senators to avoid certain votes entirely — a day of reckoning will
arrive
when the “real” votes are cast. A self-respecting Senate, belatedly
concerned about its legacy, will not risk the stench of cover-up.
Like it or not, there will be the momentous vote to
convict-or-acquit,
requiring 67 votes to prevail. Next, assuming a failure to obtain this
unlikely two-thirds majority, there will be a game-ending vote on
Articles
of Censure — requiring only a 51-vote majority. This might come as part
of
the impeachment proceedings per se or it might be done immediately
thereafter, if issues of constitutionality demand.
So, what then should the Senate’s most appropriate Articles of
Censure be?
Surely not a milquetoast slap on the wrist designed by partisan,
pro-Clinton Democrats. Surely not a negotiated “deal” in which President
Clinton plays any role at all, or to which he would have to agree in any
way whatever.
And surely not a seemingly tough resolution whose wording might later
be
“spun” and “parsed” and “slicked” out of all common meaning, so as to
cast
doubt on the efficacy of the House’s Articles of Impeachment and,
thereby,
be seen by all too many as having somehow “exonerated” a plainly
culpable Mr. Clinton.
That most appropriate measure — and, indeed, the only truly adequate
measure — would be to transform the entire text of the House Articles
of
Impeachment (word-for-word, except for the phrase calling for expulsion)
into the Senate’s Articles of Post-Impeachment Censure, instead. Its
text would read as follows:
U.S. Senate Articles of Post-Impeachment Censure
Resolution of Post-Impeachment Censure of William Jefferson Clinton,
President of the United States, for high crimes and misdemeanors.
Resolved, that William Jefferson Clinton, President of the United
States,
is censured for high crimes and misdemeanors, and that the following
articles
of censure be adopted by the United States Senate:
Article I
In his conduct while President of the United States, William
Jefferson
Clinton, in violation of his constitutional oath faithfully to execute
the
office of the President of the United States, and to the best of his
ability, preserve, protect, and defend the Constitution of the United
States, and in violation of his constitutional duty to take care that
the laws be
faithfully executed, has willfully corrupted and manipulated the
judicial process of the United States for his personal gain and
exoneration, impeding the administration of justice, in that:
On August 17, 1998, William Jefferson Clinton swore to tell the
truth, the
whole truth and nothing but the truth before a Federal grand jury of the
United States. Contrary to that oath, William Jefferson Clinton
willfully
provided perjurious, false and misleading testimony to the grand jury
concerning one or more of the following: (1) the nature and details of
his
relationship with a subordinate government employee; (2) prior
perjurious,
false and misleading testimony he gave in a Federal civil rights action
brought against him; (3) prior false and misleading statements he
allowed
his attorney to make to a Federal judge in that civil rights action; and
(4)
his corrupt efforts to influence the testimony of witnesses and to
impede the
discovery of evidence in that civil rights action.
In doing this, William Jefferson Clinton has undermined the integrity
of
his office, has brought disrepute on the Presidency, has betrayed his
trust as
President, and has acted in a manner subversive of the rule of law and
justice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants
censure by
the Senate of the United States.
Article II
In his conduct, while President of the United States, William
Jefferson
Clinton, in violation of his constitutional oath faithfully to execute
the
office of President of the United States and, to the best of his
ability,
preserve, protect, and defend the Constitution of the United States, and
in
violation of his constitutional duty to take care that the laws be
faithfully executed, has prevented, obstructed, and impeded the
administration of justice, and has to that end engaged personally, and
through his subordinates and agents, in a course of conduct or scheme
designed to delay, impede, cover up, and conceal the existence of
evidence and testimony related to a Federal civil rights action brought
against him in a duly instituted judicial proceeding.
The means used to implement this course of conduct or scheme included
one
or more of the following acts:
(1) On or about December 17, 1997, William Jefferson Clinton
corruptly
encouraged a witness in a Federal civil rights action brought against
him
to execute a sworn affidavit in that proceeding that he knew to be
perjurious,
false and misleading.
(2) On or about December 17, 1997, William Jefferson Clinton
corruptly
encouraged a witness in a Federal civil rights action brought against
him
to give perjurious, false and misleading testimony if and when called to
testify personally in that proceeding.
(3) On or about December 28, 1997, William Jefferson Clinton
corruptly
engaged in, encouraged, or supported a scheme to conceal evidence that
had
been subpoenaed in a Federal civil rights action brought against him.
(4) Beginning on or about December 7, 1997, and continuing through
and
including January 14, 1998, William Jefferson Clinton intensified and
succeeded in an effort to secure job assistance to a witness in a
Federal
civil rights action brought against him in order to corruptly prevent
the
truthful testimony of that witness in that proceeding at a time when the
truthful testimony of that witness would have been harmful to him.
(5) On January 17, 1998, at his deposition in a Federal civil rights
action brought against him, William Jefferson Clinton corruptly allowed
his
attorney to make false and misleading statements to a Federal judge
characterizing an affidavit, in order to prevent questioning deemed
relevant by the judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication to that
judge.
(6) On or about January 18 and January 20-21, 1998, William Jefferson
Clinton related a false and misleading account of events relevant to a
Federal
civil rights action brought against him to a potential witness in that
proceeding, in order to corruptly influence the testimony of that
witness.
(7) On or about January 21, 23, and 26, 1998, William Jefferson
Clinton
made false and misleading statements to potential witnesses in a Federal
grand jury proceeding in order to corruptly influence the testimony of
those
witnesses. The false and misleading statements made by William Jefferson
Clinton were repeated by witnesses to the grand jury, causing the grand
jury to receive false and misleading information.
In all of this, William Jefferson Clinton has undermined the
integrity of
his office, has brought disrepute on the Presidency, has betrayed his
trust as
President, and has acted in a manner subversive to the rule of law and
justice, to the manifest injury to the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants
censure by
the Senate of the United States.
* * *
As with any balanced compromise, there would be something in it for
everybody. The impeached president would no longer be at risk of
conviction and removal, and would not even be called on to “admit” or to
“apologize.” The Senate Democrats would achieve their non-judgmental
goals of “getting the issue behind us” and “standing by their man” and
of finally “achieving closure.”
And the Senate Republicans, most of whom would have much preferred
conviction and expulsion of a perjurious Bill Clinton, should be able to
“live with” — and even to discover certain nuggets of victory in —
Articles of Censure which. …
a) would confirm the essential validity of Independent Counsel Ken
Starr’s
findings;
b) would embrace and confirm verbatim the two House-passed Articles
of
Impeachment;
c) would endorse and legitimize the asserted “votes of conscience”
cast by
most House Republicans in favor of Impeachment;
d) would accommodate those several House Republicans and Democrats —
whose numbers may grow in days to come — who favored Impeachment but
are now urging censure by the Senate;
e) should attract several Democrat votes in the Senate, perhaps
certain
prominent ones of the Moynihan-Byrd-Lieberman-Kerrey-Breaux variety, and
thereby render the overall impeachment record far more bipartisan than
it
is currently perceived;
f) would put all those Senate Democrats who have been pleading
(and/or
demagoguing) for censure, rather than conviction and expulsion, “on the
spot” to vote for truly sufficient Articles of Censure — articles not
drafted in
collusion with the accused;
g) would preclude some other resolution of censure containing
provisions
(a fine or a mandated admission of guilt) which might later be
overturned as
an illegal Bill of Attainder;
h) would preclude some other censure which, however damning it might
appear on its face, would be “spun” by the White House and the media as
having rejected the House position and as having somehow exonerated Bill
Clinton.
It should be noted that this approach might be viewed by the White
House,
on reflection, as more dangerous than a full-fledged trial and vote —
and
possible acquittal. This is so because these highly damaging Articles of
Censure might well pass the Senate by a substantial bipartisan vote —
and
could succeed with Republican votes only, if Senate Democrats were to go
shamelessly partisan and make this absolutely necessary.
Faced with the absolute certainty of a monumentally damaging,
impeachment-confirming and House-confirming censure by the Senate, Mr.
Clinton might prefer to “ride the polls” and to continue demonizing the
allegedly “partisan” and “hate-filled” and “extremist” Republicans — in
hopes of eventually being able to claim a perverted sort of exoneration
by reason of the Senate’s failure to produce the 67 votes needed to
convict.
Finally, there are some who fear — or for various reasons pretend to
fear
— that censure in this case would open a Pandora’s Box of disruptive
congressional censures of future presidents, so severe as to lay waste
to
the separation-of-powers between Legislative and Administrative branches
of
government.
Nonsense! All that is necessary to set the current action totally
apart
and to limit its precedent value quite severely will be for the Senate
to
debate it, vote on it and officially entitle it as the “U.S. Senate
Articles of
Post-Impeachment Censure.” Its only precedent value would be during the
next time the House formally impeaches and the Senate cannot muster the
super-majority required to convict and remove from office.
Jim Guirard is a Washington, D.C., attorney and governmental
affairs
consultant. He served for many years as chief of staff to Democratic
U.S. senators Allen Ellender and Russell Long of Louisiana.
