First, an allegory: The highly capable but tired old obstetrician,
uncertain of whether he still has the energy to complete the troubled
delivery, decides to take the easy and convenient way out. Encouraged by
a slim majority of his 99 fellow doctors, he succumbs to the pragmatic
appeal of convenience killing.
He announces to his impatient colleagues that he will lead them in an
11th-hour partial birth abortion of the “problem” at hand. Better,
they agree, to end this birthing “trauma” now — and get on with “the
people’s medicine.” They talk as though they cannot cope with both
missions simultaneously.
Moving from allegory to the present tense, our distinguished doctor
(Sen.
Robert C. Byrd) at one time strongly supported bringing the troublesome
“pregnancy” of presidential impeachment to full term, and then dealing
appropriately with whatever truth emerged.
But late last week, our esteemed doctor-come-senator flipped from
Hippocratic to “hypocritic” behavior. To the surprise of most, this
paragon of Senate tradition proposed a constitutional short-circuit — a
mid-trial “Motion to Dismiss” — which would produce a trial record that
is intentionally incomplete. In hear-no-evil fashion, he opposes calling
any witnesses whatever, a radical departure from Senate tradition in
impeachment trials.
Although the Motion to Dismiss cover-up has now been rejected by the
Senate on a near party-line vote of 56-44, the Democrats’ desperate
search for a quick way out continues apace. Particularly interesting is
their current enthusiasm for censuring a post-acquittal Bill Clinton. If
the censure in question is tough-sounding but impacts minimally on the
president and can serve as “political cover” for anti-conviction
senators, they will be all for it.
But if the proposed Articles of Censure were discovered to have “big
sharp
teeth” and could not be manipulated to their and the president’s
advantage,
their song would suddenly change. They would self-servingly begin
arguing that their once-favored notions of censure are, after all, “not
anticipated by the Constitution” and “would probably constitute a Bill
of Attainder” and “might violate separation-of-powers,” etc., etc.
The question of the moment, therefore, is whether the Senate
Republicans — who have fervently argued that any censure whatever would
be a damnable cop-out intended only to give anti-conviction Democrats
political cover — will now have the sense to recognize an appropriately
harsh censure when they see it.
Following the highly likely vote to acquit a clearly culpable but not
quite
removable Bill Clinton, will they prefer a) no censure at all, in which
case he will claim vindication from every rooftop? b) a Democrat-White
House version, which would be “spun” to this same result? or, c) an
appropriately harsh version of their own, which is so close to formal
conviction that the Clinton Democrats will be fighting it tooth and
nail?
Of course, there is such an “Only Appropriate Censure.” In layman’s
terms, it would be a de facto Senate verdict of guilty without removal.
Such a result would be achieved by the Senate’s simply transforming the
two House Articles of Impeachment, almost verbatim, into its own Senate
Articles of Censure. Only the two House articles’ phrases calling for
removal would be deleted.
If the Constitution requires, it could be adopted as a Sense of the
Senate
resolution immediately following, rather than during, the formal
Impeachment proceedings. In this event, it would be introduced, debated
and adopted as the “Senate Articles of Post-Impeachment Censure.”
As such, its precedent value would apply only to those rare occasions
in
which the House impeaches, but the 67-vote super-majority in the Senate
cannot be mustered to actually remove the miscreant from office.
Requiring neither the president’s signature, his “apology,” his
“admission” of anything, nor his payment of fines, it could in no way be
deemed an illegal Bill of Attainder.
While certain to be opposed by the president and by many partisan
Democrats, it should win several centrist votes of the Pat Moynihan, Joe
Lieberman, John Breaux, Bob Graham and Bob Kerrey variety. These are
Democrats of stature who have been pleading in good conscience for a
truly meaningful censure, as a sufficient alternative to a president’s
ignominious removal from office.
A word of caution: With this option open to them, Senate Republicans
should not be seduced by any well-intentioned but insufficient two-vote
“Findings of Fact” procedure or by any “Adjournment-Plus” compromise.
First, these options may not be constitutional. Second, while giving a
bipartisan (i.e., White House-approved) nod of recognition to the
propriety of the House Articles, these approaches are likely to be
compromised to the point of being eventually “spun” into a
quasi-vindication for a plainly guilty Bill Clinton.
Although very tough on the president and destructive of his “place in
history,” objective analysis suggests that all three principal parties
to
these proceedings — Bill Clinton, the mostly supportive Democrats and
the
mostly critical Republicans — would each have something to gain from
such a Senate verdict of “guilty without removal.”
- The president, severely chastised, would remain in office. He would
neither have to “admit” or to “apologize” or to pay fines for his
travesties. He would be privileged to complete his term and to begin
repairing his tattered personal and presidential legacies. - The permissive and largely partisan Democrats would, in true
Hillarian
fashion, have loyally “stood by their man.” They could boast of having
saved a “tired” and “bored” nation from the “trauma” and the “national
agony” of presidential expulsion. They would have achieved both
“closure” and a return to “the people’s business.” - The pro-conviction Republicans (along with several centrist,
non-permissive Democrats) would have confirmed the relevant elements of
the Starr Report. To the great benefit of their House Republican
colleagues, they would have embraced verbatim the House Articles of
Impeachment on these points. And they would have avoided the dangers of
either no censure or milque-toast censure described above.
Properly presented as the Senate’s one and only opportunity to vote
for or
against censure, this approach should attract several Democratic
senators
who, having already voted against conviction, would not risk their own
legacies by voting a second time in a pro-Clinton, “stand by your scam,”
perjury-doesn’t-matter fashion.
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.
Jerome M. Zeifman is a classical-liberal Democrat who served as
chief counsel to the House Judiciary Committee during the 1974 Nixon
impeachment proceedings.
