Though impeached, president retains all powers of office Constitution says authority remains unless Senate convicts

Impeachment Of The President

December 21, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Between the House vote to impeach President Clinton and the final outcome in the Senate, the president will retain, unimpaired, the full powers of office. But that interval is sure to be politically troubled and may seem constitutionally awkward.

Any loss of authority, legal scholars and political analysts appear to agree, will be a political consequence, though not a constitutional reality.

Just as some Republicans questioned Clinton's motives for the military strike against Iraq on the eve of impeachment vote by the House of Representatives, some would almost certainly question the legitimacy of any significant domestic actions by the president.

But nothing Clinton would do during that period would be in doubt legally just because the House had voted to impeach, these observers say.

"He remains president, and he remains a fully functioning president, at least constitutionally," said Suzanna Sherry, a professor of constitutional law at the University of Minnesota.

"He is president, and anything he does -- until the point the Senate convicted him -- will be treated the same way as the things he did today, yesterday, or whenever," she added. "Under the Constitution, no punishment attaches until there is a conviction."

Douglas W. Kmiec, a professor of constitutional law at Pep-per-dine University, agreed, saying that nothing in the Constitution's provisions on impeachment "would suspend the president's authority to act."

In the history of the Constitution, as well as its text, Kmiec said, "there is a total absence of any authority" for treating Clinton "as less than a president" prior to conviction and removal by the Senate.

As the impeachment process moves into the Senate, potential problems for Clinton's ability to govern could multiply.

With a trial impending, "the question becomes: Does the president retain his political authority?" asked Thomas E. Mann, director of governmental studies at the Brookings Institution. The use of presidential powers, he suggested, "becomes more and more difficult," because of "constant questions" and "second-guessing by everyone."

"It is going to be a particularly nasty period in our public life, and not a very productive one," Mann said. "Particularly if there is a long trial in the Senate, the process will occur without any other policy-making activities transpiring."

Joel B. Grossman, a political science professor at the Johns Hopkins University, said: "It will be like a zoo."

Others have suggested that any high-level policy goals the president might want to pursue -- such as finding a cure for the Social Security deficit, or enacting a "patient's bill of rights" on medical treatment -- almost certainly will be casualties during the impeachment trial, and perhaps beyond.

Rep. Lee H. Hamilton, a respected Indiana Democrat who is about to retire, has suggested that the House vote to impeach will cause some "weakening" of the president's ability to manage foreign affairs.

"It is realistic to say that, somewhere along the way, there are going to be some doubts [among nations] about a weakening of resolve" in U.S. foreign policy, Grossman said. "That's natural."

But, he said that would not be "a major problem." If the president were removed and replaced by Vice President Al Gore, "there will not be a change in direction," and other nations will now be taking that into account as they react to Clinton's troubles. "Is Al Gore going to fire [Secretary of State] Madeleine Albright?" Grossman asked. "Hardly."

The House impeachment will be seen by many as a vote of "no confidence" in Clinton's presidency, in some sense similar to such a vote when a British prime minister falls out of favor with Parliament.

But the U.S. Constitution -- unlike British tradition -- does not translate such a vote into the end of a government, and it imposes no duty on Clinton to resign nor in any way diminishes his powers.

Some scholars, disturbed that impeachment of Clinton was voted largely along party lines, suggested that the matter may be pushing the United States closer to a parliamentary-style system.

Sherry said the United States is "dangerously close to that," in the wake of Clinton's troubles with a Republican-led Congress.

"That is not exactly a violation of the Constitution," she added, since the House clearly had the constitutional authority to impeach, however much the vote was driven by partisan motives.

"But it does violate the spirit of the Constitution," she said. "It sets a precedent that makes it much easier the next time."

As the House moved toward impeachment, there were increasing calls, mainly from Republicans, for Clinton to resign, even though the House vote would not require that. The demands for resignation will likely increase in the wake of the House vote.

If the pressure on Clinton grows so intense that his ability to govern is seen by him to be impaired, the Constitution does provide a way that he could step aside temporarily -- and await the outcome in the Senate.

Pepperdine's Kmiec said Clinton could invoke the 25th Amendment, which permits the president to notify Congress "that he is unable to discharge the powers and duties of his office." He could then step aside until he decided that that inability has passed.

In the meantime, all presidential duties and full constitutional powers would fall to Gore as acting president.

Pub Date: 12/21/98

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