Senate should avoid setting bad precedent

February 03, 1999|By Orrin Hatch

WASHINGTON -- The integrity of our government of laws -- not men -- depends on our fidelity to the basic principle that society holds each of its members accountable to the rule of law. Similarly, when the House impeached President Clinton for his alleged perjury and obstruction of justice, Congress was demonstrating that it would not tolerate conduct in our president that would not be acceptable were it committed by other citizens.

The House, in performing its constitutional accusatory function, without regard to whether the Senate would likely convict, reaffirmed that a president will be held accountable to the rule of law. And it informed future presidents that obstruction of justice and perjury may lead to removal.

But what are the consequences for the rule of law if the Senate proceeds to acquit the president? Some have argued that for the rule of law to be safeguarded the Senate must come to terms in the trial. In other words, a vote up or down on conviction must occur. That is why some of my colleagues support a bifurcated vote: One vote on the facts -- whether the president committed the offenses alleged -- and the other vote on whether he should be removed.

A bifurcated vote would allow the Senate to, in effect, condemn Mr. Clinton by finding that he committed felonies. But there is a downside to this procedure: It is anticipated that on the final vote, Mr. Clinton would be acquitted. Is it really in the best interests of the country for the Senate to rule that perjury and obstruction are not removable offenses? I think not.

Should the Senate proceed to a final vote, I am prepared to vote my conscience. Still, the Senate should seek a conclusion that protects the integrity of the House impeachment articles by avoiding a historic vote on the merits, which could be interpreted as vindicating the president and telling the country and future generations of Americans that perjury and obstruction of justice are not impeachable offenses.

The message the House sent to our posterity is that Mr. Clinton's behavior is immoral and wrong. In history books, he will go down as only the second U.S. president to be impeached. Any vote that acquits Mr. Clinton minimizes the importance of the articles.

To acquit the president may well weaken the rule of law and would create a precedent that could very well encourage wrongful conduct by public officials. After all, if the Senate votes to acquit Mr. Clinton and, thereby, finds that perjury and obstruction of justice are not removable, will future presidents, judges and other officials be appropriately deterred from committing similar acts?

A sound plan

The Senate does not have the votes to convict the president, and more than one-third of the Senate (all but one of the 45 Democrats) has said it never will. Since it appears that the president will stay in office, the Senate should seek a conclusion that brings Democrats and Republicans together and also avoids the formal ruling that Mr. Clinton's conduct is not removable. The Senate should vote to adjourn the trial permanently on these grounds: Mr. Clinton gave false and misleading testimony under oath in federal court and has, in several ways, impeded the justice system's search for truth.

He will be subject to federal criminal jurisdiction for his acts after he leaves office.

The Senate acknowledges, recognizes and accedes to the articles of impeachment passed by the House as Impeachment Without Removal, the highest form of condemnation, other than removal.

Were the Senate to adjourn and make these findings, it would deny the president an acquittal -- the result he craves for his own historic legitimacy. The Senate would also make clear that the House-passed articles of impeachment are constitutionally legitimate by stating that the articles themselves are the highest form of condemnation.

No censure vote

It would also allow Democrats to vote their conscience without having to vote to acquit. This alone could avoid a prolonged post-trial squabble over a cover-your-tail censure resolution.

It is better for the country, the rule of law and the Constitution that the Senate not formally vote that perjury and obstruction of justice flowing from private conduct are not impeachable offenses.

The virtue of this approach is that no one can seriously argue the articles are superseded or irrelevant. While the approach may at first glance appear to be legal sophistry, the Senate will not have crossed the Rubicon by finding that obstruction of justice and perjury are not impeachable offenses.

The adjournment solution is the most honorable way to conclude this drama. The Senate will have done its constitutional duty by holding and concluding a trial. It will have employed a fair process and have done impartial justice.

Historic precedent

Indeed, in the trial of Andrew Johnson, the Senate adjourned the impeachment trial without having passed final judgment on eight of the 11 impeachment articles against him. By permanently adjourning, the Senate will not have formally acquitted the president and therefore will not have established the precedent that obstruction of justice and perjury are not impeachable.

The House's vote to impeach Mr. Clinton will stand as a rebuke forever, and the search for truth will have trumped political expediency.

Senate Judiciary Chairman Orrin Hatch, a Utah Republican, wrote this for the New York Times.

Pub Date: 2/03/99

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