Next, the Senate Trial

Copyright 1998 Landmark Legal Foundation

http://www.llf.org/

Moments after his impeachment, Bill Clinton, surrounded by scores of the president's most rabid congressional supporters, told the American people that "We must stop the politics of personal destruction. We must get rid of the poisonous venom of excessive partisanship, excessive animosity and uncontrolled anger. That is not what America deserves. That is not what America is about." The most uncivil and indecent man to occupy the office of the presidency now lectures us about the dangers of the politics he has perfected and unleashed on this great nation during his six years in office.

Last Friday, Hustler magazine publisher Larry Flynt, who is paying $1 million for embarrassing information on Republican officials -- and helped end the political career of would-be House Speaker Bob Livingston -- told ABC News that his dirt-digging investigators are "friends with people inside the White House." Flynt also said that it's possible some of the conversations got out, which seems to explain the timing of the Livingston disclosure on the eve of the impeachment vote. Moreover, Flint would not deny that Terry Lenzner, the private detective hired by the president to trash his adversaries, is working for him. Flynt promises more disclosures.

And yesterday we learned that Salon magazine, a leftist online web site which is funded largely by wealthy Clinton supporters - and whose staff is close to Clinton political hit man Sidney Blumenthal -- is apparently about to publish more personal information about Rep. Dan Burton's sex life. Early during the House impeachment inquiry, Salon also attempted to intimidate Rep. Henry Hyde by revealing an affair he had thirty years ago.

Mr. Clinton's supporters, on and off the government payroll, have spent years investigating the personal lives of private citizens and public officials for the purpose of intimidating and silencing them. The president's cronies trashed Gennifer Flowers, Paula Jones, Kathleen Willey, Dolly Kyle Browning, Monica Lewinsky, and other unfortunate women who happened to cross Mr. Clinton's path. They examined the lives of Independent Counsel Kenneth Starr and his deputies, hoping to scare them into submission. They have attempted to destroy the reputations of conservative philanthropists like Richard Mellon Scaife and Peter Smith. And they succeeded in launching a federal investigation against the American Spectator magazine, among others. Meanwhile, it appears we'll never know who was behind the collection and rifling of some 900 secret FBI files.

And what about those pious Senate Democrats who point self-righteously to the House Republicans as partisan politicians who used an unfair process to impeach the president? Did not Joe Biden, Pat Leahy, Ted Kennedy and Carl Levin lead the assaults on Bob Bork, Clarence Thomas, John Tower and Ed Meese? Indeed, these Democratic senators invented the independent counsel law, which was intended from the beginning to weaken a presidency occupied too frequently by a Republican, and to criminalize political and policy disputes.

We don't need lectures from this president and his party about "poisonous venom" and "excessive partisanship," despite their expertise on the subject. This town is strewn with the bloodied careers and reputations left in their wake. And it will be up to others in future years to remedy what they have wrought. The issue today is not, and has never been, partisanship. It is upholding the United States Constitution against those who would undermine it. Mr. Clinton was just impeached for the criminal offenses of perjury and obstruction of justice. As a defendant in a federal civil rights action, he tried to fix the outcome of the case by cooking the evidence, lying to a federal judge, and conspiring with others to accomplish both. He used the powers of his office to try to coverup his crimes, and he repeated his lies to a federal grand jury and to Congress.

Now that the House of Representatives has completed successfully its constitutional obligation to impeach a lawless president -- rejecting demands for an unconstitutional "presidential censure" in lieu of enforcing the impeachment process -- the focus is on the Senate. Can the Senate be counted on to do its constitutional duty as well? Already we're hearing talk about cutting deals of one kind or another. Sen. Orrin Hatch repeated on NBC's "Meet the Press" that a determination of the president's likely conviction should be made in advance of a trial as a guidepost to any action the Senate might take. If followed, this would be a politically expedient abdication of responsibility. It suggests that a trial is superfluous because many of Mr. Hatch's colleagues are so politically driven that they are immune from findings and evidence that would be presented at a trial. Yet, one of the key reasons the founding fathers gave the Senate the impeachment trial power was because they concluded that that body was less likely to be influence by the politics of the moment.

Moreover, of the fifteen impeachments that have occurred during our history (excluding the Clinton impeachment), the Senate has voted to convict only seven times. Senators weren't polled in advance of, or during the early stages of, a trial. This is just another ruse intended to circumvent the Constitution. A trial should not be avoided. It should be used to allow a president to defend himself against very serious allegations and to enable senators to hear the evidence - whether damning or exculpatory.

Many are calling on the president to resign. The Clintonoids have actually helped make the case for this wrongheaded proposition. Using the same arguments the president's supporters offered foolishly during their demand for censure in lieu of impeachment, some of Mr. Clinton's critics are now saying that a Senate trial will disrupt the workings of the government. Of course, a Senate trial will not stop the government checks and subsidies from flowing. It will not stop the bureaucracy from issuing regulations and the IRS from collecting taxes. Unfortunately, the massive welfare state is largely on autopilot. And there's precious little the Senate can do in the next few months to change that, even if it had the will to.

More importantly, while politically alluring to many of his critics, Mr. Clinton should not resign. He has been charged, not convicted. By resigning he will weaken further the office of the presidency. Although he personally might not be able to withstand a trial, the country and the office of the presidency certainly will. Mr. Clinton has a duty to remain faithful to the constitutional process installed by the founders and not create another bad precedent whereby presidents are expected to resign upon impeachment. On those rare occasions when presidents are impeached, they should take their case to the Senate as the founders contemplated.

Finally, the "censure" idea simply will not die. The reason is apparent: Mr. Clinton does not want to be tried by the Senate, just as he did not want to face a jury in the Paula Jones case. He is guilty as charged of perjury and obstruction, and those urging censure on his behalf - or hoping to short-circuit the trial process -- know it. That is why the House Judiciary Committee Democrats refused to use their subpoena power to call any fact witnesses during the impeachment hearings. And that's why we hear hysterical rhetoric about the supposed societal dangers of an impeachment trial in the Senate.

Unlike President Andrew Jackson, who fought ferociously against being censured by the Senate -- and argued that the Senate didn't have the constitutional authority to impose such a punishment on a president -- Mr. Clinton is the only president in American history to ask to be censured. The only judicial-like exercise granted the Senate by the Constitution is the power to conduct a trial. The Senate does not have the constitutional authority to manufacture a new procedure, or expand its impeachment power, to accommodate this president or its fainthearted members. The Senate of 1834 subverted the Constitution by censuring a president who was never impeached by the House. The Senate of 1999 should not likewise subvert the Constitution by censuring a president who was impeached by the House.

This is a Republic. The U.S. Constitution, which is the backbone of our Republic, should not bend to the political whims of the moment, or the personal desires of any individual - whether he be president or senator. If the members of the Senate fail to follow the constitutional framework and formulation for an impeachment trial, they, like the president just impeached, can also be accused rightly of undermining the Constitution and the rule of law.

 


Landmark Legal Foundation is doing some great things for our liberty. You can read their material by visiting their web site at

http://www.llf.org/