Don't Tinker With Impeachment
By Robert C. Byrd
Wednesday, February 3, 1999; Page A17
While the lawyers are busy deposing witnesses in the Senate impeachment
trial of the president, a number of senators are continuing to work quietly
behind the scenes to chart a course that will end the trial with a minimum of
political carnage. One route currently being investigated is a so-called
"findings of fact," an extravagant novelty by which a simple majority of the
Senate could condemn the president's behavior within the framework of
the impeachment process without being forced to remove him from office.
This convict-but-don't-evict strategy appeals to some senators who have
no appetite for prolonging a trial whose outcome is all but certain. At the
same time, they are squeamish about the likelihood of an all-but-inevitable
acquittal without having some vehicle to first register their condemnation of
the president's actions. No doubt their motives are sincere, and I applaud
their ingenuity, but this findings-of-fact proposal is not the answer. While
the Senate sits in the impeachment trial, it is not in legislative session. The
insertion of such a legislative mutant into the impeachment proceedings
would subject the process to some very experimental genetic engineering.
The notion of trumping the articles of impeachment with even a "broad"
findings of fact flies in the face of what the Framers of the Constitution
intended. They deliberately set the bar high when it came to the vote on
articles of impeachment, first by requiring a supermajority of two-thirds of
the Senate to convict, and second, by fusing the penalty -- removal from
office -- into the question of guilt.
In voting on articles of impeachment, senators must answer not one but
two questions: Is the president guilty or not guilty of committing high crimes
and misdemeanors, and, if he is guilty, do his actions warrant removal from
office?
This was not a casual coupling on the part of the Framers. Their intent was
to force senators to set aside their own passions and prejudices and focus
instead on the best interests of the nation. To lift this burden from the
shoulders of senators by offering them a way to convict the president
without having to accept responsibility for removing him from office would,
in effect, bastardize the impeachment process.
Moreover, the aftershocks would be felt long after this impeachment has
faded into history. No longer would senators be confined to the articles of
impeachment formulated by the House of Representatives. No longer
would senators need a two-thirds majority vote to pronounce a president
guilty. From this time forward, they could cite the precedent set by the
Senate in the 106th Congress as giving them carte blanche to write, and
approve by a simple majority, ersatz articles of impeachment cloaked as
"findings of fact."
And why stop at findings of fact? If the Senate can ignore the intent of the
Framers to combine a guilty verdict with removal from office in an
impeachment trial, maybe senators can find a way around the constitutional
prohibition against bills of attainder, or legislative punishments.
The Senate impeachment trial takes place in a quasi-judicial setting, and
findings of fact would move the Senate headlong into an area reserved for
the judicial system, where the Senate, under the separation of powers
principle, dares not go.
Findings of fact would become part of a quasi-judicial record that could
not subsequently be amended or overturned. Could such a record of
findings of fact be later used by an independent counsel before a federal
grand jury in an effort to secure an indictment? If this or any president were
to be indicted, could such findings be introduced as evidence in a
subsequent trial in an effort to sway a jury and bring about a conviction?
Who knows what monsters this rogue gene might spawn in future days?
The impeachment process, as messy and uncomfortable as it may be, is
working as designed. This is neither the time nor the place for constitutional
improvisation. No matter how sincere the motivation, our nation and our
Constitution will not be well served by this sort of seat-of-the-pants
tinkering.
A post-trial censure resolution that does not cross the line into legislative
punishment is something else. It can and should be considered by the
Senate after the court of impeachment has adjourned sine die. Censure is
not meaningless, it will not subvert the Constitution, and it will be indelibly
seared into the ineffaceable record of history for all future generations to
see and to ponder. For those who fear that it can be expunged from the
record, be assured that it can never be erased from the history books. Like
the mark that was set upon Cain, it will follow even beyond the grave.
The writer is a Democratic senator from West Virginia.
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