February 8, 1999
Review & Outlook
Abstain From Censure
Chief Justice William Rehnquist, in his book "Grand Inquests" wrote that "a mere record of questions and answers tell us nothing about what the courts call the 'demeanor' of the witness--the expression of his face, his attitude, his intonation and similar things." We'd give a lot to know what the Chief Justice thought of the long Saturday that he, the Senate and the American people spent with those three witnesses. He was right about seeing them first-hand, which is to say the House managers were right to insist we all get a look.
By the end of the day, the impression here was that we were seeing a White House defense more apt for the trial of Don Corleone than the President of the United States. At every turn, his lawyers argued, the President is separated from the charges by buffers.
The "good friend" and powerbroker helps a lot of people, and was helping this nobody regardless of whether she was on a witness list. The hiding of the gifts, the defendant's lawyers smoothly argued, wasn't the President's doing but erupted spontaneously from Monica's mind. After Monica's deposition with the House managers, the word put out was, she "gave them nothing." She gave us herself Saturday. She's a tough cookie.
We have arrived at the point where the issue bluntly is this: To what extent do the Republican Senators have to participate in a Democratic charade?
We do think that Senator Lott was too timid in wanting to avoid a recognizable trial. But no question that the Majority Leader had a lot of balls to juggle--the House GOP's remarkably principled impeachment vote, Senate egos, one-way pressure from the Beltway, nervous party professionals and an angry voting base. His options fell dramatically, though, the day Bobby Byrd announced that motion to end the trial. This signaled that the Democrats' minds were closed.
Perhaps the closing of the Democratic mind makes Sen. Lott's job easier. It proves that the appeals to "bipartisanship" are fake. Bipartisanship apparently means Republicans have to vote with Democrats, never the other way round, even on obvious truths.
Then on Saturday, the President's defenders sawed off more limbs for wavering Republican moderates seeking the vague haven of censure rather than conviction. How many of them beyond the usual handful now can say the case has not been proved? If there has ever been a justification for not hearing this case, it is that it was already clear.
The Republicans may rightly feel that the conventional Beltway wisdom has relieved their Democratic colleagues once again of any burden to responsibility. History, however, may not be so kind to the Democrats, especially those who understand the character of this presidency--Senators Lieberman, Moynihan, Kerrey, Breaux, Feinstein and perhaps several others. Sen. Byrd said on ABC yesterday: "The question is, does this rise to the level of high crimes and misdemeanors? I say yes, no doubt about it."
What remains to be seen is how many of Sen. Byrd's colleagues will try to maintain their constitutional cover story that perjury does not rise even to the level of an impeachable misdemeanor. Read the simple language of the Domenici-Snowe "finding of fact" resolution reprinted nearby1. Can these Democrats not even put their names to this?
Rather than pronounce any judgment grounded in the law, they instead would wrap themselves in the language of Sen. Feinstein's censure resolution, also reprinted here. What does it say? It says Bill Clinton was "shameless" and "reckless," that he disrespected the law. And what do they assert as the basis for this collection of censorious adjectives? Whereas, he "engaged in an inappropriate relationship with a subordinate employee. . ." In other words, we undersigned Democrats were really grossed out by that stuff in the side office. Now let's move on.
The Democratic phalanx is set to vote Bill Clinton not guilty, so the Republicans' job is to form votes around and against that reality.
It is fine if the GOP wants to offer the finding of fact language as a their own censure substitute. It at least flows logically out of the constitutionally ordained conclusion brought to them from the House. Censure, by contrast, is a concoction; it raises bill-of-attainder problems and as Sen. Gramm notes, is a precedent sure to be hauled out too quickly by future Senates.
Beyond the trial vote and perhaps finding of fact, it seems to us the Republicans' duty is done. At this juncture, faced with a Democratic phalanx and a White House ready to celebrate, the Republicans should abstain from any proposed vote to censure.
The great virtue of abstaining is that if it's a weak resolution, neither yea nor nea is a very good vote. As well, it makes the point that the whole exercise is simply cover for the Democrats not willing to convict. The hard truth is no one is ever going to find censure language that can command a majority. Democrats on the left are likely to desert even the Feinstein language, let alone anything that goes to the rule of law. All the more reason for Republicans to abstain and let the Democrats fight it out among themselves.
The truth is the vote on conviction is the only chance Senators will have to express an authentic condemnation of Mr. Clinton's behavior. They can kid themselves all they want, but in fact they have two choices: Vote to remove him, or vote to exonerate him.
The Founders did not write the impeachment clauses so their successors 200 years later could wrestle with hypertechnical interpretations of the current state of perjury law. That is the province of John Gotti's lawyers, not the profound question before this Senate. The President is charged with taking care that the laws be faithfully executed. He is the caretaker of our system of laws. This President, his lawyers and his apologists have left a whole nation confused, and divided, over which of our laws means what. The Senate's Republicans should abstain from being a party to that.
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