The Senate is desperately seeking an endgame to the impeachment trial which will provide members plausible deniability, and create the illusion of having performed their constitutional responsibilities. Something, anything, that will play Peoria. Perception rather than reality ... form rather than substance.
Dueling constitutional scholars is the latest rage. I read the Douglas W. Kmiec piece in the Wall Street Journal Friday, Jan. 29, and gagged up breakfast. Kmiec claims that impeaching the president does not require his ouster. Hell-o? He claims Article I, Section 3 "appears to allow for a lesser penalty than booting a popular but flawed chief executive." Oh really?
This gaggle of spineless duplicitous senators have posited more creative concepts from whole cloth than resulted from the booze parties of Hemingway, Stein and Fitzgerald. God forbid they feel compelled to make a decision which is inconsistent with the latest public opinion poll du jour. If public opinion were to be the primary, or sole, catalyst for legislative action, guess what? Slavery would not have been abolished, Women would not have the right to vote, and the Civil Rights Act would not be law.
Meanwhile we have heard the Senate claim: The House should not have forwarded the articles of impeachment.
Well it is not their job to determine that. Thomas L. Jipping, director of the Center for Law and Democracy, correctly wrote, "The Senate may not consider whether Mr. Clinton's actions are impeachable. In Article I, Section 2, the Constitution assigns the "sole power of impeachment" to the House of Representatives." The "sole power of impeachment" rests with the House ... the Senate (according to the Constitution) doesn't have Jack-spit to say about that power. The power of impeachment inherently includes the determination of whether a public official's actions are impeachable or not. The House did its job. Period. Over. End of text.
OK, the House did their job. Members fulfilled their constitutional responsibility. Now, it's the Senate's turn. Article I, Section 3 of the Constitution assigns the "sole power to try all impeachments" to the Senate. Got it? The Senate conducts the trial. The House, as a body is done. The Senate is a trial court to decide whether the defendant is guilty as charged. Guilty or not guilty ... that is the question. Did William Jefferson Clinton commit perjury? Did he obstruct justice? The Senate is not an appeals court which gets to decide whether the defendant was properly charged. Only the House is authorized by the Constitution to decide what is impeachable ... and in case you missed it ... the House has already accomplished that task.
Sens. Tom Harkin, Dianne Feinstein, and other co-conspirators have floated the idea (which reportedly is gaining support) that somewhere they have options, and may consider whether Clinton's actions justify removal. This is the bogus Harkin plan of two votes: one guilty/acquit vote, and then (apparently if or when two-thirds actually did their job), a second vote to remove/retain the president. THAT dog don't hunt. At least not according to Article II, Section 4 of the Constitution. You see, the Constitution clearly (to most) states the "President ... shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The Constitution mandates/charges/commands/directs, removal upon conviction. The only question the Senate has to address is if Clinton did what he is accused of doing. Did the president lie under oath, and/or did he obstruct justice?
The Senate does not (this time) have the luxury, or wiggle room, to mitigate their responsibility because of partisan preference, concerns about the election back home, or any personal antipathy they may harbor for the mandatory penalty prescribed.
There has been a great deal of discussion about the impeachment of federal Judge Walter Nixon in 1989. Defenders of the president have tried to suggest a judge is different than a president. They are right. They claim a judge enjoys a lifetime appointment, whereas the president has a limited term. They are right. However, they then suggest there is a different standard for judges than for a president. They are wrong. The Constitution contains just one impeachment standard for all public officials. It is significant that 48 senators now serving in the 106th Congress voted in 1989 to convict U.S. District Judge Walter Nixon of giving "false and misleading statements to a federal grand jury." These same senators cannot (or should not) vote to acquit Clinton of the same offense by saying/wishing the Constitution imposes a different impeachment or removal standard for judges and presidents. It does not. ...
If the evidence shows the president lied under oath, or obstructed justice, the Senate must find him guilty, and remove him from office. If there is not a two-thirds majority voting guilty to the articles of impeachment, "Katie bar the door!" The harm that will result will domino: