Deficits of a Senate Trial Are Wildly Exaggerated – difficulties of impeachment outweighed by costs of dismissal or censure – Brief Article

Deficits of a Senate Trial Are Wildly Exaggerated – difficulties of impeachment outweighed by costs of dismissal or censure – Brief Article – Column

Bruce Fein

All the nation has to fear from a Senate impeachment trial of President William Jefferson Clinton is fear itself. None of the apocalyptic forecasts trumpeted by trial opponents to justify lurching toward an extraconstitutional censure solution seem persuasive.

The best way to vindicate the Constitution’s impeachment provisions is by following the blueprint, not by creative innovations to escape a politically unpleasant impeachment vote. The Founding Fathers envisioned senators as headwinds against, not weathervanes of, popular passions or sentiments.

Detractors of a Senate trial insist the proceedings would dangerously agitate an already polarized electorate. But what is the danger? The heart of democracy is robust and heated debate that falls short of violence. The nation was polarized about the Vietnam War, but Senate oversight hearings and national debate continued, even in strident tones. The United States did not become unglued despite stresses at the joints.

The Senate impeachment trial of President Andrew Johnson is virtual proof that a reenactment with Clinton in the dock would be unworrisome. At the time of Johnson’s trial in 1868, the nation was far more inflamed by political animosities in the aftermath of the Civil War and President Abraham Lincoln’s assassination than at present. Radical Republicans were in the congressional saddle and bent on subordinating Democrats with any vestiges of sympathy toward the Confederacy or an undraconian policy of Reconstruction. The House radicals improperly impeached the president largely for differences over Reconstruction, but the Senate exonerated Johnson by one vote (a two-thirds majority is needed for conviction) after a trial consuming approximately 80 days.

Many Radical Republicans and their supporters were profoundly disappointed. But the constitutional rules of the game had been followed. The nation accepted the acquittal. Johnson completed his presidency, and Ulysses S. Grant was elected his successor later in the year.

A Senate impeachment trial of Clinton and a subsequent verdict may raise the sound of political and partisan debate in the nation several octaves. But that is undisturbing. The American people are politically mature, more so than during Johnson’s trial 130 years ago. They will accept the legitimacy of a verdict — either acquittal or conviction — so long as no constitutional shortcuts or chicanery are suspected.

Several senators, nevertheless, are flirting with the idea of charting new constitutional waters by aborting an impeachment trial in favor of a censure resolution. Senate rules permit trial suspension by majority vote, although all previous proceedings have concluded with verdicts. Thus, a suspension maneuver with Clinton would be a dubious novelty.

Furthermore, the Senate has not previously attempted to substitute censure for an impeachment verdict, and eleventh-hour constitutional improvisation on a matter of high state would be deemed illegitimate by many — an evasion of the Senate’s trial duty to adjudicate impeachment charges referred by the House, not render them nugatory by suspended animation.

Antitrial militants also prophesy that the process would put the federal government in temporary rigor mortis. The chief justice of the United States, the president and all 100 senators would be consumed by the proceedings. But their involvement would only slow the federal leviathan from allegro to adagio, nothing like the 1995 shutdown of the executive branch occasioned by a budget stalemate.

The federal bureaucracy during a Senate trial would continue to pour forth with countless regulations ranging from clean air and water to the safety of bunk beds. Social Security, pension and other expenditures in the $1.7 trillion budget would be unaffected. Chief Justice William Rehnquist could continue to discharge his Supreme Court duties by attending morning oral arguments, by reading the transcripts of afternoon sessions and by declining to vote in cases otherwise unanimous — typically 40 to 50 percent of high-court decisions on the merits.

Both Secretary of State Madeleine Albright and National Security Adviser Sandy Berger have vouched that the nation’s international relations would be unruffled by an impeachment trial, and Clinton has registered no dissent from their evaluations. A Senate trial would delay legislative additions to the voluminous federal criminal and civil codes for a few months, but such a breathing spell in lawmaking is justified by the overriding importance of doing impeachment justice.

An impeachment trial of President Clinton will be a disagreeable enterprise, but there is something far worse: declining or aborting a trial by a constitutional end run.

Bruce Fein is a lawyer and freelance writer specializing in legal issues.

COPYRIGHT 1999 News World Communications, Inc.

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