Sunday, December 27, 1998

Senate might surprise us and convict

By WILLIAM A. RUSHER

Newspaper Enterprise Assn.

With the historic vote of the House of Representatives to impeach William Jefferson Clinton, the scene now shifts to the Senate. Acting as jurors in his trial, the 100 senators have the power to convict and remove him from office by a two-thirds vote (67 senators). It is a grim and gripping moment in our history. What will the Senate do?

There are 55 Republican senators and 45 Democrats. If all of the Republicans vote to convict (which is by no means certain), 12 Democrats would have to join them to reach the requisite two-thirds of the whole body. Given how sharply the House divided along purely partisan lines, it is widely assumed the Senate will fail to convict Clinton and that he will therefore remain in office for the remainder of his term.

According to the polls, moreover, that is what "the American people want." At the same time, however, there is widespread sentiment for some punishment of Clinton short of removal from office: a severe reprimand, for example, perhaps accompanied by a fine and a prohibition against ever again holding public office. The trouble with such a solution is that the Constitution makes no provision for such punishment of the president, and there is a strong case to be made that all or parts of it would be flatly unconstitutional as a "bill of attainder." Those favoring that solution reply that the punishment would be imposed with Clinton's consent and that he could waive any such defenses against it.

Be that as it may, we are almost sure to be entering, before a Senate trial can begin, a period of frantic negotiations between the Senate and the White House, looking for some mutually acceptable compromise. Note that both sides have weapons they can use. Clinton, after all, can reject any compromise he doesn't like and let the Senate try -- presumably unsuccessfully -- to convict him. The Senate, for its part, can let the trial go forward, and pair Clinton with Andrew Johnson in the history books as the only two presidents ever subjected to that ordeal. Even if it fails to convict him (as it failed to convict Johnson), Clinton's record as president would be stained forever.

But Clinton would be well-advised to think twice before defying the Senate to do its worst. The astonishing performance of the "moderate" Republicans in the House of Representatives suggests that when members of Congress are confronted with the necessity of casting a truly historic vote, they are impelled to put aside the usual political considerations and act with real gravity and sober responsibility.

The so-called "moderate Republicans" were supposed to number anywhere from 15 to 30 and to be strongly opposed to impeachment. Many of them come from districts containing a large number of Democratic voters, who allegedly favor some lesser penalty, like censure. And yet, once the Judiciary Committee had issued its report, one after another of the Republican "moderates" stepped forward and announced he or she would vote for impeachment after all. It is preposterous to imagine this was mere partisanship; these are the least partisan members of the Republican majority. They voted for impeachment because, faced with the inescapable facts of Clinton's conduct, they felt they had no other choice.

Can anyone be sure that 12 of the 45 Democratic senators won't come to a similar conclusion?

One other thing. As the House moved toward impeachment, the most striking aspect of the whole affair was the apparent indifference of the public. Despite frantic White House efforts to ignite a firestorm of protest that the House would not be able to ignore, most people -- even those who said they opposed Clinton's removal from office -- remained unmoved at the prospect. It was almost as if they felt his fate, albeit harsh, was not undeserved.

If the Senate detects that mood, its response may surprise us all.

William A. Rusher is a Distinguished Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy.