Senate Trial: Still on a Conviction Track Jude Wanniski December 21, 1998

Throughout his life, President Clinton always has been able to make a miraculous escape at the 11th hour, but even Harry Houdini tempted fate once too often. It now is hard for me to see how he escapes conviction in the looming Senate trial on one or both of the articles of impeachment voted Saturday by the House. It thus far has been assumed that because it requires 67 votes to convict, and the Republicans have only 55 Senators -- several of whom are counted in advance as being “moderates” -- that the odds favor acquittal or some sort of censure. The President himself is acting as if he need only go through the motions and his partisan strength in the Senate will save him from expulsion. Unless the President can prove that he did not lie under oath before the federal grand jury -- a felonious crime that even the NYTimes stipulates he committed -- the Senate will have no choice but to convict. All the happy talk coming from the President’s most partisan friends in the Senate -- about a deal to suspend the trial at some point and arrange a censure vote -- ignores the inexorable pressures of the Constitutional process. Because a presidential impeachment process is as rare as hen’s teeth, we have been observing stupendous errors being made by the President and his supporters because they have been counting on their fingers. Senators who think they can vote for acquittal because they have not taken the process seriously are in for a rude awakening.

The biggest error made thus far was in the assumption by the House Democrats that they could persuade moderates to hold out for a censure instead of an impeachment vote. The President’s lawyers certainly knew better, but they permitted the President’s friends in Congress and in the press to believe it would be “unfair” to deny the House an opportunity to vote on this “middle ground.” The Constitution does not permit this “middle ground” in the impeachment process, because the Founding Fathers clearly determined the House should be the accuser and the Senate the adjudicator. Democrats whipped themselves into a partisan fury because they had been misled, while “moderate” Republicans were quicker to see that Chairman Henry Hyde of House Judiciary was not wrong in his interpretation of the Constitution. As long as the report of Independent Counsel Kenneth Starr was not contested, with Democrats attacking the process instead, Republicans clearly acted on principle while confused Democrats persuaded each other that what they saw was “partisan vengeance,” as the NYTimes put it in its lead editorial on Sunday.

Prior to the November elections, the Times had actually begged the President to tell the truth or face impeachment and expulsion. That was when conventional wisdom assumed Democrats would lose several seats in the Senate and a dozen or more in the House. Not only did the President interpret GOP election losses as evidence he was safe from impeachment, but it also left him and his lawyers believing they could treat the Judiciary committee’s 81 questions as a nuisance, to be dealt with peremptorily. He took comfort in the 70% job approval rating the polls have been showing, leading him to think the Republicans would not dare impeach him. As the NYT reports in a page one story today about the serial miscalculations by the President, on the day after the elections Henry Hyde had a conference call with 20 members of his committee from a telephone at Midway Airport in Chicago, telling them to forget the elections, that they had a constitutional duty to proceed. As he put it during the hearings, “Conscience trumps everything.” If Hyde had equivocated even by one percent of his conscience, there would have been no impeachment. By the purity of his principled conduct, Henry Hyde shamed those of his fellow Republicans who had been tempted to equivocate, as I myself had been. “The matter before the House is a question of lying under oath. This is a public act. This is called perjury. The matter before the House is a question of the willful, premeditated, deliberate, shameless corruption of the nation’s system of justice. Perjury and obstruction of justice cannot be reconciled with the office of the President of the United States. That, and nothing other than that, is the issue before us.”

That is what the hundred members of the Senate will face. What the President has been accused of doing by the House is a crime not only against the state, but also a crime against society, a crime against the nation. Several Democratic Senators appeared on the Sunday talk shows this weekend, acting as if they can go through the motions of a trial and easily acquit the President -- Leahy of Vermont, Torricelli and Lautenberg of New Jersey, Breaux of Louisiana. There is a pretense that after a week or so of discussion before Chief Justice William Rehnquist, one of them can move to suspend the trial and a majority of Senators will agree that our presidents henceforth can commit felonious acts of perjury and remain in office. Former Presidents Jimmy Carter and Gerald Ford co-authored an op-ed in this morning’s NYTimes endorsing this exit strategy. Bill Safire of the Times also writes glibly about how the Senate wise men can short-circuit a vote by suspending the trial.

I really doubt any of this easy-way-out can happen. Henry Hyde’s equivalent in the Senate is a Democrat, Robert Byrd of West Virginia, who will shame his colleagues if they think they can get away with trivializing the impeachment process. Senators who are used to parliamentary devices that enable them to avoid embarrassing votes cannot prevent a direct vote on whether perjury rises to the level of impeachment. The Constitution appears to permit the Senate to convict the President without expelling him from office -- perhaps even substituting a censure. I’m afraid that if Clinton’s lawyers cannot mount an effective defense against the facts as presented in the articles of impeachment, the vote to expel him will be overwhelming. No President has ever been accused of perjuring himself while in office. This should be the last.

Of all the Republicans who spoke for their impeachment vote, the most important and most impressive was J.C. Watts of Oklahoma, the only black Republican in Congress, newly elected chairman of the House Republican Conference. The Congressional Black Caucus was unanimous in its support for Clinton, not on principled grounds, but because he has been good for black Americans or because Republicans aren’t fair. These positions represent the matriarchal side of the black community, defending the breadwinner for all his faults. Julius Caesar Watts argued eloquently for the patriarchal side, to shore up the boys who know the importance of an oath before they are even grown -- “cross-your-heart-and-hope-to-die, King’s X, pinkie promise, blood brothers.” It was hunger for this kind of principle that brought a million black men to the Washington Mall on October 16, 1995 -- standing together against the poisonous idea that they should continue to view themselves as victims instead of taking control of their own lives. President Clinton has become a metaphor for victimization -- the man who told Sidney Blumenthal and Betty Currie that Monica Lewinsky came on to him. The Rose Garden party he threw after his impeachment was the bizarre extension of the corrupt notion he has been the victim of evil partisanship.

Can Houdini escape this time around? I can’t say for sure that he won’t, but if conscience trumps everything, the President is headed for the door.