Timehost: Our topic tonight is tomorrow's Senate trial of President William Jefferson Clinton, only the second U.S. president to stand trial in the Senate. If he's found guilty of perjury and obstruction of justice, he could be removed from office.
Joining us now to discuss the issues involved in this momentous trial
is A.E. Dick Howard, a professor of constitutional law at University of Virginia. Welcome!
A.E. Dick Howard: Thank you for the invitation. I'm glad to be with you to discuss this important trial.
Timehost: Let's go ahead and take a question from the audience.
presidential821 asks: Do we know what this trial will actually look like when it really starts tomorrow?
A.E. Dick Howard: We know in general terms the agreement that was struck last Friday. It laid down certain ground rules which we can predict will be followed.
Some things are clear.
Each side will have 24 hours to make its case.
They need not use that entire time.
The senators will have as much as 16 hours to question the parties.
Then it would be in order for the Senate to take up a motion to dismiss.
But before the Senate votes on that motion it will then be in order for the Senate to consider a motion to subpoena witnesses and to present any evidence including that which is not already in the record. Debate would then be limited to six hours, divided between the two sides.
Following that debate, the Senate would vote first on the motion to dismiss, and then, if that motion is defeated, on a motion to subpoena witnesses or present other evidence.
Another way of looking at this is that the easy issues have been disposed of up front and the tough questions, in particular whether to call witnesses,
have been deferred.
Doogan00 asks: Why should our president be removed? What constitutional violations has he committed? MC - Baltimore, MD.
A.E. Dick Howard: That's the core question.
The charges against the President, specifically the two articles of impeachment, alleged perjury before the grand jury, and, second, obstruction of justice.
Simply to state those charges, however, does not mean that the Senate will necessarily conclude that those charges, even if found to be true,
would necessarily be the basis for conviction and removal.
Most of the debate I've been hearing in the last several days has focused on questions of process and procedure.
The ultimate question which the Senate must face is the meaning of the constitutional language of "high crimes and misdemeanors."
Only if the Senate is satisfied that the President's conduct amounts to "high crimes and misdemeanors" will there be a constitutional basis for conviction and removal.
Deciding what the Framers meant when they used the phrase "high crimes and misdemeanors" is an elusive task.
The debates at the Philadelphia convention are sparse, English history provides only scanty guidance,
and the experience of the ensuing two centuries hardly answers our questions.
It's important to remember in thinking about impeachment proceedings against the President that in effect one branch is being asked to remove the head of another branch.
Few legislative acts could have such sobering consequences.
Considering that the removal of a President would overturn an electoral judgment,
one can understand why the Framers made it so difficult to bring about impeachment and conviction.
Stamm444 asks: Can the Senate convict Clinton and NOT remove him from office?
A.E. Dick Howard: The answer is quite simply no.
The Constitution states that upon conviction, the President "shall" be removed from office.
TNothing asks: How can the House effectively prosecute the President without witnesses?
A.E. Dick Howard: That's a fair question.
One assumes that in the traditional criminal trial there will be witnesses.
However, trials in ordinary courts sometimes go forward on the basis of depositions rather than live testimony or, indeed occasionally, on stipulated evidence.
It is risky, however, to compare the Senate's impeachment trial too closely to a criminal trial.
When the Constitution provides that upon impeachment the Senate shall have the power to try that impeachment, it does not follow automatically, that such a "trial" must necessarily conform to our assumptions about criminal trials.
The senators' decision to call or not call witnesses is likely to turn not on some abstract assumption about the shape of a trial
but rather on their collective judgment as to whether the collective evidence accumulated in the Starr report and in the House of Representatives
is sufficient for the senators to come to a final conclusion.
Timehost: What about the fact that some of the Senator-jurors have close personal ties to the President/prosecutors?
Is this something to worry about?
A.E. Dick Howard: That's a question which, once again, raises the issue of the similarity, if any, of the Senate's impeachment trial to a criminal trial.
In the conventional criminal justice setting, jurors are expected to come to the facts of the case untainted by any relationship to the parties
or by any other reason to be swayed by extraneous considerations or possibilities of prejudice.
When one thinks about the setting for the Senate's impeachment trial, however, one quickly realizes that the senators are by no means jurors in the conventional sense.
To refer to them as jurors is probably more misleading than helpful.
There are no grounds, for example, for challenging a senator on the grounds that that senator has some relation to one of the parties -- or indeed may arguably have made up his or her mind about the outcome of the trial.
A senator could, of course, recuse him or herself on some grounds satisfactory to that senator.
For example, a Senator who had served as a member of the House of Representative during the impeachment process could plausibly decide that he or she
could not sit at the trial stage.
Such a judgment is, however, for individual Senators to make.
I see no likely ground on which either party could challenge a senator on the grounds of prejudice or relationship or other arguable grounds of disqualification.
If senators were to be challenged on knowing too much about the case or prejudice, we would decimate the ranks of the Senate.
Timehost: We have a lot of questions that touch on the political side of this trial...
One person has asked: 'Do you think the Republicans have enough support to convict Clinton?"
A.E. Dick Howard: At the moment, I would be frankly surprised if those who wished to see the President convicted and removed were able to get the necessary 67 votes.
Such a result would require that the 55 Republican senators vote unanimously in favor of conviction and that they be joined by 12 Democrats.
Unless the evidence as it unfolds reveals more than we know now,
or unless the House managers are uncommonly persuasive, then it's hard to see how there would be 67 votes for conviction.
hln3 asks: If the Senate allows censure, isn't that setting a dangerous precedent for abuse in the future?
A.E. Dick Howard: The question of the Senate's power to impose censure is not answered by a look at the Constitution's text.
The Constitution explicitly provides for the process of impeachment and conviction
but nowhere mentions censure.
As a result, some have argued that the Senate simply lacks the power to vote censure.
In the early 19th century, Chief Justice John Marshall articulated the notion of "necessary and proper" or "implied" powers -- powers that are nowhere spelled out or even mentioned in the Constitution.
Thus, for example, the Constitution's conferring upon Congress the power to declare war does not preclude Congress from taking some step
such as declaring its support for having troops in Bosnia, even though that action is not explicitly mentioned in the Constitution.
Beyond the constitutional question, however, there is also the issue whether the Senate, assuming it has the power to vote censure, ought, as a policy measure, to do so.
One may argue that were censure to be too freely used,
it would move our system away from separation of powers and toward a parliamentary system, which of course
the Framers rejected as the model for our government.
In short, even though the Constitution does not in my judgment preclude a Senate motion, the Senate should weigh with care
the policy implications of a censure vote.
marlowe_81301 asks: What is your interpretation of high crimes and misdemeanors?
A.E. Dick Howard: In thinking about the phrase, I begin with text itself.
The Constitution states that the President shall be removed from office on impeachment for and conviction of
"treason, bribery, or other high crimes and misdemeanors."
I consider the Constitution's use of the word "other" significant.
It signals that in deciding what conduct amounts to "high crimes and misdemeanors," that conduct must rise to a level of seriousness paralleling
such obviously unacceptable actions as treason and bribery.
Further, on my reading of the historical record, the Framers had in mind that high crimes and misdemeanors touched conduct
which in some fashion was an abuse of one's office or of the powers of that office.
The phrase most frequently used to describe high crimes and misdemeanors as found in the discourse of the Framers and the early commentators
was that the reference is to "political crimes."
Such crimes consisted of the kinds of abuses of power or injuries to the Republic that could be committed only by public officials
by virtue of the public offices they held.
Further, I would point out that the idea of a political crime is not directly linked to violations of the criminal code.
In other words, conduct which violated the criminal law might not necessarily be a high crime or misdemeanor.
Nor, by the same token, would conduct which did NOT violate the criminal law necessarily NOT be a high crime or misdemeanor.
As an example of the latter, if the President were to use the military to conduct a private war in some foreign country,
that action might not violate the criminal law, but might nevertheless be the basis of impeachment and conviction.
The disjunction between the concept of, on the one hand, high crimes and misdemeanors, and, on the other hand, criminal violations, is underscored by the Constitution itself.
The Constitution states that in cases of impeachment the only penalty which may be meted out is first removal from office (which is mandatory) and second,
disqualification to hold any other office (which is optional with the Senate).
The Constitution then goes on to say that the convicted party shall nevertheless be subject to indictment, trial and punishment under criminal law.
obzil asks: What do you see as the biggest difference between Johnson and Clinton trials?
A.E. Dick Howard: Well, among the differences that occur to me, the most striking differences, are the following:
First, despite the partisanship that has marked the current proceedings, it's hard to argue that the partisan atmosphere is as extreme as it was in the 1860's.
Second, the fact that the senators in the Johnson years were elected by state legislatures, and not, as is now the case, by the people, meant that there was one
layer of insulation between those senators and the people.
Third -- and this may be especially important -- as the Senate trial unfolds in the next few days -- there was no television in the time of the Johnson senate trial.
The impeachment trial now beginning will be immediately available to the general public in a way that the Johnson trial was not.
This means that Senators may well find the hot breath of public opinion much more obvious than was true in the Johnson trial.
Timehost: Thank you very much for joining us, Prof. Howard. Do you have any additional closing thoughts you'd like to add?
A.E. Dick Howard: Regardless of the outcome of the impeachment trial, few would argue with the historic significance of these proceedings. No matter how one feels about the President, his conduct, the Starr investigation, the proceedings in the House or the trial now taking place in the Senate, these circumstances are an unusual opportunity for civic education.
Rarely have the mass of people, the ordinary citizens, been so obliged to think about fundamental constitutional issues.
We are reminded that great constitutional decisions are not limited to the opinions of the Supreme Court.
Much of the shape of American constitutionalism derives from actions such as those of the political bodies -- the President and the Congress -- and ultimately, by extension,
from the beliefs and conclusions of the American people themselves.
Timehost: Thank you very much, Prof. Howard.
A.E. Dick Howard: A pleasure.
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