Impeachment 101: The Clinton Precedent

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The New York Sun

As the Senate prepared to try the case against President Trump, we called up C-Span’s coverage of the impeachment of President Clinton. We clicked on the speech that was delivered 21 years ago by the president’s personal counsel, Nicole Seligman. Even today, it illuminates with memorable clarity features of the constitutional law that, by our lights, couldn’t be more relevant to the drama on which the curtain is about to rise.

The trial had been under way for more than two weeks when Ms. Seligman was called on by the Chief Justice of the United States, William Rehnquist. The House managers had already presented their case. The President’s defense team had already spoken. Then the Lion of the Senate, Robert Byrd of West Virginia, made a motion to dismiss the charges. It was in support of his motion that Ms. Seligman rose to speak.

Ms. Seligman attacked the House’s case on four grounds, starting with the failure to charge impeachable offenses. She argued the framers of the Constitution “intended restraint” absent “an element of immediate danger to the state.” That point may, at least in the eyes of the prosecution, be less convincing in the case of Mr. Trump than Mr. Clinton. Ms. Seligman, though, offered a test of sorts that is relevant.

“Impeachment,” Ms. Seligman said, “was never meant to be just another weapon in the arsenal of partisanship. By definition, a partisan split like that which accompanied these articles from the House of Representatives creates doubt that makes plain the constitutional error of the course that we are on.” She then quoted one of the Republican Senators who crossed the aisle to acquit Andrew Johnson as voicing a similar sentiment.

Ms. Seligman then turned to the flaws in the drafting of the articles against President Clinton. The gist was that they were so vague and general as to leave the House managers free to fill “an empty vessel to define for the House of Representatives what it really had in mind when it impeached the president.” That, she reckoned, would violate the power of impeachment that is granted to the House.

That grant of power, Ms. Seligman pointed out, “is not a role that the Constitution allows to be delegated to the House managers. It is not a role that the Constitution allows them to fill. It is a role that is explicitly and uniquely reserved to the full House of Representatives, which under our Constitution has the sole power to impeach.” It’s something to watch for as the Senate tries Mr. Trump on two broad articles of impeachment.

The articles filed against Mr. Clinton, Ms. Seligman contended, were also “unconstitutionally defective” for combining such a “menu of charges” that they invited an impermissible result — namely “that the president might be convicted and removed from office without two-thirds of the Senate agreeing on what the president actually did.” Meaning, that the two thirds hadn’t actually achieved the “concurrence” the Constitution requires when it says: “And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

“Calling witnesses,” Ms. Seligman suggested, “is not the answer.” She asserted that the Senate had its evidence. She went through it in great detail (7,000 words). Toward the end, she reminded the Senators that the articles of impeachment “explicitly find that certain conduct occurred.” She suggested that the Senate was not the place to resolve doubts that the House should have resolved before voting to impeach.

It was, in our view, a breathtaking speech. We’ve listened to it several times and read it more. Yet it failed to persuade the Senate to dismiss the case. Senator Byrd’s motion failed. Witnesses were called, the trial rumbled into February. On the 9th, the senators slithered into closed session. On the 12th, the solons emerged to acquit the president, coming nowhere near the two-thirds needed to remove him from office.

President Clinton had many magnificent lawyers, but our estimate is that the Seligman soliloquy won the day. It leaves us this week thinking that Mr. Trump is in more peril than Mr. Clinton was. The House, though, with its grab bag of allegations under broad headings, appears to have repeated the very mistake it made against Mr. Clinton. And the House’s purely partisan vote against Mr. Trump creates the very doubt Ms. Seligman marked so clearly.

________

Correction: West is the Virginia of which Robert Byrd was a senator; the wrong Virginia was given in an earlier edition.


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