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Clinton continues to plot post-impeachment strategy
Updated December 23, 1998
1:30 p.m. ET
WASHINGTON (Court TV) — With moderate Republicans swaying towards a censure vote in both the House and the Senate, President Clinton and his legal team are carefully weighing their options to find the best course of action.
Clinton wants to avoid the humiliation of a Senate trial. One option is to attempt to muster a majority vote to adjourn the trial before it really gets off the ground. Another is to forge a deal resulting in a censure, but no conviction.
Senate Majority Leader Trent Lott says a trial is unavoidable, but Senators have tremendous flexibility in defining what is meant by the word "trial."
The Senate can, for example, opt to end the trial at any time with a simple majority vote, says Allan J. Lichtman, impeachment scholar and chair of the history department at American University.
While many senators feel constitutionally bound to begin a trial, they may not feel compelled to actually proceed with one — or even bound to vote on the articles of impeachment, even after a trial.
"The Senate can do anything it wants...except not hold a trial," he says. The Constitution requires the initiation of some kind of proceeding. Senators can make deals. They can plea bargain.
"They can hold a trial and five minutes later adjourn," Lichtman says, "and in the next five minutes pass a censure resolution, or pass a censure resolution and then adjourn."
Lichtman points out that the Senate didn't vote on eight of the 11 articles brought against Andrew Johnson, the only other president to have been impeached by the House.
In Johnson's case, the Republican majority in the Senate decided not to convict him — seven Republicans voted against conviction, enough so that Johnson would be spared removal by one vote. Lichtman says back-room dealing gave Republicans what they wanted, making removal unnecessary. Also Lichtman says, the Republican didn't want to turn Johnson into a "victim."
Clinton's case got a shot in the arm when presidents Gerald Ford and Jimmy Carter argued in an op-ed piece in the New York Times, that the Senate should opt for censure rather than a trial. Republicans who voted for impeachment in the House have also come out for censure by the Senate
The president also has legal options.
Clinton's chief of staff, John Podesta, has said the White House legal team might challenge the constitutionality of the impeachment resolution because it was passed by a lame duck House
Yale Law School Professor Bruce Ackerman testified Dec. 8 before the House Judiciary Committee that the 20th amendment prevented a lame duck House from passing an impeachment resolution.
He argued that the newly elected House would have to vote to approve impeachment, or at the very least, vote for new managers to prosecute the president in the Senate. Ackerman said the president could make a motion to quash the impeachment resolution to be adjudicated by Chief Justice William Rehnquist before trial.
However, the president's reliance on legalisms has alienated potential allies in the past. The political risks involved in using the court system to circumvent Senate decisions make the legalistic route highly unattractive.
"I think anything that is seen as parliamentary maneuvering to get out of this is not going to be accepted by the American public," Sen. John Breaux, R-La., told CNN.
Moreover, constitutional scholars say the likelihood of such a challenge succeeding is low.
Read what scholars have to say about a legal challenge to a lame duck resolution.
To survive politically, Clinton must maintain his remarkably high job approval ratings. The White House is worried about some polls that suggest Americans might begin to favor resignation over a drawn-out trial.
White House strategy is to show Clinton at work as much as possible. The president should appear to be doing the people's business while Republicans single-mindedly pursue impeachment to the detriment of the nation.
House Majority Leader Trent Lott said the Senate would take the first "preliminary steps" toward a trial either the day it convenes, Jan. 6, or the following day. The White House would be given several days to submit its pleadings, a formal response to the charges cited in any articles of impeachment.
According to Lott, the length of an impeachment trial would depend on many factors: how many articles there are; what evidence had to be presented; would there be witnesses; and whether the White House take advantage of every legal remedy or possibility.
Terence Anderson, the attorney who represented Rep. Alcee Hastings, D-Fla., then a federal judge, during his impeachment trial, estimates the president's trial, under the best of circumstances, could run until late July. More likely, Anderson and Hastings say it could extend until the end of the year.
Hastings was impeached by the House in Aug. 1988, and only 14 months later, in October 1989, did the Senate finally vote on the articles.
American University's Lichtman estimates a full blown trial would last until June — but the contention that the nation would be paralyzed during that time is "mythology."
The Senate, he reiterates, can pretty much do whatever a majority of its members will allow: it can authorize a small group to hear evidence, thereby "allowing government business to take place;" it could schedule hearings only during the mornings, or the afternoons, thereby allowing the Supreme Court time to meet. The president doesn't have to be there — Johnson never attended his hearings.
Court TV's Aldina Vazao Kennedy and The Associated Press contributed to this report.
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