An Unconstitutional Republican Exit Strategy

Trent Lott is to be applauded for his efforts to save the Republicans from themselves and devise the terms of a graceful and rapid exit from a pointless impeachment trial. But this praiseworthy attempt comes at too high a price when it involves a direct violation of the Constitution.

The problem involves one aspect of the exit strategy enacted by Senate Republicans on a party line vote last week. The Republicans plan to “bifurcate” the Senate’s final verdict on the president into two parts--one involving “findings of fact” on President Clinton’s behavior, the other reaching “conclusions of law” on whether the facts involve “high crimes and misdemeanors” that justify removing the president from office.

Though this kind of bifurcation is unprecedented in the history of impeachment, there is nothing wrong with it as a matter of principle. Focusing carefully on crucial facts may improve the deliberative quality of the decision as a whole. This is certainly true in many ordinary trials. Judges or jurors are often required to make specific factual findings as part of their final judgment on the merits, and justice is the better for it.

Of course, any “findings of fact” proposed for consideration by the Senate should really be factual. They should not contain explicit assertions of criminality, which inevitably involve conclusions of law. But I do not expect the Republicans to play egregious word games or the chief justice to allow them to get away with any outrageous abuses.

The serious constitutional problem arises from another aspect of the proposal. Under the Republican plan, it will be enough for a simple majority of 51 senators to adopt any “finding of fact.” This voting rule flies in the face of the Constitution’s explicit command of a two-thirds vote on the Senate’s final judgment concerning the removal of the president from office.

The framers’ insistence on a two-thirds vote is very exceptional in our constitutional scheme. For example, a simple majority is enough to confirm a Supreme Court justice or to declare war. In insisting on two-thirds, the framers wanted to make sure that impeachment was a nonpartisan affair, not a vehicle for political vendettas and campaigns of character assassination.

But the Republican initiative assaults this fundamental principle. To be sure, their new rules still require a two-thirds vote on the ultimate “conclusion of law” determining whether the president is guilty of “high crimes and misdemeanors.” But they want to take a shortcut on the “findings of fact” and allow a simple majority to suffice on this half of their “bifurcated” voting procedure.

This legal gimmick cannot be allowed to stand. Despite the decision to “bifurcate,” the two votes remain inextricably intertwined. As a constitutional matter, “finding the facts” is not an end in itself. It is part and parcel of a final judgment on the guilt or innocence of the president.

To see my point, imagine for a moment that the Senate made a “factual finding” that the president had never actually put his hands on Monica Lewinsky and that the House managers’ allegations were not supported by the record. Could the Senate then proceed to ignore this “factual finding” and proceed to announce a “conclusion of law” declaring that the president had committed “high crimes and misdemeanors” and so should be removed from office?

Absolutely not. Due process requires that “findings of fact” be consistent with “conclusions of law.” Both votes are part of a single, bottom-line judgment on whether the president should be removed from office. And the Constitution insists on the assent of 67, not 51, senators to any crucial component of this judgment.

It is one thing for the Republicans to ram their procedural rules through the Senate on a party-line basis. It is a very different, and unconstitutional, thing for them to ram through their substantive decisions on bottom-line judgments involving the facts and the law.

We should see the Republicans’ change in the rules for what it is: an unconstitutional effort to change the impeachment trial into a motion for censure. The Republicans don’t want to admit that they blundered by depriving the House of an opportunity to vote for censure, forcing it to vote for impeachment instead. Now that impeachment has failed transparently to achieve its constitutional aim of removing the president, they want to transform it into a process by which 51 senators can impugn the president’s behavior by calling their condemnation a “finding of fact.”

There is a constitutional way to achieve this objective: End the trial and proceed to consider a motion of censure, which can constitutionally be adopted by a simple majority vote. This will allow 51 senators to be honest about what they are doing. In truth, they are not really interested in making impartial “findings of fact.” They want to condemn the president for his unconscionable behavior. I thoroughly endorse this aim, but fail to see why we must shred the Constitution to achieve it.