WASHINGTON -- President Clinton's first response in the Senate to the impeachment articles yesterday contains a perhaps flattering reminder to senators: This is your chance to make some constitutional law and not be second-guessed by the courts.
Half of the formal answer filed by Clinton's lawyers is a constitutional argument, meant to appeal to the Senate's sense of fairness and to its vanity as a judge of what the Constitution means and what it permits.
The other half of the response is a summary rebuttal of the evidence behind the two articles of impeachment, meant to show that the House has built its case on "myths" about what the president actually did.
In the constitutional argument, the White House attorneys sought to step up to a more dignified level of countering the House's blunt accusations of lying and manipulation by laying before the Senate some very real choices to make history on the meaning of impeachment.
Ordinarily, the courts have the last word on the Constitution. The Supreme Court, in fact, has been saying that since 1803. Impeachment issues, though, are a rarity: They are for the Senate to decide, the Supreme Court has said -- and the president's attorneys sought to make the most of that yesterday.
"This [Clinton filing] is saying 'You, senators, are the judges and the jurors in this case and, in order to maintain your own integrity, you need to decide what's fundamentally fair,' " commented Terence J. Anderson, a University of Miami lawyer who defended a federal judge against impeachment charges in the Senate 10 years ago.
Michael J. Gerhardt, a College of William and Mary law professor and an expert on impeachment, said, "This is an appeal to the Senate's sense of fairness, and to senators' concerns about the legitimacy of upholding these kinds of articles."
The Senate very likely will prevail with any constitutional judgments it makes in Clinton's trial, since the chances of judicial review are remote, and might even be nonexistent.
If the president should lose in the Senate, he would be removed from office, and there may be no way to raise in court the constitutional arguments his attorneys sought to make yesterday.
And, while past impeachments have added some meaning to the Constitution's basic language on impeachment, there has only been one presidential impeachment before -- in 1868 -- and the basic concepts about constitutional fairness have changed much since then, analysts noted.
Thus, arguments about what process is appropriate for a presidential impeachment now are likely to break new ground, and that is what the White House aimed to do yesterday, Gerhardt suggested.
There were three constitutional points in the new filing. Only one was predictable: the claim that nothing in either article rises to the level of an impeachable offense.
That clearly gives the Senate a chance to decide the threshold of impeachability. It does not have to take the House's word on that, and whatever the Senate does with the two articles against Clinton it will send constitutional messages about what it takes to justify removing a president from office.
Clinton's lawyers have been making that threshold argument for months but, analysts suggested, they had to make it one more time to be sure it was formally before the Senate as a basis for ending the trial fairly quickly or for voting ultimately against conviction on either article.
The second and third points, as Professor Anderson assessed them, are about "fundamental fairness" in a constitutional sense.
The second point was that the articles are so vaguely worded that the president could not possibly know what he had to defend himself against -- a classic "due process" argument that is frequently made in criminal cases.
Should the Senate accept that suggestion, it would be establishing, as a constitutional mandate, a requirement of clear-cut specificity in the offenses charged.
And the final point was the one Anderson characterized as "probably the most important": that so many charges are bundled together in each article that there is no way to know whether enough votes have been assembled in the Senate behind any one accusation.
That is a constitutional argument because the Constitution requires a minimum of 67 votes for conviction, if all senators vote, as they are expected to do.
The Senate is allowed to cast only one tally on each article as a whole.
Thus, the White House conjured up a scenario where as few as 17 senators vote for conviction on the perjury article because they believed Clinton was lying in a single instance, while another 17 supported conviction because they thought he lied in a different instance, and so on. Eventually, 67 votes could be amassed, though there would not be enough votes for conviction if tallies were taken on each alleged incident of lying.
With no way to know for what specific accusation each senator had voted, the attorneys said, it would be "impossible for the Senate to comply with the constitutional mandate that any conviction be by the concurrence of the two-thirds of the members."
If the Senate accepts this Clinton argument, it would be laying down a constitutional standard that each article must charge only a single, identifiable offense.
Assessing the White House answer, William and Mary's Gerhardt suggested: "These are good issues to raise early [in the trial]. They provide a basis for the Senate to dismiss the charges, without ever calling any witnesses."
The president's counsel will make a motion to dismiss the two articles later in the proceedings.
At the trial today
The Senate "court of impeachment" is not in session. Public sessions and filing of motions and documents resume tomorrow.
Pub Date: 1/12/99