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Sitting in judgment, searching for truth among Senate's duties in Clinton case; Senators must choose with little guidance from Constitution, rules; TRIAL IN THE SENATE


WASHINGTON -- Rep. Henry J. Hyde, chief House prosecutor in the impeachment trial of President Clinton, solemnly told the Senate yesterday that its duty is to "sit in judgment." Another prosecutor, Rep. Ed Bryant of Tennessee, reminded senators of the obligation to "search for the truth." What, exactly, is the Senate's duty in this trial? Lyle Denniston of The Sun's national staff provides these answers:

Do the Constitution or the Senate's rules make the senators' duty clear?

In one sense, yes: They give the Senate an ultimate, stark duty -- choosing to acquit or convict. But that choice may never arise, and many other choices precede it. The Senate has a duty to make those, too, without much guidance from the Constitution or its rules. Senate rules do impose a duty to provide "impartial justice," but that is for each senator to define.

Why is it that the Senate may never have to choose acquittal or conviction?

It could simply vote to end the trial, either by granting motions to dismiss both articles, or by deciding to adjourn. Either or both proposals could be made by a senator or the president's defense lawyers before the end of this month.

Does the Senate have any duty to give the president a break, requiring more evidence to convict him than it would any other federal official facing impeachment?

No. The Constitution sets one standard for all -- "high crimes and misdemeanors." But the president's lawyers argue that the Senate has a duty to take into account the fact that removing an elected president is a more drastic act than removing a single appointed judge, for example. The House interprets that argument to mean the White House is asking for a higher standard of guilt for presidents. The Senate will have to sort that out.

Is the Senate's duty, in the end or along the way, to decide whether Clinton actually did what the House charges, or is it to decide whether those accusations, even if true, justify his conviction?

Probably both -- although the Senate will not vote separately on each.

The Senate has an independent duty to judge the facts, just as jurors do in a regular trial. It need not take the House's word for those. If it is not convinced that those facts are true, or at least probably true, it would never get to the issue of conviction and removal from office. The Senate has a duty to resolve conflicts in the evidence, and there is a multitude of conflicts between House prosecutors and presidential defenders about what the facts are.

It is a separate question whether, even if accepted, the facts amount to "impeachable offenses" and thus require a guilty verdict. There is a dispute about whose duty it is to decide that.

Some say that the House, by charging Clinton with the two offenses, already has determined that the facts amount to impeachable offenses, so acceptance of its facts must lead to a guilty verdict. Others disagree, saying the Senate must exercise independent judgment about whether the facts, even if accepted, justify conviction and removal. Senators, though, before they vote on acquittal or conviction, may have to answer individually a two-part question: If I think he is guilty, do I also think he should be convicted and removed from office?

If the Senate decides that the facts show Clinton is guilty, and thus votes to convict him, can the senators choose not to remove him anyway?

No. Under the Constitution, conviction -- a guilty verdict -- means automatic removal. But the Senate would have to face as a separate decision whether to add the punishment of barring Clinton from any future federal office, as the House requests; that punishment is not automatic.

Does the Senate have a duty to have witnesses testify, if it thinks they could clear up conflicts in the evidence?

No. The Senate does not have to summon witnesses, no matter how much House prosecutors press it to do so. The question about calling witnesses has been postponed until after the House offers the evidence it has so far, and the president's lawyers offer a defense to that evidence. Even then, the Senate will face the witness issue only if it defeats a motion to dismiss the case.

Would a failure to call witnesses mean the Senate was satisfied that they could add nothing to the House's case?

Not necessarily. The Senate may have many reasons to refuse to call witnesses -- including the avoidance of potentially embarrassing testimony. Another reason might be that senators think witnesses could not add enough to justify prolonging the trial.

Would a failure to call witnesses mean that the Senate is satisfied that the House has proved its case without them?

Not at all. The Senate could vote to convict, or acquit, just on the basis of what the House presents this week. House prosecutors are making their presentation as strong as they can this week, in case that is their only chance.

Does the Senate have any duty to let the House prosecutors bring in any other evidence, beyond the evidence that led to the House vote to impeach?

No. That issue, too, has been postponed; the Senate could bar any other evidence.

Must two-thirds of the Senate (the number needed to convict) agree on the specific facts that they think justify conviction?

Apparently not, though that, too, is in dispute. The Senate must vote up or down on each of the two articles, each of which recites several offenses; they will not be broken up into several parts for separate votes.

The White House thus says that the articles are unconstitutional because no one could be sure that two-thirds agreed that the president was guilty of a single impeachable offense, even though two-thirds voted "guilty" in a single vote on a multi-offense article. House prosecutors, relying on Senate precedents, counter that two-thirds support in the up-or-down vote would settle that issue, and senators need not agree on what justifies their individual votes to convict.

The Senate may have to decide who is right about that issue.

Pub Date: 1/15/99

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