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Impeachment proceeding sets precedents; What happens in Senate will affect future trials; TRIAL IN THE SENATE


WASHINGTON -- President Clinton's impeachment trial is the 14th Senate trial in history, but only the second of a president. Like the others, his will help shape the outcome of future trials. Lyle Denniston of The Sun's national staff explores the constitutional arguments by House prosecutors laying out the precedents they want established.

What does it mean to "set precedents" on impeachment?

The Constitution says little on impeachment, and there have been few impeachment cases in U.S. history. Thus, few broad principles or details of procedure are settled. Almost any significant step taken now will set a standard or a procedure -- a precedent -- on everything from defining an "impeachable offense" to choosing to call witnesses or summoning the president to testify.

Will the precedents suggested by prosecutors yesterday be the ones that emerge in the end?

Not necessarily. Much depends on the Senate's willingness to accept arguments made by the House; the Senate is the final judge of many decisions. But the House already set new precedents in deciding what charges to level.

What are some examples of precedents that the House, on its own, has set?

It is impeachable for a public official to lie under oath in almost any kind of proceeding. It is impeachable for an official to lie under oath to undercut a lawsuit or an investigation that seeks to examine the official's sexual behavior. Such lying is impeachable even if the evidence the official tried to withhold or manipulate loses meaning because the lawsuit or investigation was scuttled before any impeachment proceedings. Another: It is an impeachable offense to draw fine legal distinctions in answering questions under oath, if those answers are contradicted by someone else's testimony and the other person is more credible, or if the statements defy common sense.

In the Senate trial, is the House aiming to create new precedents or applying those inherited from the past?

Some of each. Aspects of the Clinton case have never before figured in an impeachment. So new precedents are sure to result. House prosecutors argued that the most important constitutional issues have been settled by well-established precedent, some of them going back centuries in English history before the U.S. Constitution existed. The main precedent they stressed is that lying under oath is an "impeachable offense" justifying a high official's removal from office. The Senate convicted three federal judges for that offense in the 1980s, so that precedent already exists, they argued.

The House has also tried to set new precedents. Perhaps the most important would be that conflicts in testimony in a presidential impeachment trial should result in testimony by the president. Another: Congress should interpret the Supreme Court decision in the Paula Corbin Jones case, allowing presidents to be sued while in office, to mean presidents may be forced to testify in such cases and in impeachment trials.

What are some of the other new precedents the House has suggested that would need Senate endorsement to be established?

A sampling: The Constitution sets just one standard for impeachable offenses, whether the official is an elected president or holds an appointed post. Perjury and obstruction of justice are constitutional equivalents of treason and bribery and thus impeachable offenses. The fact that ordinary citizens have been convicted for those crimes sets a standard for impeachment of presidents. Congress' decisions about the severity of crimes, under sentencing guidelines, set a standard for impeachable offenses.

Also: Any president or federal official who lies under oath or encourages anyone else to do so, in virtually any kind of proceeding and for any motive unrelated to official duties, turns the false statement into "an assault upon the state" that justifies removal from office. Conviction and removal also should follow any attempt by an official to coach a friendly witness in giving testimony, if the testimony is suspected of being untrue.

Congress is obliged to convict and remove a president to "cleanse the presidency" after it has been weakened by the incumbent's severe misconduct. Prosecutors suggested convicting a president whose credibility has been so undermined by lying that he can no longer lead the nation.

Many of those arguments seem to state merely the obvious, and some appear unanswerable. So how can the president's lawyers counter them?

Clinton's defense team will challenge the constitutional arguments by suggesting that removing an elected president is such a drastic action that the Senate may do so only for misconduct that undermines the government. They will argue that Clinton's alleged offenses -- which they will dispute by giving a different view of the facts -- do not reach that level. They will contend that he acted to protect his family and the dignity of his office, not to defy the law.

They will suggest that the House is trying to set precedents that threaten the presidency whenever any president incurs the strong displeasure of Congress. They will forecast instability in future governments if the charges made by the House lead to Clinton's removal. They will seek to undercut the charges by suggesting that the House did little to filter fact from supposition and simply rubber-stamped the work of Kenneth W. Starr.

On the findings of specific misconduct, Clinton's team will dispute that he committed any of the offenses charged: They will argue that he did not lie or intend to lie, try to manipulate witnesses or their testimony. They will challenge the evidence to try to show it does not prove what the House claims.

To counter the argument that there is so much conflicting evidence that witnesses must be called, defenders will try to show that those conflicts are imaginary or of no consequence.

Pub Date: 1/17/99

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