WASHINGTON -- Despite the fears of the White House and some Democratic senators, any attempt in the Senate to condemn President Clinton for his conduct short of convicting him is not likely to have any legal effect if it is passed only by a majority vote, legal analysts say.
Such a condemnation could not be used in any way against Clinton, they believe, if he should later be prosecuted for crimes once the impeachment trial is over or after he leaves office.
For any Senate action against him to have legal consequences, according to this view, the action has to amount to a conviction, and conviction can result only if supported by a two-thirds vote of the Senate.
And, without a two-thirds vote, these analysts suggest, there can be no punishment under the Constitution, because any attempt to punish Clinton otherwise would be barred as a "bill of attainder" -- that is, legislative punishment imposed without a trial in a regular court.
A condemnation would lack legal consequences, they say, whether the disapproval comes in the form of censure or as "findings of fact" that Clinton engaged in wrongdoing in the Paula Jones sexual misconduct lawsuit or before the grand jury in the Monica Lewinsky investigation.
Almost certainly unable to muster a two-thirds vote for any anti-Clinton maneuver, Republicans pressing for a strong denunciation of the president insist that they are not aiming to convict him. The method of condemnation that seems to be most in favor among GOP members is a statement of "findings of fact" that Clinton did some or all of the acts that the House has charged.
Anything short of actual conviction, suggests Columbia University law professor Gerard E. Lynch, "would be a legally meaningless resolution. If the senators want to say Clinton is rotten, that he committed perjury, that he committed crimes, they'll do that, but it won't have any legal effect whatever."
Agreeing with that view is University of Chicago law professor Joseph Isenbergh, whose research on impeachment has led some GOP senators to conclude that the Senate is free to take strong action against Clinton without actually removing him from office.
Isenbergh, who said he has no connection to that effort by the Republicans, said that "findings of fact would be nothing more than that. A finding is not a verdict. It cannot stand as a conviction, and it is not a kind of backdoor conviction."
A conviction, he stressed, requires a two-thirds vote, "and no legal legerdemain can change that."
The White House and Democratic senators have said it would be unconstitutional to pass findings of fact that say Clinton is guilty. That view does not seem to have much strong support among constitutional scholars, many of whom say the Senate has ample power to condemn even if it does not convict.
The president's supporters have made a second argument against Senate findings of fact, contending that such action would increase Clinton's legal peril, should he be prosecuted later.
Isenbergh said that fear is unfounded. Senate findings could never be made a part of a criminal trial, he argued. "I don't think a judge would let it in," even if prosecutors tried to slip in references to a Senate condemnation.
It also would be possible, the Chicago professor noted, for the judge to instruct the jurors that "your decision has to be based separately and only on the evidence offered in court. That is a routine instruction."
Columbia professor Lynch said "the fact that someone thinks you're guilty is not evidence. The fact that a bunch of senators thought you were guilty is not evidence."
What it takes to get a conviction in a criminal case, he noted, is a jury conclusion of guilt "beyond a reasonable doubt," based solely on evidence put before the jury by prosecutors.
Lynch said he doubts that Clinton's defense lawyers would ask a judge to instruct jurors to pay no attention to a Senate condemnation resolution, because that would only call attention to it. But, Lynch said, they might seek a general instruction to the effect that whatever anyone else has said about guilt should have no bearing on the decision of the jury.
Lynch also suggested that the president's attorneys would be free to make a plea that any criminal charges be dismissed on grounds that publicity growing out of the Senate condemnation could make a fair trial impossible.
That maneuver, he said, would be a suggestion that Clinton could not get a fair trial after a Senate condemnation because "everybody knows a majority of senators think he's guilty." But that "would almost be tongue in cheek" as an argument, he added, since most of the public "seems not to care what the Senate thinks."
Pub Date: 2/01/99