[Congressional Record Volume 145, Number 19 (Wednesday, February 3, 1999)]
[Senate]
[Pages S1117-S1119]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMPEACHMENT AND THE CONSTITUTION
Mr. DORGAN. Mr. President, I wanted to call the attention of my
colleagues to a piece that was written by our distinguished Senator
from West Virginia, our colleague, Senator Byrd, that appeared in
today's Washington Post entitled ``Don't Tinker With Impeachment.''
The reason I want to do that is there are discussions occurring now,
according to some of my colleagues and accounts in the newspaper and on
television, about trying to create a mechanism to require a vote in the
Senate during the impeachment trial on the findings of fact prior to a
vote on the articles of impeachment themselves.
I was just looking at the Constitution in our Senate manual, and, of
course, article III in the Constitution establishes the basis for
impeachment, and it is simple, direct and provides nothing of the sort
that would lead Senators to believe that they can bifurcate the vote in
the Senate in an impeachment trial first to findings of fact and have a
majority vote on findings of fact and then to move toward a vote on the
two articles of impeachment that are currently in front of the Senate.
But I think the article written by our colleague, Senator Byrd,
provides the best description of the difficulty with these findings of
fact. Let me read just a few comments, and I ask unanimous consent to
have the article printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. DORGAN. Mr. President, the article, in part, by Senator Byrd
says:
[[Page S1118]]
The notion of trumping the articles of impeachment with
even a ``broad'' findings of fact flies in the face of what
the Framers of the Constitution intended. They deliberately
set the bar high when it came to the vote on articles of
impeachment, first by requiring a supermajority of two-thirds
of the Senate to convict, and second, by fusing the penalty--
[that is] removal from office [being the penalty]--into the
question of guilt.
In voting on articles of impeachment [he goes on to say]
senators must answer not one but two questions: Is the
president guilty or not guilty of committing high crimes and
misdemeanors, and, if he is guilty, do his actions warrant
removal from office?
Continuing to quote from Senator Byrd's article:
This was not a casual coupling on the part of the Framers.
Their intent was to force senators to set aside their own
passions and prejudices and focus instead on the best
interests of the nation. To lift this burden from the
shoulders of senators by offering them a way to convict the
president without having to accept responsibility for
removing him from office would, in effect, bastardize the
impeachment process.
Moreover [he says] the aftershocks would be felt long after
this impeachment has faded into history. No longer would
senators be confined to the articles of impeachment
formulated by the House of Representatives. No longer would
senators need a two-thirds majority vote to pronounce a
president guilty. From this time forward, they could cite
the precedent set by the Senate in the 106th Congress as
giving them carte blanche to write, and approve by a
simple majority, ersatz articles of impeachment cloaked as
``findings of fact.''
Senator Byrd, as always, finds the bull's-eye in this debate. This is
not some ordinary debate; this is a debate about constitutional
requirements and responsibilities and what the provisions of the
Constitution mean with respect to impeachment.
The impeachment article provisions of the Constitution require, when
impeachment articles are voted by the U.S. House of Representatives and
sent to the Senate, that a trial must commence, and the vote on the
articles of impeachment would be conducted by the Senate; and two-
thirds of the Senate would have to vote guilty on those articles of
impeachment in order to remove a President from office.
But it doesn't bifurcate the vote, doesn't call for extra procedures,
doesn't call for findings of fact, doesn't allow some Senators to say,
``Yes, that's what the Constitution says but we're going to create a
new, or pretend there's a new, provision in the Constitution without
having the difficulty of debating Madison and Mason and Hamilton and
Franklin over our proposal. We'll just pretend it's in the
Constitution. And we'll have separate votes on findings of fact. And in
fact, doing that, we can have our own little vote and create our own
little result with only 51 Members of the Senate voting in favor of our
resolution.''
That is a terrible idea and, in my judgment, stands this
Constitution, and the article of impeachment provisions in this
Constitution, on its head. But Senator Byrd says it much better than I
do. I will, as I indicated, include his article at the conclusion of my
remarks.
This Constitution, written in a room in Philadelphia over 200 years
ago, is quite a remarkable document. It established the separation of
powers. It established the framework for a new kind of Government that
has worked remarkably well. If those who watch these proceedings and
become interested in the Constitution would go to that room in
Philadelphia, they would see that that room still exists. It is called
the Assembly Room in Constitution Hall.
That room, which is smaller than the Senate Chamber, has a chair in
the front of the room where George Washington sat as he presided over
that Chamber. The same chair sits there today. And you will see where
Mason sat, Madison, Franklin, and others who wrote this Constitution.
They wrote it on a hot Philadelphia summer with the curtains drawn to
keep the heat out of that room, and they created this remarkable
document that is printed here in the Senate Manual. And that is the
document by which we in the Senate are now conducting an impeachment
trial.
I come to the floor today only to say that I think there is great
danger in believing there are things written in this Constitution that
don't exist in the Constitution. There is danger, in my judgment, in
suggesting ways or mechanisms by which some can vote and create
majority votes on some extraordinary findings of fact that are not
provided for in this Constitution.
In this impeachment trial, there is one of two results, and that is a
vote on the two articles of impeachment that have been sent to the U.S.
Senate by the House of Representatives. That vote will be a vote cast
by each and every Member of this Senate, and the vote will be either a
vote to convict or a vote to acquit--guilty or not guilty on the two
articles of impeachment. And my hope is that when the Senate reconvenes
in the impeachment trial, all Senators will have read this rather
remarkable article by the preeminent constitutional scholar in this
Chamber and the historian of this U.S. Senate, the esteemed Senator
Byrd.
Exhibit 1
[From the Washington Post, February 3, 1999]
Don't Tinker With Impeachment
(By Robert C. Byrd)
While the lawyers are busy deposing witnesses in the Senate
impeachment trial of the president, a number of senators are
continuing to work quietly behind the scenes to chart a
course that will end the trial with a minimum of political
carnage. One route currently being investigated is a so-
called ``findings of fact,'' an extravagant novelty by which
a simple majority of the Senate could condemn the president's
behavior within the framework of the impeachment process
without being forced to remove him from office.
This convict-but-don't-evict strategy appeals to some
senators who have no appetite for prolonging a trial whose
outcome is all but certain. At the same time, they are
squeamish about the likelihood of an all-but-inevitable
acquittal without having some vehicle to first register their
condemnation of the president's actions. No doubt their
motives are sincere, and I applaud their ingenuity, but this
findings-of-fact proposal is not the answer. While the Senate
sits in the impeachment trial, it is not in legislative
session. The insertion of such a legislative mutant into the
impeachment proceedings would subject the process to some
very experimental genetic engineering.
The notion of trumping the articles of impeachment with
even a ``broad'' findings of fact flies in the face of what
the Framers of the Constitution intended. They deliberately
set the bar high when it came to the vote on articles of
impeachment, first by requiring a supermajority of two-thirds
of the Senate to convict, and second, by fusing the penalty--
removal from office--into the question of guilt.
In voting on articles of impeachment, senators must answer
not one but two questions: Is the president guilty or not
guilty of committing high crimes and misdemeanors, and, if he
is guilty, do his actions warrant removal from office?
This was not a casual coupling on the part of the Framers.
Their intent was to force senators to set aside their own
passions and prejudices and focus instead on the best
interests of the nation. To lift this burden from the
shoulders of senators by offering them a way to convict the
president without having to accept responsibility for
removing him from office would, in effect, bastardize the
impeachment process.
Moreover, the aftershocks would be felt long after this
impeachment has faded into history. No longer would senators
be confined to the articles of impeachment formulated by the
House of Representatives. No longer would senators need a two
thirds majority vote to pronounce a president guilty. From
this time forward, they could cite the precedent set by the
Senate in the 106th Congress as giving them carte blanche to
write, and approve by a simple majority, ersatz articles of
impeachment cloaked as ``findings of fact.''
And why stop at findings of fact? If the Senate can ignore
the intent of the Framers to combine a guilty verdict with
removal from office in an impeachment trial, maybe senators
can find a way around the constitutional prohibition against
bills of attainder, or legislative punishments.
The Senate impeachment trial takes place in a quasi-
judicial setting, and findings of fact would move the Senate
headlong into an area reserved for the judicial system, where
the Senate, under the separation of powers principle, dares
not go.
Findings of fact would become part of a quasi-judicial
record that could not subsequently be amended or overturned.
Could such a record of findings of fact be later used by an
independent counsel before a federal grand jury in an effort
to secure an indictment? If this or any president were to be
indicted, could such findings be introduced as evidence in a
subsequent trial in an effort to sway a jury and bring about
a conviction? Who knows what monsters this rogue gene might
spawn in future days?
The impeachment process, as messy and uncomfortable as it
may be, is working as designed. This is neither the time nor
the place for constitutional improvisation. No matter how
sincere the motivation, our nation and our Constitution will
not be well served by this sort of seat-of-the-pants
tinkering.
A post-trial censure resolution that does not cross the
line into legislative punishment is something else. It can
and should be considered by the Senate after the court of
[[Page S1119]]
impeachment has adjourned sine die. Censure is not
meaningless, it will not subvert the Constitution, and it
will be indelibly seared into the ineffaceable record of
history for all future generations to see and to ponder. For
those who fear that it can be expunged from the record, be
assured that it can never be erased from the history books.
Like the mark that was set upon Cain, it will follow even
beyond the grave.
Mr. DORGAN. Mr. President, I yield the floor.
Mr. MURKOWSKI addressed the Chair.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that I may have
up to 10 minutes to make a statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MURKOWSKI. I thank the Chair and wish the Presiding Officer a
good day.
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