[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.

                          ____________________