[Congressional Record Volume 145, Number 23 (Tuesday, February 9, 1999)]
[Senate]
[Page S1409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             IMPEACHMENT TRIAL--FINDINGS OF FACT PROPOSALS

 Mr. FEINGOLD. Mr. President, on January 28, I was the only 
Democratic senator to cross party lines and oppose the motion to 
dismiss. I felt it would be unwise to end this trial prior to a more 
complete presentation of evidence and a final vote on the Articles of 
Impeachment themselves. Nonetheless, I had no doubt that a motion to 
dismiss was a constitutional way to end the trial, if a majority of 
senators had supported the motion.
  The Senate must keep in mind at every step in this process that our 
actions will be scrutinized not just by our constituents today and for 
the rest of the trial, but also by history. If another impeachment 
trial should occur 130 years from now, the record of this trial will 
serve as an important precedent for the Senate as it determines how to 
proceed. It is our responsibility to abide by the Constitution as 
closely as possible throughout the remainder of this trial. My votes on 
House Managers' motions on February 4 were based on the same concerns 
about prudence and precedent that motivated my earlier votes on the 
motion to dismiss and calling witnesses.
  With the judgment of history awaiting us, I did have serious concerns 
about the constitutionality of proposals that the Senate should adopt 
so-called ``Findings of Fact'' before the Senate votes on the Articles 
of Impeachment themselves. It now appears that support for such 
proposals has waned, and the Senate will not be called upon to vote on 
them. Nonetheless, I want to explain my opposition to such proposals 
for the record.
  Findings of Fact would allow a simple 51 vote majority of the Senate 
to state the judgment of the Senate on the facts of this case and, in 
effect, to determine the President's ``guilt'' of the crimes alleged in 
the Articles. But the Constitution specifically requires that two-
thirds of the Senate must convict the President on the Articles in 
order to impose any sanction on him. The specific punishment set out by 
the Constitution if the Senate convicts is removal from office, and 
possibly disqualification from holding future office.
  The supermajority requirement makes the impeachment process 
difficult, and the Framers intended that it be difficult. They were 
very careful to avoid making conviction and removal of the President 
something that could be accomplished for purely partisan purposes. In 
only 23 out of 105 Congresses and in only six Congresses in this 
century has one party held more than a 2/3 majority in the Senate. 
Never in our history has a President faced a Senate controlled by the 
other party by more than a 2/3 majority. (The Republican party had 
nearly 80 percent of the seats in the Senate that in 1868 tried Andrew 
Johnson. Johnson was at that time also a Republican, although he had 
been a Democrat before being chosen by Abraham Lincoln to be his Vice-
President in 1864.) The great difficulty of obtaining a conviction in 
the Senate on charges that are seen as motivated by partisan politics 
has discouraged impeachment efforts in the past. Adding Findings of 
Fact to the process would undercut this salutary effect of the 
supermajority requirement for conviction.
  The Senate must fulfill its constitutional obligation and determine 
whether the President's acts require conviction and removal. The 
critical constitutional tool of impeachment should not be available 
simply to attack or criticize the President. Impeachment is a unique. 
It is the sole constitutionally sanctioned encroachment on the 
principle of separation of powers, and it must be used sparingly. If 
Findings of Fact had been adopted in this trial, it would have set a 
dangerous precedent that might have led to more frequent efforts to 
impeach.
  The ability of a simple majority of the Senate to determine the 
President's guilt of the crimes alleged would distort the impeachment 
process and increase the specter of partisanship. When the Senate is 
sitting as a court of impeachment, its job is simply to acquit or 
convict. And that is the only judgment that the Senate should make 
during an impeachment trial.

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