WORLD

In the footsteps of history

The Senate grapples with prosecuting a President

ANDREW PHILLIPS December 28 1998
WORLD

In the footsteps of history

The Senate grapples with prosecuting a President

ANDREW PHILLIPS December 28 1998

In the footsteps of history

WORLD

The Senate grapples with prosecuting a President

ANDREW PHILLIPS

The last time things went this far— the only other time things went this far—the fate of the President hung upon a single vote. The year was upon year 1868. Andrew Johnson had been impeached by the U.S. House of Representatives and was on trial in the Senate. It was just three years after the end of the Civil War. Radical Republicans wanted to throw Johnson out of office for being too soft on the white supremacist governments that still ruled the states of the defeated Confederacy. The radicals needed 36 of the 54 votes in the Senate, a two-thirds majority, to convict him. It all came down to a freshman senator from Kansas, Edmund Ross. Salmon P. Chase, Chief Justice of the Supreme Court, called on Ross to stand by his desk and answer the question: “Is the respondent Andrew Johnson guilty or not guilty of a high misdemeanor as charged?”

The moment was electric. Ross knew his entire career turned on that vote; he wrote later that his very “powers of hearing and seeing” were heightened. “Every fan was folded, not a foot moved, not the rustle of a garment, not a whisper was heard...

I almost literally looked down into my open grave. Friendships, position, fortune, everything that makes life desirable to an ambitious man were about to be swept away by the breath of my mouth, perhaps forever.” He gave his answer: “Not guilty.” Johnson was saved by one vote, and Ross became an outcast among his fellow Republicans. He subsequently lost his bid for reelection and spent much of the rest of his life in poverty.

Johnson, like Bill Clinton, was an up-from-poverty boy from the South, like Clinton, he was raised by a widow, had a murky personal life, and served as a governor—of Tennessee—before entering the White House Gohnson was Abraham Lincoln’s vice-president, and assumed the top job when Lincoln was assassinated in 1865). Like Clinton, too, Johnson was a Democrat hounded by intransigent Republicans in Congress. And now that Clinton has also been impeached by the House, the precedents laid down during Johnson’s ordeal in the Senate will govern his trial there—if it comes to that. Twenty-six rules laid down in 1868—the Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials—will shape Bill Clinton’s fate.

A Senate trial would be presided over by Chief Justice William Rehnquist, sitting on the dais normally occupied by Vice-President Al Gore. Below Rehnquist, in what is known as the “well of the Senate,” would be two tables facing each other. At one would sit socalled managers appointed by the House to act as prosecutors—most likely headed by Rep. Henry Hyde of Illinois, chairman of the House judiciary committee. The other would be reserved for Clinton, in the unlikely event he chose to attend, and his lawyers. Witnesses—the whole range of scandal characters from Monica Lewinsky to Vernon Jordan—could be called by either side. The senators, acting as a jury, have to do what comes unnaturally to them: keep quiet. If they want to question a witness, they must do so by passing written queries to the chief justice. Only at the end would they be allowed to speak—and then for just 15 minutes each when they hold a closed session to deliberate on their verdict.

No one knows how long a trial might last. The rules say it must begin at 1 p.m. sharp on the day after the Senate formally receives articles of impeachment from the House, and continue every day, “Sunday excepted,” until “final judgment shall be rendered.” Johnson’s trial lasted 73 days. The Senate majority leader, Trent Lott, has said that Clinton’s trial might take anywhere from three days to three weeks—but Democrats warn it could drag on for months, tying up both the Senate and the Supreme Court as well as the White House.

Part of the problem is that while the Johnson rules set some precedents, they leave many questions unanswered. With so much at stake, how closely should the Senate proceedings reflect a modern trial? Should there be a pre-trial period for discovery and taking depositions from possible witnesses? What should be the standard of proof? “Beyond a reasonable doubt,” as in a criminal trial? “The preponderance of evidence,” as in a civil trial? Or some other standard—such as “clear and convincing evidence,” as was suggested during the judiciary committee’s hearings? It will still take a two-thirds majority to convict—now 67 of the 100 senators.

A trial, however, is not inevitable. Lott said last week the Senate should go ahead with a trial soon after it reconvenes for the new session on Jan. 6, but the rules allow it to short-circuit the process. At any point, a simple majority of 51 senators could vote to dismiss the entire proceeding. Or the Senate, less partisan than the polarized House, could work out a compromise settlement with Clinton— perhaps leaving him in office while he accepts a rebuke from Congress and a penalty, such as losing his presidential pension or paying a hefty fine.

Whatever the outcome, history provides no easy guide to the right path. Ross, once considered a traitor to his party after his vote for Andrew Johnson, was later hailed as a hero for resisting partisan pressure—most notably by John F. Kennedy in his 1956 book Profiles in Courage. The senators who judge Clinton will have to ponder how they, in turn, will ultimately be judged.