Congress, Clinton fail to end impeachment doubts

In a recent article (The Jakarta Post Jan. 12, 1999) our Asia correspondent Harvey Stockwin questioned the legitimacy of the Clinton impeachment resolution, and suggested that the House of Representatives, the Senate, or even President Clinton's lawyers should take a closer look. Now it transpires that they have not done so.

HONG KONG (JP): As House of Representatives chief prosecutor Henry Hyde wound up the initial presentation of the case against President Bill Clinton on Jan. 16 in the U.S. Senate, he garbled his references to Asia.

Indulging in some florid oratory, Hyde invoked the memory of all those Americans who had died on battlefields defending freedom. "We must not break faith with our ancestors from Bunker Hill, Lexington, Concord, to Flanders Fields, Normandy, Hiroshima, Panmunjom, Saigon, and Desert Storm," he said --- without ever explaining why the place where the first atom bomb was dropped and the truce village for the Korean Armistice were in any way relevant to the case for impeachment.

But Hyde's next two sentences were right on target: "Let us be clear -- the vote you are asked to cast is, in the final analysis, a vote about the rule of law. The rule of law is one of the great achievements of our civilization, for the alternative to the rule of law is the rule of raw power."

This being so, it is the more surprising that the articles of impeachment which Hyde sponsored were not as closely aligned as they should have been with the ultimate buttress of the rule of law, the voice of the American people as expressed in their ballots. Hyde and his fellow prosecutors had in fact relied on the raw power of an out-of-date majority in hurriedly ramming the impeachment through a lame-duck House of Representatives.

So the second impeachment of an American president, and the first ever impeachment of an elected U.S. President, rather than exemplifying the rule of law, in one vital aspect will not completely meet that high standard.

As I have already reported for The Jakarta Post, the articles of the Clinton impeachment are of the dubious legitimacy and questionable constitutionality. The impeachment is legally questionable because the 105th Congress voted on it when the 106th Congress had been already elected.

As in every real parliament (as distinct from the rubber stamp assemblies), so in the United States Congress, at the end of every session, every bill or act or resolution lapses if it has not been finally passed into law.

For example. once the future properly elected Indonesian Parliament adjourns for an election, and once that election takes place, there is absolutely no question of that body being reassembled to pass laws. But a quirk in the American system, dating back to the founding of the republic, means that an outgoing Congress can meet and do business even after its successor has been elected. But does that oddity permit the passage of highly controversial acts, like the articles of impeachment?

The Republicans pushing for impeachment in the House of Representatives -- partly as a result of pressure from the Democrats for a speedy conclusion of the whole issue -- could not wait until the 106th Congress, elected on Nov. 3, first convened in January. Instead the would-be prosecutors pushed the impeachment resolution through in the lame-duck session of the 105th Congress in December.

In practical terms, this meant that 39 Representatives who were already no longer members of the House still voted on the impeachment. 22 outgoing members voted for, and 17 voted against the resolution.

It is no argument that the newly elected 106th House of Representatives might still have voted in a similar way.

Equally it can be argued that the 39 new members, having won by correctly judging the mood of their electorate, would have all voted against the broadly unpopular impeachment.

The hard fact is that there is, now, no way of knowing how the 39 newly elected members in the 106th Congress would have voted on impeachment, had they been given a chance to do so. But they were denied that opportunity.

The last chance to rectify this anomaly was missed this past week as the impeachment trial finally got underway.

All that was required was for one Senator to ask the impeachment trial presiding judge, Supreme Court Chief Justice William Rehnquist for a ruling: given the legal complexities arising from the 20th Amendment to the U.S. constitution, should a lame-duck impeachment by a lame-duck House of Representatives be allowed to stand?

Now it would appear too late for that question to be asked since the trial in the Senate is already a de facto reality.

When one Democratic Senator finally got around to asking Rehnquist for a ruling, it was merely on the side-issue of whether or not the Senators should be properly described as "jurors" (Rehnquist ruled that they should not be called jurors). The more important issue of the legitimacy of the whole trial was never raised.

The prosecutors from the House of Representatives were simply too eager to hurry the impeachment along. Earlier in January, they could have asked the now-convened 106th Congress to ratify the resolution passed by the 105th, but failed to do so.

The Senate, faced with the clear prospect of extended trial hearings, apparently did not want to do anything which might make them any more protracted. So Rehnquist was never asked for a ruling.

Most important of all, the Clinton lawyers, and no doubt Clinton himself, after earlier indicating that they would question the constitutionality of the impeachment, refrained from doing so. They presumably refrained because Clinton was anxious not to offend the 100 members of the U.S. Senate who now hold his fate in their hands, by raising a point which might further extend the proceedings.

So Clinton did the very thing for which he is being impeached -- he failed to persist, strictly, with the rule of law. Conversely, the House of Representatives seeks to impeach Clinton on the grounds that he did not very strictly abide by the rule of law, yet themselves are guilty of the same offense. Their only defense would be that they followed the letter of the constitution while ignoring its spirit -- granting supremacy to the wishes of the people.

Essentially what has actually happened was that for political reasons, all the main players in the impeachment drama avoided the core constitutional issue.

This is an amazing development, to say the least, in a nation like the United States which prides itself on scrupulously following the rule of law, and often lectures other countries to do the same.

Equally amazingly, the American media has generally failed to make this important point, even as it has set about wallowing in trial trivia. The misuse of the lame- duck Congress deserved critical comment but very little was forthcoming.

This failure to abide by the strict demands of constitutionality underlines that the impeachment of president William Jefferson Clinton, like that of president Andrew Johnson 131 years ago, appears to be essentially a political trial with some legal trimmings - -- rather than a legal exercise with political overtones.

Some would argue that this is always so in impeachment cases.

But to an Asia wherein the rule of law is too often subordinated to demands of political or even tyrannical expediency, the United States has conveyed the message that the same thing can happen in the bastion of democracy, too.