Jan. 10, Sens. Orrin Hatch, R-Utah, and Olympia Snowe, R-Maine, went on ABC's This Week to accept congratulations for the Senate's bipartisan launch of President Clinton's impeachment trial. When asked about polls showing dissatisfaction with the GOP's conduct of the inquiry, the two senators brushed them off. "I'm not going to worry ... about polls," scoffed Snowe. "Polls are polls are polls," Hatch chimed in. "You can find almost anything you want in polls. Look, we wouldn't have civil rights laws if we abided by the polls. We wouldn't have a lot of things that are right if we'd abided by the polls. ... Our job is not to worry about the polls. Our job is to do justice."
Three weeks later, the façade of bipartisanship has collapsed, and Hatch and Snowe are singing a new tune. In recent days they've proposed a "findings of fact" resolution under which the Senate would affirm by majority vote that Clinton gave "misleading testimony" and schemed "to alter, delay, impede, cover up and conceal the existence of evidence" in the Paula Jones case and the Monica Lewinsky investigation. In theory, censure would merely condemn Clinton morally, whereas findings of fact would certify that despite the Senate's failure to remove him, the House prosecutors had proved his guilt. But in practice, the findings proposal isn't about facts. It's about spin and public opinion.
The obvious rationale for the findings resolution is what it would not do. Since many senators who think Clinton is guilty of lying and covering up aren't willing to declare him guilty of "high crimes" and remove him from office, the resolution is designed to let them affirm the former without the latter. But the resolution's affirmative rationale--what it would do--is less clear. Its authors and advocates say it has no legal consequences. If it won't cost Clinton his job or punish him for a crime, what's the point?
In a Tuesday New York Times op-ed, Hatch explained his purpose. "The message the House sent to our posterity is that Mr. Clinton's behavior is immoral and wrong," he argued. "Were the Senate to adjourn and make these findings [affirming the House's conclusions], it would deny the President an acquittal--the result he craves for his own historic legitimacy. The Senate would also make clear that the House-passed articles of impeachment are constitutionally legitimate." Above all, Hatch stressed the importance of "avoiding a historic vote on the merits, which could be interpreted as vindicating the President." The next day, Snowe echoed Hatch's remarks: "The significance of finding of facts is it would be part of the permanent record of the court of impeachment. ... We do owe it to the American people to inform them of the facts."
Message. Posterity. Immoral. Wrong. Legitimacy. Interpreted. Vindicating. Significance. The American people. These words are not about facts. They are about what really galls and worries Republicans as they approach the trial's certain demise: They have lost the struggle to give the facts meaning and authority, which are ultimately decided by public opinion. Their arguments in the trial's final days are replete with desperate, belated appeals to the popular will. House prosecutor James Rogan, R-Calif., says the Senate must call witnesses "if they're going to have a verdict that will withstand the test of history." Sen. Chuck Hagel, R-Neb., says closed-door Senate deliberations on Clinton's fate "would cast too much of a cloud of suspicion."
The GOP's most remarkable complaint is that if the Senate votes not to remove Clinton, the White House will stage another "pep rally" and will spin the vote not just as an "acquittal" but as an "exoneration." This fear is well justified, but its naked expression betrays the Republicans' tragic knowledge that they have failed to engender enough public faith in the impeachment process to withstand dismissive words from the president they have supposedly disgraced. On Wednesday, Clinton spokesman Joe Lockhart promised, no doubt falsely, not to spin the vote against removal as a repudiation of Republican partisanship and of the charges against Clinton. "I now declare, in a post-impeachment era, this a gloat-free zone," said Lockhart. Here was an astonishing spectacle: The spokesman for an impeached president offering terms under which the president's judges could surrender with honor, having lost in the nation's ultimate court.
To pass findings of fact, the Republicans need only 51 votes. But to achieve the credibility these findings are supposed to bestow on the impeachment inquiry, Snowe and other Republicans admit they need at least five Democrats. Thanks to the inquiry's partisan meltdown, that seems unlikely. Fearful that Republicans will unilaterally dictate the resolution's language, Democrats refuse to consider it, preferring to end the trial and then debate a censure resolution under normal Senate rules, which would give Democrats the protective power of the filibuster. And fearful that Independent Counsel Kenneth Starr will use a findings resolution to bolster an indictment of Clinton, Democrats refuse to supply the ammunition.
So the findings resolution has quickly become the victim of the partisan skepticism it was supposed to overcome. Wednesday, Democratic senators called it an unconstitutional Republican scheme to "save face," "embarrass the president," and appease "an element of their constituency that wants conviction." The more "Republicans persist in demanding live witnesses and demanding more depositions and demanding extralegal devices, like findings of fact," said Senate Minority Leader Tom Daschle, D-S.D., "the more it becomes a Republican trial."
The GOP's best option at this point is to embrace the Democrats' plan to vote quickly on Clinton's removal, end the trial, and censure him. This would achieve most of the objectives of the findings of fact resolution. Instead, Senate Republicans continue to antagonize Democrats gratuitously. Wednesday night, they sent Clinton an open letter urging him to testify before the Senate, disregarding repeated White House statements that he would not do so. They told the press that censure wasn't "strong" enough and that Democrats were trying to turn the findings proposal into "a partisan issue" because "they're scared to death of it." But when you're the majority party and your task is to convince the public that a president of the opposing party has been legitimately impeached, "partisanship" should be the last word out of your mouth. That's worse than spin. That's dumb spin.