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Ending the Clinton Crisis

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from: William Kristol
to: James Hamilton

Posted Thursday, Dec. 3, 1998, at 3:30 AM ET

Jim,

I and most opponents of censure would acknowledge that a concurrent resolution of censure would be constitutional in the narrow sense. But I continue to believe it would be unwise, in its implications for the separation of powers and the constitutional order in a broader sense.
What strikes me, though, is the price you have had to pay to make censure constitutional, even in a narrow way. Six weeks ago you were in favor of "congressional censure coupled with a significant fine," indeed, a "stinging censure" coupled "with a fine that has some bite." This, you argued subsequently, would be a means of really "punishing" the president. Now the fine--and any real punishment for the president--has disappeared. Presumably the fine, if not "volunteered" by the president, would be an unconstitutional bill of attainder. Even if nominally volunteered, the fine raises constitutional problems; and in any case there is no indication the president would agree to a fine. So it's gone.
Also gone is any notion of requiring a real acknowledgment by the president of the fact that he committed deliberate and systematic perjury. There's no more talk among censure advocates of the president appearing in the well of House, prostrating himself on the Capitol steps, or repudiating in any important way his behavior until now--behavior that has shown contempt for the notion that he's done anything seriously wrong.
The upshot is that censure is constitutional because it has been reduced to a virtually meaningless sense of the congressional resolution. By contrast, I continue to believe that the meaningful version of censure would be impeachment by the House. Absent new developments, conviction by the Senate and removal from office look unlikely. So the House's article (or articles) of impeachment would stand as the permanent censure of the president.
The concrete choice facing the Republican leadership in the next week is whether to permit a vote on censure as a backup to the impeachment vote on the House floor later this month. I very much hope it doesn't permit such a vote. If the House is called back into session, the members will be there for one reason, and one reason alone: to decide whether the president of the United States should be impeached or not. Having resolved this question, the 105th Congress should adjourn. Now if impeachment fails, the 106th Congress can, at its leisure, take up all the resolutions of censure that it wants. But that symbolic action shouldn't be confused with the question of deciding whether or not to impeach the president. It seems to me that members of the House should be forced to confront this decision cleanly and squarely later this month.

dialogues
entries
12345678
from: William Kristol
to: James Hamilton

Posted Thursday, Dec. 3, 1998, at 3:30 AM ET
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James Hamilton is a partner at the law firm of Swidler, Berlin, Shereff, and Friedman. He was assistant chief counsel of the Senate Watergate committee and recently defended the continuance of Vincent Foster's attorney-client privilege before the Supreme Court. William Kristol is editor and publisher of the Weekly Standard. He is a regular guest on ABC's This Week With Sam Donaldson and Cokie Roberts.
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