In The Spirit of the Laws, Montesquieu draws a distinction that is useful in thinking about the impeachment of Bill Clinton. Montesquieu distinguishes between the structure of government, which he calls its “nature”–for example, monarchy, republicanism, tyranny–and the spirit that animates it, which he calls its “principle.” For monarchy the principle is honor; for a republic it is virtue; and for tyranny it is fear. The structure, to use a simple analogy, is like the type of a vehicle–for instance, bicycle, car or train–and the principle is the fuel that makes it go (leg-power, gas or electricity).
The “principle” that has fueled the assault on Clinton has been constant throughout and is easily identified. It has been the zeal of the political right in general and of the Republican Party in particular to damage or destroy the presidency of Bill Clinton. The structures of the campaign, however, have been many. They include sexual harassment law, an independent prosecutor and the impeachment provision in the Constitution.
This restless search by an implacable faction for a variety of weapons to use against the President has resulted in a novel situation. The law forbids double jeopardy, but Clinton now faces, if my count is correct, sixfold jeopardy.
The first, of course, is the Senate trial, in which Clinton is likely to be acquitted because the Founders required a two-thirds majority to convict and the attacking party holds only fifty-five of the Senate’s hundred seats. This insufficiency has sent the Republicans in search of forms of punishment within its reach.
The second is impeachment itself (as distinct from conviction and removal), which Republicans wish to interpret as condemnation, as if it were now enough to accuse someone of a crime in order to brand him guilty. The problem is that the public, according to every measure of its opinions, condemns Congress for impeaching the President much more harshly than it condemns the President for his misdeeds.
The third is censure, favored by the Democrats, who want to register their disapproval of the President without removing him from office.
The fourth, which has been invented more or less on the spot, is the idea of voting in the Senate on a so-called “finding of fact,” by which the Senate would formally define the President’s bad behavior even as, in a second vote, it would acquit him. Inasmuch as this “finding of fact”–more accurately named a “finding of conclusions” or a “finding of guilt” (inasmuch as the relevant facts were all found long ago)–can be passed by a simple majority, it amounts to an end-run around the inconvenient two-thirds rule.
Some Republicans, though, are unsatisfied with this innovation. Senator Orrin Hatch, for one, worries that if the Senate “finds that perjury and obstruction of justice are not removable” it would send the message that the Senate does not take these offenses seriously. He accordingly invented a variation of the fourth form of jeopardy, in which, after voting the censorious finding, the Senate would simply suspend the trial permanently, depriving Clinton of his acquittal. As part of this now-final judgment, Hatch would buttress the punishment value of impeachment by having the Senate go on record to the effect that “Impeachment Without Removal” (the apotheosis of this sanction through the use of capital letters is Hatch’s own) would be designated “the highest form of censure.” Here, in a perfect inversion of the rule that a person is innocent until proven guilty, mere accusation (impeachment) is formally transmuted by senatorial declaration not only into conviction but into the sentencing as well.