Sen. Johnson's closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. Tim Johnson (D-South Dakota): Mr. Chief Justice, the great question now before the Senate is not whether the rule of law will prevail--it surely will--both by the actions of this body and by possible proceedings within the judicial system.
The question before the Senate is whether we should take action against the President beyond that allowed for in our nation's courts. We are, I believe, confronted by two threshold questions which must first be resolved before consideration can or need be given to weighing the evidence presented by the House Managers. First, is whether the Articles of Impeachment have been adequately drawn to allow the accused to know with precision the wrong-doing to which he is accused, and to require that a 2/3 majority vote of the Senate be secured upon a single act of wrong-doing in order to convict. As a second threshold matter, if the Articles are at least adequately drawn, do they, if true, allege wrong-doing of sufficient import to justify for the very first time in our nation's long history, the over-turning of the people's will as expressed in a free, fair and democratic national election? I am troubled by the adequacy of the articles, but even accepting them, the second threshold question of impeachability is simply not met.
Only if these threshold questions are adequately met in the mind of an individual Senator, can that Senator proceed to determine whether the weight of the evidence is sufficient to convict. And even if both threshold questions are ignored, it is impossible for me to say that the circumstantial evidence presented reaches a 'beyond a reasonable doubt' standard on either article. Reasonable doubt means that if there are multiple reasonable theories as to what occurred--if one of the reasonable theories is consistent with innocence, then an acquittal must follow. Especially relative to article two--I can understand the belief of some that a plausible scenario of obstruction was established. Some may even believe that the President was more likely than not obstructing justice. But the evidence is clearly not so powerful as to lead anyone to believe that no reasonable and innocent scenario remains.
I am both profoundly honored and humbled to have this historic responsibility to participate with my Senate colleagues, Republican and Democrat, in perhaps the most grave proceeding envisioned by the authors of our national Constitution. I have listened carefully to both sides of this dispute, and I have also carefully reviewed the thoughts of many of our nation's leading scholars of history and constitutional law. It is clear to me that the results of this trial have ramifications which go far beyond the fortunes of William Jefferson Clinton.
The decision made by the Senate this week will have an utterly profound impact on the relationship between the executive and legislative branches of our government for the rest of time. Accordingly, it is essential that the decisions made in this proceeding not be driven by transitory passions of partisan politics, but rather, with an eye toward the long-term stability and integrity of our democracy.
My humble reading of history leads me to believe that the never-failing bipartisan honoring of national presidential elections over these past two centuries has been one of the greatest sources of our national success. While holding a president accountable to all the same civil and criminal laws that apply to the general citizenry is absolutely essential, the writers of our Constitution properly intended for the reversal of fair elections at the hands of Congress to be exceedingly rare and difficult.
The learned opinions of our nation's leading scholars overwhelmingly support the understanding that presidents should not be removed from office by Congress short of some horrific personal misconduct or misconduct which arises from executive authority and threatens the nation--such as treason or bribery. By requiring a 2/3 vote for the over-turning of presidential
elections, the founders of our nation also made it crystal clear that such an extraordinary step should not and cannot be taken unless there is an overwhelming bipartisan outcry against the President's actions.
The American public and most Members of Congress, including myself, have criticized President Clinton's personal conduct in harsh terms. But the American public also seems to understand that at stake is not simply Bill Clinton's future, but the integrity of our election system and the long-term freedom of the executive branch from partisan congressional attack--this understanding about the need for stability, for proportionality, for continuity, is a natural and a deeply conservative inclination on the part of our citizenry.
The writers of our Constitution wanted some degree of proportionality between a president's conduct and the penalties applied--otherwise they would have made impeachment applicable to all crimes and misdemeanors. It is certainly conceivable that the will of the people expressed in an election may someday be rightly overturned by Congress. But it is also certain to me that while this president's personal conduct (involving immaterial testimony to a lawsuit dismissed by a federal court as having no merit) is deserving of public condemnation, and even possible prosecution within the judicial system, it simply does not rise to the level of extraordinary danger to the nation that justifies removal from office.
Some will no doubt say that I have set a high standard for overturning presidential elections. I would very much agree. Particularly as a recently former member of the House of Representatives, I have witnessed first hand the depth and the intensity of partisan anger that can occur from time to time in Congress and among portions of the national public. It is a reaction to that open partisanship demonstrated by the House and the Independent Counsel that surely is at the foundation of the American public's overwhelming contempt for this proceeding and the view that this process is politics as usual, an exercise in raw political power and beneath what should be the dignity of Congress.
I have no certain solutions for that sad and angry state of affairs, other than to attempt to conduct my own political life in as thoughtful and moderate a manner as I am capable, but I believe the Constitution provided our nation with a strong bulwark against negative and hateful partisanship by creating an executive branch which is largely shielded from congressional partisanship and which is instead disciplined by law and by the electoral will of the people.
I greatly fear that any lesser standard would result, even without an independent counsel law, in a situation whereby civil actions against standing presidents will be routinely brought as yet another destructive partisan political tactic. These multiple and nefarious actions will then be followed by never-ending legal discovery proceedings, and they in turn followed by impeachment articles or the threat of impeachment each time the House is controlled by a different political party than the Presidency. I fear the wrong decision here will lead our nation into an ever downward spiral where impeachment proceedings will be routine.
It is critically important, in my view, for this United States Senate to say, "Stop! Enough!" We must send an unmistakable message to the House, the nation and the world, that we will not permit the stability and independence of the executive branch of our government to be jeopardized by anything less than heinous crimes or gross threats to the nation.
This leaves, of course, other avenues for Congress and the public to express great displeasure with the President's dishonorable conduct. If illegal activity did in fact take place, that activity would be subject to discipline in the courts. While there are divided opinions on its wisdom, it is possible that some sort of collective censure may be agreed upon by the Senate, and certainly individual Senators are free to place their condemnations of the President's personal behavior in the Congressional Record. The House impeachment of the President, the public humiliation of Bill
Clinton and his family, as well as the great private fortune this dispute will have consumed will also serve as punishment enough. But, I think it is also important for this Senate to understand that the writers of our Constitution did not create an impeachment process as one more form of punishment, but exclusively to protect the viability of our nation.
Given my sacred oaths as a United States Senator and as a participant in this impeachment trial, and given my abiding commitment to the Constitution and the well-being of our nation, I have no choice but to vote against both Articles of Impeachment. I do not know nor do I care what the political consequences might be of the decision I make here--I am a Democrat elected six consecutive times state-wide from my largely Republican state, and I have long been proud of the bipartisan support extended to me by the good people of South Dakota. In turn, I have long recognized that neither political party has a monopoly on good ideas or bad, good people or bad. But I know this--the issue before me is too grave for politics. At the end of the day, when my service in this body is done, I want my children, my family and myself to view my decisions here as honorable, as an exercise in responsible judgement, and in a small way, as efforts that strengthened the bulwark of democracy that our Constitution represents.
The President dishonorably lied to the American people, however, the two Articles before the Senate fail, first because they do not allege offenses that give rise to removal from office, and secondly, because it cannot be said that the evidence proves guilt of perjury or obstruction of justice beyond all reasonable doubt (to such a degree that no innocent and reasonable explanation exists).
I will vote not guilty on both Article one and Article two.
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