JURY NULLIFICATION IN THE SENATE?

That the case is best explained by reference to the vindictiveness and venality of Kenneth Starr and Paula Jones, respectively;

That the president “is guilty of personal failings” exclusively, failings for which he has nevertheless “appropriately” apologized to the nation;

That the charge of actual, more-than-private criminality on Clinton’s part turns only on the fevered exaggeration of abject trivia — such as that “he used the phrase ‘certain occasions’ to describe eleven events over some 500 days”;

And that the relevant law and evidence are so soggy with ambiguity that the president’s pre-August Lewinsky cover stories might still somehow be “literally true”; his insistence that fellatio is not sex might still somehow be “totally reasonable”; and his protestations of innocence might still somehow be the only testimony we are obliged to take at face value.

Through our representatives in the Senate, we will be asked — again — to accept as “hardly surprising” that Bill Clinton “reached out” to Betty Currie in the immediate aftermath of his Jones deposition. He had just, under oath, repeatedly invoked this woman’s name as someone who could corroborate his denials about Monica Lewinsky. And the subpoenaed Lewinsky gifts he’d claimed not to remember were at that very moment stashed under the bed in his secretary’s home. But when he twice summoned Currie to listen silently while he unfolded a plainly incredible account of his doings with the intern, Clinton was not tampering with a witness, but rather simply “looking for information.” According to the White House, “there is no basis” to doubt the president’s word on this.

Nor, similarly, is there any basis to doubt Clinton’s sworn grand jury testimony that he only told his aides “things that were true” about Lewinsky after the controversy became public. John Podesta has testified that the president specifically denied any act of oral sex with the woman. Sidney Blumenthal has testified that the president informed him, in elaborate detail, that Lewinsky was a sex-hungry, predatory blackmailer. And the president’s lawyers will now testify that “it is a mystery” — no, it is “simply bizarre” — that anyone might think this evidentiary record convicts Bill Clinton of perjury.

This much of the president’s defense will be all-too-familiar. But his attorneys will treat the Senate to at least one brand-new dumb idea, as well. Clinton’s Senate trial, the White House now proclaims, is not just unwarranted by the evidence or legal-standard precedents, but outright “unconstitutional.” The president, you see, is impeached before the Senate for “one or more” of four specified categories of grand jury perjury, and “one or more” of seven specified categories of obstruction of justice. By those “one or more” conjunctive clauses, his lawyers complain, the Clinton impeachment articles violate the president’s Fifth Amendment due-process rights. For it is not enough that 67 senators agree Bill Clinton is guilty of some act of perjury or obstruction; they must all agree about precisely how he committed the crime.

The White House offers serious-looking case-law citations in support of this contention — which would prospectively invalidate Rule XXIII of the Senate’s standing impeachment procedures and retrospectively invalidate the 1974 House Judiciary Committee votes against Richard Nixon. But these legal footnotes do not actually say what Clinton’s lawyers say they say. The White House claims, for example, that the Supreme Court’s 1991 Schad v. Arizona ruling prohibits conviction on any indictment count that leaves the means of a crime ambiguous. In fact, Schad stands for something close to the opposite principle.

As Justice David Souter explained, writing for the Schad majority, “Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.” He went on, “This fundamental proposition is embodied in Federal Rule of Criminal Procedure 7(c)(1), which provides that ‘it may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means.'” Souter concluded: “In these cases, as in litigation generally, ‘different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.'”

Here Souter was quoting Justice Harry Blackmun’s concurrence in McKoy v. North Carolina (1990). McKoy is the only other Supreme Court case the Clinton White House cites in its Senate impeachment memorandum — radically out of context, and to similarly dishonest effect.

“When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her” — Justice Antonin Scalia wrote separately in Schad, with characteristic brio — “it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.”

Yes, it would be absurd. And it is on exactly the same absurd grounds that his lawyers would now set Bill Clinton free from further penalties of perjury and obstruction.

Which raises the question again: Do they think the Senate is stupid?

No, they do not, in our judgment. For the White House no longer bothers to fashion arguments designed to be believed. The evidence is overwhelming; no serious person now doubts that Bill Clinton did what he is alleged to have done. History is crystal clear, as well; Arthur Schlesinger Jr. to the contrary notwithstanding, the notion that our Framers would not have viewed systematic presidential perjury and obstruction as impeachable offenses is risible.

Instead, Clinton’s defense has taken on the flavor of an incantatory, sub-rational excuse: “not proven,” “doesn’t rise to the level,” et cetera, et cetera, et cetera. This is not an effort to persuade. It is, rather, merely a fig leaf proffered for the convenience of any senator inclined to let the president off because . . . well, just because. Clinton is guilty. The crime is impeachable. The White House asks the Senate not so much for acquittal, but for jury nullification.

And to what effect? Systematic felonies like Bill Clinton’s, his lawyers assert, “do not involve wrongdoing of a gravity sufficient to foreclose effective performance of the presidential office.” This suggestion — our current president’s central, bedrock defense — is not “stupid.” The suggestion that a recognized perjurer and obstructor of justice could ever “effectively” perform the Constitution’s Article II responsibilities is a radical assault on the integrity and traditions of our government. It is a corrupt suggestion. Will the United States Senate act to endorse such corruption?

David Tell, for the Editors