Senator Byrd Is ...


By William Westmiller

The honorable Senator from the great state of West Virginia has informed us that he has concluded the President is guilty of perjury and obstruction of justice, but will vote against conviction. While everyone would hesitate to fault the "dean" of the Senate for any misconstruction of his obligations, it's clear that he should resign. Having sworn an oath to "uphold and defend" the Constitution of the United States, he has either failed to read the document he claims to hold in such high esteem, or he is searching for the most feeble pardon he can find in defense of the most calamitous act of his lengthy career.
This past Sunday, Senator Robert Byrd informed us that the actions of the President had clearly risen to the level of high crimes and misdemeanors, "No doubt about it in my mind," he said. Will he therefore vote to convict on the articles of the impeachment? No. Rather than commit to his obligation, he puts his own sense of what is "best for the nation" above his oath of office. He has accepted the White House spin that the Constitution requires removal from office upon conviction and, for a variety of circumspect motives, he finds that the penalty of removal is too severe. Therefore, he will probably vote against the charges, even though he believes them to be true.
We would all like the penalty to fit the crime, whether it is our neighbor or the President. But, to cast a ballot contrary to your own judgment about guilt is jury nullification. In this case, not just nullification of some legislative fiat, but nullification of the Constitution. In Senator Byrd's mind, his own sense of proper punishment overrides his oath to uphold the equalapplication of the rule of law. His avowed intent is clearly an obstruction of justice. But his more dire crime is a simple failure to inform himself about the Constitution.
The Constitution is a fairly lengthy document, about 20 pages, and the legal interpretations of the court and academics probably run through multiple volumes. But, there are only three paragraphs about impeachment, one at Article II, Section 4, and the other at Article I, Section 3. There is no excuse for Senators having failed to read them. In clear English, these paragraphs make it clear that a federal officer shall ONLY be removed upon conviction from high crimes and misdemeanors. Nothing else, short of assassination, can force a removal from office prior to the conclusion of the elected term. Without reading further, the White House, and Senator Byrd, have concluded that the words "shall be removed" in Article II are a stipulation of the sole and singular consequence of conviction. That simply isn't the case, as is evident from the text of Article I, which describes the possible penalties.
According to part seven of Section 3, judgment in cases of impeachment "shall not extend further" than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States. This paragraph makes it perfectly clear that removal is the most extreme, but not the only, possible penalty for conviction. It does preclude the Senate from imposing any fine or jail time, while making it clear that the accused - whether convicted or not - is still "liable and subject to indictment, trial, judgment and punishment, according to the law." Not after he leaves or is removed from office, but anytime.
To comply properly with the Constitution, the Senate should have a series of votes. First, whether the allegations contained in the articles of impeachment are true or false. Senator Byrd is obliged by his expressed sentiments to vote in favor of conviction. If the two-thirds requirements is met, there should be a second vote on whether to remove the Presidentfrom office. On that ballot, the esteemed Senator may in good conscience vote no. If that vote fails, there should be a third vote on the other penalties allowed by the Constitutional text. This could include complete disqualification from any future office, or some proportional disqualification. The penalty could simply be a disqualification from any future ambassadorship, cabinet post or other "position of honor" in the United States. Disqualification does not preclude him from completing his current term as President, it simply eliminates the possibility of holding any future office. This seems to me another example of the wisdom of the founding fathers, that the punishment can fit the crime.
Perhaps Senator Byrd's copy of the Constitution was redacted by the White House, obliterating Section 3 of Article I. Perhaps Senator Byrd has simply had a lapse of memory. However, he cannot faithfully read the Constitution and conclude that it is in the best interests of the country that he lie. He cannot find the President guilty and vote against conviction. That is a clear violation of his oath of office. Probably not an impeachable offense, but a sad ending to his long and sincere devotion to the rule of law.

©1999, William Westmiller
California Coordinator of the Republican Liberty Caucus
Past Candidate for the Republican Nomination for (24 CA) Congress
Former National Secretary, California Chairman, Libertarian Party
byrdsong.c30 ~840 Words
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