How Arlen Specter Set An Impeachment Precedent Senators Might Not Want To Follow

How Arlen Specter Set An Impeachment Precedent Senators Might Not Want To Follow

Those chattering about President Trump’s impeachment trial have largely ignored one unique precedent, in the form of two words uttered by a senator from Pennsylvania: Not proved.
Christopher Jacobs
By

Under the category “everything old is new again,” Donald Trump’s impeachment trial in the Senate has prompted a resurgence of interest in Bill Clinton’s Senate trial 21 years ago. As a recent Politico article notes, journalists have mined the archives of the Clinton trial to find precedents and analogies to use in the current dispute. Similarly, the fact that many players in the Clinton drama remain in Congress, or have re-emerged to argue the Trump case, has prompted opposition researchers to plumb the Clinton trial for nuggets suggesting hypocrisy.

In both cases, however, observers have largely ignored one unique precedent, in the form of two words uttered by a senator from Pennsylvania: Not proved. That silence might stem from the idiosyncratic tendencies of the senator who rendered such a verdict—not to mention the political ignominy he later suffered.

Scottish Law and Impeachment

The senator in question, Arlen Specter, had previously served as a prosecutor in Philadelphia. (During that time, he served on the Warren Commission investigating the assassination of President John F. Kennedy, and originated the “single-bullet theory” that has aroused the suspicions of conspiracy theorists ever since.) At the conclusion of the impeachment trial, Specter attempted to invoke Scottish law to claim that the House managers had not proven their case. As he stated in closed-door deliberations in the Old Senate Chamber, a copy of which were later published in the Congressional Record:

My position in the matter is that the case has not been proved. I have gone back to Scottish law where there are three verdicts: guilty, not guilty, and not proved. I am not prepared to say on this record that President Clinton is not guilty. But I am certainly not prepared to say that he is guilty. There are precedents for a Senator voting present. I hope that I will be accorded the opportunity to vote not proved in this case.

He didn’t get that opportunity—at least not exactly. An Associated Press story on the Senate impeachment vote noted that “initially, there was a pause among Senate clerks who seemed unsure how to record such a vote,” as Senate rules “say a senator can vote only guilty or not guilty.” Upon discovering the Senate rule, Specter formally gave his verdict as “Not proved, therefore not guilty.”

Voters Render Their Verdict

The episode followed Specter for much of his remaining career. At the time of Clinton’s impeachment trial, Specter had just won re-election. But when campaigning for a fifth term in 2004, conservatives used the “Not proved” verdict against him. National Review dubbed Specter the “worst Republican senator” in 2003, and Rep. Pat Toomey challenged Specter in the Republican primary. (Disclosure: I have done paid work for Toomey, both before and after his primary against Specter.)

The Republican establishment largely coalesced around Specter, thinking that Toomey’s more conservative views would cost Republicans a Senate seat, or cost President George W. Bush a chance to win Pennsylvania in his re-election campaign. (Toomey later won the Senate seat not once but twice—in 2010 and 2016—while Bush failed to capture Pennsylvania in either 2000 or 2004.) Specter eked out a primary victory by roughly 17,000 votes, and won a fifth term in November 2004.

But Specter’s vote in favor of Barack Obama’s “stimulus” in February 2009, which prompted outrage from the nascent Tea Party movement, proved the beginning of his end. Shortly thereafter, the man who started his political life as a Democrat, becoming a Republican in the 1960s, switched back to his Democrat roots.

In a stunning press conference in late April 2009, Specter admitted, “I am not prepared to have my 29-year-record in the United States Senate decided by the Pennsylvania Republican primary electorate.” The man who 15 years previously had compiled an infamous chart showing the complexity of “Hillarycare”—which he later displayed on the wall of his office—ended up becoming the 60th vote to approve Obamacare in March 2010.

Unfortunately for him, however, Democrats didn’t welcome Specter back to their party. Rep. Joe Sestak ran against Specter in the 2010 Democratic primary, using Specter’s craven political opportunism in switching parties against him to devastating effect in one of the most hard-hitting political ads ever:

Defeated by Sestak in the 2010 Democratic primary, Specter concluded his political career with the unusual feat of having been rejected by both of the major political parties.

‘Peculiar Episode’

The library at the University of Pittsburgh housing Specter’s senatorial papers calls the senator’s “not proved” verdict on Clinton’s impeachment “one of many peculiar episodes in a very unusual trial”—perhaps the most delicate characterization of his position. The library also notes that Specter “received criticism on both sides of the aisle for his vote, including accusations that he was only trying to be contradictory, or that he was disregarding the House’s findings.”

Due to both the outrage directly resulting from his vote and the inglorious end to his political career, few have mentioned Specter’s “not proved” vote in the context of the current impeachment trial. A Washingtonian article referenced it briefly, in a discussion of how Republicans could enable Donald Trump’s removal from office without voting to convict by failing to vote, as conviction under the Constitution requires two-thirds of senators present, rather than two-thirds of all senators sworn.

Suffice it to say, however, that 20-30 Republican senators suddenly deciding not to vote in a Trump impeachment trial has even less of a chance of happening as another “not proved” verdict. The ways Specter tried to escape accountability to voters—both during the Clinton impeachment, and throughout his career—provide a cautionary tale to politicians of all political parties, during the Trump impeachment trial and otherwise.

Chris Jacobs is founder and CEO of Juniper Research Group, and author of the book, "The Case Against Single Payer." He is on Twitter: @chrisjacobsHC.

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