Another trial in another senate long ago may shed some light on the dynamics and uncertainties of the process. Pliny the Younger, a Roman lawyer and statesman renowned for his letters, recounts a trial in the Roman Senate around the end of the first century A. D. that has striking similarities to the upcoming impeachment trial.(2) A Roman consul was found dead under suspicious circumstances. It was unclear whether the consul had committed suicide or been killed by his freedmen. Similar to the impeachment trial, the freedmen were tried by a legislative body. The Roman Senate had to decide both the issue of guilt or innocence and also the punishment if guilt was determined. The available punishments were death and banishment.
There were three factions in the Senate: a group (including Pliny) whose first choice was to acquit and set the freedmen free, a second group who wanted the freedmen found guilty and put to death, and a middle group who wanted banishment. None of the three groups had a majority of the votes necessary to carry the day in a three-way vote. However, it was clear that banishment was the preferred outcome in any two-way vote over either of the other options. This was so because more than half of the Senate thought the freedmen to be guilty while those in favor of acquittal clearly preferred banishment over death if the freedmen were found guilty.
In his letter, Pliny (with a trace of a guilty conscience) details how he and his cohorts engaged in what is now known as strategic behavior to engineer a quite different outcome. With control of the agenda, Pliny's faction first brought up the question of punishment for a vote prior to addressing the issue of guilt or innocence. Although Pliny's group favored banishment as opposed to death, they voted for death along with the sincere proponents of death. With death defeating banishment, the issue of guilt (with death the certain punishment) or acquittal was next on the agenda. Pliny's group, following their true preferences, now voted for acquittal as did the group that favored banishment. Through strategic behavior, acquittal won although a clear majority of the Senate favored banishment over acquittal.
Pliny's strategy paid off because the banishment faction voted for acquittal as opposed to certain death for the freedmen. This was a risky strategy, however, because if Pliny had misjudged the preferences of the banishment group between death and acquittal, the outcome might have been conviction and death.
What does all of this have to do with the impeachment trail? There are a number of close similarities with a legislative body serving a quasi-judicial role where issues of guilt and innocence are possibly confounded with issues of the appropriate punishment. As in Pliny's case, there are three options facing the Senate in the upcoming impeachment trial: acquittal, censure, and removal from office. Similar to banishment in Pliny's example, it is asserted by many observers that the extra-constitutional remedy of censure is the preferred outcome of a majority of the Senate in a head-to-head vote with either of the other two options.
It is far from certain, however, that censure will emerge from the dynamics of the Senate trial. The actual outcome will depend on the agenda that sequences the issues and on the strategies employed by the various factions. For example if the issue of censure or a trial is first on the agenda, President Clinton might reject censure and the obligatory apology-confession that seems to be a prerequisite in the hope that those favoring censure as a first choice will vote for acquittal over removal from office. Similarly, the Senate hawks may reject censure in the expectation that a sufficient number of censure proponents will vote for removal from office once censure is off the table to generate the 67 votes necessary for conviction.
This suggests that the outcome of the Senate trial may depend not just on the beliefs of the 100 Senators. It will also be determined by who controls the agenda and which side is most adroit at "gaming" the process. This, in turn, depends on the vote counting (or guessing) ability of the various players. Note how agenda control by the Republicans in the House effectively stymied the drive for censure in the debate over the articles of impeachment.
Such potentially perverse outcomes are not unknown in the Senate. As a case in point, a similar well-known situation arose in regard to the ratification of the Treaty of Versailles and America's entry into the League of Nations at the end of World War I. In 1919, President Wilson presented the Senate with a treaty that would have brought the United States into the newly-created League of Nations. The treaty divided the Senate into three factions: proponents of full League membership, backers of an amended treaty preserving greater U. S. sovereignty, and the "irreconcilables" who opposed membership in any form. None of the three groups had the requisite two-thirds majority to carry the day outright, but it was clear that the amended treaty was preferred to any other single outcome. This was not, however, the result.
When the vote to amend the treaty was held in 1920, the irreconcilables behaved strategically and voted against the amendment that provided greater safeguards of U. S. sovereignty although they clearly preferred this outcome to the full treaty. The irreconcilables along with their opponents, the supporters of President Wilson who voted their true preferences, defeated the amendment. The Wilson faction was unwilling to compromise and accept the amended treaty. In the final vote for the intact treaty providing for full membership in the League of Nations, the irreconcilables along with those favoring the amended treaty voted against the full treaty and it failed. The United States, for good or ill, never was part of the League.
Unfortunately, these examples from the past do not tell what will emerge from the Senate impeachment trial. They do provide a cautionary lesson for both (all) sides about what might happen in that the outcome may be quite different from the results expected at the beginning of the process. This is something the President Clinton and his advisors may not have realized at early stages of the impeachment process, but it cannot be ignored now.
1. Professor of Economics, Institute of Government and Public Affairs, University of Illinois at Urbana-Champaign.
2. The trial is the focus of letter xiv, Book VIII of Pliny the Younger's Letters. This case was analyzed in detail in Theory of Voting by Robin Farquharson (Yale University Press: 1969).