By Ruth Marcus
The senators are doing what only one Senate has done before: sitting in judgment on the president of the United States. As they follow a process sketched in broad terms in the Constitution and refined periodically since then, their actions will inevitably determine not only Clinton's fate but also chart a course for future impeachment proceedings.
The Constitution provides the general outlines: The chief justice presides over the trial; a two-thirds majority is required to convict for "treason, bribery or other high crimes and misdemeanors"; conviction is followed by removal from office and, if the Senate chooses, disqualification from any future office of "honor, trust or profit under the United States." (See The Constitution, particularly Article II Section IV.)
The precise rules for Clinton's trial come from the 26 "Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials" and the resolution unanimously approved by the Senate last week setting out a schedule for the current proceedings.
The impeachment rules were drafted in 1868 for the trial of President Andrew Johnson, overhauled in 1974 in anticipation of a trial of Richard M. Nixon that never happened and formally adopted in their current form in 1986 as the Senate geared up for its first impeachment in 50 years, of Judge Harry Claiborne.
Why is this the Senate's job?
Some of the framers were concerned about making the president "improperly dependent" on the Senate if it served as the trial court, while others warned that the Supreme Court could be "warped or corrupted" if justices had the power to try impeachments, especially of a president who had appointed any of its members.
In the end, the majority of the framers agreed that the Senate posed the fewest problems, adding an additional safeguard by making conviction contingent on a two-thirds vote. As Alexander Hamilton argued in the Federalist Papers (No. 65), the Senate would be the only "tribunal sufficiently dignified [and] sufficiently independent . . . to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers."
What is the role of the chief justice?
Under the Senate impeachment rules, the presiding officer rules on "all question of evidence," including "relevancy, materiality and redundancy." But he can be reversed by a majority vote of the Senate. In addition, he can choose to "in the first instance, submit any such question to a vote of the Members of the Senate."
Particularly during the first, oral argument phase of the proceedings, Rehnquist's role is likely to be rather limited because he won't be called on to deal with questions about evidence or queries to witnesses. But if, for example, either side were to violate the part of the resolution that requires them to limit their arguments to evidence already in the record he could rule that out of order. (See text of the exchange between Rehnquist and Sen. Tom Harkin on Jan. 15.)
Why can't senators ask questions themselves, and how does the question procedure work?
Then, because the rules say "shall . . . put," Rehnquist presumably will ask whatever the senators want. Although it would be cumbersome, they could also submit follow-up questions. The chief justice will identify the questioners by name. Senators' questions to witnesses are subject to objections by the lawyers. There's no provision permitting Rehnquist to ask his own questions, as judges in trials do at times.
The idea is that the senators should be acting more like jurors executing "impartial justice," as the oath they took last week says, than like political speechmakers. However, the rules also allow the senators to make motions and the parliamentarian has determined that this also gives them the right to object.
How does this jury deliberate?
Although the senators are required by the rules to behave as the political equivalent of potted plants during the impeachment trial, they can submit for the record written statements describing the reasons for their votes for or against conviction.
Are senators required to attend the trial?
Can the Senate stop the trial without reaching a verdict?
What are the rules of evidence under which the Senate operates?
One of the main functions of rules of evidence in criminal cases is to shield juries from potentially prejudicial or unreliable material, a protection that is less important in the Senate, whose members have the sophistication to give due weight to "hearsay" evidence or other matters. Unlike regular jurors, senators aren't prohibited from reading newspapers or discussing the case; presumably they have already been exposed to much of the evidence. As a general matter, the Senate in the past has tended to err on the side of including evidence.
What is the burden of proof?
The White House argued in its Jan. 13 trial brief for the "beyond a reasonable doubt" standard, which is used to determine guilt in criminal cases, saying that such a high threshold "assures the public that this grave decision has been made with care."
Senators ranging from conservative Orrin G. Hatch (R-Utah) to liberal Joseph R. Biden Jr. (D-Del.) have in the past endorsed the reasonable-doubt standard. And at least one of the House managers, Rep. Bill McCollum (R-Fla.), said in a recent interview that he believes it is the proper standard.
Others have argued for a slightly less stringent burden of proof, "clear and convincing" evidence. And some have even suggested the burden applicable in civil cases, a mere "preponderance of the evidence," arguing that the purpose of impeachment and conviction is to protect the country from an individual unfit to hold public office and that the higher standards designed to make conviction difficult would interfere with that critical function.
A Nixon-era handbook on impeachment by Yale Law School professor Charles L. Black Jr. detailed the dilemma: "Removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important it unseats the person the people have deliberately chosen for the office. . . . [Conviction] could occur even though substantial doubt of guilt remained."
But the high criminal standard of proof "could mean, in practice, that a man could remain president whom every member of the Senate believed to be guilty of corruption, just because his guilt was not shown 'beyond a reasonable doubt.' " Black's suggested standard is "overwhelming preponderance of the evidence."
Could the president be subpoenaed to testify?
What would happen if Clinton were convicted?
But if he were to be convicted, he would cease to be president immediately upon the pronouncement of the judgment of conviction. A separate vote is required if the Senate wants to disqualify him from future office. Under the Senate rules, Secretary of the Senate Gary Sisco would deliver the judgment of conviction to Secretary of State Madeleine K. Albright. Vice President Al Gore would then take the oath of office as president.
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