As a Jury, Senate Is Full of Conflicts
Washington Post Staff Writer
Friday, January 15, 1999; Page A18
In any trial, a potential juror who is related to the prosecutor would be immediately disqualified, as would one who had stood before reporters and expressed an opinion about the guilt or innocence of the defendant.
Impeachment trials, however, are different matters. If the regular rules of jurisprudence applied to Congress, it is questionable whether there would be enough senators for a quorum in the impeachment trial of President Clinton.
As the Clinton trial resumed yesterday, a potential for conflicts of interest continued to haunt this unusual pool of jurors. For instance, three senators Charles E. Schumer (D-N.Y.), Jim Bunning (R-Ky.) and Michael D. Crapo (R-Idaho) voted as lame duck members of the House in December's impeachment vote of the president Schumer nay, and Crapo and Bunning yea.
That they already have cast a vote on impeachment in the House raises the question of how they could fulfill the impartiality oath they took last week as Senate jurors.
Sens. Tim Hutchinson (R-Ark.) and Carl M. Levin (D-Mich.) whose brothers Asa and Sander, respectively, serve in the House have been questioned about familial conflicts. Asa Hutchinson is one of the "House managers" presenting the case against Clinton to the Senate. Democrats on the House Judiciary Committee complained loudly about his appointment as a manager because of his relationship to the senator.
Also, reporters have repeatedly asked Sen. Barbara Boxer (D-Calif.) whether she can be impartial since her daughter is married to first lady Hillary Rodham Clinton's brother.
All the senators have said they believe they can be impartial jurors and have refused to recuse themselves. There have been no serious efforts to encourage them to do so.
"It is not a concern because the senators are not real jurors," said Stephen Gillers, a professor of legal ethics at New York University's law school. "Some of them, if they were real jurors, would be disqualified," he said, but impeachment "is a unique situation."
Under the rules for impeachment trials, it is up to the senators themselves to decide whether a conflict is so severe that they should recuse themselves. "This has sometimes led to inconsistent results," constitutional law professor Michael J. Gerhardt wrote in a book about the impeachment process.
For example, Gerhardt noted, just as in the Clinton impeachment, the House impeachment of U.S. District Judge Alcee L. Hastings (now a congressman from Florida) was carried over from one Congress to the next. In that case, three senators who voted to impeach Hastings in the House James M. Jeffords (R-Vt.), Trent Lott (R-Miss.) and Connie Mack (R-Fla.) recused themselves from voting in the Senate trial.
On the other hand, in the 1803 impeachment of U.S. District Judge John Pickering of New Hampshire, the judge attempted to disqualify three senators for similar reasons but failed, according to Gerhardt.
In another case, Senate President Pro Tempore Benjamin F. Wade, a Radical Republican from Ohio, refused to recuse himself from the impeachment vote of Andrew Johnson even though he stood to ascend to the presidency should Johnson be removed. Johnson had succeeded President Abraham Lincoln, and no vice president had yet been picked to succeed him.
"I think that impartiality cannot realistically mean people who are totally neutral, without any preconception or relationships that might impact their decision," said Washington attorney Alan Baron, who served as special counsel in the House during the Hastings impeachment. "If you were to do so, I quite literally think you couldn't field a team."
That didn't stop the Republican National Committee from accusing Schumer last week of already violating his oath to be impartial in the impeachment trial, because he already had announced his belief that the president should not be impeached. Asked about it on NBC's "Meet the Press" last weekend, Schumer noted whimsically that the RNC memo failed to mention any similar concerns about Crapo and Bunning.
RNC spokesman Cliff May said the difference is that Schumer has been so outspoken and definitive in his position that Clinton should not be removed from office.
Schumer, in a statement released through a spokeswoman, said he will be fair and impartial, but that he owed it to his New York constituents to tell them where he stood last year. If "something new is revealed, I will be forced to reassess my position and will do so," he said.
Tim Hutchinson, who shares an apartment with his brother in the Virginia suburbs, said disqualifying every senator with potential conflicts would mean "you're going to have a very small jury pool in the Senate."
Carl Levin said "it would be a real abdication of our responsibility" for many senators to recuse themselves. "That's up to each individual," he said. "If they feel they can't serve properly for some reason, they have to reach their own conclusions."
On "Meet the Press" Sunday, Boxer said she had dined with Clinton at a party the night before. Senate rules, she said, dissuade you from recusing yourself.
"You know, there are people who have golfed with this president," Boxer said. "There are people who have lunched with [independent counsel] Ken Starr. We're altogether in on this, and we're going to do the job."
Staff writer Ruth Marcus contributed to this report.
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