Lott Searching for Consensus
Washington Post Staff Writers
Friday, January 1, 1999; Page A1
Senate Majority Leader Trent Lott (R-Miss.) spent yesterday intensely canvassing fellow senators about his plan for an expedited trial of President Clinton amid a backlash of criticism from some conservative senators who vigorously object to Lott's approach.
The majority leader has consulted with more than two dozen GOP senators in recent days as part of an outreach campaign that has had his "phone lines burning," in the words of one aide, but not yet produced a workable consensus on how Republicans will proceed with the politically incendiary impeachment issue when they return to Washington on Wednesday.
Some conservative senators served warning yesterday that they will oppose any process that might halt a trial before senators hear a full presentation of evidence and witnesses, and can cast up-or-down votes on the articles of impeachment passed last month in the House.
Sen. James M. Inhofe (R-Okla.) called Lott's suggestion for an expedited trial that could end within a few days of an anticipated Jan. 11 start "a trial balloon that needs to be shot down immediately."
"A lot of senators would love to have the cover of not knowing all the evidence and what the witnesses have to say," Inhofe said. "It's shirking our constitutional duty and it's a whitewash."
But this view, widely held among grass-roots conservative groups and House GOP leaders, does not necessarily reflect general opinion in the GOP Senate caucus – even among relatively conservative members.
One of them, Sen. Mitch McConnell (R-Ky.), said the two-step trial favored by Lott might be sufficient for the Senate to meet its obligation to pass judgment on the two articles of impeachment – perjury and obstruction of justice – passed by the House of Representatives last month.
"Most Republican senators want to dispose of articles of impeachment," McConnell said. "If there's a way of doing that without doing a show trial in the well of the Senate, that would be my preference."
The apparent lack of consensus in the GOP caucus about how to proceed with impeachment confronts Lott with the starkest test of his leadership in his 2½ years as majority leader. The controversy over how to deal with the impeachment matter has already contributed to the undoing of two GOP congressional leaders – retiring House Speaker Newt Gingrich (R-Ga.) and his would-have-been successor, Rep. Bob Livingston (R-La.).
Lott, who has had trouble corralling his independent-minded caucus on a variety of issues over the years, believes he has found a way to finesse the impeachment controversy. Adapting a bipartisan proposal crafted by Sens. Joseph I. Lieberman (D-Conn.) and Slade Gorton (R-Wash.), Lott hopes to encourage a speedy end to an impeachment drama that polls say the public long ago grew weary of by dividing the trial into two distinct phases.
In the first phase, the Senate would hear the equivalent of opening arguments from House prosecutors and Clinton's defense team, then cast votes on whether the alleged offenses – even if true – warrant the president's removal from office. Only if two-thirds of the Senate voted yes, which most vote-counters regard as unlikely, would the trial enter a second phase with a presentation of evidence. The most likely option, senators say, would be a motion to end the case with a resolution of censure against Clinton.
Despite the political obstacles, such a plan apparently would pass constitutional muster, several legal scholars and Senate aides said yesterday. These experts claimed that a Senate majority has virtually limitless freedom in deciding how to conduct a trial following impeachment.
"When the Constitution says the Senate has the sole power [to determine how to conduct a trial], it means it," said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University who served as head of the Justice Department's office of legal counsel during the Reagan administration.
That freedom was reaffirmed by the Supreme Court in a 1983 case involving a former federal judge who said the Senate had acted improperly in convicting him after he had been impeached by the House. The Mississippi judge, Walter L. Nixon Jr., argued that the Senate had erred by referring the matter to a committee, rather than requiring the full body to hear the testimony.
In a unanimous opinion written by Chief Justice William H. Rehnquist, who will preside over Clinton's trial, the court said it could not review the judge's complaint because the Constitution did not permit the courts to interfere with the Senate's power to try impeachment cases.
Even though Nixon's complaint involved the use of a committee – rather than a two-part trial – the opinion has been construed to mean that "the Senate will have the final word," said Michael J. Gerhardt, a law professor at the College of William and Mary who is an authority on impeachment.
Even senators opposed to any procedure that would resemble a summary dismissal of the charges seem to share the desire of Lott and Clinton to close the case with dispatch. In a statement yesterday, Sen. Jeff Sessions (R-Ala.) proposed a split-the-difference approach designed to limit the amount of direct testimony the Senate would hear.
"While I believe that it is not necessary that all witnesses be called to achieve a fair trial, I think that it would be unwise to reject calling any witnesses," he said. "The use of prior sworn statements combined with a limited number of witnesses appearing before the Senate should guarantee a fair trial and a prompt one. While we should not prolong this matter one day longer than necessary, our primary goal is a just disposition, not just a speedy one."
The House Republicans who would prosecute Clinton protested any process that might prevent them from presenting evidence – and also gave a clearer sign than they had earlier about how their case would proceed. One of them, Rep. Charles T. Canady (R-Fla.), urged the Senate not to carry out a "sham process" in the interest of haste.
"None of us have a desire for a long, drawn-out trial [but] we need to be careful we don't establish a process that's going to short-circuit the fact-finding process the Senate needs to go through," he said.
Rep. Asa Hutchinson (R-Ark.), another of the 13 House Republicans from the Judiciary Committee who would prosecute the case, estimated that he and his colleagues could present enough evidence by calling "somewhere between 10 and 15 witnesses" to the stand. He said Monica S. Lewinsky, Clinton's secretary Betty Currie and Clinton friend Vernon E. Jordan Jr. "are obvious ones you would look at" and estimated that the evidentiary part of the case could take "two to three weeks" if the Senate worked full time.
Clinton aides say they urgently want to avoid such a protracted spectacle, even though they believe it would end with a vote keeping Clinton in office. But the White House has avoided endorsing the two-step trial – believing that many Republicans would reflexively be against any process that Clinton is for.
But one source close to Clinton's defense said the process will be a test of Lott's ability to assert authority over the most conservative factions in his own party. "The real question is whether we're going to have a rerun of the slime and the sex that we got in the House, only this time in the Senate," said this Clinton loyalist, "and whether the far right is going to run the show in the Senate the way they ran it in the House."
Staff writer Amy Goldstein contributed to this report.
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