Senate Sets Rules, Defers Witness Issue
Washington Post Staff Writers
Saturday, January 9, 1999; Page A1
A unanimous Senate embraced a compromise plan yesterday to begin hearing the case against President Clinton next week, postponing the critical decision on whether to call witnesses in a bid to avoid "the black pit" of partisanship that had threatened to paralyze the impeachment trial.
A day after opening the historic proceedings and then quickly recessing to argue about the rules, the Senate set aside its differences during an extraordinary two-hour closed meeting of all 100 senators in the stately Old Senate Chamber, a deal sealed by conciliatory words across the ideological divide.
By doing so, the Senate succeeded where the House failed in finding unity on how to launch its part of the constitutional impeachment process. The House began its investigation in October with a largely party-line vote that set the tone for 10 weeks of discord and culminated in two articles of impeachment passed almost exclusively by the Republican majority.
That was a pattern senators were determined not to replicate. At what colleagues later called a pivotal moment in their meeting, Sen. Robert C. Byrd (D-W.Va.) stood up to warn, "The White House has sullied itself. The House has fallen into the black pit of partisan self-indulgence. The Senate is teetering on the brink of that same black pit."
The deal struck yesterday – in which House prosecutors will begin presenting their case against Clinton next Thursday – does not guarantee that the Republican-controlled Senate will head off rifts as it considers the fate of the Democratic president. With the dispute over witnesses still unresolved and the final vote on conviction likely to test party loyalties, senators hailed yesterday's agreement even as they recognized that the trial could strain their newfound harmony.
"I hope we've got a hundred happy campers now," said Sen. Slade Gorton (R-Wash.), who helped bring the two parties together. "We're probably not going to after we start the trial perhaps, but we do now."
The procedural resolution developed in the morning session was adopted on the floor in the afternoon on a 100 to 0 vote, setting back in motion the first trial of a president since Andrew Johnson's acquittal in 1868. Following the precedent established in that case, Senate Sergeant at Arms James Ziglar then traveled along a snow-covered Pennsylvania Avenue to the White House, where just after 5:30 p.m. he formally delivered the writ of summons to the president's counsel, Charles F.C. Ruff:
"You, the said William Jefferson Clinton, are therefore hereby summoned to file with the Secretary of the United States Senate . . . an answer to the said articles of impeachment no later than noon on the 11th day of January, 1999, and thereafter to abide by, obey, and perform such orders, directions, and judgments as the Senate of the United States shall make in the premises according to the Constitution and laws of the United States.
"Hereof you are not to fail."
The schedule set yesterday calls for written briefs and motions to be filed starting Monday and the Senate to reconvene Wednesday with Chief Justice William H. Rehnquist presiding to rule on motions. Opening arguments from the House Republican prosecutors known as "managers" and the White House defense lawyers will begin Thursday and continue for about a week and a half.
Only at that point, likely starting Jan. 25, will witnesses be considered. House prosecutors have insisted on calling witnesses, including Monica S. Lewinsky, to make their case that the president lied under oath and obstructed justice to conceal his affair with her. But the White House has argued that the trial should be based entirely on the record created by the investigations of independent counsel Kenneth W. Starr and the House Judiciary Committee.
The senators deferred a final decision. Republicans prevailed in establishing a procedure allowing for live testimony, while Democrats secured some "safeguards" requiring two votes before any witnesses are called to the Senate floor. Many Democrats and even some of the House prosecutors believe the multilayered process makes it unlikely that witnesses eventually will testify before the Senate jurors.
Although Judiciary Committee Chairman Henry J. Hyde (R-Ill.), the head of the House team, praised the Senate for its "bipartisan agreement," he and his colleagues were clearly disappointed. "We intend . . . to present a compelling case on the serious charges pending against the president," Hyde said. "We also look forward to the opportunity – with Senate concurrence – to call witnesses in support of the evidence."
Another manager, Rep. Bill McCollum (R-Fla.), was more outwardly glum. "It's not what we would like," he said. But "we don't have any choice about it." McCollum worried that senators might be reluctant to hear live testimony after more than a week of arguments, calling that vote "a difficult hurdle to cross."
In Detroit for an economic speech, Clinton again ignored the issue, but Vice President Gore struck out at the president's GOP critics. "The House Republican leadership seems to be obsessed with dragging out this process and trying to remove him from office," Gore told an Iowa-based Associated Press reporter during a visit to a state that could be key to his own presidential prospects. "The American people don't agree with that."
Back in Washington, Clinton's lawyers were more tempered, declining to evaluate the new trial rules because it was up to the Senate to devise them. "We respect that," White House special counsel Gregory B. Craig said on the snowy driveway outside the West Wing. "We plan to present on behalf of the president a vigorous, successful and complete defense. We are optimistic, we are confident, that the senators . . . will conclude that the articles do not justify or warrant conviction or removal from office."
While preferring no new testimony, White House advisers privately believe witnesses may not be especially damaging for the president. The prosecution case relies largely on the accounts of witnesses such as Lewinsky, Clinton confidant Vernon E. Jordan Jr. and Oval Office secretary Betty Currie, none of whom has taken on an accuser's role.
The White House may wait to decide who it will call until it hears the prosecution side, although one witness almost certain not to appear if presidential strategists have their way is the defendant himself. Clinton's decision to disregard his lawyers' advice and testify before Starr's grand jury in August led to the perjury charge now at issue and few expect him to show up in the Senate.
But if senators permit the prosecution to call a long parade of witnesses, the White House team was preparing for its own all-out assault with other lengthy testimony. The president's advisers were considering an extensive exploration of the origins of Starr's probes, possibly calling as witnesses the independent counsel himself as well as deputies Jackie M. Bennett Jr. and Michael Emmick. Other figures involved in triggering the investigation such as Linda R. Tripp, Lucianne Goldberg and a law partner of Starr's could be called as well.
A cavalcade of such figures made infamous through 12 months of scandal, particularly those who would testify about intimate sexual matters like Lewinsky, is precisely what many senators have been trying to avoid, prompting this week's standoff over how to proceed.
The breakthrough after three days of fruitless search for middle ground came during a rare meeting of the entire Senate behind closed doors yesterday morning. Although private sessions are held occasionally on national security or other matters, no one could remember such a joint meeting of the Republican and Democratic caucuses before.
As senators described it, the meeting was a fortuitous confluence of time, place, personalities and political imperative. The setting itself helped establish the tone: the Old Senate Chamber, where the Missouri Compromise and other attempts to head off the Civil War were crafted before lawmakers moved in 1859. "It was a reminder of our historical legacy . . . and the historical precedents that we will be establishing here," said Sen. Olympia J. Snowe (R-Maine).
The sense of the moment was underscored as the meeting began with Majority Leader Trent Lott (R-Miss.) and Minority Leader Thomas A. Daschle (D-S.D.) standing side by side at the front. Byrd, who after 40 years in office has become the Senate's most respected authority on its history and prerogatives, further set the stage with his warning about the "black pit."
"We look very bad," the former majority leader told fellow senators, according to a text released later by his office. "We appear to be dithering and posturing and slowly disintegrating into the political quicksand."
To get back on track, Byrd intoned, "We can start by disdaining any more of the salacious muck which has already soiled the gowns of too many. If we can come together in a dignified way to orderly and expeditiously dispose of this matter, then perhaps we can yet salvage a bit of respect and trust from the American people for all of us, for the Senate and for their institutions of government."
The deal itself came together through back-to-back proposals from the unlikeliest of bipartisan alliances: conservative Republican Phil Gramm of Texas and liberal Democrat Edward M. Kennedy of Massachusetts. After discussion of the parties' competing procedural plans, Gramm stood up to say they were really not that different and could be melded fairly. Kennedy, according to colleagues, then spoke out to offer the final piece of the compromise.
"Stranger things have happened in politics," Sen. John McCain (R-Ariz.) said afterward, "but the Kennedy-Gramm alignment is one of the strangest."
Under the plan, each side will have 24 hours to make opening presentations, likely over three days apiece, with both limited to discussing the evidence and the record compiled by Starr and the House. Rep. F. James Sensenbrenner Jr. (R-Wis.) is likely to open for the House prosecutors while Ruff probably will open for the White House. Then the senators will be permitted to ask questions of both sides for up to 16 hours, although they will have to submit them in writing to Rehnquist.
At that point, the White House will be allowed to offer a motion to dismiss the case on the grounds that the crimes had not been proven and did not merit Clinton's removal even if they were. Such a motion would require a simple majority, or 51 senators, meaning that the 45 Democrats could end the case if they hold their ranks and win over six Republicans.
Some Democrats believe such a motion could be useful even if it is defeated because it could demonstrate that there are not 67 votes to meet the two-thirds standard required by the Constitution for conviction. "Even if you fall short of 51, if you exceed 34 votes that's an indication of what you can expect when you go to the final vote," said Sen. Paul S. Sarbanes (D-Md.). At that point, he said of the Senate, "We could divide again."
If the motion does fail, each side could then propose witnesses it would like to call and other evidence it would like to introduce that was not previously in the record. Some prosecutors want to present allegations that Clinton was involved in obstruction in connection with other women interviewed in the Paula Jones case, Kathleen E. Willey and Dolly Kyle Browning, a move the White House would adamantly oppose.
Even if the Senate agrees to witness subpoenas, however, it still might not ever hear live testimony. Lawyers for the prosecution and defense would be required to conduct depositions of any witnesses, first to establish what information they might provide on the floor. Then, armed with the transcripts of those sessions, the senators would have to vote again whether to summon those witnesses to appear before them in public.
Staff writers Juliet Eilperin and Spencer S. Hsu contributed to this report.
© Copyright 1999 The Washington Post Company