Both Sides Lay Out Cases for Senators
Washington Post Staff Writers
Tuesday, January 12, 1999; Page A1
The prosecution and defense in President Clinton's impeachment trial laid out their cases in writing yesterday for the Senate jurors who will decide his fate, clashing over the broad scope and factual basis of the charges against him in a preview of the floor arguments set to begin this week.
But the White House decided against introducing a motion to dismiss the two articles of impeachment by yesterday's deadline, heeding the advice of Senate Democrats who calculated it would fail at this early stage and guaranteeing that the trial will proceed with opening presentations Thursday.
At the heart of the dispute highlighted in dueling briefs filed yesterday by Clinton's lawyers and House Republican prosecutors was the question of whether the perjury and obstruction-of-justice counts are serious enough to demand Clinton's conviction and ouster.
"The charges in the articles do not rise to the level of 'high Crimes and Misdemeanors' as contemplated by the Founding Fathers," the White House argued in its 13-page response to the Senate's summons. If they do not, prosecutors retorted in a 105-page trial brief, no Congress will ever impeach a president again because "the bar will be set so high that only a convicted felon or a traitor will need to be concerned."
While such arguments are familiar from the House proceedings that ended with Clinton's impeachment last month, both sides signaled shifts in emphasis and tactics yesterday. The White House, criticized for not aggressively contesting the evidence in the House, mounted a more focused attack on the factual underpinnings of the case, while prosecutors recalibrated their charges to include more examples of wrongdoing and issued far more dire warnings about the constitutional issues at stake.
Monica S. Lewinsky, the onetime White House intern whose liaisons with the president led to his current predicament, played a starring role in both arguments. The White House quoted her testimony repeatedly to maintain that Clinton never asked her to lie under oath in the Paula Jones lawsuit, even as prosecutors added a new accusation that the president "orchestrated a campaign to discredit" her after reports of their affair came to light.
The prosecutors also revived allegations that Clinton committed perjury in denying their relationship during the Jones case, even though the House rejected an article of impeachment based on that civil testimony and cited only his statements before the grand jury. In their brief, prosecutors included the Jones testimony as an example of obstruction instead.
Whether the arguments sway any of the 100 senators serving as jurors remains to be seen, but they are unlikely to make much difference with the general public, whose views are firmly cemented a year after independent counsel Kenneth W. Starr launched his investigation into the Lewinsky matter, according to the latest Washington Post-ABC News poll.
As the trial begins, 85 percent of those surveyed said they have made up their minds about the case, which is good news for Clinton. The president's job approval rating remained high at 62 percent and 65 percent opposed removing him from office.
Endorsing other White House points of view, 55 percent opposed calling witnesses during the trial as House prosecutors want to do, while 57 percent supported censuring the president, an alternative to conviction promoted by Democrats. And in a warning sign for senators facing reelection in two years, more respondents promised to punish rather than reward those who vote to convict, by a 31 percent to 19 percent margin.
For his part, Clinton remained publicly removed from the fight of his career yesterday. Hosting a state visit by Argentine President Carlos Menem, Clinton aides decided against holding the traditional joint news conference staged for such occasions, knowing it would be dominated by questions about the trial and concluding that "it wouldn't be a productive use of his time," as White House press secretary Joe Lockhart put it.
Claudia Cappello, a spokeswoman for the Argentine Embassy, said that, while never scheduled, a news conference was being tentatively planned until three or four days ago, when U.S. officials informed their South American counterparts that they did not want to go forward with one.
At the Capitol, House prosecutors spent the day retooling plans for their opening presentation after the Senate voted Friday to defer deciding whether to call witnesses, outlining a detailed schedule for the 24 hours over three days to present the arguments.
House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) will deliver five to 10 minutes of opening remarks, followed by a one-hour introduction by the panel's second-ranking Republican, F. James Sensenbrenner Jr. (Wis.). Rep. Ed Bryant (R-Tenn.) will outline the facts, followed by Reps. Asa Hutchinson (R-Ark.) and James E. Rogan (R-Calif.), who will discuss the basis of the obstruction and perjury counts, and then by Rep. Bill McCollum (R-Fla.), who will summarize.
Hutchinson said while there will be no new revelations this week, they will develop a narrative to convey the seriousness of the allegations. "It's a matter of piecing it together in an understandable fashion," he said. "Obstruction-of-justice cases are never one-moment transactions. They're a course of events."
In the next stage, Reps. Robert L. Barr Jr. (R-Ga.) and George W. Gekas (R-Pa.) will speak on how perjury and obstruction laws apply to the president. Reps. Steve Buyer (R-Ind.), Charles T. Canady (R-Fla.) and Lindsey Graham (R-S.C.) will then discuss why such crimes constitute impeachable offenses, with Hyde and Rogan tentatively slated to make closing remarks.
But prosecutors remain unsatisfied with hearing themselves talk, insisting they need to call witnesses. Hutchinson said his team may be able to narrow the witness list it will submit to the Senate for approval after senators have a chance to submit questions next week. "That may give you a clue as to the testimony that they are particularly interested in," he said.
Rogan suggested for the first time yesterday that Clinton himself should be asked to testify. "The president has put his credibility at issue every time he's raised his hand and took the oath," he said.
Other prosecutors, though, expressed hesitation at that idea and the White House has little interest in putting the president on the stand again, especially given the problems caused by his decision to ignore his lawyers' advice and testify before Starr's grand jury in August. "I have no reason to believe that he will testify," Lockhart said.
Lawyers weren't the only ones getting ready for the historic proceedings on the Senate floor to begin Thursday. Carpenters in Congress's own cabinet shop have constructed two impeachment tables especially for the trial. The tables, with wood frames and black Formica tops, can accommodate up to 15 lawyers and will be located in the well of the Senate chamber between the senators and the dais where Chief Justice William H. Rehnquist presides.
Both sides will have another opportunity to submit briefs Wednesday, but neither chose to file any motions by yesterday's 5 p.m. deadline. The White House had prepared a motion to dismiss but held back after being told by Senate Democrats that they now feel committed at least to hearing the opening presentations. Clinton's team also dropped, for now, any plans to challenge the articles on constitutional grounds, such as the fact that they were approved by a lame-duck House.
"We have very good and clever lawyers," Lockhart said. "I'm sure they could have come up with 15 or 20 constitutional arguments that could have tied this process up. . . . But we think that this should move forward expeditiously."
For the moment, the Clinton team preferred to highlight its arguments on the evidence, placing those issues at the front of its brief. The response tried to debunk what it called the "myths" of the case, such as the assumption that Clinton denied his affair with Lewinsky to the grand jury when, it noted, he admitted it. The White House decided to elaborate on specifics of the allegations in part because its polling showed public misconceptions.
Still, the president's lawyers have not given up on more legalistic arguments and hinted at possible motions to come when they complained in their brief that the articles were "constitutionally defective" because they were too vague and lumped too many allegations together into the two overall charges, meaning that senators cannot evaluate them individually on their own merits.
While the prosecution and defense eschewed any procedural motions yesterday, two Senate Democrats have filed one seeking to suspend rules requiring closed-door deliberations on trial motions and any final verdicts. Sens. Tom Harkin (Iowa) and Paul D. Wellstone (Minn.) said they want a Senate vote to hold all sessions in public, except for caucuses and other informal activities, although they face an uphill battle securing the two-thirds vote required to suspend the rules.
Harkin argued that "it's wrong, its dangerous . . . it's not representative of the open tradition of American politics" to consider removal of a president in secret. "The American people may be excluded from participating in impeachment deliberations that could result in overturning the last election."
Staff writer Helen Dewar and polling director Richard Morin contributed to this report.
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