Prosecutors, Defense Trade Arguments
Washington Post Staff Writer
Saturday, January 23, 1999; Page A13
The prosecution and defense at President Clinton's impeachment trial finally confronted each other in their first head-to-head exchange over the evidence yesterday amid signs that the senators listening in the chamber remain unmoved and unlikely to convict him.
After six days of opening arguments that amounted to uninterrupted speeches by each side, the House Republican managers and the White House lawyers began responding to questions from senators and engaged in a feisty debate about whether to remove Clinton from office for perjury and obstruction of justice.
But the tone of the senatorial inquiries indicated that views of the case have hardened notably among the 55 Republicans and 45 Democrats. The 50 questions read aloud by Chief Justice William H. Rehnquist revealed no possible dissenters on either side of the aisle, suggesting prosecutors have not won over enough senators to muster the two-thirds vote required for conviction. Indeed, the questions were designed to make debating points rather than elicit new information, with Republicans generally posing sympathetic queries to House "managers" and Democrats mostly tossing softballs to Clinton's lawyers.
Still, the start of the two-day question-and-answer phase of the trial triggered the first extemporaneous encounters on the floor since the proceedings formally opened Jan. 7. The result was a robust back-and-forth between the managers and the defense lawyers as each side accused the other of mischaracterizing the record and bristled at accusations aimed in its direction.
"If there was a moving target, we've just seen it in motion," White House counsel Charles F.C. Ruff told senators mockingly at one point after listening to a prosecutor's explanation of an obstruction allegation.
"If anybody wants a lesson in legal schizophrenia, please read the president's trial brief," Rep. James E. Rogan (R-Calif.) responded at another moment when asked about whether Clinton stands by his testimony in the Paula Jones case.
The format made for an odd four-way dance as the two sides waited for questions to be directed their way while the Republican and Democratic leaders choreographed them to help their favorite camp. Questions alternated from one party to the next and were often written simply to give a particular side a chance to respond to the other. Many of them were worded along the following lines: "Would you please comment on any of the legal and factual assertions made [by the other side] in response to the previous question?"
Rehnquist, serving as presiding officer as dictated by the Constitution, read the questions in a flat voice without editorial comment and, while he set a five-minute limit for answers, he was forgiving and rarely cut anyone off, even when the first response dragged on for nine minutes.
The lawyers went after each other from the start of the nearly five hours of proceedings, highlighting the tension underlying the first trial of a president since 1868. In response to the third question of the day, prosecutors accused the White House of deceiving the Senate, and provoked a chagrined acknowledgment and apology from Ruff.
The dispute involved the allegation that Clinton tried to coach the possible testimony of his secretary Betty Currie. Just after returning from his deposition in the Jones lawsuit last January, the president called Currie to ask her to come to the White House the next day, when he led her through a series of false statements about his relationship with Monica S. Lewinsky. During their opening arguments this week, White House lawyers denied this was witness tampering in part because Currie had not been subpoenaed and never would be in the Jones case.
But Rep. Asa Hutchinson (R-Ark.) held up a copy of a subpoena served on Currie by the Jones lawyers several days after the deposition. "You talk about prosecutorial fudging," he said, his voice tinged with resentment as he appropriated a line used by Ruff on Tuesday. "What about defense fudging?"
Ruff, asked by Sen. Carl M. Levin (D-Mich.) to respond, agreed that he did not accurately reflect what happened. "For that misleading statement, I apologize," he said. However, Ruff dismissed the importance of the subpoena because it was issued after the Lewinsky story broke and he maintained Clinton had no reason to believe Currie would become a witness at the time they spoke.
Anger flared again toward the end of the day when White House special counsel Gregory B. Craig practically shouted at prosecutors as he complained that they were too vague in detailing in their articles of impeachment what parts of Clinton's testimony amounted to perjury.
"If you don't have the specific statement quoted, it's impossible to defend it," Craig said. "It's unfair."
Given the chance to respond a minute later by a question from Majority Leader Trent Lott (R-Miss.), Rogan scoffed at the grievance because the allegations against Clinton have been patently obvious for months. "He would have to be an ostrich with his head so far down in the sand" not to know what he was charged with, Rogan said.
The central arguments from the two sides echoed the opening presentations. The managers maintained Clinton abused his trust as president by lying under oath before a grand jury and trying to impede the Jones case by encouraging Lewinsky to file a false affidavit denying their affair. The defense lawyers insisted the facts did not fit the prosecution theory of the case and that, even if they did, the crimes were not grave offenses against the state that require the removal of the president.
Along the way, they dueled over the now-familiar details of the case, from the key phone calls to the hidden gifts to the New York job search. They skirmished over the origins and the meaning of "high crimes and misdemeanors" in the Constitution. And they clashed sharply over the need to call witnesses as the managers have requested.
"You ought to bring her out here," Rep. Bill McCollum (R-Fla.) said of Lewinsky. "She should be brought out here. If they're going to challenge her like this, then give her an opportunity for us to examine her on both sides and determine what is her best testimony about that, if that's important to you."
David E. Kendall, the president's private attorney, said the voluminous record of the case made witnesses unnecessary. But appealing to the Senate's desire to end the trial quickly, Kendall warned that if testimony is allowed the White House will demand the right to conduct its own exhaustive evidence-gathering process that would last "many months."
"It would be malpractice for any lawyer to try even a small civil case, let alone represent the president of the United States when the issue is his removal from office, without an adequate opportunity for discovery," he said.
The senators sat through the debate unable to join directly, but they found their own way into the fray. In addition to the questions written in advance, senators scribbled inquiries on small beige note cards emblazoned with the Senate stationary design and handed them to their party's leader, either Lott or Minority Leader Thomas A. Daschle (D-S.D.), who forwarded them to Rehnquist.
The loaded language left little doubt where the authoring senators came down on the case. Consider the disagreement over whether a ruling in the Jones case prompted Clinton's associates to intensify their job search for Lewinsky because she could be questioned about her relationship with him.
Sens. Orrin G. Hatch (R-Utah) and John D. Ashcroft (R-Mo.) asked the managers, "Isn't the White House argument that the president had no incentive to assist Ms. Lewinsky's job search until December 11 just a red herring?" Sen. Barbara Boxer (D-Calif.), on the other hand, asked the White House lawyers, "In light of the confession of Manager Hutchinson that Judge [Susan Webber] Wright's order had no bearing on the intensity of the job search, can you comment on the balance of his claim?"
Naturally, each side happily agreed with questions phrased in such friendly ways, although Hutchinson did jump to his feet to ask Rehnquist somewhat playfully if he could object to Boxer's characterization of his previous statement.
But by day's end, senators shifted gears and directed some pointed questions at the side they did not agree with. Several Republicans, for instance, wanted the White House lawyers to tell them why Clinton's former consultant, Dick Morris, would conduct a poll for the president on whether the public would forgive him if he admitted committing adultery and lying under oath.
Ruff looked around his defense table and unhappily took the microphone himself. "I couldn't find any volunteers," he said, prompting laughter from both sides.
As for trying to explain the mercurial Morris, Ruff said, "I don't have a clue."
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