Senate Debates Motion to Dismiss Case
Washington Post Staff Writers
Tuesday, January 26, 1999; Page A1
After a day of false starts and clumsy attempts at compromise, the Senate retreated behind closed doors last night in an anxious search for a resolution to President Clinton's impeachment trial but found no deal that would end the year-long political crisis.
The chamber and galleries were cleared of outsiders and television cameras turned off just before 5:30 p.m. as the senators convened a rare private session to begin considering a Democratic bid to dismiss the perjury and obstruction-of-justice charges against Clinton. By the time they emerged 4 1/2 hours later, no consensus emerged with them on the contentious questions of how to proceed with the case or whether to call witnesses.
In its first vote of the trial, the Senate rejected on a largely party-line 57 to 43 tally a Democratic proposal to conduct its debate in public, opting instead to stick with 19th century secrecy rules written at the time of the only other presidential impeachment trial, when Andrew Johnson was acquitted by a single vote 131 years ago. Just three Republicans crossed party lines to support open debate, while five Democrats opposed it.
The Senate officially was deliberating on the motion to dismiss filed by Sen. Robert C. Byrd (D-W.Va.), a proposal both sides expect to be defeated. But with all 100 senators in the same room, some had hoped to find another way to conclude the trial in a manner that would avoid a partisan rupture over whether to call witnesses, as House Republican prosecutors insist.
Although the two parties remained at odds, Senate Republicans were working with the prosecutors on a plan that might ease the skittish members of their own caucus enough to approve limited testimony. In this scenario, the prosecutors would winnow their witness list to no more than two or three, and videotape the depositions to avoid the need for live testimony on the floor.
"If you calm the minds of senators as to how the witnesses will be handled . . . that would go a long ways towards solving some of the concerns senators have about the presence of witnesses on the floor itself," Sen. Larry E. Craig (R-Idaho), a member of the GOP leadership team, said after last night's session. Prosecutors have been told "that if you submit us a long list of witnesses that brings with it a fear of an extended session and a long period of deposing, you're going to bring about a higher level of concern."
The House "managers" appeared to have heard the message, working to trim their witness list and considering a plan to tape depositions so that snippets of prescreened testimony can be played on the floor to avoid turning it into "The Jerry Springer Show," as one worried senator put it over the weekend. "We're clearly sensing it's critical for us to pare it down," said a prosecution official.
With a two-thirds majority for conviction seemingly unattainable and a vote on the witness question looming in the next day or two, a multitude of trial balloons was floated throughout a long and chaotic day -- and just as promptly punctured by one side or the other. "I'm very disturbed. There's no movement," said Sen. Ted Stevens (R-Alaska). "There ought to be movement to finally have an exit strategy that is honorable."
Last night's secret session followed nearly two hours of public arguments on the Senate floor by the managers and the Clinton defense team over the motion to dismiss.
Rep. Henry J. Hyde (R-Ill.), the lead prosecutor, told the Senate that the motion was "a legal way of saying 'so what?' to the charges" and would in effect brush off criminality. "Now a trial, as I understand it, is a search for truth, and it should not be trumped by a search for an exit strategy," he said in a tone of indignation. "It seems to me this motion elevates convenience over constitutional process."
Nicole K. Seligman, a longtime private attorney for the president, urged the Senate to pass the motion to bury the "poisonous arrows of partisanship" and leave the president to face the criminal justice system after his term is over. "Punishment will be found elsewhere," she said. "Judgment will be found elsewhere. Legacies will be written elsewhere. None of that will be dismissed. None of that can ever be dismissed."
As he struggled to put together a consensus on how to proceed, both within his own caucus and with the Democrats, Senate Majority Leader Trent Lott (R-Miss.) separately issued a challenge to the president, sending him a series of 10 questions about the case that only he could answer "because many of them concern his state of mind or facts that only he is privy to."
Among the issues raised by Lott and nine other Republicans senators were whether the president affirms the truthfulness of his testimony in the Paula Jones case, whether he contends that Monica S. Lewinsky lied before a grand jury when she described sexual activities that Clinton denied under oath and whether he told Lewinsky to use cover stories during the Jones case to avoid admitting visiting him for their liaisons.
But Clinton would not answer the questions "because that's not called for in the Senate procedure," said White House press secretary Joe Lockhart.
Despite the public sparring, the real action was taking place out of view in a scattershot series of caucus meetings and cloakroom conferences that preceded the evening session, all driven by the recognition in both parties that neither may have the votes to win key decisions. No one on either side contended that Byrd's motion to dismiss would pass, while Republican leaders were unsure they could hold a majority to authorize witness depositions. With a half dozen or more of the 55 Republican senators expressing strong misgivings about calling witnesses, Democrats appeared within reach of blocking subpoenas unless GOP leaders can assuage those concerns through some restrictions.
"That could be a very, very close vote," said Sen. Bob Graham (Fla.), one of two Democrats along with Russell Feingold (Wis.) seen by party leaders as possible defectors in upcoming votes on the motion to dismiss and on witnesses.
Last night's closed-door session started out with Byrd remarking on the absence of cameras and audio devices, noting that was how it was 30 years ago. And in that tradition, lawmakers who have flocked to hallway cameras throughout the two-week trial were unusually reticent in disclosing any of the evening discussion afterward, with some saying they were warned they could face expulsion for violating the secrecy provisions. But several said the dialogue was constructive, even if not conclusive.
"I wish the public could have seen this. I thought the Senate looked good," said Sen. Joseph I. Lieberman (D-Conn.), who called the deliberations "direct but not divisive." Sen. Pete V. Domenici (R-N.M.) agreed, saying, "It was great. . . . Too bad it wasn't open." But Domenici, who voted against an open debate only hours earlier, was still pessimistic. Asked if there was much prospect for compromise, he said, "I don't think so."
The message to cut down the witness list was conveyed to the House managers in a variety of ways during the day, including informal conversations on the Senate floor, sources said. Sens. Jon Kyl (R-Ariz.) and Arlen Specter (R-Pa.) also met privately with three of the managers, Reps. Asa Hutchinson (R-Ark.), Edward G. Bryant (R-Tenn.) and Lindsey Graham (R-S.C.), to discuss the witness dispute.
"We're trying to have a witness list that accommodates the obvious desire of the Senate to shorten this trial, but at the same time have something meaningful," Graham said.
But the pressure coming from their GOP brethren on the other side of the Capitol clearly rankled the prosecutors. "I sort of feel that we have fallen short in the respect side because of the fact that we represent the House, the other body, kind of blue-collar people," Hyde told the senators on the floor during arguments over the Byrd motion.
The 13-member prosecution team plans to finalize its witness list this morning. In addition to Lewinsky, whose court-ordered interview by three managers on Sunday outraged Senate Democrats, the House group has focused on Clinton secretary Betty Currie, presidential confidant Vernon E. Jordan Jr. and White House aides John D. Podesta and Sidney Blumenthal.
Managers said they abandoned the idea of calling former White House volunteer Kathleen E. Willey to testify about possible obstruction of justice or former Clinton consultant Dick Morris to talk about his discussions with the president in the early days of the scandal.
Morris, who was debriefed by prosecution aides Sunday, said yesterday that he did not provide any new evidence but did offer additional insights. As an example, he said, he reminded his interviewers that during a conversation after the story broke a year ago Clinton raised the issue of his gifts to Lewinsky and was clearly worried, contrary to his later grand jury testimony.
If the managers whittle their list to just two witnesses, they are focused on Lewinsky and Jordan, according to a GOP aide, in order to bolster their case that he helped her find a job on Clinton's behalf as part of a scheme to encourage her to deny the affair with the president in the Jones suit.
Amid the uncertainty, a plethora of plans were working their way around the Capitol, none with any evident success. The morning started with a bipartisan proposal to forgo votes on both the motion to dismiss and the motion to subpoena witnesses, proceeding to a final up-or-down vote on the two articles of impeachment by Friday.
The idea developed out of a conversation during a break in Saturday's session between Sens. Slade Gorton (R-Wash.) and Joseph I. Lieberman (D-Conn.), according to Democratic sources. But their latest collaboration met a similar response to their first attempt to cut the trial short several weeks ago. While Democrats were prepared to support it "with some reluctance," according to Minority Leader Thomas A. Daschle (D-S.D.), enough Republicans rejected it during their caucus that it was clear it would never receive the unanimous agreement of all 100 senators required to alter the existing rules.
Still another proposal making the rounds yesterday was a split verdict by the Senate. Sen. Susan M. Collins (Maine) and some other Republicans were exploring whether the Senate could approve "findings of fact" in which it could conclude that Clinton committed specific acts even if the articles themselves are rejected. Such a move might appeal to Lott, although Democrats were unlikely to embrace it and could question its constitutionality.
In urging dismissal during the floor proceedings, the president's attorney maintained Clinton did not commit the offenses but even if he did they were not grave enough to merit removal.
Seligman said the managers tortured the facts to fit their theories, citing as an example their contention that a videotape of Clinton's deposition in the Jones case showed he was paying attention when his attorney denied that the president had sex of any kind with Lewinsky.
"The managers have tried to turn a blank stare into a high crime," she said.
Seligman also seized on a comment by Graham on Saturday that "reasonable people" could disagree on whether removing Clinton was in the good of the nation. "We suggest to you that there can be no removal when even the prosecutor agrees that such reasonable doubts exist," she said.
Graham rose to rebut Seligman, maintaining he had been misunderstood. What he meant, he said, was that he would never malign the good faith of senators who vote to acquit the president. But that did not mean he doubted Clinton should be ousted for the good of the country.
"I have lost no sleep worrying about the fact that Bill Clinton may have to be removed from office because of his conduct," Graham said. "I have lost tons of sleep thinking he may get away with what he did."
Staff writers Juliet Eilperin, Spencer S. Hsu, Dan Morgan, Terry M. Neal and Eric Pianin and staff researcher Nathan Abse contributed to this report.
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