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TRIAL JOURNAL
Yes, the Senate Is More Than a Jury

Harkin Sen. Tom Harkin (D-Iowa) objects to senators being called "jurors" during Friday's impeachment trial proceedings. (AP)

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  • By David Von Drehle
    Washington Post Staff Writer
    Saturday, January 16, 1999; Page A14

    The day's business was coming to an end. Rep. Robert L. Barr Jr. (R-Ga.) was at the lectern, reading a long speech. Nearly every word and every action in the impeachment trial of President Clinton has been scripted and rehearsed.

    Barr was explaining the allegations against the president in light of the United States Code, sections 1503, 1512 (not to mention title 18, section 371). It was not easy going. But he had finally emerged from the thick legal underbrush into a meadow of crystalline oratory and was about to wind things up, when suddenly . . .

    A surprise!

    A lean man in the back row had risen from his seat, and now the voice of Chief Justice William H. Rehnquist was cutting Barr off. "The chair recognizes the gentleman from Iowa."

    And Iowa's Sen. Tom Harkin (D) said, "Mr. Chief Justice, I object."

    An objection! For two long days, the proceedings in the Senate chamber had borne almost no resemblance to a trial. Finally, here was a fellow on his feet, interrupting. Without a single bipartisan task force to decide when he should do it.

    Rehnquist seemed slightly startled by the development.

    The TV analysts seized on it like feral dogs going after a bunny.

    But, alas, it wasn't really an unscripted moment. Harkin and his aides had been preparing for this all day. Like all senators, Harkin has taken an oath to "do impartial justice," but that hasn't blunted his willingness to go after the lawyers from the House. It was he who recently called the House case "a pile of dung," and he has passed up dozens of chances to withdraw that remark.

    Harkin was poised, waiting for Barr to utter a particular word, of all the thousands and thousands of words that make up a day at the president's trial.

    "The president's lawyers may very well try to weave a spell of complexity over the facts of this case," Barr warned. "They may nitpick over the time of a call or parse a specific word or phrase of testimony, much as the president has done. We urge you, the distinguished jurors in this case, not to be fooled."

    There it was: jurors.

    "I object to the use and the continued use of the word 'jurors' when referring to the Senate," attorney Harkin said, calmly but forcefully. "Mr. Chief Justice, I base my objection on the following . . . "

    He glanced down. He began reading. Another script.

    Harkin included all the fodder America has come to expect from impeachment-related speeches. The Constitution was cited. The Senate rules were given their due. The Federalist Papers were quoted, specifically good old No. 65, which, it seems safe to say, has become America's most beloved Federalist Paper, judging by all the people who are quoting from it.

    The senator was just getting to the obligatory part about "future generations" when he was interrupted by Sen. Judd Gregg (R-N.H.). An objection to the objection!

    In polite parliamentary language, Gregg asked the chief justice to make Harkin shut up. Rehnquist asked Harkin not to "argue ad infinitum."

    Then Rehnquist issued his opinion. This too was a little jolt of drama, because it has become increasingly evident that there aren't a lot of new facts likely to emerge from the presentations by House managers and lawyers for the president. So trial observers have invented little mysteries to keep themselves focused. One of those was: Would Rehnquist issue rulings from the chair, or would he pass all the decisions to a vote of the Senate?

    "The Senate is not simply a jury, it is a court in this case, and therefore counsel should refrain from referring to senators as jurors," the chief justice declared.

    Barr obligingly substituted a new phrase, one likely to be heard many times as the House wraps up its case today. "We urge you, the distinguished senators sitting as triers of fact and law in this case, not to be fooled."

    Harkin and many of his fellow Democrats took to the airwaves, proclaiming an important victory. The House managers, he said, were trying to put senators "in a box" when in fact they should be "expansive" in deciding what to do with Clinton. Rehnquist's ruling, he said, "has broad implications."

    "We are charged not just with facts and law but also what's in the public good, and what's the general welfare of the people of this country in deciding on impeachment cases," Harkin said.

    In separate interviews on CNN, Sens. Christopher J. Dodd (D-Conn.) and Richard J. Durbin (D-Ill.) picked up the theme. They opined that Rehnquist's ruling meant the Senate need not convict the president no matter how completely the House proves its case.

    The view was not shared across the aisle. "I don't think the ruling means anything," said Sen. Olympia J. Snowe (R-Maine).

    At the very least, it was good for a bit of excitement. A Clinton defender disrupted the grand finale of Bob Barr, arguably the staunchest anti-Clintonite on the House Judiciary Committee. Barr is a hard-charging veteran of the Gingrich Revolution of '94, a man who hates the assault weapons ban and opposes gay marriage, the first member of Congress to call for Clinton's impeachment, months before Monica.

    Decorous conflict, but conflict just the same, and a reminder that under the surface predictability of the Senate trial there are surely some twists in the road ahead.

    © Copyright 1999 The Washington Post Company

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