Senate's Quandary: Does a Trial Have to Look Like 'Perry Mason'?
Washington Post Staff Writer
Thursday, January 7, 1999; Page A12
When the framers of the Constitution considered how to set up the impeachment process, they debated any number of issues: Whether the president should be subject to impeachment at all. What the grounds should be. What body should conduct the trial.
But the discussion two centuries ago did not touch on the matter that is central to the current debate about President Clinton: what the meaning of the word "try" is.
The Constitution grants the Senate the "sole power to try all impeachments." As the Senate convenes the second presidential impeachment trial in history today, the question is what that trial should entail -- whether it needs to look, as Georgetown University law professor Susan Low Bloch put it, like "the Perry Mason vision of a trial," or whether something less would suffice.
Would it be appropriate, as some senators want, to open the proceedings but quickly suspend them -- without hearing from any of the relevant witnesses -- if it becomes clear that there is not the necessary two-thirds majority to support conviction?
Or, having received two articles of impeachment from the House, would the Senate be derelict in its constitutional responsibilities -- as other senators and the House members charged with prosecuting the impeachment case argue -- if it truncates the proceedings without hearing the evidence against the president?
There have been 14 impeachment trials in U.S. history: only one of a president, Andrew Johnson in 1868, and only three -- a trio of federal judges convicted and removed from office during the 1980s -- since 1936. Of those 14, the Senate has convicted seven, all federal judges.
In all but one case, the Senate held hearings that looked like the courtroom version of a trial, featuring not only arguments by both sides but witnesses subjected to cross-examination. The Johnson impeachment case stretched nearly 2 1/2 months, including more than two weeks in which the House managers and the president's lawyers called witnesses and presented documentary evidence.
In the recent judicial impeachments, however, the Senate has delegated the fact-finding to a committee of senators who oversaw the trial. The full Senate then reviewed the evidence they amassed -- a practice the Supreme Court upheld in a 1993 ruling by Chief Justice William H. Rehnquist, who will preside at Clinton's trial.
In the 1988 trial of Judge Alcee L. Hastings, senators limited the presentation of evidence to 38 hours for each side, and still took 18 days to hear the case, including 55 witnesses. The full Senate then spent almost four days considering preliminary motions, hearing closing arguments and debating the matter.
The exception to the Senate's tradition of conducting trial-type trials came in the chamber's first impeachment case: the proceedings against Tennessee Sen. William Blount, who was expelled by the Senate the day after the House voted to impeach him. Blount argued that senators were not "civil officers of the United States" and therefore not subject to impeachment. In 1799 the Senate agreed and voted to dismiss the impeachment resolution for lack of jurisdiction.
A century later, in the 1876 trial of Secretary of War William Belknap, who was impeached for taking bribes, the Senate considered but rejected a pretrial motion to dismiss the charges, again on the grounds that it lacked jurisdiction. Belknap had resigned the day before the House vote and argued that -- because he had stepped down -- the Senate had no authority to proceed.
In a decision with parallels to the current situation, the Senate rejected Belknap's motion by a majority vote, rebuffing the argument by Belknap's lawyer that because a two-thirds vote is required for conviction the Senate also needed a two-thirds vote to continue. The trial proceeded but, not surprisingly given the earlier vote, Belknap was acquitted when the Senate failed to muster a two-thirds majority.
William & Mary law school professor Michael J. Gerhardt points to the Blount and Belknap cases to argue that the Senate has the authority to dispose of impeachments through pretrial motions. The Senate "is allowed as it sees fit to ask itself preliminary questions that don't just go to the jurisdictional matters but also go to the legitimacy and necessity for proceeding further," he said.
But Ohio State University historian Michael Les Benedict, author of a book on the Andrew Johnson impeachment trial, said the Belknap precedent suggests the Senate should proceed even with the likelihood that a two-thirds vote for conviction will not be assembled. "The moment they saw they did not have the two-thirds, they must have . . . said, 'What are we going to do here?' But they went through with it, and the reason is you don't want to give one-third of the Senate the right to dismiss the charges," he said.
N. E. H. Hull, a Rutgers University-Camden law professor, said the framers envisioned trial-type proceedings with witnesses. But, she said, "I don't think they would be outrageously offended" with an expedited process because they saw senators in an impeachment trial as both jurors and judges of legal questions.
In past impeachments, however, it has been the Senate that has insisted on hearing evidence before deciding on guilt or innocence.
In a reverse of the current situation, in which House managers want witnesses and some senators are balking, the House managers in the 1986 impeachment of Judge Harry Claiborne sought to avoid lengthy Senate proceedings by seeking "summary conviction" of Claiborne since he already had been criminally convicted of income tax evasion and the facts in the case were not in dispute. The Senate trial committee declined to rule on the motion.
Three years later, in the trial of Judge Walter L. Nixon, the Senate committee insisted on hearing witnesses even though they had already testified Nixon's criminal trial and House impeachment hearings.
Still, Nixon lawyer David O. Stewart said recently it is perfectly legitimate for the senators to dismiss a case at the outset for failing to state an impeachable offense, much as judges in civil and criminal cases hear motions to dismiss before hearing evidence. "If the Senate doesn't want to go forward because they can't come up with two-thirds at the threshold and so why beat our brains out, I think that's an entirely rational approach to the problem," he said.
Other scholars expressed reservations about a short-cut approach.
Duke University law professor William Van Alstyne said while a majority is free to end the proceedings, it would be wrong to abort the trial simply because a two-thirds majority is not within reach, in part because minds could change down the evidentiary road.
One thing that is clear is that the decision is up to the Senate. In a 1993 ruling in the case of former judge Nixon, the Supreme Court rejected Nixon's attack on the constitutionality of the committee process, in the course of which Nixon argued that the word "try" required a full-scale proceeding before the entire body for a conviction.
In that case, Rehnquist noted that the word has a variety of meanings. "We cannot say that the Framers used the word 'try' as an implied limitation on the method by which the Senate might proceed in trying impeachments," Rehnquist wrote.
Rutgers University political scientist Ross K. Baker warned about the potentially poisonous effect a shortened trial could have on House-Senate relations. "I don't think the senators should be in the position of having the House members, having done all the heavy lifting, suffered all the opprobrium, then get up and utter a few incantations and declare the whole thing over," he said.
University of Pittsburgh law professor Peter Shane cautioned, "If the Senate makes it relatively painless to get to an appropriate conclusion . . . then it really is saying to future Houses, 'Don't worry. We're always here to get you off the hook. Use impeachment as the equivalent of a vote of censure and we'll save you from yourself.' "
Others said quick dismissal of the impeachment articles could have a chilling effect on future Houses. "For the House . . . to vote an impeachment that the Senate will not even deign to hear the evidence on seems to me insulting and in fact ultimately humiliating for the House," Stewart said. "It seems to me it would not encourage future congressmen to vote impeachments like this."
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