Senators' Decisions, as Well as Rules, Will Affect Process
Washington Post Staff Writer
Thursday, January 14, 1999; Page A17
The Senate trial of President Clinton will be guided by a century-old set of rules, a compendium of precedents amassed during the previous 14 Senate impeachment trials and the seat-of-the-pants judgment of Chief Justice William H. Rehnquist and the 100 jurors themselves.
The senators will do what only one Senate has done before: sit in judgment on the president of the United States. As they follow a process sketched in broad terms in the Constitution and refined periodically since then, their actions will inevitably determine not only Clinton's fate but also chart a course for future impeachment proceedings.
The Constitution provides the general outlines: The chief justice presides over the trial; a two-thirds majority is required to convict for "treason, bribery or other high crimes and misdemeanors"; conviction is followed by removal from office and, if the Senate chooses, disqualification from any future office of "honor, trust or profit under the United States."
The precise rules for Clinton's trial come from the 26 "Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials" and the resolution unanimously approved by the Senate last week setting out a schedule for the current proceedings.
The impeachment rules were drafted in 1868 for the trial of President Andrew Johnson, overhauled in 1974 in anticipation of a trial of Richard M. Nixon that never happened and formally adopted in their current form in 1986 as the Senate geared up for its first impeachment in 50 years, of Judge Harry Claiborne.
But much of what takes place will be based not on the precise rules but on senators' decisions about unresolved issues as lofty as the burden of proof that the House Republican managers must meet and as specific as exactly how any depositions would be conducted or whether the two sides could conduct pretrial discovery before making their arguments about what witnesses they need.
Following are some questions and answers about matters both big and small as the trial gets underway:
Why Is This the Senate's Job?
As the Constitution was being written, it wasn't a given that the Senate would be the body charged with conducting an impeachment trial; the framers considered various alternatives, including assembling judges from the highest state courts or relying on the federal judiciary.
Some of the framers were concerned about making the president "improperly dependent" on the Senate if it served as the trial court, while others warned that the Supreme Court could be "warped or corrupted" if justices had the power to try impeachments, especially of a president who had appointed any of its members.
In the end, the majority of the framers agreed that the Senate posed the fewest problems, adding an additional safeguard by making conviction contingent on a two-thirds vote. As Alexander Hamilton argued in the Federalist Papers, the Senate would be the only "tribunal sufficiently dignified [and] sufficiently independent . . . to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers."
What Is the Role of the Chief Justice?
The Constitution requires the chief justice of the United States to act as the presiding officer during presidential impeachments because of the obvious conflict presented by having the vice president, who stands to get the job if the president is convicted, serve in his role as president of the Senate.
Under the Senate impeachment rules, the presiding officer rules on "all question of evidence," including "relevancy, materiality and redundancy." But he can be reversed by a majority vote of the Senate. In addition, he can choose to "in the first instance, submit any such question to a vote of the Members of the Senate."
Particularly during the first, oral argument phase of the proceedings, Rehnquist's role is likely to be rather limited because he won't be called on to deal with questions about evidence or queries to witnesses. But if, for example, either side were to violate the part of the resolution that requires them to limit their arguments to evidence already in the record he could rule that out of order.
Why Can't Senators Ask Questions Themselves, and How Does the Question Procedure Work?
Senators may question the 13 House managers, White House lawyers or any potential witnesses only in writing. A page will deliver each question to the desk to be handed to Rehnquist. Under the resolution adopted last week, senators' questions will likely have to wait until the 16 hours alloted for their questioning.
Then, because the rules say "shall . . . put," Rehnquist presumably will ask whatever the senators want. Although it would be cumbersome, they could also submit follow-up questions. The chief justice will identify the questioners by name. Senators' questions to witnesses are subject to objections by the lawyers. There's no provision permitting Rehnquist to ask his own questions, as judges in trials do at times.
The idea is that the senators should be acting more like jurors executing "impartial justice," as the oath they took last week says, than like political speechmakers. However, the rules also allow the senators to make motions and the parliamentarian has determined that this also gives them the right to object.
How Does This Jury Deliberate?
Behind closed doors, unless Sens. Tom Harkin (D-Iowa) and Paul D. Wellstone (D-Minn.) win their bid to open the proceedings, something that appears unlikely since their motion would require a two-thirds vote to win approval.
Although the senators are required by the rules to behave as the political equivalent of potted plants during the impeachment trial, they can submit for the record written statements describing the reasons for their votes for or against conviction.
Are Senators Required to Attend the Trial?
No, but it would look bad if they skipped a lot of it, and a quorum of 51 must be present. In the past, before the Senate switched to having judicial impeachments heard by trial committees, sparse attendance at impeachment trials was a big problem, with wandering in and out of the chamber common.
Can the Senate Stop the Trial Without Reaching a Verdict?
Yes. Under the rules adopted last week, the Senate will vote on a motion to dismiss the case after both sides have made their opening presentations and argued about the need for witnesses. If that motion fails, the Senate will move on to consider what witnesses it will subpoena and whether to allow additional evidence to be submitted. At that point, and at any other time as the trial proceeds, it would be in order for any senator to make a motion to adjourn, which would require a majority vote. If such a motion passed, the trial would be over with no verdict.
What Are the Rules of Evidence Under Which the Senate Operates?
There aren't any lengthy written rules. Instead, the senators generally look for guidance to the rules of evidence used in federal court, common law principles and the precedents of past impeachment trials.
One of the main functions of rules of evidence in criminal cases is to shield juries from potentially prejudicial or unreliable material, a protection that is less important in the Senate, whose members have the sophistication to give due weight to "hearsay" evidence or other matters. Unlike regular jurors, senators aren't prohibited from reading newspapers or discussing the case; presumably they have already been exposed to much of the evidence. As a general matter, the Senate in the past has tended to err on the side of including evidence.
What Is the Burden of Proof?
There isn't one. It's up to each individual senator to decide what the proper burden of proof should be. During the 1986 trial of Judge Claiborne, the Senate rejected his motion to establish that the House managers had to prove his guilt "beyond a reasonable doubt," leaving the matter up to the conscience of each individual senator.
The White House argued in its trial brief yesterday for the "beyond a reasonable doubt" standard, which is used to determine guilt in criminal cases, saying that such a high threshold "assures the public that this grave decision has been made with care."
Senators ranging from conservative Orrin G. Hatch (R-Utah) to liberal Joseph R. Biden Jr. (D-Del.) have in the past endorsed the reasonable-doubt standard. And at least one of the House managers, Rep. Bill McCollum (R-Fla.), said in a recent interview that he believes it is the proper standard.
Others have argued for a slightly less stringent burden of proof, "clear and convincing" evidence. And some have even suggested the burden applicable in civil cases, a mere "preponderance of the evidence," arguing that the purpose of impeachment and conviction is to protect the country from an individual unfit to hold public office and that the higher standards designed to make conviction difficult would interfere with that critical function.
A Nixon-era handbook on impeachment by Yale Law School professor Charles L. Black Jr. detailed the dilemma: "Removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important it unseats the person the people have deliberately chosen for the office. ... [Conviction] could occur even though substantial doubt of guilt remained."
But the high criminal standard of proof "could mean, in practice, that a man could remain president whom every member of the Senate believed to be guilty of corruption, just because his guilt was not shown 'beyond a reasonable doubt.' " Black's suggested standard is "overwhelming preponderance of the evidence."
Could the President Be Subpoenaed to Testify?
An open question. Clinton would certainly have the right to testify if he wished to do so. There are no indications that he does, although House prosecutors are considering asking the Senate to invite him, which would leave the decision to the president. A subpoena, however, would raise separation of powers concerns as well as questions about his privilege against self-incrimination. Some impeached officials have elected to testify, but the Senate has never summoned an impeached official to testify.
What Would Happen if Clinton Were Convicted?
At the moment, an unlikely scenario is that if a vote for conviction seemed likely, Clinton might rethink his vow to serve until "the last hour of the last day" of his term.
But if he were to be convicted, he would cease to be president immediately upon the pronouncement of the judgment of conviction. A separate vote is required if the Senate wants to disqualify him from future office. Under the Senate rules, Secretary of the Senate Gary Sisco would deliver the judgment of conviction to Secretary of State Madeleine K. Albright. Vice President Al Gore would then take the oath of office as president.
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