Rules Are Rigid for Impeachment Jury
Washington Post Staff Writers
Friday, December 4, 1998; Page A19
It would begin at 1 p.m. sharp. Chief Justice William H. Rehnquist would be the presiding officer. Rep. Henry J. Hyde (R-Ill.) would likely be the prosecutor. Senators would be the jury, required to sit silently at their desks. If they had questions, they would be written on slips of paper and passed to Rehnquist, who would decide whether they would be asked.
Senate rules lay out with precision the procedures that must govern a presidential impeachment trial, a spectacle of such gravity that several lawmakers have publicly described it as the most serious thing Congress can do short of declaring war.
The Senate has tried a president only once, but later this month the House is expected to vote on articles of impeachment against President Clinton and at least one of them – a charge that Clinton lied before a grand jury about his relationship with former White House intern Monica S. Lewinsky – might pass.
If it does, the Senate's own rules obligate the members to convene a trial at 1 p.m. the day after they receive the article or articles from the House, and "continue in session ... until final judgment shall be rendered."
There is scant evidence that anyone in Congress has come to grips with the prospect of conducting a presidential impeachment trial based on a single charge of perjury regarding a private sexual liaison and of doing so after what would likely be a razor's-edge House vote mostly along party lines.
Senate Majority Leader Trent Lott (R-Miss.) said yesterday at a news conference that no preparations are underway as yet. "We're not making any plans or preparations at this time. ... At the appropriate time, if need be, we will have a bipartisan effort to make sure we know how to proceed if it's necessary. But we're not at that point."
Minority Leader Thomas A. Daschle (D-S.D.) simply stated the obvious: "The Senate will wait until the House acts," he told reporters this week, and if the House votes impeachment, the Senate will be in session "almost exclusively, until we resolve it." Lott has suggested, however, that the Senate might also proceed with other business during a trial by "double-tracking" it with legislative action.
In the only previous presidential trial, the Senate in 1868 fell one vote short of the two-thirds majority needed to remove President Andrew Johnson from office in a dispute over his firing of the secretary of war. No one today has expressed belief the Senate will come close to convicting Clinton and removing him from office.
But despite the Senate's frequent role as a graveyard for especially provocative House initiatives, that doesn't mean a trial can be avoided through senatorial sleight-of-hand if impeachment articles are passed.
To do so before trial would require that two-thirds of the Senate vote to suspend the rules governing impeachment, according to Parliamentarian Robert B. Dove. In fact, suspending any Senate rule is such a rare occurrence that Dove can recall it happening only "three to four times" in the last 30 years, and only in cases involving esoteric legislative procedures.
Nevertheless, it can be done: "If it is absolutely positive we can't convict, it may be that leaders need to get together and see," said Sen. Orrin G. Hatch (R-Utah), but, he added later, "the number one obligation is to hold a trial."
And it is this obligation that is uppermost in the minds of many senators, regardless of party. Sen. Robert C. Byrd (D-W.Va.), a stern guardian of Senate prerogatives and an expert on Senate procedure, says special Senate rules dealing with impeachment require that the Senate conduct a trial if the House votes articles of impeachment.
Moreover, constitutional history indicates that the impeachment process "should be allowed to run its course," Byrd said. To do otherwise would be "shirking our duty" and a "cop-out," Byrd said.
As Lott sees it, the Senate is "not required to [hold a trial] ... but I think it would be very hard not to, if the House, in fact, acted."
According to Senate rules, a presidential impeachment trial, with the chief justice presiding and the House's impeachment "managers" as prosecutors (principally Hyde, as chairman of the House Judiciary Committee), must proceed daily, "Sunday excepted," until it is finished. The Senate can conduct legislative business before the trial resumes or after the day's work is done.
Senators sit as a jury, and may not speak, interrupt or ask questions except through the chief justice. The one exception – and it is a crucial one – is that any senator at any time may move for the trial to adjourn permanently. If the motion carries – and it requires only a simple majority, not the two-thirds necessary to convict – the trial ends.
But this, like a rules suspension, could be seen as a short-circuiting of the constitutional process, and Sen. Robert G. Torricelli (D-N.J.) agreed that "I don't think we can take an [article of impeachment] and shelve it."
Still, Torricelli cautioned that the House's determination to press on with unpopular impeachment articles was "undermining the chance" of approving a strong resolution of censure against the president, viewed by many lawmakers as a more apt expression of displeasure with the president's behavior.
But Byrd suggested that censure, neither mandated nor forbidden by the Constitution, was a sanction for another day: "Once the [impeachment] process has run its course, then either the House or the Senate could bring a resolution of censure."
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