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MARGARET WARNER: In addition to the hours of public arguments in the senate over witnesses, there have been extensive negotiations behind the scenes. Some insight into both now from Boston Globe columnist Tom Oliphant and National Journal columnist Stuart Taylor, who is also a contributor to Newsweek.
MARGARET WARNER: Tom, the Senate is behind closed doors debating this. Why has this witness dispute become such a big issue in these proceedings?
TOM OLIPHANT: Because I think, Margaret, it is a metaphor for how long is this trial going to last. I don’t think witnesses per se have importance. I think the claims on both sides today made it clear that no one is saying that somebody is going to come forward and say something dramatic. But rather than argue about the specific length of the trial, witnesses have in a sense become the metaphor. What’s happening now I think has been arranged inside the senate Republican family. It appears to be working in the sense that it will have a majority. But it makes the House managers livid.
MARGARET WARNER: Why does it make them livid?
TOM OLIPHANT: Because they feel that their opportunity to put on the kind of trial that could have persuaded the senate, that could have persuaded public opinion has been limited to the point of ineffectiveness. And their expressions of frustration on the floor today and yesterday, but particularly yesterday, I think are just the surface of a genuinely deep fury at having the rug pulled out from under them.
MARGARET WARNER: Do you agree, Stuart? I mean, they made an incredibly passionate case for these three but they’re livid about it and they feel they need more.
STUART TAYLOR: I think that’s true. I think they might be satisfied if they got what they’re asking for now. I’m not sure they’d still be livid, frankly. But one dramatic factor here is if they don’t get the witnesses vote, this will be over by Friday and they will lose, and the president will be acquitted and he will have a victory party rather quickly. And they will slink back with their tails between – well, maybe not with their tails between their legs. So not only do they feel that in fairness they deserve this, but they know they will lose and be humiliated if they don’t get it. And they’re arguing that this is — it’s going to take a week or two. Why not do it right?
MARGARET WARNER: Do they think they can change enough votes to win the conviction of the president with witnesses?
STUART TAYLOR: I very much doubt that any of them would bet money on that happening. Some of them probably haven’t entirely given up on something dramatic happening. But I think really what they want to do is make a record, try and affect public opinion and move maybe some votes. I think they probably do hope and realistically hope that they can get more votes against the president with witnesses than they can without. I doubt that many of them think they can get to the two-thirds needed to remove him.
MARGARET WARNER: All right. Flip this around. Why is the White House so concerned about having these — as Henry Hyde called them — “pitiful three witnesses”?
TOM OLIPHANT: Maybe I’m wrong about them but my sense during the course of yesterday and today, Margaret has been that public White House opposition or expressions of peak or anger or even threat, i.e., David Kendall, dissipate with every hour that passes, and that, in fact, if one could try to describe a consensus White House view, I would stick my neck out and say it is that if we hear this right, this is a scenario for ending this trial sometime next week, it seems very cut and dried, sharply limited, boundaries constructed around these three witnesses, what’s the problem, let’s go through, it we see an end, no big deal.
STUART TAYLOR: Although that’s not what David Kendall seems to be suggesting on the senate floor today when he talked about discovery, thousands of documents, dozens of people, months and months.
MARGARET WARNER: Explain briefly for non-lawyers, what’s discovery?
STUART TAYLOR: Discovery is the use of legal compulsion to get information for one side in a legal fight. In this case he’s claiming he needs to see everything in Kenneth Starr’s files. In a normal criminal case there’s a very limited right of the defendant to have anything that the prosecution has that exculpates him, that suggests he’s innocent. I’m sure the House managers and Starr would say in this case the president already has all of that and more.
MARGARET WARNER: Are you saying this is a bluff?
TOM OLIPHANT: Not a bluff. I mean, he is trying to preserve the president’s rights as they go forward and there are contingencies and you have to be prepared. But remember you’ve been talking a little bit about the Senate Republican House manager relationship. There is a Senate Democrat White House relationship. And I think as this unfolds in an end game, you will see the senate Democrats acting somewhat to restrain the more truculent impulses of the White House lawyers. It hasn’t really popped into public view yet but I think if David Kendall submitted a discovery request on Friday, Stuart, that was this high, you would see Tom Daschle saying something about it.
MARGARET WARNER: So, Stuart, let’s turn now to the political calculation for the Senators. Very, very tough?
STUART TAYLOR: Well, it looked tougher, I think, at a distance than it may coming up close for the moderate Republicans, for the ones who are in play here. When the managers were talking about in a way that made them think sex, salacious stuff on the floor, Monica Lewinsky, days and days, it’s going to go on and on, lots and lots of witnesses -
TOM OLIPHANT: Sounds great.
MARGARET WARNER: High TV ratings.
STUART TAYLOR: Now the managers came in today and they’ve been backed into a corner and they’re saying three witnesses, a couple affidavits, three or four days, no sex, no sweat, over. Think of the Republican senators running for reelection in 20 months. Is this going to make a difference saying okay, let’s do that? I doubt it. I think it’s getting easier politically.
TOM OLIPHANT: Fairness, you know, has been a word that works on both sides of this battle. And we’re familiar with the White House claims with regard to what happened in the House of Representatives in November and December. But there are — if you think about it — analytically anyway, there are concerns on the House managers’ side about fairness that seemed quite legitimate to me. And that to, you know, Henry Hyde did those synonyms for dismissal yesterday. He used the normal English instead of the legal point about putting a case aside. But he’s right if it looks like you took this thing and threw it in the waste basket, is that respectful of the constitutional process? Of course not. So, they have a point, too.
MARGARET WARNER: So, when Tom Daschle said today, as he did during one of the breaks, that he thought on the witness issue it was going to be a party line vote and then one reporter said what about those soft Republicans you were talking about earlier? He said “I think they’ve gotten hard.” How do you explain that? Do you think he’s right? And how do you explain it?
STUART TAYLOR: I would never think of second guessing the minority leader on the vote count. I assume he’s right. I assume they’ve gotten hard because maybe they see the balance of political advantage differently than they did before. Now it is a concrete, limited proposal. I think one interesting question is whether some Democrats vote for witnesses because the same Tom Daschle two or three weeks ago said that Democrats were universally unanimously opposed to any witness, one witness. Well, if one or two or three Democrats vote for witnesses, that’s sort of interesting.
TOM OLIPHANT: And, of course, there may be one or two or three Republicans who vote the other way, not in a way that affects the outcome, only at the margins. And I think it’s important to underline that. The fundamental position is still Democrats against Republicans for.
MARGARET WARNER: Is there any way, Tom, in which if you’re a Republican and maybe thinking of not voting for conviction, that you would want to vote for witnesses?
TOM OLIPHANT: See, this is the way I want to know what happened when the doors closed last night and I want to know what’s going on with the doors closed now because I think that is the easiest point for Trent Lott to make to these people until the world. We’re going to let you go on the final vote. It’s your conscience completely. But help us out here. We’ve tightened this boundary around the witnesses, we’ve done everything we can to keep it from going crazy so come on, give us a vote. I think what’s happening is that nearly all of them are finding that a very easy thing to do.
STUART TAYLOR: You know, one thing that happened in the House and that the Senate, I think, doesn’t want to happen, they don’t want the American people mad at them for a long trial, is that if either side goes away saying we didn’t get a fair trial, this was not fair, we were not given a chance to prove our case, if either the White House or the House goes away saying that, the Senate has failed. And the House will go away saying that if the senate doesn’t give them some witnesses.
MARGARET WARNER: And we should point out that the vote tomorrow to depose witnesses doesn’t even necessarily mean live witnesses.
TOM OLIPHANT: Not at all. And, in fact, the introduction of one idea into these negotiations within the senate Republican family, namely videotaping them, appears to be part of what the conservatives would call a plot to keep these witnesses off the floor if all you have to do is sit back and watch videotapes once the process is done. So absolutely.
STUART TAYLOR: With the videotape coming to the floor, I think it would. And, frankly, from the House manager’s standpoint or any standpoint, if they can use excerpts of videotape as a floor presentation, that’s just as good as having a live witness and in some ways better.
TOM OLIPHANT: Because if you’re really telling me that this is over Tuesday or Wednesday, no harm, no foul.
MARGARET WARNER: So are you both predicting that we will have witnesses?
STUART TAYLOR: I’m predicting that the Minority Leader Daschle will probably be right again on vote counts and he thinks we will.
TOM OLIPHANT: Yes, of course. He counts well.
MARGARET WARNER: Well, thank you, Tom and Stuart.
STUART TAYLOR: Thank you.
MARGARET WARNER: Thanks very much.