TOPICS > Politics

Pretrial Motions

January 4, 1999 at 12:00 AM EST
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MARGARET WARNER: As the 106th Congress convenes this week, senators are trying to decide what an impeachment trial for President Clinton will look like. Last week, Republican Senator Slade Gorton of Washington and Democrat Joseph Lieberman of Connecticut floated a proposal for an abbreviated procedure that might avoid a full trial. Sen. Lieberman joins us now, along with three other senators: Republicans Arlen Specter of Pennsylvania and Robert Bennett of Utah, and Democrat John Breaux of Louisiana.

MARGARET WARNER: Sen. Lieberman, lay out your proposal for us.

SEN. JOSEPH LIEBERMAN, (D) Connecticut: Okay. This is a proposal that comes from my Republican colleague and friend from Washington State, Slade Gorton. It grows out of conversations we had not only with each other but with a number of colleagues on both sides of the aisle in the Senate that shared common goals – we want to fulfill our constitutional responsibility now that the House has passed articles of impeachment.

We want to do it in a way that is fair to the Senate and to the president and does not create the kind of partisan rancor that will make it hard for the Senate once this trial is over to get back to work on the nation’s business. So the proposal is to have a trial begin, but to allow there to be a test vote after both – each side has stated its case – members are allowed to question both the House prosecutors and the counsel for the White House, Senator Gorton and I – or two others – two of the others, if they want, will stand and essentially introduce what might be called a sense of the Senate resolution, which is that assuming that the House prosecutors can prove their case at trial, does that case merit removal of the president, and if 2/3 do not vote yes, then we have a clear indication that the conclusion of the trial – if it goes on – is clear and foregone, and so what we’re seeing is why put the nation and the Senate through the time and the sordid details of this case, if the end of it all is clear, why not consider adjourning at that point? But I do want to stress that people have described us as a very truncated trial.

This will go on for a week or two with plenty of debate by senators, plenty of opportunity for both sides to make their case before this test vote occurs, and if 2/3 indicate that they are prepared, giving the House case the benefit of the doubt to vote for conviction or removal, then, of course, the trial will go on and the House will have the opportunity to call its witnesses, and the president presumably will have the opportunity to both cross-examine and call his own witnesses.

MARGARET WARNER: What do you think of this proposal, Senator Bennett?

SEN. ROBERT BENNETT, (R) Utah: Well, I am absolutely committed to the idea that we have a trial, and I’ve been distressed by people who’ve said, well, this is a deal to avoid having a trial, because if it is a deal to avoid having a trial, I’m against it. But, as Sen. Lieberman has indicated, this is a stop in the middle – we your finger – take some kind of sounding to see whether or not senators have so made up their mind that proceeding with the trial beyond that point is useless. Now, as I understand it – and you can correct me if I’m wrong – but as I understand it – the vote will be if the House can convince you to your satisfaction that the president is guilty of the things he’s accused of, would you vote to convict him? I think that would be a pretty tough vote for a lot of senators who will say even if I am convinced to my satisfaction that the president did the things the House accused him of, I still won’t vote to convict him. I think that’s a tough vote, and I don’t think it’s a foregone conclusion that it would automatically end the trial right there, but if, in fact, over a third of the senate says even if the evidence is clear and I am absolutely satisfied the House is right and I still won’t vote to convict him, then, yes, I think we seriously ought to consider it. Now, I understand that the president’s lawyers don’t want this vote to go forward; they want the vote to end the trial to be a straight motion to dismiss. I would be opposed to that, and I think this proposal is a whole lot better.

MARGARET WARNER: Then explain what you mean by the difference between a straight motion to dismiss and Senator Lieberman’s idea.

SEN. ROBERT BENNETT: Well, under the Senate rules, as I understand them, you could have a motion to simply dismiss the trial any time, and when you’ve got 51 senators, you can do that. And the White House lawyers or the president’s lawyers, more properly, I understand, are saying we don’t want senators to have to say whether they would vote to convict if they were convinced, we just want them to cast a straight vote to let the jury and trial and not have to explain their motives, and I don’t want him to be in that position.

MARGARET WARNER: All right, Senator Specter, you have been critical of this idea in recent days. Lay out your objections.

SEN. ARLEN SPECTER, (R) Pennsylvania: Well, Margaret, at the outset, I took the position sometime ago that the national interest would be best served by putting off holding President Clinton accountable until after his term ended and through the judicial criminal process, whatever a jury or a judge would say at that point. But once we face articles having been forwarded by the House to the Senate, then I think we have a constitutional obligation to have a trial. I do agree with the objective of doing it promptly, and my experience shows me that it is possible to narrow the trial, to have only a few key witnesses and the few abbreviated lines of questioning focusing very tightly on the charges with long trial days, something in the range of 9:30 to 5 o’clock, as we had when I was district attorney of Philadelphia and that we could complete this trial in the course of some three weeks. The short-term interest – and there’s a lot of political pressure right now on the Senate to get it over with, and if we rush to judgment, we will not be doing our job. Alexander Hamilton laid out in the Federalist Papers holding this responsibility to the Senate to be above what the public may demand, and in the short-term, it would be nice to get it finished, and I think we can get it finished in short order to go along with Social Security and education and health care, but only if we do it by observing the Constitution, which is long-term a very, very important precedent that we have to be concerned about.

MARGARET WARNER: And why do you think it’s important – why do you feel it’s important to have witnesses?

SEN. ARLEN SPECTER: It is important to have the witnesses so you really understand the case. Chief Justice Rehnquist wrote a book called “Grand Inquest” and picked up this very point, saying that when you have a hearsay document you do not have the demeanor, you do not have the flavor, you do not really understand exactly what is going on. Trials have witnesses. If you have a grand jury, which is the analogy of the House proceedings, you have hearsay, you have police reports, which are read into the record, but what is a trial without witnesses to really see exactly what went on? There are disputes here as to what happened on the issue of perjury and on the issue of obstruction of justice. And when you talk about doing a sounding, I think, as Senator Bennett just mentioned, I think that’s a matter of concern. We have to find the facts and to make that determination you need to see and hear live witnesses, but not too many, and on the narrowly focused range of issues.

MARGARET WARNER: All right. Senator Breaux, how do you see this?

SEN. JOHN BREAUX, (D) Louisiana: Well, we may well be headed for the trial of the century but it doesn’t have to last a century or even seem like it’s going to last a century. When you have a trial and you bring witnesses to provide evidence, it’s to settle what issues are in dispute. And in this case we know what happened, we know when it happened, we know where it happened, we know how it happened, and we know what the president said about what happened. So I think that we will have a trial, yes, but I don’t think that you need to go into a full-blown trial with witnesses if the prosecution calls witnesses, the president’s teams will call witnesses, there could be witnesses called for rebuttal, and it could go on and on. I think we can fairly dispose of this matter with a trial, stipulate to the facts that the House heard are true, and make a decision on whether that constitutes grounds for conviction of the president. If it doesn’t, well, let’s move on to a censure resolution or whatever other penalty that would be appropriate.

MARGARET WARNER: Was Senator Bennett correct when he said that the White House doesn’t much like this proposal? Have you spoken to anyone there?

SEN. JOHN BREAUX: Well, really, the proposal is not for the White House to make any determination of whether it’s good or not. I mean, this is a decision that is uniquely appropriate to the Senate only. Now, the White House may well like to call a bunch of rebuttal witnesses or defense witnesses. I would think that would serve no good purpose. I think if we could stipulate the facts, we could make a decision based on what an appropriate penalty is. And that is what the Lott-Gorton-Lieberman proposal does.

MARGARET WARNER: Senator Lieberman, how is the censure possibility going to fit into – how does it fit into your picture or your proposal?

SEN. JOSEPH LIEBERMAN: Well, I personally see it as quite separate. I think we have a constitutional responsibility first to decide the question on the articles of impeachment that have been sent to us by the House. If we reach a conclusion on that and it does not involve the removal of the president from office, then the trial, as Senator Bennett has indicated, would be adjourned by 51 senators. It would have to take a bipartisan group. And then the Senate would go back into the regular order of its business. Then I presume – I would certainly try to work with colleagues to have the Senate then adopt a strong censure of the president because I don’t think we should end this sorry episode in our history without a clear statement by the people’s representatives in Washington that what happened here was wrong and it was hurtful. And I think we have to do that for ourselves, for history, and for our children.

MARGARET WARNER: How do you see – you have supported censure in the past but that is not where you are now on this.

SEN. ROBERT BENNETT: I wanted to vote in the 105th Congress to censure the president, regardless of what happened with respect to impeachment. Let’s make it clear – I did not offer censure as an alternative. I think what he has done is indefensible, reprehensible, whatever other adjective you want to find, and very much deserving of censure, whether it rises to the level of impeachable offense or not, so if the Senate were to convict, I’d say, okay, the question of censure is moot, but if the Senate doesn’t convict, then I still want to go on record, cast a vote letting everybody know how I feel about the behavior of the president in three areas. I would want to censure him for his personal behavior with Monica Lewinsky, which if he had conducted as a military commander would have ended his career; I want to censure his lying, which I think clearly is censurable; and I want to censure him for the smearing that has gone on, people who have told the truth at some peril to themselves have been attacked out of this White House by people working for the president, and I think that’s a censurable issue, and I want to debate that on the floor of the Senate if he is not removed. If he is removed, then you don’t need to talk about that. But if he is not removed, I don’t want people to say, well, he’s acquitted, let’s go on our way, and not talk about these things. I think these things are toxic that have come out of this White House, come out of this president, and they need to be dealt with and they need to be dealt with in public.

MARGARET WARNER: Senator Specter, weigh in, if you would like, on censure but also help us understand now how you’re going to actually come to a decision about the process. In other words, we have differences here among Republicans; there also are some differences among Democrats, but they’re not reflected in these two particular Democrats. How were you all as a body going to come up with a process to proceed here?

SEN. ARLEN SPECTER: We are going to talk over the various alternatives. My idea is that this ought to be structured like complex litigation where we’ve had a lot of experience, where there are pre-trial memoranda prepared by both sides listing the witnesses and motions approximating the time, have the number of witnesses limited, having a focus on the issues, and trying it with long days and I think we can finish it in a relatively short period of time, but the Constitution is the guide. You see, Margaret, when you talk about censure and you talk about punishment, you are talking about something that is not contemplated by the Constitution but expressly ruled out on an impeachment proceeding. The Constitution specifically states that judgment in cases of impeachment shall be limited to two things: number one, ousting the person from office, and number two, preventing the person from holding office in the future. It is not supposed to be a matter of punishment. And what the arrangement here is to finish it up in short order by this new procedure requiring a 2/3 vote is that the immediate following factor is going to be this resolution of censure, which will, in a political sense, give cover, which we’re very good at in the Senate after we vote one way on a matter to have another resolution come up, which explains it when we have to run for election. But if you condense it, which is the reality, if you move away from impeachment, move to censure, you’re really having a disposition for the president, which is not contemplated by the Constitution at all. And you really run afoul of a very, very basic principle, and that is separation of power. The Congress is not really in the business of censuring the president. If you do that, I think it’s a very, very high precedent, and expressly the framers moved away from any punishment in an impeachment proceeding. We’ve got to follow the Constitution.

MARGARET WARNER: All right. Let me get Senator Breaux in here before we run out of time.

MARGARET WARNER: Senator Breaux, is there a consensus emerging, at least among Democrats, on how to proceed here?

SEN. JOHN BREAUX: I think the consensus that’s emerging, as I see it, is the one that’s been recommended by Lott and Gorton and Lieberman, and it does carry out our constitutional responsibilities. It would be an actual vote on the impeachment articles sent over from the House. If they do not have the requisite 2/3, then we would adjourn and then move to a censure resolution. And I would suggest that it should be bipartisan, and I would suggest that we look at what the Democrats crafted in the House. It is – was a very strong censure resolution, which they were prevented from offering, but I think we ought to look at that as a means of starting towards reaching a conclusion and on an appropriate censure resolution. And I think the Senate can do this in a bipartisan fashion, unlike what happened in the House.

MARGARET WARNER: All right. Well, thank you, all four of you, thanks very much.