by Peter Baker
Lieberman and Gorton presented this idea to Lott and seemed to win him over. He liked the brevity. He liked the idea that there would be an early vote. There was no use in dragging it on for weeks if everyone knew the outcome was fixed. Daschle liked the plan too, as did the White House. But as Lott began circulating it, he quickly ran into a wall of opposition from Henry Hyde and the managers as well as a number of his Senate Republican colleaguesnot just conservatives, such as Don Nickles, the majority whip from Oklahoma, and Phil Gramm, the feisty former Democrat from Texas, but key moderates as well. Senator Arlen Specter, an iconoclastic moderate from Pennsylvania who earlier had publicly advocated abandoning impeachment proceedings and simply letting Clinton take his chances in criminal court after leaving office, told Lott on the phone that if the Senate did proceed with a trial, it should do it right, including calling witnesses.
Lott unwittingly provoked more criticism of any potential bipartisan deal within his own ranks by telling the Associated Press the next day that no new testimony needed to be taken to evaluate the case. Are witnesses required? I dont think so. I think the record is there to be reviewed, read, presented in a form that [House prosecutors] choose. He added, That would be sufficient.
The fax machine in Greg Craigs office began whirring at 1:49 P.M. that same day, Tuesday, December 29. While Craig and the other White House defense lawyers were thrilled with the Gorton-Lieberman plan, they knew they had to be prepared to fight on other fronts in case it did not work. In recent days, Craig had been conferring about the lame-duck argument with Bruce Ackerman, who had taught him at Yale. That afternoon, the law professor sent down a forty-seven-page paper intended to help the White House make the case that Clintons impeachment should not force the Senate to conduct a trial. Ackermans paper maintained that the two articles of impeachment would expire with the end of the 105th Congress on January 3 like any other legislation passed in one house but not the other. Unless the newly elected House reauthorized them, there was no basis for a trial. To back up his thesis, Ackerman relied on the Twentieth Amendment to the Constitution, which was adopted in 1933 to curtail lame-duck legislative activity by moving up the beginning of the next congressional session after each election. If this lame-duck impeachment is allowed to go forward, a terrible precedent will be created for the future, Ackerman wrote in the paper sent to Craig. Whenever the opposition party controls the House, a setback at the polls will tempt them to begin a lame-duck impeachment process against their political opponent in the White House.
The problem was that other specialists disputed Ackermans analysisincluding the Congressional Research Service and Charles Tiefer, a former House lawyer who wrote the book on congressional procedures. As recently as a decade earlier, the House had impeached a judge in one session (albeit before the election) and the Senate went forward with a trial in the next session without the impeachment being revoted.
As he read through Ackermans paper, Craig and his colleagues were still mulling over several other possible tactics as well. In addition to a basic motion to dismiss, they were drafting motions intended to challenge the validity of the articles of impeachment on the grounds that they were improperly vague and bundled multiple allegations into the same charge, even though they were not dramatically different from the articles of impeachment advanced against Nixon in 1974. Theoretically, Craig and other White House lawyers reasoned, Rehnquist could throw out the two articles against Clinton if he found them poorly drafted, and given his jurisprudential background, the chief justice might be more of a stickler for getting the details right.
At the same time, Hyde was meeting with his fellow managers to discuss plans for the trial, and the group came away determined to call witnesses. The chairman was particularly peeved at Lotts public comments about no need for witnesses. While Hyde was not sure they were needed either, he could not believe the Senate majority leader was trying to tell the prosecutors how to put on their case. Hyde dispatched a three-page letter to Lott the next day, Wednesday, December 30, expressing his irritation: The Senate should hear from live witnesses. Indeed, federal courts have long recognized the importance of live testimony in their rulings and their instructions to juries. I believe that a fair presentation of the evidence and a full defense by the president can be expeditious. We need not sacrifice substance and duty for speed.
Lott first heard about the letter from reporters and found himself as aggravated at the lack of warning as Hyde had been at the majority leaders earlier comment. Lott called Hyde at home to complain about the ambush. If you have any problems, take them up with me, not in the press, Lott griped.
Hyde agreed. Its a good ideaif we have problems, we should talk about it before we air it out in public. Perhaps the letter had been too harsh, and it should certainly have been withheld from the press until it was delivered, Hyde felt, but he wanted to make sure to get Lotts attention.
He had it now. For Lott, the managers were already developing into another constituency to juggle on top of the myriad factions within his own Senate caucus. By impeaching Clinton, the managers had become folk heroes among conservative Republican core voters and Lott knew he could not afford to alienate the partys base. At the same time he was looking for a speedy end to the trial, Lott was concluding that he also had to find a way to mollify the managers.
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The prospect of a protracted trial was weighing heavily on the White House. Personally, physically, and psychologically, the bone-weary staff could not bear the notion that it might drag on much longer. The longer it lasted, the higher the opportunity cost in lost legislationall the more critical now in trying to rehabilitate the impeached presidents legacy before he left officeand the greater the chance that some new disaster could befall the Clinton White House. Another intern could be discovered, more evidence of obstruction might turn up, Juanita Broaddrick could go public with her allegation of rapeanything seemed possible. Given the partisan polarization, the trial seemed unlikely to threaten Clintons presidency, but the one thing Clintons legal and political advisers had learned over the last year was to beware when the situation appeared under control because that was usually when the roof would cave in.
Another opportunity cost of a long trial turned out to be George Mitchell. Steve Ricchetti, the deputy chief of staff, and Lanny Breuer, the special counsel, had been wooing him for weeks, and Mitchell sat down with the presidents lawyers several timesalways at Williams & Connolly, to avoid being spotted by the White House press corps, which hovered around the West Wing. But finally in early January, he told Ricchetti he would not come on board in an official capacity. Mitchell explained that politics had ruined his previous marriage, and now that he had a new wife and a new child, he wanted to devote his time to them. The thought of an ordeal that would consume him for months was unappealing. Besides, Mitchell knew his own negatives as well as anyone and rattled them off for the White House teamhe was not well liked among the Republicans, who saw him as excessively partisan. Moreover, he did not want to step on Daschles toes, one more reason why he preferred meeting in secret at Williams & Connolly. But Mitchell was willing to help and offered sharp analysis of the situation: how Lott had to juggle the fire-breathers within his own caucus, including his whip, Don Nickles, who was to Lott what Lott once was to Bob Dole; how the Gorton-Lieberman plan was likely to play with certain groups of senators; how Pat Moynihan, the Democratic senator from New York, was really trying to help the president even if he looked to be shafting him. One point Mitchell emphasized was that senators in both parties simply did not like Clinton, and the Democrats in particular were irate that they had to clean up his political mess.
The tips from Mitchell helped the White House aides finalize their central strategy for any Senate trial. Whatever they did with motions, factual rebuttals, or witnesses would be governed by one simple imperativeholding together the Democratic caucus. Republicans in this trial would be irrelevant, they knew, because, as Doug Sosnik had warned Clinton almost a year ea
rlier, only Democrats could force him from office. The president would place his fate in Daschles hands and do whatever the minority leader told him to do. The arguments to be presented on the floor would be calibrated entirely to appeal to Democratic senators. And most of all, the Clinton lawyers would aim their powers of persuasion at a single senator, Robert Byrd. If they could avoid alienating him, they believed, the White House could head off any wholesale defections and guarantee that Clinton would finish his term.
Why do we need witnesses?
The question hung in the air in the conference room at the Rayburn Building. It came not from a White House defense attorney or even a skeptical senator but from Henry Hyde. The head of the House prosecution team was meeting with his managers on Monday, January 4, and asking them the same question everyone kept asking him.
Despite his public outburst against Lott, Hyde was deeply skeptical about the desirability of witnesses in a Senate trial. They had thousands of pages of testimony under oath already. The presidents attorneys had not really disputed any of it, so why reinvent the wheel, as Hyde had put it shortly after the November election when he had decided against calling witnesses during House hearings. Bringing witnesses to the well of the Senate, Hyde thought, would be more about show business than the profound constitutional duties they had before them. He was especially leery of Lewinsky appearing on the floor of the Senate. If she pranced out there, it would have sex written all over it and completely undercut everything they were trying to do with the case, he said.
What are we going to accomplish with these witnesses? Hyde asked his fellow managers.
The power of the story, several replied. The transcripts had the hard, cold facts, but could not bring the tale of deceit and manipulation to life the way witnesses could. If a tree falls in the forest, no one hears, said Lindsey Graham. We want people to hear us.
Hyde remained leery, and he was not the only one. Charles Canady and George Gekas, among others, expressed reservations. Its bad to put Monica on, Gekas kept saying. She cant add anything to the record, and she could recant part of her testimony and hurt us.
Hyde relented and put his trust in a quartet of managers he had designated as his evidence teamAsa Hutchinson, Jim Rogan, Bob Barr, and Congressman Edward G. Bryant of Tennessee. If they were so convinced that witnesses were necessary, then Hyde agreed to consider their plan for how they would run the trial. But he took care to emphasize the enormity of the task before them. This could not be a circus. We are fighting for the presidency of the United States. The stakes could not be higher.
The next day, on Tuesday, January 5, Hutchinson finished a preliminary trial plan along with the rest of the evidence team and sent a copy to Hyde. They envisioned at least sixteen witnesses, who would testify to everything from the facts of the case to the nuances of the relevant sections of law. Under the plan, the managers would open the trial with a presentation about the presidents oath of office, his constitutional responsibility to enforce the law, and a history of the Jones lawsuit. Their first witness would be U.S. district judge Susan Webber Wright, who would testify about her orders permitting the Jones lawyers to question Clinton about Lewinsky and about what she saw and heard while personally supervising the presidents deposition, now almost a year before. The managers would then call expert witnesses on sexual harassment law and the impact of perjury. Their first choice was Robert Bonner, a former federal prosecutor, judge, and head of Drug Enforcement Administration, but they also listed as possibilities FBI director Louis Freeh and even New York mayor Rudolph Giuliani, a former U.S. attorney. Optional witnesses at this point of their presentation would be the forewoman of the grand jury in the Lewinsky case, a lawyer from Starrs office, and one of the judges who had assigned Starr to investigate the presidents actions in the Jones case.
Next on the stand would be Lewinsky herself, plus one or more Secret Service agents, and then Clinton advisers John Podesta, Sidney Blumenthal, and Dick Morris, who would testify about what the president had told them regarding the former White House intern. The court reporter who had videotaped Clintons deposition in the Jones lawsuit would be called to testify about whether the president appeared to be paying attention when his attorney said there was no sex of any kind, in any manner, shape, or form between Clinton and Lewinsky. Moving on to the obstruction allegations, the managers would put on another expert witness about prosecutions of public officials, again listing Giuliani as their preference. Then would come Betty Currie, Vernon Jordan, and Revlon chief Ronald O. Perelman to talk about the gifts, witness coaching, and job search. Finally, even though the articles passed by the House dealt entirely with Lewinsky, the trial plan would conclude by focusing on the presidents pattern and practice of intimidation and use of false affidavits, with Kathleen Willey and her lawyer, Daniel Gecker, as the first two witnesses, to be followed by other corroborating witnesses yet to be interviewed. David Schippers was not yet ready to surrender other avenues that he was forced to abandon during the House proceedings, and he had an ally in Lindsey Graham, who thought the presidents history with women other than Lewinsky proved that he was more sinister than simply a weak-willed husband in a midlife crisis.
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The managers were ready with their plan, but the senators were not. While hundreds of members of the new 106th Congress were on airplanes heading back to Washington to be sworn in, Lott and Daschle had yet to figure out what to do once they arrived. The Gorton-Lieberman plan now looked dead, buried by the reluctance of Senate Republicans to give short shrift to the managers and their case against Clinton. Daschle had drafted three possible scenarios, ranging from one that called for just a single day of presentations from each side followed by an immediate vote, to an extended schedule with a month of witnesses and final votes not taken until April 16. At the moment, anything looked possible.
On the day that Congress returned to town, Wednesday, January 6, Lott decided to meet with Hyde to try to figure out what the House team really wanted. Lott asked Senator Mitch McConnell of Kentucky, the incoming chairman of the Rules and Administration Committee, to join him, along with Senate lawyer Tom Griffith and the majority leaders counsel, Mike Wallace, a longtime friend from Mississippi hired to help through the trial. They met at 8:30 A.M. in Lotts hideaway, a summit of sorts between the countrys two most important Republicans at the momenteach with conflicting interests and ambitions.
Hyde moved straight into his pitch. He said he understood the Senate would run the show and that the House managers were just guests, but emphasized that they could not simply be dismissed out of hand. The managers are passionately committed to a fair trial, Hyde said. They have put their careers on the line for this and they feel betrayed.
If they were not guaranteed a fair trial, Hyde suggested, his team might just quit and walk out. That was part bluff, part recognition that his managers were already quite hot and it would be a trick to restrain them. Hyde said he needed an irreducible minimum of fifteen witnesses, but tried to reassure Lott that the managers did not want to embarrass the Senate. Lewinsky would be called only for the limited purpose of reaffirming her grand jury testimony as it related to perjurymeaning no explicit description of sex play with the presidentand for a more extended discussion of the events that had led to the obstruction charge.
The White House would be crazy to cross-examine her, Hyde said.
But if that calmed Lott, what he heard next could not have. Schippers, who had accompanied Hyde and was still intent on broadening the case beyond Lewinsky, suggested that some of the other witnesses might include Kathleen Willey and Dolly Kyle Browning. Those two could demonstrate other examples of perjury and obstruction, Schippers said. Other witnesses Schippers mentioned were Susan Webber Wright and Dan Gecker. Still, Schippers said the irreducible minimum of fifteen witnesses could actually be reduced, perhaps even down to five or six if both sides stipulated to the record as compiled by Starr and the Judiciary Committee.
One other thing the managers wanted
the right for Schippers to address the Senate on the floor. He was their lawyer. Otherwise, the case would be left entirely in the hands of thirteen politicians who had not been in a courtroom in many years, if at all, going up against the elite of the Washington bar. In the impeachment trials of some judges, the House had hired lawyers to present the cases to senators, but that had always been in committee, not on the floor. Lott did not think for a second that Robert Byrd would stand for a lawyer addressing them on behalf of the House.
We cant do that, Lott told Hyde flatly.
But the senators tried to reassure Hyde that the case would not be buried without consideration. One way or the other, McConnell said, there would be an up-or-down vote on the articles themselves. It honors the Constitution and does credit to the House, he said before the meeting broke up.
That promise reflected advice Lott was secretly receiving from a select group of political consultants and pollsters he had convened to help guide him through the minefield ahead. On the same morning Lott was huddling with Hyde, this rump group began meeting clandestinely to figure out the best way for the majority leader to proceed without fracturing the Republican Party. Even if acquittal was a foregone conclusion, ending the trial without a final up-or-down vote would spark a revolt by conservative voters who despised Clinton, these advisers told Lotts staff. Among those joining the strategy sessions with Lotts senior aides were former White House aide Tom Griscom, political consultants Ed Rogers and Ed Gillespie, and pollster Frank Luntz. They mapped out plans to get together at the Capitol every morning throughout the trial to help shape Lotts message, but even the existence of the meetings would be kept confidential, and the senator himself would never attend, to avoid looking as if he was allowing politics to dictate how to handle the case.
