The Breach

by Peter Baker

  As Byrd stood in the front of the chamber, his hands shook with age, the pages of his speech flapping in a way that distracted from the gravity of his words. Books that he had brought up front and stacked behind him to make points about impeachment kept falling over.

  We look very bad, Byrd went on. We appear to be dithering and posturing and slowly disintegrating into the political quicksand. To avoid the fate of others tarnished by the scandal, he added, We can start by disdaining any more of the salacious muck which has already soiled the gowns of too many. If we can come together in a dignified way to orderly and expeditiously dispose of this matter, then perhaps we can yet salvage a bit of respect and trust from the American people for all of us, for the Senate, and for their institutions of government.

  After about twenty minutes, Byrd finally finished and sat down. Few liked following Byrd, but Connie Mack went ahead, since he had a story that involved his colleague from West Virginia. As a young Republican House member, Mack had been a conservative scrapper, and after being elected to the Senate, he needed time to realize that it was a different place, one less partisan and more collegial. Once, he recalled, Byrd had chided him for some perceived transgression on the floor, and Mack had flared with anger. Yet in the time it took him to travel from his office to the floor to issue a scathing rebuttal, he realized he ought not be defensive. The lesson, he said, reading from notes, was that the senators ought to open up to one another and express their true fears about what lay ahead.

  Joe Lieberman went next, recounting a fable to make his point: A scorpion asked a frog for a ride across the water. The frog asked how he could be sure he would not be stung. Trust me, the scorpion said. The frog did and gave the ride. The scorpion stung him anyway. Why? asked the wounded frog. I couldnt help it, the scorpion replied. Its in my nature.

  The senators, Lieberman went on, needed to overcome their own partisan natures. They all shared similar goalsthey wanted to fulfill their constitutional responsibility, they wanted to make sure it was a fair trial, and they wanted to make sure it would not damage the Senate or the country. There will not be sixty-seven votes on this set of facts, he said. We must do what is necessary to achieve this result, then move on. Liebermans stark assessment was an important signal to the other senators. If there were any hope of reaching a two-thirds vote, it would depend on Democrats such as Lieberman, and if he had already concluded that the president would be acquitted, that could become a self-fulfilling prophecy.

  His original proposal with Slade Gorton now dead, Lieberman told the Senate that he was no longer pushing for a test vote. The key issue, he said, was whether witnesses would be called. They should not if they were not necessary because they would prolong the trial and bring the Senate into the sordid sexual details they so fervently wanted to avoid. This is a political trial and we are politicians, Lieberman said. They had to convince the managers that they would be treated fairly. This is a sad chapter begun by the presidents abysmal conduct. The presidents conduct has left wounds in the country. Partisanship in the House has deepened these wounds.

  Gorton rose and echoed Liebermans points about the larger goals, but now he split with his friend on the issue of witnesses. He too had thought the existing record was adequate, he said, but had changed his mind. We need to give the prosecutors some rein, Gorton said. He then set forth the Republican plan that would set aside time for motions, presentations, lists of witnesses, and proffers from the two sides about their need for discovery, leaving until later the question of whether testimony would be taken.

  Chris Dodd stood next, recalling the caning of Charles Sumner and how it had poisoned the atmosphere in the Senate, inhibiting it from dealing with the national crisis brewing at the time and leading to the Civil Warand then noted that the attack had been generated in part out of an allegation of an affair. Lieberman had spoken for the Senate last September when he castigated Clinton from the floor, Dodd said, and now the Senate should again follow his lead.

  More down-to-earth was Mitch McConnell, who headed the National Republican Senatorial Committee and squarely put the politics of impeachment on the table. The Senate has a tendency to think about the next election, he said. The impeachment trial will have no effect on the 2000 election. Put that away. . . . Byrd is right. The Senate is on trial because were sure of the outcome.

  By this point, senators had stopped coming to the front of the room and were simply standing at their nineteenth-century polished-wood desks to speak. The prepared remarks had long since been discarded, and they were talking with each other as colleagues and friends thrown into a desperate situation and searching together for a way out. Without the amplification of a sound system, without the omnipresent television cameras, without reporters scribbling down every word, the senators for once saw themselves as statesmen seeking the common good rather than as strategists obsessed with the gamesmanship of the moment.

  Phil Gramm seemed an unlikely candidate for statesman. A Democrat turned Republican, Gramm had carved out a reputation as a Texas brawler, happily bashing liberals and pushing his own partys leadership to stand up for conservative values. Joe Biden once apologized for calling him barbed-wire Gramm on the floor, only to have Gramm tell him, No, no. Keep doing it. They like it back home. So as he stood at his desk in the Old Senate Chamber, Gramm surprised many in the chamber by quoting in his inimitable Texas twang none other than Daniel Webster, noting that the senator from New England gave his famed Union First speech 150 years ago in this same chamber, speaking not as a Massachusetts man, nor as a Northern man, but as an American. Gramm talked about the oath they had taken to do impartial justice and what that would mean for a trial. To do impartial justice, he believed strongly that the House managers deserved a chance to present their case, including witnesses. If the president asked for witnesses, was there anyone who would not allow him to call them? Gramm asked. Neither should they handcuff the House.

  But in fact, Gramm went on, as the senators haggled over how to proceed, they were not so far apart. Under the existing rules that governed impeachment trials in the Senate, any party could make a motion seeking witnesses, which would then be decided by a majority of senators. The only way to stop the managers from making such a motion would be to change those rules, Gramm said, and everyone knew that would not happen because it would require a two-thirds vote, or sixty-seven senators, which neither side at that point could muster. So at the moment the question of witnesses was, he said, moot. Why not throw out both the Republican and Democratic resolutions and write one together?

  Sitting on the other side of the chamber, Ted Kennedy was struck by Gramms pointand more than a little bit taken with his invocation of Webster. The aging liberal lion, who had fought plenty of partisan battles of his own during three decades in the Senate yet also knew how to work across the aisle when it suited his purposes, stood and seconded Gramm. They did essentially agree on how to move forward, at least for now, he said. The witness question did not have to be settled at this moment. They could go ahead with opening arguments from both sides and then decide how to proceed from there.

  We can get to second base together, Kennedy said, echoing the metaphor Rick Santorum had used with the managers the night before. Lets worry about how to get from second base to home plate later.

  Senators murmured to each other. Gramm and Kennedy were on the same page. If two of the most partisan, ideologically opposite senators could see their way to a middle ground, then they should lock it in. As other senators stood to offer their thoughts, Lott interjected and closed off discussion. If weve got an agreement between Gramm and Kennedy, we ought to be able to wrap this up, he said quickly. Lets not talk ourselves out of something.

  Around the chamber, senators thumped their desks in approval. Hear, hear! some called out. Seal the deal!

  Lott pronounced the two-hour meeting over, grabbed Daschle by the arm, and started to walk off. For the second time in two days, Lott had seized the moment to preserve bipartisanship and
force the one hundred independent-minded senators to keep paddling in the same direction. He had kept the situation from falling apart for another few hours. But as senators got up and left the chamber in an excited buzz, the few aides in the room shot looks of panic at each other. Tom Griffith, the chief Senate lawyer, turned to his deputy and asked, What agreement?

  The much hailed pact in the Old Senate Chamber was in fact something of a chimera. The two sides had said some words that sounded alike, but there was no agreement as such. A resolution still had to be written translating the bipartisan bonhomie into real nuts-and-bolts rules for how the trial would work, and that would prove to be anything but a pro forma exercise. Then the senators would have to actually read the measure and vote on it. Some Republicans were quietly aggravated at how quickly Lott had declared the fight over; Democrats such as Senator Tom Harkin of Iowa were upset with Kennedy for effectively giving in. There was still plenty of room for disaster.

  Lotts chief of staff, Dave Hoppe, gathered Griffith and the other lawyers, Mike Wallace for Lott and Bob Bauer for Daschle, in his office along with other aides and the four senators tapped by the majority leader to haggle over the detailsLieberman, Gorton, Kennedy, and Gramm. The next few hours were pure chaos, as the negotiations took on a life of their own. Bauer, the Democratic lawyer, seemed to be doing much of the battling with Gorton and Gramm. At one point, sympathetic to concerns expressed by Chuck Ruff at the White House, Bauer made a proposal that locked in the presidents right to additional discovery. The Republicans were happy enough with that proposal because it actually moved beyond Kennedys second base and in their eyes strengthened the case for witnesses. But when Marty Paone, a Daschle aide, walked in, he became alarmed and quickly pulled the other Democrats out of the room.

  What are you doing? he asked. We just had a meeting where they decided to punt on that.

  With Hoppes permission, the group then moved up to Lotts private office to consult. Daschle joined them. Well deal with the issue of subpoenas later, he agreed. He instructed his negotiators to go back downstairs and tell the Republicans that was as far as they would go.

  Gramm and Kennedy, the new political odd couple of the Senate, likewise scrapped over the issue of allowing in new evidence. The Texan insisted the House managers had to have the right at some point to try to introduce more material. You cant muzzle the House, he said.

  Kennedy shot back that what they had talked about in the Old Senate Chamber did not envision opening up the trial to new allegations. Thats not the way were going to deal with it, Kennedy said before walking out of the meeting.

  When he returned with a new draft of his own, Gramm was equally dissatisfied: This doesnt look right.

  Others got involved. More meetings were held. Senators Fred Thompson, Mike DeWine, Jon Kyl, and Ted Stevens moved in and out. Lott and Daschle were brought in. With the afternoon dwindling away and anxiety rising, negotiators finally came up with the breakthrough just minutes before the Senate was scheduled to reconvene on the floor at 4P.M. to vote. The compromise: House managers would be allowed to make their presentation about the need for witnesses before the Senate voted on any motion to dismiss. That was enough to satisfy some of the hard-liners looking out for the managers interest. The deal was finally done.

  On the floor back in their regular chamber, the senators barely had time to read the freshly printed resolution as Lott presented it. Under the plan, the managers and the White House would file various briefs over the next few days, and then beginning next Thursday, January 14, each side would have up to twenty-four hours spread over three days to present opening arguments. The Senate would then conduct a two-day question-and-answer period in which members could make inquiries only in writing through the chief justice. At that point, motions to dismiss the case or, alternatively, to call witnesses would be in order. That would be the moment when the senators would be forced to revisit the same roadblock they had decided to drive around this morning. But the details were lost on many senators. What mattered was that, for the moment at least, they were in agreement. One by one, the clerk called their names and one by one they rose at their desks and called out, Aye. The plan passed 1000, in stark contrast to the largely party-line vote that had launched impeachment proceedings in the House just three months earlier. As he made his way off the floor, Lott smiled in satisfactionand relief. He had survived another day.

  Youre giving them a shot to argue black babies on the floor of the Senate!

  At the White House, John Podesta was furious. Bipartisanship was all well and good for the Senate, but for his boss it was a disaster in the making. And in case the presidents allies among the Senate Democrats failed to understand that, Podesta was on the telephone delivering testy, profanity-laden tirades to make the point crystal clear. The unanimous procedural agreement, in his view, gave carte blanche to the House managers to dredge up any scurrilous innuendo against the president, from the numerous Jane Does identified during the Paula Jones case right down to the recurrent but unproven rumors that in Arkansas he had fathered children by black prostitutesa rumor resuscitated in recent days by a tabloid newspaper and Internet gossip Matt Drudge, only to be eviscerated when a DNA test showed that a young boy was not Clintons son.

  While publicly White House officials had bemoaned the partisanship in the House, it had actually served their strategy quite nicely. The last thing they wanted was for the Senate to treat this matter seriously and give it credence by working together. The 1000 vote to start the trial meant legitimacy. It meant that the White House could not complain that the proceeding was rigged against the president because, in fact, every Democrat had gone along with the resolution. Clinton instinctively felt he was being screwed. He got on the telephone with several Democratic senators and railed about what a mistake it was for them to go along with the Republicans. How could they do that to him?

  For those the president did not get in touch with, Podesta played enforcer. When he reached Bob Bauer, Daschles lawyer, Podesta angrily mocked the backslapping self-congratulations of senators appearing on television, preening their little unity dance, as he put it. I hope they feel good about it, he said sarcastically. Fuming, Podesta also rang up Joel P. Johnson, another Daschle adviser, to vent: We dont know what kind of crap theyve collected from his enemies, and youre going to let it all flop out there on the floor.

  Both Daschle advisers urged Podesta to calm down and assured him things would work out fine. They believed that Republican senators would never allow the managers to do that because they were petrified of appearing to be on a partisan witch-hunt.

  Trust us, Johnson told Podesta.

  The trial was now on and the show about to start. Briefs were being written and filed, presentations drafted, assignments made, and strategies developed. One thing both sides needed to do was familiarize themselves with the battlefield. Neither the White House lawyers nor the House members had spent any time on the Senate floor and had no idea how a trial would work logistically. So on Monday, January 11, each side was brought to the chamber for a tour. The managers arrived at 11 A.M. and were shown where they would speak and where they would sit. Alarm bells went off immediately. Their table, according to the sergeant at arms, Jim Ziglar, would be to Rehnquists rightjust in front of the Democratic senators. And who would be in the front row next to their table? None other than Chuck Schumer, the New Yorker who had fought them in the House Judiciary Committee before taking his seat in the Senate.

  Hyde and the others were not at all pleased about this and asked Ziglar if they could switch sides. They would feel more comfortable on the Republican side of the chamber.

  Sorry, Ziglar replied, but that was the way it had worked during the Andrew Johnson trial and tradition was being stuck to assiduously.

  Chuck Ruff and the White House team arrived at 3 P.M. for their own tour and were equally chagrined to discover that they would be stationed right in front of the Republicans, with Strom Thurmond staring over their shoulders. The pre
sidents lawyers asked Ziglar the same question: Could they switch sides?

  Sorry, Ziglar repeated.

  Other managers had more serious concerns on their minds as they checked out the courtroom. Bob Barr had nudged Hyde into putting him on the evidence team, the group of managers who would do the heavy lifting in presenting the case and arguing the facts. But the other members, Asa Hutchinson, Jim Rogan, and Ed Bryant, were worried that would backfire. Barr was such a lightning rod that he generated antipathy among Democrats and some moderate Republicans. Hutchinson and Rogan had both received friendly warnings from senators who said, If Barrs one of the main presenters, you might as well just turn off the lights in the Senate, as one told Rogan. Hutchinson and Rogan had already brought their concerns to Hyde, grabbing him outside the rest room after a managers meeting. A few days went by without any result, though, and so now, touring the Senate floor, Bryant decided to take a stab at it. He grabbed Bill McCollum and brought him over to Hyde. McCollum should be on the evidence team rather than Barr, Bryant told Hyde.

  After touring the floor, the managers met back in their House office building. Hyde swallowed his discomfort and decided he had to do something about Barr. The young guys were right. Barr would hurt their cause, and they had to focus on that. Still, Hyde tried to soften the blow. Turning to Barr, he said, Ive got something special for you to do. Bill McCollum would serve on the evidence team, while Barr would respond to any trial motions filed by the White House.

  Hyde had given no advance notice of his move, and everyone else around the table suddenly held his breath, unsure what the next moment would bring. After all these months together, it may have been the tensest point they had encountered internally.

  But the combustible Barr did not explode. He did not even complain. Henry, he said graciously, Ill do whatever you want me to do.