Idea of semi-secret Senate impeachment trial outrages some

Tuesday, December 22, 1998

Mitch McConnell...
Mitch McConnell, R-Ky.


WASHINGTON — A suggestion by incoming Senate Rules Committee Chairman
Mitch McConnell, R-Ky., that the Senate might conduct some of an impeachment
trial of President Clinton in secret has stirred the ire of First Amendment
advocates and legal experts who say that would further undermine public
trust in government.


But others say so few details of the Clinton-Lewinsky affair remain
undisclosed that the public might be grateful if it were spared the most
graphic descriptions on live television.


McConnell, appearing Sunday on NBC's “Meet the Press,” set off the
discussion with his statement that there was “nothing in the rules that
requires all the witnesses be heard in open session. If we actually end up
having to hear from some of the more infamous witnesses we're now all too
familiar with, there's no prohibition under the Senate rules from hearing
those witnesses in closed sessions.”


“This will not be a spectacle. It will not demean the Senate,” McConnell
said.


Others, including McConnell's colleague Sen. Dianne Feinstein, D-Calif.,
quickly responded that the prospect of a spectacle was of far less concern
than the appearance of secrecy in such an important constitutional
process.


“I really want to say that I for one would have very strong opposition to
any kind of Star Chamber proceeding that's held in private,” Feinstein said
during a CNN interview Sunday night with correspondent Wolf Blitzer. “After
all, this is not impeachment. This is now removal of the president from
office.”


“The House has hit the Constitution over the head with its impeachment vote,
and now the Senate is ready to knee it in the groin with its plan for
secrecy,” Michael Gartner, editor of The Daily Tribune in Ames, Iowa,
told said. “I think people would be
further outraged. They're already disgusted with the Congress, as today's
polls show. The other odd thing about it is, what's left to keep secret?”


Linda Lightfoot, executive editor of the Baton Rouge (La.)
Advocate, agreed. “I think this is a process, painful as it is, that has got to be open,” she said. “I'm not sure we're at a point anymore where salaciousness
is an excuse for anything. I think the American people are entitled to hear
everything there is about this trial, just as they would if it were a trial
in open court.”


Lightfoot said that the veil of
secrecy slapped on the official inquiries into President John F. Kennedy's
assassination “has shown us that in secret proceedings, you are left with
doubts forever and ever.”


Bruce Sanford, a Washington attorney and First Amendment expert who serves
as legal counsel to the Society of Professional Journalists, said it would
be “terribly inappropriate to close whole sections of the proceedings.” But
he said if there were specific reasons, clearly stated, for taking some of
the evidence in private, it could be argued that the Senate was doing the
same thing that a trial judge could do.


“In trials, for instance, there can be trade-secret information in civil
cases or there can be other considerations … where a trial judge can say
we're going to close this particular part of the trial. It does have to be
articulated clearly,” Sanford said.


To a great extent, the Senate is operating in uncharted waters as it mulls
the operating procedures of an impeachment trial. The only other trial of a
president occurred in 1868 against President Andrew Johnson, who survived
removal from office by a single vote. In 1974, when it appeared the Senate
might be conducting an impeachment trial of President Richard Nixon,
lawmakers were prepared to go pretty much by the century-old Johnson
rules.


The Senate was spared from that decision when Nixon resigned before a House
vote. A dozen years later, the current Senate parliamentarian, Robert Dove,
and his predecessor, Floyd Riddick, reviewed the rules and submitted a
report to the Senate that sets forth procedures and guidelines for all types
of impeachment trials. The presidential section tracks fairly well the 1868
rules, with some modifications agreed upon for the proposed Nixon
procedures.


Those rules carry a strong presumption that the trial stage will be open to
the press — including television — with the deliberations secret,
but the sections provide plenty of loopholes for the Senate to change the
rules if it sees fit. That scenario follows normal Senate procedures, in
which any rule in the chamber can be changed by unanimous consent.


Joel Campbell of the Deseret News in Salt Lake City, Utah, head of
the SPJ's Freedom of Information Committee, said it would be an “outrage”
for the Senate to close the impeachment proceedings.


“I would recommend that the SPJ take some sort of legal action to open this
up” if that happened, Campbell said.


“The public has a right to know what is the basis and what are the facts
that the Senate is using to do whatever they're going to do to the
president. What was the discussion? What were the facts gathered to make
those decisions? What angers me the most is when legislators come out and
say, 'This is our decision,' and the public is left out. Whatever reason
they give publicly, there is going to be distrust if the hearing is closed,”
Campbell said.


But Sanford, the SPJ counsel, said he was not willing to state without
qualification that everything should be open.


“I'm not sure that there is anything we don't know already, and you have to
ask what is the additional value of watching these people give their
specific testimony,” Sanford said. “There I think the Senate has to
exercise some judgment. I'm not sure we should go leaping into the abyss of
saying it all ought to be open. I'm not sure what the marginal value of
openness is, and I think the public might be grateful for a certain exercise
of discretion.”


“The only absolutes are death and taxes, and the opening of Senate
proceedings is not a third,” Sanford continued. “I wouldn't want all of
Monica Lewinsky's testimony in secret. That would be wrong. But there may
be some specific parts of it that they may want to do in executive session,
and I'm not sure that's particularly wrong. But the burden is on the Senate
to tell us why that is necessary and to justify it, and to make sure the
secret proceedings go no farther than justified by the nature of the
testimony.”


Robert Giuffra, former Senate Whitewater Committee counsel, agreed that the
strong presumption should be in favor of openness and that some of the
testimony from Lewinsky in particular might be fairly explosive if heard on
television and beamed around the world.


“The odd thing about the process so far is we've never seen Monica Lewinsky
testify about any of this,” Giuffra said on CNN's “Burden of Proof”
yesterday. “It's really just been the printed page, and I think that's
where the risk of a trial is for the president. If she actually gets out
there and tells her story, it might change the public's view of this. On
the other hand, it could blow up on the Republicans in a very big way.”


“I'm just saying theoretically, they could shut the doors if it got so
salacious that the senators were afraid it might be just … such an
improper graphic scene. I mean, we really would be moving the O.J.
(Simpson) trial into the Senate,” he said.


However, “Burden of Proof” co-host Roger Cossack and Alan Baron, a former
special impeachment counsel, said in the same discussion that however
embarrassing the proceedings might be, the public has a right to see the
evidence before the Senate votes on removing from office the person they
elected.


“I, as a citizen, all of us as citizens who voted in the election, have the
right to see what that evidence is and whether or not Monica Lewinsky should
be believed or not believed,” Cossack said. “I should have the right to
make up my own mind and see how my senator votes. So I would argue
strenuously against closing these sessions.”


“I would agree with you 100 percent,” Baron replied. “This is, after all,
the United States Capitol … . I mean, we're talking about removing the
head of state, and that is an event that the American people have to be
satisfied (with), that if he's going to be removed … there was a firm,
factual basis for doing it.”