True ‘trial of the century’ should be open to the public

Thursday, January 21, 1999

Whenever a legal drama captures the attention of the public, two things inevitably happen — the commentators claim that we are witnessing “the trial of the century” and the media clamor for more access to it.

In these respects, the impeachment trial of President Clinton is no different than the “trials of the century” preceding it. In this case, however, the commentators are correct. This trial is indisputably the most important and most historic trial of the 20th century. And because the trial is so significant, the media also are correct — they must have more access than the Senate rules currently allow.

The most foreboding Senate rule is the one which requires all debate and deliberations to be conducted in secret. Under this rule, which was adopted during the impeachment trial of Andrew Johnson in 1868, every debate among the senators — from whether witnesses may be called to whether the president is innocent or guilty of the charges — must be held behind closed doors. The media also are chafing under rules that ban photographers from the Senate floor and limit where television cameras may be used outside the Senate chamber.

The rules concerning photographers and television cameras flow from the senators’ newly polished emphasis on decorum. While no one should reasonably expect the Senate to open its doors to banks of photographers, the Senate’s desired solemnity would not be disturbed if the pool arrangement suggested by the media were adopted. Similarly, while the Senate’s concern about scores of cameramen and women roaming its hallways may be justified, it surely could provide broadcasters access at more than the two locations presently allowed.

The significance of these access issues, however, pales in comparison to the looming battle over whether the debates and deliberations will be open. Two Democratic Senators — Iowa’s Tom Harkin and Minnesota’s Paul Wellstone — already have introduced a resolution seeking to open all aspects of the impeachment trial. While the issue could be decided at any time, it likely will not be debated until after the House managers and White House lawyers have presented their opening statements. Because of the current rule, even the openness resolution will be debated in private. To change the rule, 67 senators must vote in favor of the resolution.

Although many members of the media have begun reporting on and editorializing about the secrecy rule, the public does not yet seem to have grasped the importance of the issue. Indeed, the public, given the extensive television coverage of the opening statements, appears to have been lulled into a false sense of security about the trial’s openness. If the television cameras are turned off, most citizens likely will be surprised and angry. By that time, however, it may be too late to change the trial’s rules.

If this were a true criminal trial, proponents of secrecy might have the better argument. An inviolable rule of our judicial system, after all, is that jurors are allowed to deliberate in private. The impeachment trial, however, is a political trial, not a judicial one. As rare as an impeachment trial is, it is one of the rocks upon which our democracy rests. It is almost unfathomable to think that these critical constitutional issues might be played out behind closed doors.

Practical considerations also weigh in favor of openness. First, if the prior “trials of the century” have taught us anything, it is that most attempts to preserve secrecy ultimately fail. Sealed documents are leaked. “Confidential” deposition and grand jury testimony is played and replayed in courtrooms and on newscasts. The sanctity of private jury deliberations is breached in news conferences and books.

Secrecy would be even harder to preserve in this case. Senators surely do not think that the details of their debates and deliberations will remain private. If the experience of recent days is any guide, plenty of senators will be happy to share these details with whatever television audience they can find. While designed to allow for candor, secret debates and deliberations may instead create a counterproductive fear of selective and manipulative leaks.

Second, public confidence in the process — already shaky at best — would be even further diminished by private debates and deliberations. Whatever the trial’s outcome, questions of fairness, motivation and partisanship will undoubtedly remain, but openness is the surest and best way to limit whatever divisiveness the process creates.

Finally, the Senate should open its debates and deliberations out of fairness to the American people. If the polls are to be believed, most of us didn’t want to be dragged through this process in the first place. Those wishes having been ignored, we deserve the opportunity to fully experience our ride.

Critics of the impeachment hearings and trial can make a strong case that congressional leaders either never had or quickly lost control of this process. Everyone’s best interests would be served if the leadership now asserted its control over the process and insisted that the trial be completed in full public view.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.