The Breach

by Peter Baker

  As it was, Lott had enough meetings to keep him busy. With senators back in town for the first time since the House vote, the Republican conference convened for a marathon closed-door session that started in the morning in the Mike Mansfield Room of the Capitol and then after lunch moved to the Lyndon B. Johnson Room. Their first opportunity to talk directly with one another led to a sort of political group-therapy session where many of the senators poured out anxieties about their predicament. Lott, still singed by the internal uprising against the Gorton-Lieberman plan, tried to calm the crowd.

  Weve got to be fair, he told his fellow senators. Weve got to be consistent with what the House needs and weve got to be acceptable to Democrats. He emphasized that he would not let the Senate head down the same path as the House. Were not going to slide into a circus. We dont need witnesses. We should have the evidence and the votes.

  The political consequences of a protracted trial were never far from the surface. Several senators discussed the need to look out for freshmen senators up for reelection in 2000. But one of those vulnerable incumbents objected in a passionate speech that emboldened the nervous conference. Im more interested in how the history books judge me than the election, declared Senator Rick Santorum, a young and devoted conservative from Pennsylvania. If youre trying to help me, dont help me.

  With time running out, Lott left the meeting and spoke with Daschle. The trial was slated to open the next day, and no one had a clue what to do. The two leaders decided to appoint a small committee to wade through the morass. Eschewing the conservatives most eager to convict the president, Lott picked three independent-minded senators for his sidetwo Old Bulls, Appropriations Committee chairman Ted Stevens of Alaska and Budget Committee chairman Pete V. Domenici of New Mexico, plus Watergate veteran Fred Thompson of Tennessee. For the Democrats, Daschle likewise steered away from Clinton defenders in tapping two of the senators most critical of the president, Joe Lieberman and Joe Biden of Delaware. For the last slot, he recruited Carl Levin of Michigan, who was more traditionally partisan but also one of the Senates smartest lawyers. The selection of the group seemed designed to guarantee that each party would be tough on its own side in the interest of finding a middle-ground solution.

  The Gang of Six, as they quickly became dubbed, gathered for the first time that afternoon at five oclock in Lotts hideaway office to consult with Senate lawyers about procedures. They decided to meet with both sides that night and summoned the House managers over for a 6:15 P.M. meeting. Hyde brought his evidence teamAsa Hutchinson, Jim Rogan, and Ed Bryantbut got an immediate cold shoulder. From the start, the senators made clear that the House team had no chance of winning. They would never get the two-thirds vote they needed for conviction, and so, a lengthy trial was just a self-indulgent process, as Biden put it.

  The assessment was bipartisan. Stevens, a crusty, seventy-five-year-old former World War II pilot known for perhaps the most volatile temper in the Senate, delivered it the most bluntly. The president isnt going to be removed, Stevens said firmly. I can produce thirty-four affidavits of senators tomorrow that would show that they wont vote for conviction.

  Hyde was upset. Well, if thats the situation, theres no point in our being here. Hyde began shifting in his chair as if he were about to leave.

  Now, Henry! Stevens shouted, slapping his open palm down on the table. Lets talk this through!

  Hyde settled back in the chair, but he and the others were stunned by the harsh reception from their own Republican colleagues. Hutchinson could not imagine that the senators were already passing judgment on the outcome of the case without hearing a word of evidence. During his days as a prosecutor, he knew when he picked a jury that a number of members had likely already made up their minds, but at least during the voir dire they observed the etiquette of pretending to be neutral.

  Hyde tried to dispel the impression that he and his team were merely reckless partisans out for political blood and figured the best way to do that was to let his young lieutenants speak for themselves. Were not in this for the politics, Hyde insisted to the senators. Pointing to Rogan, he said, He carried his district by less than a percent. Some of these members are doing this at great political cost. But I want you to hear from these, my colleagues.

  Hyde then introduced the other managers, giving biographical information about each. He described both Bryant and Hutchinson as former U.S. attorneys, at which point Stevens interrupted, Im one too.

  Im a former defendant, Hyde added lightly, a reference to a savings and loan lawsuit he was once involved in. The assembled lawmakers smiled and the mood eased slightly.

  One by one, Rogan, Bryant, and Hutchinson discussed their involvement in the case. They said it was distasteful and they were not happy about having to be there, but they genuinely believed weighty allegations were at stake. They highlighted the evidence that troubled them most. When they started the House process, the managers said, no one thought it would even get out of committee, yet as the facts came spilling out, that changed. When they left the committee for the floor, no one thought the full House would pass the articles, yet that too changed. They should be given the same chance to present their case to the Senate.

  The senators were still skeptical. What else did the House team need besides transcripts?

  There was no comparison between transcripts and real witnesses, Hutchinson replied. The human reaction of the grand jurors to Lewinsky showed that; some jurors reached out to her in an almost motherly way, he recalled.

  Well, the senators asked, what did the managers really need?

  Hutchinson looked over at Hyde and asked if he should go through his trial plan. Hyde nodded. So Hutchinson walked through his order of proof, witness by witness, to show the senators how the managers planned to put the case together. The senators on both sides of the aisle were impressed. Until then, it was easy to look on the managers as crusaders caught up in a political jihad, but that was not the way they came across that night. They were articulate, prepared, earnest. The senators and their aides got the impression for the first time that maybe this was for real. The managers made a good accounting of themselves, if not necessarily of their case, Thompson thought. Lieberman felt the managers had made him think about the case in a different way. This was not just political, he concluded; they really believed that this president should not continue in office.

  From there, the senators and their staffs retired to Stevenss office in the Appropriations Committee suite. The White House lawyers were up next, but they could not make it to Capitol Hill until 9 P.M., so the Senate delegation took off their suit coats, loosened their ties, broke open some red wine, and ordered Dominos pizza, including a special kosher pie for Lieberman. By the time Chuck Ruff, Greg Craig, and David Kendall showed up, the pizza was gone, so the group gathered in the committee conference room and got down to business. Unlike the meeting with the managers, where the Republican senators took the lead, Carl Levin essentially ran this session with his fellow Democrats. Joe Biden, who had left after the managers meeting for a television interview, returned in the middle.

  The senators were hoping the White House would simply agree to stipulate to the record and not call any witnesses, but Ruff was not about to make any commitments when he did not even know what the rules would be. Asked how many witnesses he would need, Ruff took a tough approach, saying there was no way to say at this point because it depended entirely on what the managers would do. They had never had any chance to gather evidence either during the Starr investigation or the House proceedings, Ruff pointed out. They would need a period of discovery, and only then could they decide how many witnesses they might require. It was an eminently reasonable position legally, but not politically.

  Stevens blew up. Bullshit! he shouted, again banging his hand down as he had done with Hyde a couple hours earlier. You know as well as I do that youre not going to call a single witness. You dont need to. Youve got the votes!

  CHAPTER TWELVE

 
Heavenly Father,we are in trouble

  The sergeant at arms moved to the center aisle of the Senate chamber and called out like some medieval town crier in a twentieth-century business suit. Hear, ye! Hear, ye! Hear, ye! declared Jim Ziglar. All persons are commanded to keep silent, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against William Jefferson Clinton, president of the United States.

  All one hundred members of the United States Senate sat in their seats, tense and rigid, unusually attentive to every little detail, consumed by the gravity of the task awaiting them on this day, Thursday, January 7, 1999. The chamber that usually bustled with the motion of horse-trading legislators and aides and clerks was unnaturally still. The galleries were filled with tourists, officials, relatives, reporters, and even historians coincidentally in town for a conference. This was a room absorbed with history. All of the senators knew the legacy of the desk where he or she satRobert C. Smith of New Hampshire sat at the desk used by the great orator Daniel Webster and later by the abolitionist Charles Sumner, who was caned after an antislavery speech. Thad Cochran of Mississippi sat at Jefferson Daviss desk, still showing the scars from when Union soldiers took bayonets to it. Ted Kennedy sat at the desk once used by his slain brother, John F. Kennedy. Now the descendants of those great senators knew their legacy would be to sit in judgment of a president for the first time since Andrew Johnson was put on trial in the same chamber. Suddenly, it all seemed so real. Most senators had figured the House would never impeach Clinton. Even once it did, many of the senators assumed some deal would be cut in the dead of winter to forestall an actual trial. But they were wrong, and now they had no choice but to confront the issue.

  With no precedent other than the Johnson trial, everyone was following the only script available to them, down to the letter. Just as Charles Sumner and Benjamin F. Wade and Edward G. Ross did in 1868, the senators remained mute at their desks. And just like Thaddeus Stevens before them, Henry Hyde and his fellow managers marched across the marbled floors of the Capitol and into the Senate chamber to lodge their charges. Other than the clicking of cameras, they heard no sounds as they moved through the stately building.

  Mr. President, the silver-haired Hyde said from the well of the Senate, the managers on the part of the House of Representatives are here present and ready to present the articles of impeachment, which have been preferred by the House of Representatives against William Jefferson Clinton, president of the United States.

  His voice deliberately emotionless and his eyes fixed on the papers before him, Hyde recited the two articles passed by the House. Each ended the same way. In doing this, Hyde intoned, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the presidency, has betrayed his trust as president, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States. Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

  Impeachment. Trial. The words hung in the air in case anyone had not quite come to grips with what was about to transpire. His part of the ritual opening complete, Hyde asked for leave to withdraw, and the line of thirteen men from the House marched back up the center aisle and out of the chamber. Thats probably the most respect well be shown by the Senate in this entire process, Hyde remarked to his fellow managers.

  That was the end of the formalities for the moment, and the senators got up from their desks to mill around the chamber. Lott and Daschle crossed the aisle and began talking again about how to proceed. A few other senators joined in, and then a few more, until the conversation mushroomed into a veritable mob of legislators, dozens of Republicans and Democrats bunched together in the well throwing out ideas and trying to hear one another. Finally, Senator Don Nickles, the Republican whip, suggested that rather than gather separately, the two party caucuses should meet together in the Old Senate Chamber, all one hundred senators in the same room at the same time, alone, without reporters or cameras, so that they could work something out rather than keep talking past each other. While the full Senate did not normally meet behind closed doors except on rare occasions involving national security, the notion of a joint caucus immediately intrigued many of the senators standing around the chamber, who saw it as a way of averting the bloody partisan confrontation that had consumed the House.

  Lott particularly liked the idea. Daschle was open to it, but wanted time to consult his colleagues and said something he hoped would be noncom mittal. Republicans took it as assent and thought they had an agreement. Not for long, though. It soon became clear that Daschle was not ready for such a joint meeting. Even as the huddle on the floor was breaking up, so too was the Gang of Six, who had been tapped to work with the House managers and the White House lawyers. They had planned to meet again at 11 A.M. but got the word first that they had been disbanded. Blame was quickly spread. Some thought Lott had pulled the plug because he was receiving grief from other senators irked that he had turned over responsibility to just three of them; others pointed at Daschle on the assumption that he did not genuinely want to work with the Republicans if that would mean a full trial.

  The mistrust was evident at a private meeting of the Republican conference after the huddle on the floor. Lott described the meetings held over the last twenty-four hours by the Gang of Six and then announced that Daschle no longer wanted that group to do any more. The managers wanted fifteen to eighteen witnesses, Lott told his colleagues, while the White House wanted a months delay for discovery. Ted Stevens warned about what that would mean. Any discovery will trigger Pandoras box, he said, opening them up to all sorts of delays and tangents. His compatriots from the Gang of Six, Fred Thompson and Pete Domenici, both told the conference they were impressed by the managers but that they had urged them to winnow their witness list.

  Why do we need witnesses? Lott asked. The question unnerved some of the conservatives in the caucus, who could see that their leader cared less about having a thorough airing of the case than he did about getting through it as quickly as possible. But Lott still had not been completely persuaded that the managers should have witnesses. If there were fifty-one votes for it, he would be there, but he knew how fragile his majority was. At the moment, he was sure he did not have fifty-one votes. Weve got to stay together or well get creamed, he told his colleagues. If not, theyll pass the motion to dismiss.

  There was more back-and-forth about witnesses and how to keep the House in line. Some of the hard-liners grew agitated at all the defensiveness.

  Were not on trial here, insisted one.

  Yes, we are, Lott shot back.

  The senators filed back into the chamber shortly before 1 P.M. for the actual ceremonial opening of the trial. With the charges now officially presented by the House, the chief justice had been summoned to the Capitol and was prepared to take over as the presiding officer. At 1:19 P.M., a welcoming committee composed of six senators formally escorted William Rehnquist into the chamber, and he ascended the stairs to the top of the dais. Rehnquist was dressed in his customary judicial black robe, adorned with four gold braids on each sleeve, a touch he had adopted a few years earlier from the costume worn by the Lord Chancellor in a production he had seen of Gilbert and Sullivans Iolanthe. That the chief justice was dressed in comic-opera regalia at the impeachment trial of the president drew plenty of amused snickers among the senators and their aides.

  At the top of the rostrum, Rehnquist met Strom Thurmond, who at ninety-six was the oldest senator in American history and the Senate president pro tempore charged with swearing in the chief justice. In his role as president of the Senate, Vice President Gore could have performed the duty, but decided against it for obvious reasons, leaving the task to Thurmond. At six foot two, Rehnquist towered over Thurmond, who was hunched
and leaning on the desk.

  Senators, I attend the Senate in conformity with your notice, for the purpose of joining with you for the trial of the president of the United States, and I am now ready to take the oath, Rehnquist announced, raising his right hand in the air and putting his left on a Bible.

  Do you solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, president of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God? Thurmond asked in a halting voice.

  I do.

  Thurmond shuffled off the rostrum and Rehnquist took his place. The chief justice asked the senators to raise their hands and repeated the same oath swearing to do impartial justice.

  I do, came the reply from one hundred voices.

  The senators then filed down the aisle, one by one, in alphabetical order, to sign a book affirming their pledge with a black-ink Parker Vector pen inscribed for the occasion. The pen, however, had a rather unfortunate typographical error: Untied States Senate, it said. Untied, indeed. They had no idea what to do next. Having formally opened an impeachment trial, the Senate was supposed to then issue a summons to the president notifying him of the charges and setting out the terms of his response. But as yet, the senators had come up with no plan for how to move forward, and so no summons was issued. Instead, after the oath was administered, the Senate simply recessed to return to the various huddles around the Capitol.

  Among those in the chamber who felt the weight of history as they raised their right hands was Senator Susan M. Collins, a first-term Republican from Maine who was already desperately searching for an exit strategy. Collins, one of only nine women in the Senate, had established the same reputation for independent thinking as her mentor and predecessor, Bill Cohen, and ranked by far as one of the most liberal members in the current GOP lineup. She supported abortion rights, opposed the death penalty, and once spoke out for a gay rights law in her home state. In the Senate, she had taken on the powerful tobacco industry and often tried to reach across the aisle to work with Democrats, much like Cohen, who now served as Clintons defense secretary.