The Breach

by Peter Baker

  Only twice was that rule broken. When the clerk called out Mr. Feingold, the Democrat from Wisconsin answered, Nay. The clerk got the same response when he came to Barbara Mikulski of Maryland, which prompted a wave of murmurs in the chamber as Boxer and Paul Sarbanes turned to gawk at Mikulski in shock. Mikulski suddenly realized she had voted the wrong way and leapt to her feet to interrupt the rest of the roll call and lodge the intended answer: Aye. Feingolds answer, though, was intentional. A Democrat who prided himself on his maverick ways, Feingold agreed with Susan Collins and wanted to vote to dismiss only one of the two charges, perjury, but since he was not given that option, he reasoned he could not reject the entire case just yet.

  On the vote, the yeas are forty-four, the nays are fifty-six, Rehnquist announced. The motion is not agreed to.

  The clerk then went through the same process for the motion to call witnesses and came back with the same result, though in reversefifty-six for and forty-four against. The motion is agreed to, Rehnquist declared.

  Officially, the House team won. The case was not thrown out and they got permission to depose three witnesses. Lott had succeeded in holding his caucus together. But it was an illusory victory. In fact, at that moment, the trial was effectively over. Forty-four senators had put themselves on record saying there was not enough evidence to continue, much less convict the presidentten more than needed to block removal under the two-thirds rule in the Constitution. Barring some blockbuster new revelation, those senators had made up their minds. What was really left was to figure out how to get to the end without a partisan implosion that would crater the Senate.

  The managers were dispirited. While relieved that at least they had not lost any Republicans, they knew what the vote meant. Hyde seemed particularly down, almost ready to throw in the towel. That evening, he called Asa Hutchinson with an idea. Hyde had been talking with Orrin Hatch about the senators idea to adjourn the trial. The theory was that the Senate could quit the trial with a resolution effectively endorsing the factual basis of the House case without giving Clinton the absolution of an acquittal vote. The charges against the president would stand and the trial could be restarted if new evidence were discovered. However, Hatch had suggested that if even one Democrat were to join in the motion, they would adjourn sine die, closing down the trial for goodand eliminating the threat of the charges entirely.

  Hatch had had little luck selling Lott on this idea. Lott and Hatch had a contentious relationship, particularly since 1997 when Hatch teamed up with the liberal Ted Kennedy to push through a cigarette-tax increase to expand access to health insurance for poor children. As the Lewinsky scandal unfolded in spring and summer of 1998, Hatchs Republican colleagues had grown so annoyed by his repeated discussion of forgiveness for the president if he came clean that at one senators luncheon they reamed him for selling out the party. Judging Hatch to be a grandstander and not a team player, Lott had basically shut him out of the more central role that might have been expected of the chairman of the Judiciary Committee at a presidential impeachment trial. So Hatch had taken his adjournment plan to Hyde to see if he could win the support of the managers. Hyde was intrigued; on the face of it, it seemed to uphold the position of the House while finding an honorable way to end the trial.

  Under the draft Hatch had given Hyde, the Senate would adjourn the trial after stipulating that Clinton has given false and misleading testimony under oath in federal court proceedings and has, in several ways, impeded the justice systems search for truth, while conceding that two-thirds of the Members present will not vote to convict and remove the president. In some ways, it was not that different in tone from Robert Byrds original motion to dismiss. Noting that Clinton remained subject to criminal prosecution after leaving office, the Hatch motion would conclude, The United States Senate acknowledges, recognizes and accedes to the Articles of Impeachment passed and exhibited by the House of Representatives as the highest form of condemnation, other than removal, which can be imposed by the Congress of the United States on William Jefferson Clinton, President of the United States.

  Alarmed, Hutchinson and Rogan went to see Hyde to discuss the Hatch plan and objected strenuously. They were not ready to quit like this, they told him. This was not the right way to stand up for their case. The Senate was just looking to the managers to give them political cover to cut and run. No judge would go to a prosecutor asking for permission to dismiss his case. They should not give the Senate permission to dismiss theirs. Hyde backed down, and Hutchinson and Rogan left thinking they had killed the idea.

  Among the Democrats, Russ Feingold was now something of a pariah. Although they treated him politely to his face, behind his back fellow senators grumbled that he was showboating. Clinton himself applied the shiv. At a memorial service for former Florida senator and governor Lawton Chiles, held in the Russell Senate Office Building at eleven oclock Thursday, January 28, the morning after the vote, the president eulogized the deceased in a way that contrasted his virtues with Feingolds vices, all without even mentioning the Wisconsin senators name. I thank him for being an early supporter of political and campaign finance reform, Clinton said of Chiles, but . . . doing it in a way that made sense and didnt raise peoples defenses. I dont think he had a sanctimonious bone in his body. . . . He didnt go around telling you how much better he was than everybody else because he only took one hundred dollars. During his campaign the previous fall, Feingold had made a point of taking no more than one hundred dollars from any donor and refusing help from national Democrats concerned he would throw away one of their seats in a fit of righteousness. He had also called for the appointment of an independent counsel to investigate possible campaign finance improprieties in the Clinton reelection campaign. Few in the audience for the Chiles service missed the presidents reference.

  But that was about the only thing that was obvious this day. With the critical votes behind them, Lott and Daschle were left to fashion an escape route that would lead them and their caucuses out of the political briar patch intact. The procedural resolution inspired by the joint caucus meeting in the Old Senate Chamber had run its course. Now they needed a new set of rules to carry them through the depositions to the end of the trial. But the good will and trust that had produced the original 1000 vote had inevitably eroded in the three weeks since then, and negotiations were not going well. That Thursday developed into an endless series of meetings in a futile quest to find a deal. The Democrats came back with a plan that essentially wiped out the language of the Republican proposal and replaced it with their own, generating plenty of grumbling among the GOP aides. Among the big points of contention were the scope of questioning to be allowed in the depositions, how much latitude to leave for further discovery, and the ability of senators to introduce alternative proposals such as the findings of fact promoted by Susan Collins and others. The Democrats wanted more restrictions, while the Republicans wanted to leave themselves room to maneuver if necessary.

  For Lott, the problem was not just the Democrats, but his own caucus. Once again, he went into a situation doubting that he had even fifty-one votes; he had to find a way to keep his people together. By this point, the conservatives had grown increasingly restless with the way Lott was handling matters. Every time Lott sat down with Daschle alone, they felt, he would cave. After what they considered the disaster of the first resolutionno guarantee of witnesses, no rebuttal time for the managersthe conservatives were determined not to trust Lott but to make sure the rules were written the way they wanted. The grumbling had grown loud enough within the caucus that some leadership aides even privately speculated about a possible mutiny against Lott if he could not finesse the situation.

  Lott met with his lawyers and several other senators, including Phil Gramm, Fred Thompson, and Slade Gorton, in his conference room that morning to go over the GOP plan. Lotts chief of staff, Dave Hoppe, sat to his right, and Senate lawyer Tom Griffith sat to his left. As they reviewed the plan line by line, a voice came from b
ehind Lott. Eric Ueland, an aide to Don Nickles, the majority whip, was saying, Senator, I think you need to add some language here allowing findings of fact, because as its written now, I dont think its allowed. Lott looked over his shoulder, appearing none too pleased.

  Lott went to meet with Daschle at 11 A.M. The major point of dispute now was whether additional discovery might be allowed after the House managers finished with their first three witnesses. Feeling the pressure of his fellow Republicans, Lott was resisting any role for Democrats in making this decision, but he left his session with Daschle optimistic that he could get a deal. At noon, Lott met for lunch with his Republican conference, where he ran into a buzz saw. The animosity and mistrust in the room were palpable. Lott started going over the latest draft of the plan, but no copies were passed out at first, a move interpreted by some more suspicious Republicans as an attempt to keep them from seeing what was being given away. When copies were eventually distributed, the senators started picking the proposal apart. What does this phrase mean? How about this clause? Gramm asked a lot of tough questions about the plan drafted by Lotts wordsmith, Elizabeth Letchworth, the Senate majority secretary.

  Lott lost his temper. Okay, fine, you guys get together with Elizabeth and you write it, he snapped. Ive got to go. There are people in my office. He turned and stormed out. Connie Mack, the chairman of the conference, chased Lott out of the room to try to calm him down.

  Lott was not the only leader furious that morning. As he walked into a Democratic caucus meeting, Daschle was shown a story in Roll Call, the twice-a-week newspaper that covers Congress, reporting that he had applied significant pressure on four senators not to buck the party line. Daschle was incensed. He had bent over backward from the beginning to avoid doing anything to strong-arm Democrats. The normally mild-mannered senator was so angry he yelled at his staff.

  This is outrageous, he fumed. Weve got to fix it.

  Daschle marched into the caucus and hotly denied the account. Everyone knew it was wrong, he said. He called the accusation one of the most disturbing things to happen to him in his entire career and pledged to call the four named senators, Joe Biden, Bob Graham, Evan Bayh, and John Edwards, to apologize if they felt bullied. Some of them stood up right there to say the report mischaracterized the situation.

  The chaotic status of negotiations had brought the trial once again to a screeching halt. The Senate officially convened that day at 1:04 P.M., only to recess immediately pending further talks. It reconvened an hour later, then recessed again. The rest of the day continued in the same vein. Stuck in limbo was the chief justice of the United States, who took no role in the haggling and yet was forced to stick around in case white smoke did emerge. Most days when there would be a lot of down time, Rehnquist and his staff brought legal briefs to read and other court business to attend to. But with this days long breaks, he asked for some cards and settled in for a poker game with three clerks. At one point, the Senate sergeant at arms, Jim Ziglar, walked in and found the chief justice and his fellow players, money and cards strewn all over the table.

  Chief, Ziglar said, Im in charge of enforcing the rules in the Senate, and gamblings not allowed. Now Im sure thats not what it looks like. But Im going to step out for a minute and Ill be right back. A few minutes later, Ziglar returned. They were still playing cards, but the money was gone.

  Rehnquist had established a comfortable rhythm for himself by now. With the help of the parliamentarian, he was finding that he could handle most questions that came up, and he had rapidly concluded that the Senate was best left to deal with most everything without him. He adopted a hands-off, laissez-faire approach, staying out of the proceedings except when absolutely necessary. While he had agreed with Tom Harkins initial objection about the use of the word juror, in recent days he had overruled other senators who objected when the White House lawyers or House managers mentioned something not formally in the record, choosing to allow the trial to continue in its relatively free flow rather than enforce a strict interpretation of the rules. And in response to Harkins letter seeking his intervention in the Lewinsky interview with the managers, Rehnquist wrote back the day after the interview that he was not sure he had such authority and, even if he did, I would want to use it only in a case in which its exercise were clearly warranted. The situation you pose, in my view, does not meet that criterion.

  Back in their meeting room, the Republicans were in a commotion following Lotts abrupt departure. With the tablecloths still on the table from the luncheon, Fred Thompson, Slade Gorton, Don Nickles, Phil Gramm, and several aides huddled around Lotts assigned wordsmith at a computer trying to jointly dictate a resolution. The process was so frustrating that several of the aides, including Republican lawyers Stewart Verdery and Kimberly Cobb, peeled off to write their own version in Nickless office. In the meantime, Tom Griffith, the chief Senate lawyer, met with Bob Bauer, Daschles lawyer, trying to work out a compromise.

  Finally, it became clear no deal was in the works. The Democrats met in conference and agreed to vote against the Republican plan when it came to the floor. Then Lott decided to give the Democrats one last concessionwhat everyone was calling the bolt of lightning clause. This was the provision addressing what would happen if the depositions turned up some startling new evidence that needed to be pursued despite the general reluctance to allow more discovery. Originally, Lotts plan would have allowed more discovery on a majority vote of the Senate; the Democrats had objected because that meant the Republicans could decide on their own to reopen the case. Taking a pen to the latest draft, Lott crossed out majority vote and wrote in the two Leaders jointly. That meant no additional discovery could be conducted unless both Lott and Daschle agreedin effect, giving the Democratic leader a veto.

  Lott, still sore from his earlier confrontation with the Republican conference, went ahead and scheduled a vote for 5 P.M. without bothering to present the plan for the conferences approval. Around 4 P.M., Connie Mack heard from an aide that the vote was on and called Lott to ask that the con ference be called to meet first, but the majority leader did not take his call. Finally, at 4:45 P.M., Mack got ahold of Lott, who reluctantly agreed to hold a meeting at 4:55 P.M. Anxious to prevent a blowup, Lott entered the conference meeting with a smile on his face, clapping his hands together in what some leadership aides called his cheerleader bit and presented the proposal as a done deal.

  Heres what were going to do, he said.

  By this point, the dissidents were tired and eager to get out of town for the weekend. Mollified by the target adjournment date of February 12 in Lotts plan, they were not willing to miss a plane to fight him anymore, and so they went along. Daschle got the word about the new veto power Lott had agreed to give him when the cellular telephone rang during a Democratic caucus meeting. That made the resolution far more acceptable to him. But with the day draining away and the airport beckoning, the Democrats did not bother to revisit their decision to vote against the resolution. This is the best they can do, Daschle told the caucus.

  At 5:31 P.M., the Senate returned to the floor and went through the script both sides had settled on. Daschle first offered a Democratic version of the rules, which was rejected along strict party lines, 5444 (Republican Wayne Allard and Democrat Barbara Mikulski being absent). Then Daschle proposed that the Senate go immediately to closing arguments without witnesses, a move intended only to make a point and show that the Republicans were prolonging the trial. That failed 5543, with Russ Feingold again breaking ranks. Finally, Lotts plan passed 5444, and the Senate adjourned at 6:34 P.M., in time for senators to catch the evening flights out of Ronald Reagan Washington National Airport.

  At the White House, aides to the president tried eagerly to use the voting to slam the trial as illegitimate, in effect painting the Senate proceeding with the same partisan veneer that had tainted the House hearings. Clearly the bipartisanship in the Senate is dead and weve returned to an atmosphere of partisanship and partisan votes, Joe Lockhart to
ld reporters. But in fact, at the Capitol, Daschle thought Lott had dealt with him fairly, and Daschles fellow Senate Democrats were reasonably happy with the outcome. Because of Lotts concession, Daschle now wielded a procedural veto that would keep the trial from dragging on after the three depositions were over and all but ensure that final votes would be taken by February 12.

  CHAPTER SIXTEEN

  Shes the best witnessI ever saw

  Behind his back, concern was growing among some on the House team that Ed Bryant was not the right man for the job. Calm, gentle, and easygoing, Bryant was well liked among his colleagues, a solid and thoughtful contributor to the prosecution. He brought long experience to the task, having served as a judge advocate general in the army and U.S. attorney in Tennessee before being elected to the House in the Republican Revolution of 1994. Now fifty years old with graying hair, he had been picked to handle the questioning of Monica Lewinsky because of his unthreatening, kindly-uncle demeanor and the assumption that he had forged a bond with her during their earlier meeting. But this was the critical moment in the trial, the one chance the managers were likely to have to question under oath the star witness in their case against the president. She could easily shade her story to help or hurt them. They needed a home-run performance. Nothing less would do.

  Quietly, Lindsey Graham and Jim Rogan were lobbying Henry Hyde to replace Bryant. Graham wanted to do the deposition himself, and Rogan backed him up. The idea was to show Lewinsky news clippings describing her as a stalker and worse, then ask her whether she agreed with those characterizations. Graham wanted to confront her directly with the smear campaign he believed the White House had waged against her and demonstrate that she was the victim of a malevolent president, not simply the young lover of an aging philanderer. Graham and Rogan were not the only managers worried about the choice of questioner. Bob Barr believed they should approach her in a tough manner and wanted to do it himself. Bill McCollum, who had insisted on interviewing Lewinsky informally, had definite ideas about the deposition too, insisting that it had to be more orderly and less free-flowing than their meeting with her a week earlier. Hyde, however, was nothing if not loyal to his troops and could not stomach the idea of pulling Bryant off the deposition. Tennessee gentility, Hyde hoped, might extract more from the young woman.