Senators expanding their roles in trial; With Rehnquist ruling, they're more than jurors; TRIAL IN THE SENATE

THE BALTIMORE SUN

WASHINGTON -- "Mr. Chief Justice, I object." Rising from his seat at the back of the Senate chamber, Democrat Tom Harkin of Iowa single-handedly brought the Republican prosecution's carefully scripted presentation to a halt last week.

His objection had nothing to do with something President Clinton said or Monica Lewinsky did. It concerned the senators themselves -- and the seemingly technical point of whether it is proper to call them "jurors."

Though the impeachment trial has begun in earnest, the senators are still struggling to define their role as they sit in judgment on the president's fitness to remain in office.

Like jurors in an ordinary courtroom, each senator is expected, at the end of the trial, to find Clinton guilty or not guilty on the two articles of impeachment. A guilty verdict on either article carries an automatic punishment: removal from office.

But in numerous ways the senators are hardly typical jurors. Indeed, Chief Justice William H. Rehnquist sustained Harkin's objection on that point last week. "The Senate is not simply a jury," he ruled. "It is a court in this case."

Like an ordinary jury, the Senate must listen silently -- "on pain of imprisonment" -- to the arguments and evidence presented by lawyers, and later witnesses, for both sides. But as Harkin's objection made startlingly clear, the senators have the power to interrupt the case, to present motions that must be ruled on by the chief justice or voted on by the Senate. They can even decide, at any time, to adjourn the trial for good, if a majority agrees.

"We're not jurors in the traditional sense of a jury," said Sen. Frank R. Lautenberg, a New Jersey Democrat.

"What other jury in the history of this country has had the right to decide who will be a witness and who will not?" he added. "We're telling the judge what to do."

Conflicts of interest

Built into the trial are numerous conflicts of interest, any one of which would be enough to disqualify someone from serving as a juror in a regular trial.

The accused, Clinton, has raised millions of dollars in campaign contributions to help elect the 45 Democrats who will decide the case against him. Senators from both parties are continuing to spend time with Clinton, at official functions and White House social gatherings. And Tuesday, most senators are expected to walk over to the House side of the Capitol to hear him deliver his State of the Union address.

Sen. Barbara Boxer's daughter is married to Hillary Rodham Clinton's brother. One of the House prosecutors, Rep. Asa Hutchinson, is the brother of Republican Sen. Tim Hutchinson of Arkansas.

"There isn't one person in the United States Senate that doesn't know this president, doesn't have an opinion of this president," said Boxer, a California Democrat. "Many have gone out socially with this president."

A hybrid proceeding

Legal scholars point out that the framers of the Constitution foresaw such inevitable conflicts. That is why they made impeachment a peculiar hybrid, at least as much a political as a judicial proceeding.

Centuries ago, in English common law, which impeachment is based upon, jurors were selected precisely because they knew everyone in the community, says Terence J. Anderson, a law professor at the University of Miami. The notion that a juror should have no intimate personal knowledge of a defendant is a relatively modern concept, he adds.

But Anderson, a defense lawyer in the 1989 Senate impeachment of Judge Alcee L. Hastings, says he was astonished that discussions were held last week between three Republican senators and House Republican managers about guidelines for calling witnesses.

"That would be like the judge chatting with the prosecutors without the defense lawyers being present," he said.

Normal rules don't apply

Many of the rules in ordinary trials do not apply in this one. Judges typically go to great lengths to keep jurors from reading or viewing news accounts of a case during the trial. Some juries are even sequestered to prevent outside influences.

By contrast, members of the Senate in this case are making news themselves with their public statements on the case. And their staff members are keeping them informed about swings in public opinion as constituents write, telephone and e-mail their offices.

"The fact that something would not be proper in the context of a criminal trial does not necessarily mean anything at all in the case of impeachment," said Columbia University law professor Gerard E. Lynch. "You'd bounce someone from a jury instantly if they ever held a press conference during the trial."

But impeachment is not part of the criminal justice process, he added.

"It's about whether someone should be president," Lynch said. "It's about whether the government should change."

In that context, Lynch said, it isn't improper for politicians who are involved in the process to try to influence public opinion or to be influenced by it.

Talking freely

Ordinary jurors are told not to discuss the case, even among themselves, until their deliberations begin. Senators are under no such restraint, though many have refused to discuss the merits of the case, and some have refused to make any comments at all.

Others, however, are pleased to discuss the case with reporters before and after each day's session and during breaks. A significant number have become fixtures on network television programs. Today alone, 19 senators -- nearly one-fifth of the body -- are scheduled to appear on TV talk shows.

Republican Sen. Jon Kyl of Arizona is offering his state's largest newspaper regular excerpts from his personal diary of the trial. Lautenberg is allowing a video crew from Court TV to follow him around. Last week, Lautenberg apologized after offering reporters a staged yawn to illustrate his reaction to the presentation by House Republicans.

Though all senators took an oath to "do impartial justice," an indeterminate number appear to have their minds made up.

"I don't see how you can render impartial justice if you've made up your mind before the case is presented," said Republican Sen. Ted Stevens of Alaska. "But nobody can tell a senator what to do, thank God."

Each senator decides

Unlike regular trials, in which judges issue instructions to jurors as they are about to begin their deliberations, it will be up to each senator to decide what constitutes an impeachable offense and whether the prosecution met that burden of proof.

Another difference between impeachment and ordinary trials goes to the heart of the senators' role. In criminal cases, judges warn jurors not to consider the consequences of their verdict. They must render guilt or innocence, they're told, regardless of the punishment that may follow.

By contrast, senators are expected to consider the implications of their actions.

In some ways, to listen to the arguments made last week by Republican prosecutors, the fate of Clinton's presidency may be the least of their concerns.

"Future generations of children our court system future generations of political leaders" all have a stake in the verdict, declared Rep. Bob Barr of Georgia.

The flip side of that argument is that senators may choose to let Clinton remain in office if they believe that is in the best interests of the nation, even if they conclude that he committed the offenses he is accused of and that those crimes are impeachable offenses.

Objection and ruling

That was the implication of Rehnquist's ruling late Friday, in the first precedent-setting decision of the impeachment trial of 1999, that senators are more than jurors.

Harkin explained later that he had lodged his objection because Republicans were trying to persuade the public to accept a narrow role for the senators. If the public came to view the senators only as jurors, and the senators concluded that Clinton was guilty of perjury or obstruction of justice, they might then have no other choice than to remove him from office.

"Granted, we were caught off guard" by Harkin's challenge, Sen. Don Nickles of Oklahoma, the second-ranking Senate Republican, said in a brief interview yesterday.

"I think we're triers [of fact]. I think we're jurors. And I think we're judges. We shouldn't be precluded from serving in any of those roles."

Others saw the issue largely as a matter of semantics.

Rehnquist's ruling was all right with him, said Republican Sen. Ben Nighthorse Campbell of Colorado.

"I don't care what the hell they call us," explained the senator. "People are calling us a lot worse than that."

Pub Date: 1/17/99

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