Senators point to tactical error in House; Republicans may have blundered by failing to call witnesses


WASHINGTON -- Some senators in both parties said yesterday that the Senate would have been far more likely to allow witnesses to testify in person at President Clinton's trial if the Republican prosecutors had called witnesses during the House impeachment proceedings.

The senators' remarks suggested that the prosecutors made a tactical error in deciding not to summon any witnesses for the House Judiciary Committee hearings last fall. The House Republicans instead relied primarily on evidence compiled by independent counsel Kenneth W. Starr.

Last week, the Senate voted against allowing any live witnesses, with the Republican leadership citing the need to speed the trial along. The senators did permit the prosecutors to take videotaped depositions of three witnesses, with portions of the videotapes to be played at the trial yesterday.

The House prosecutors, who wanted to call up to 15 witnesses, have complained that the lack of live testimony has hindered their efforts to persuade two-thirds of the Senate to vote to convict Clinton and remove him from office.

Democrats, GOP agree

Yesterday, on the one day that videotaped depositions were presented at the trial, some senators said the prosecutors hurt themselves by not seeking out the accounts of witnesses during the Judiciary Committee hearings.

"No question about it," said Sen. Bob Kerrey, a Nebraska Democrat who was highly critical of Clinton after the president's admission in August that he had given misleading testimony under oath about his relationship with Monica Lewinsky.

Sen. Tom Harkin of Iowa, a leading Democratic defender of the president, said: "We probably would have had witnesses if they had had them in the House. What they were saying, basically, is that 'We don't need witnesses [in the House] because the record speaks for itself.' Suddenly, they get to our side and the rules change."

Even some Republican senators agreed that the prosecutors should have called witnesses during the House impeachment hearings.

"It would have helped the House managers very much," said Sen. Chuck Hagel of Nebraska.

Prosecutors betrayed

Sen. Rod Grams, a Minnesota Republican, agreed, suggesting that the House prosecutors were betrayed by their belief that they would be allowed to call witnesses in the Senate trial.

"I think [they] were set up," Grams said.

Last week, 25 Senate Republicans -- nearly half of all GOP senators -- joined with Democrats and against their fellow Republicans in the House by voting against allowing Lewinsky to testify in person.

The Republican prosecutors have defended their decision not to call witnesses in the House proceedings. They argue that the standards of proof for impeachment by the House, which they likened to a grand jury indictment, are lower than the standards of proof for conviction at a Senate trial. They were taken by surprise, they said, by the Republican-led Senate's resistance to the notion of live testimony.

House had a different role

"There's no question that the failure to have live witnesses in the House is a reason that has been used to reject live witnesses in the Senate," said Rep. Charles T. Canady of Florida, a Republican prosecutor. But, he said, "it's always been understood that the role of the House is to accuse. In the House, we had the sufficient evidence to do that.

"The House proceeded in a way that was consistent with the constitutional role of the House," Canady added. "If we could roll back the clock, there are things we would have done differently."

An aide to the prosecution team said: "We knew that if we impeached the president, it was in the hands of the Senate to hold a trial. We naturally assumed that the Senate would allow us to call witnesses. That's what a trial is."

Speed was the issue

Last fall, the dynamics of the impeachment charges pushed for a quick resolution. In response to Democratic pressure to speed up the House proceedings, Rep. Henry J. Hyde, the Judiciary Committee chairman, tried to keep the hearings as abbreviated as possible.

As a result, House prosecutors say, they decided that witnesses would prolong the hearings and that they could wait for the Senate trial.

During the House proceedings, White House lawyers and many Democratic committee members based their defense of Clinton mostly on the argument that his alleged wrongdoing, even if true, did not amount to impeachable offenses. As a result, the hearings dwelled less on the facts of the case than on whether Clinton's presumed misdeeds constituted "high crimes and misdemeanors."

Several senior Democrats on the Judiciary Committee, such as Charles E. Schumer of New York and Howard L. Berman of California, appeared to concede that Clinton had lied under oath -- a point Republicans happily trumpeted -- though these same Democrats questioned whether such lying met the legal definition of perjury.

"It's clear that the president lied when he testified before the grand jury -- not to cover a crime, but to cover embarrassing personal behavior," Schumer said during the first days of the committee hearings. But Schumer, now a senator, said he believed that the president's efforts to conceal the relationship did not constitute an impeachable offense.

Facts went unchallenged

Indeed, at the House Judiciary Committee hearings, the president's legal team spent little time challenging the facts as asserted by Republican prosecutors. And no so-called "fact witnesses" were called by either side.

In the House, the Republicans "reached a decision to both impeach and convict, to remove [Clinton] from office, without the benefit of witnesses," Kerrey said, noting that the impeachment counts passed by the House don't just accuse Clinton of wrongdoing but go on to call for his conviction and removal. "I see evidence of a case having been made sloppily by the House."

Still, Grams, the Minnesota Republican, said he wished the prosecutors had been given the opportunity to call live witnesses in the Senate.

"We put on so many shackles to limit them putting on their case," he said.

Pub Date: 2/07/99

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