[Congressional Record Volume 145, Number 9 (Wednesday, January 20, 1999)]
[Senate]
[Pages S729-S733]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       OPEN SENATE DELIBERATIONS

  Mr. HARKIN. Mr. President, I take the floor today with my colleague 
and friend from Minnesota, Senator Wellstone, to speak about an issue 
that is going to be coming up here in the next several days that is 
going to have an importance to all of the American people and, indeed, 
to future generations. That is the issue of whether or not the Senate, 
in its deliberations on the impeachment of President Clinton, will do 
it in secret or will do it in public; will do it behind closed doors, 
behind a curtain of secrecy, or do it openly so that the American 
people know what we are doing. I want to take just a few minutes to lay 
out the case for why I believe it should be open.
  Last week, Mr. President, I raised an objection during the trial to 
the continued use of the word ``jurors,'' as it pertains to Senators 
sitting in a Court of Impeachment. I did that for a number of reasons, 
because we are not jurors. We are more than that. We are not just 
simply triers of fact. We are not just simply finders of law. But 
sitting as a Court of Impeachment, we have a broad mandate, an 
expansive role to play. We have to take everything into account, 
everything from facts--yes, we have to take facts into account--we have 
to take law into account, but we also have to take into account a broad 
variety of things: how the case got here; what it is about; how 
important it is; how important is this piece of evidence weighed 
against that; what is the public will; how do the people feel about 
this; what will happen to the public good if one course of action is 
taken over another. These are all things we have to weigh, and that is 
why I felt strongly that Senators, in our own minds and in the public 
minds, should not be put in the box of simply being a juror.
  One other aspect of that is if, in fact, we are jurors, the argument 
went, then juries deliberate in secret and, therefore, if we are a 
jury, we should deliberate in secret. Now that we know we are not 
jurors, I believe that argument has gone away. I believe that we are, 
in fact, mandated by the Constitution to be more than that.
  I quote from an article that appeared in the Chicago Tribune by 
Professor

[[Page S730]]

Steven Lubet--he is a professor of law at Northwestern University--in 
which he pointed out that the Constitution does not allow us the luxury 
of being simply jurors. We have to decide; we have to judge.
  Mr. President, I ask unanimous consent that Mr. Lubet's article be 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Chicago Tribune, Jan. 13, 1999]

                        Stop Calling Them Jurors

                           (By Steven Lubet)

       Some day soon, the actual impeachment trial of William 
     Jefferson Clinton will begin, with 100 United States senators 
     sitting in judgment. The senators, in anticipation of the 
     event, keep referring to themselves as a jury. On a recent 
     edition of ``Larry King Live,'' for example, no fewer than 
     six of them (three Republicans and three Democrats) virtually 
     chanted the mantra that it was their duty to act as 
     ``impartial jurors.'' It is tempting to agree.
       After all, they have been sworn to do justice, they are 
     going to consider evidence and the resulting verdict must be 
     either conviction or acquittal.
       But in fact, the senators are not jurors, and the repeated 
     use of that term is dangerously misleading.
       In an ordinarily trial, the decision-making responsibility 
     is divided between judge and jury. The judge makes rulings of 
     law, while the jury's function is severely limited to 
     determination of facts. In other words, the jury only decides 
     ``what happened'' while the judge decides almost everything 
     else. That is not the case with impeachment. Article I of the 
     Constitution confers on the Senate the ``sole power to try 
     all impeachments.'' That power is comprehensive--including 
     law, facts and procedure--and it is to be exercised in its 
     entirety by the Senate itself.
       (It is true that the chief justice is called upon to 
     ``preside'' over presidential impeachments, but only because 
     the vice president--who is ordinarily the Senate's presiding 
     officer--is disqualified by an obvious conflict of interest. 
     The chief justice does not sit as a judge in any ordinary 
     sense, but more as a moderator or chair. He holds no binding 
     legal or decisional power.)
       And if there were any doubt, Article III of the 
     Constitution actually makes this explicit, providing that 
     ``the trial of all crimes, except in cases of impeachment, 
     shall be by jury.'' So, what are the senators, if not jurors? 
     In fact, they are all judges, or if you prefer, members of 
     the court of impeachment, each one delegated full power to 
     decide every issue involved in the case.
       This distinction is crucial. President Clinton's most 
     fervent detractors have argued that the House of 
     Representatives, in exercise of its own constitutional power, 
     has conclusively determined the ``impeachability'' of the 
     alleged offenses, leaving the senatorial jury the limited 
     task of deciding whether the charges are true. But that is 
     wrong. The Senate's role is not at all confined to the 
     ascertainment of facts. Under the Constitution, the senators 
     need not--they may not--defer to the House of Representatives 
     on the critical question of ``impeachability.''
       Thus, the Senators must decide not only whether Clinton 
     lied to the grand jury, but also whether so-called ``perjury 
     about sex'' constitutes a high crime or misdemeanor of 
     sufficient gravity to justify removing this president from 
     office.
       It is easy to understand why a senator would want to be a 
     juror. The persona is so engaging: modest, contemplative, 
     nearly anonymous--the humble citizen called to civic duty. 
     But the constant references to senators-as-jurors can only 
     serve to diminish their role and distract them from the 
     expansive nature of their duty. It is not their job, as it 
     would be a jury's, simply to decide some facts and then move 
     on. The Constitution does not allow them that luxury.
       The senators are not determining just one case; their 
     concern must be far greater than the fate of a single man. 
     Rather, they are setting a legal and political precedent that 
     may well guide our Republic for the next 130 years. Future 
     generations will look back upon this Senate for direction 
     whenever potential impeachments arise. Our descendants will 
     not want to know only what happened, but also what principles 
     govern the removal of the president. And so, the senators 
     cannot merely decide--they have to judge.

  Mr. HARKIN. Mr. President, a couple of other things regarding 
openness. The hallmark of our Republic and of our system of government 
is openness and transparency. The history of this Senate has been one 
of opening the doors. The first three sessions of the U.S. Senate were 
held in secret behind closed doors, the whole sessions. Up until 1929, 
all nominations and treaties were debated behind closed doors. In 1972, 
40 percent of all the committee meetings were done behind closed doors. 
In fact, up until 1975, many conference committees, and still committee 
meetings, were held behind closed doors.
  We have washed all that away. We have found through the years that 
the best political disinfectant is sunshine. I believe we are a better 
Senate, a better Congress and a better country for opening the doors 
and letting people see what we do and how we reach the decisions we 
reach.
  Mr. President, there has been a spate of editorials recently 
regarding opening up the trial. I quote from one from the Washington 
Post dated January 14. It says:

       It seems only right . . . that the Senate should be 
     expected to debate in public any charge for which it is 
     demanding of the president a public accounting.
       This is not to prevent senators from caucusing in private 
     or even meeting unofficially, as senators did last week in 
     crafting the procedural compromise that will govern the 
     trial. Confidential contacts of this sort can certainly be 
     constructive. But when the Senate meets as the Senate and 
     considers arguments in its official trial proceedings, it 
     should not do so behind closed doors. Absent the most unusual 
     of circumstances, it should conduct its deliberations openly, 
     thereby ensuring that the final adjudication of Mr. Clinton's 
     case is as transparently accountable as possible.

  The New York Times basically said the same thing. The Los Angeles 
Times, the Des Moines Register and Roll Call. I think Roll Call 
basically said it best, Mr. President, when they said:

       . . . this is not a court trial . . . It is inherently a 
     political proceeding . . . Their constituents [our 
     constituents], the citizens of America, have a right to see 
     how they perform and to fully understand why they decided to 
     retain or remove their elected President.

  Mr. President, I ask unanimous consent that all of these editorials 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From The Washington Post, January 14, 1999]

                             An Open Trial

       Sens. Tom Harkin (D-Iowa) and Paul Wellstone (D-Minn.) have 
     announced that they will move to suspend certain portions of 
     the Senate's impeachment rules to permit the full Senate 
     trial of President Clinton to be conducted in the public's 
     view. As the more than 100-year-old rules stand now, 
     testimony can be taken with the cameras on and the doors open 
     unless a majority votes to close the session, but any time 
     the senators debate a motion and, for that matter, when they 
     consider the final articles, they will do so in secret. This 
     is exactly the wrong way to conduct a trial whose purpose is 
     to pass public judgment on the conduct of the president. The 
     Harkin-Wellstone proposal to do the whole trial in public 
     offers a far better approach.
       The desire to avoid public argument is understandable, 
     particularly in a case as filled with salacious material as 
     the Clinton trial must necessarily be. But it is not the job 
     of the Senate to protect citizens from the rationale for the 
     Senate's actions, nor are senators entitled to be shielded 
     from the embarrassment of discussing out loud the tawdry 
     evidence at issue in this case.
       The often drawn analogy between senators and jurors, whose 
     deliberations are kept secret, also fails to offer a 
     persuasive reason to conduct secret debates. Jurors, after 
     all, did not seek public office and are not permitted, as 
     their trials are progressing, to go on talk shows to discuss 
     their own consideration of the evidence. The senators are, in 
     this proceeding, acting as far more than simple jurors, and 
     it makes little sense for this most solemn obligation of the 
     Senate to face less sunshine than does a routine legislative 
     matter. It seems only right, rather, that the Senate should 
     be expected to debate in public any charge for which it is 
     demanding of the president a public accounting.
       This is not to prevent senators from caucusing in private 
     or even from meeting unofficially, as senators did last week 
     in crafting the procedural compromise that will govern the 
     trial. Confidential contacts of this sort can certainly be 
     constructive. But when the Senate meets as the Senate and 
     considers arguments in its official trial proceedings, it 
     should not do so behind closed doors. Absent the most unusual 
     of circumstances, it should conduct its deliberations openly, 
     thereby ensuring that the final adjudication of Mr. Clinton's 
     case is as transparently accountable as possible.
                                  ____


              [From the New York Times, January 13, 1999]

                            Open the Senate

       Since the trial of President Andrew Johnson in 1868, the 
     Senate has conducted its debates on procedures and even the 
     final verdict of impeachments in closed session. The time has 
     come for that tradition to be altered, at least for the trial 
     of President Clinton. Two Democratic Senators, Tom Harkin and 
     Paul Wellstone, have announced that they will seek to change 
     the rule on closed debates after the opening presentations 
     begin tomorrow. Whatever would be gained by allowing senators 
     to deliberate privately, the overriding requirements is for 
     the American public to see and judge firsthand whether 
     justice is being done.
       Some senators argue that the closed session last Friday, at 
     which Democrats and Republicans worked out a compromise on 
     trial procedures, showed that privacy can serve a 
     constructive purpose. But the Harkin-Wellstone proposal would 
     not preclude

[[Page S731]]

     the Senate's adjourning and meeting outside the chamber at 
     caucuses like the one last week. The principle that should 
     prevail is simply that proceedings that could lead to the 
     removal of a President should be conducted in open session, 
     especially since many Americans have questions about the 
     fairness of the House impeachment proceedings. Closing the 
     Senate's deliberations on so grave a matter would undermine 
     public confidence and be an affront to citizens' rights to 
     observe the operations of government.
       Senators love their customs and ceremonies, but their 
     institution's commanding trend has been toward openness. At 
     the time of the nation's founding, all Senate sessions were 
     closed. Until 1929, the Senate debated nominations and 
     treaties in closed sessions. Until the reforms of the 1970's, 
     many Congressional hearings and meetings were in closed 
     session. No one would seriously argue that these old 
     practices should have been preserved. As for impeachment 
     trials, it is worth noting that they were open most of the 
     19th century. Privacy was adopted only for the trial of 
     President Johnson.
       Some senators seem to believe that they should be regarded 
     as jurors in a trial, and therefore allowed a measure of 
     confidentiality. But the senators have privileges not 
     available to regular juries. They may ask questions, speak 
     publicly about the process and make motions. It is within 
     their power to change the rules on closing the session, which 
     would take a two-thirds majority to be adopted. If openness 
     drives senators toward partisanship or prolixity, as some 
     fear, let public scrutiny serve as the governor on their 
     excesses.
                                  ____


              [From the Los Angeles Times, Jan. 13, 1999]

                         Keep Trial Fully Open

       Unless the Senate changes one of its rules for conducting 
     President Clinton's impeachment trial, the public will not be 
     allowed to witness crucial parts, including a possible 
     climactic debate on whether to convict Clinton on charges of 
     perjury and obstruction of justice. The Senate should change 
     this archaic rule; the trial's inestimable national 
     importance demands that the proceedings be completely open.
       For guidance in the trial, which opens Thursday, the Senate 
     is relying on rules adopted in 1868, when Andrew Johnson 
     became the first and until now the only president to be tried 
     for alleged high crimes and misdemeanors. One of those rules 
     compels ``the doors to be closed'' whenever senators debate 
     among themselves, something they are allowed to do only when 
     deciding procedural issues--such as whether witnesses should 
     be called--or when they reach a verdict. Otherwise, by the 
     rules of 1868, the senators must sit in silence as House 
     prosecutors present the case against Clinton and White House 
     lawyers defend him. Any questions the senators have must be 
     submitted in writing to the chief justice, who may or may not 
     choose to ask them.
       The precedents embedded in the Johnson trial rules should 
     not be put aside lightly. Without them the Senate could find 
     itself mired in prolonged and divisive arguments over how to 
     proceed. But no precedent is sacred. Times change and rules 
     must change with them. Congress has many times discarded 
     procedures and traditions that came to be seen as inimical to 
     the need for free discussion in an open society. for example, 
     as Sens. Tom Harkin (D-Iowa) and Paul Wellstone (D-Minn.) 
     note, in the earliest days of the republic all of Congress' 
     proceedings were secret. Until 1929 nomination hearings were 
     conducted behind closed doors. Until 1975 many committee 
     sessions similarly took place outside public scrutiny.
       The Senate of Andrew Johnson's day was a far different 
     place from the Senate of today. Its members were not chosen 
     by the electorate--that did not come until 1913--but rather 
     were appointed by state legislatures and so were not directly 
     answerable to the popular will. And much of the Senate's 
     business was routinely conducted in secret.
       Today, except when matters of national security are being 
     discussed, Congress' sessions are open--in the sunshine, as 
     they say in the Capital. If ever there was an occasion when 
     the sun should be allowed fully to shine in, it is in the 
     Clinton impeachment trial.
       A two-thirds vote is needed to change Senate rules. Harkin 
     and Wellstone, the major proponents of full openness, know 
     the difficulty of getting 65 colleagues to agree with them. 
     But they are leading a fair and just cause. Put simply, 
     Americans have a right to witness this process in all its 
     facets. The people's representatives in the Senate now have 
     the responsibility to assure that right.
                                  ____


                 [From the Roll Call, January 14, 1999]

                            No Secret Trial

       Imagine the spectacle. On, say, March 5, cameras are turned 
     on in the Senate and the roll is called on the articles of 
     impeachment against President Clinton. The votes are taken, 
     the decision is made--and then there is a mad rush for 
     Senators to explain why they voted as they did. But their 
     actual deliberations prior to the voting remain secret.
       There is not even an official record kept, so 
     reconstructing one of the most portentous debates in American 
     history depends on the memories and notes of Senators and 
     staffers.
       This secrecy scenario is exactly what's in store unless the 
     Senate changes its rules, as proposed by Sens. Tom Harkin (D-
     Iowa) and Paul Wellstone (D-Minn.), to open the impeachment 
     trial to the media and the public.
       In fact, it will take strong action from Senate leaders to 
     open the trial, since changing Senate rules requires a two-
     thirds vote. We urge Democratic and Republican leaders to 
     exercise their influence to prevent their institution from 
     being accused of conducting a ``secret trial.''
       The allegation could turn out to be true. Senate rules call 
     not only for final deliberations on impeachment to be 
     conducted in secret, but any deliberations. This means that 
     motions to dismiss the case and consideration of whether to 
     call witnesses might be done in secret and with no subsequent 
     printing of the proceedings in the Congressional Record. All 
     but arguments by House managers and the President's lawyers, 
     witness testimony, if any, and the actual vote could take 
     place behind a shroud.
       Some Senators say they would not have been able to reach 
     their bipartisan agreement on procedure last Friday if the 
     session had been open. If statesmanship requires secrecy--
     which we doubt--then arrangements can be made for informal 
     closed discussions. But all substantive discussions should be 
     open. We have some sympathy for the view that some subject 
     matter conceivably could be so sexually explicit that 
     Senators will be ashamed to be seen discussing it in public. 
     But it's not worth closing off almost the entire Clinton 
     trial over this possibility.
       Conceivably--if this is what it takes to sway skittish 
     Senators--the rules could be altered to permit some 
     discussion to be held in closed session with a record kept. 
     But the House debate on impeachment could have been rated PG-
     13, and let's face it: The Clinton case record is already so 
     raunchy that there's little that schoolchildren haven't 
     already heard. So the proceedings ought to be open.
       It will be argued: In court trials, jury deliberations are 
     conducted in secret. But this is not a court trial. It is 
     inherently a political proceeding. The ``jurors'' are not 
     ordinary citizens unused to the glare of publicity. They will 
     be up for reelection and judged partly on the basis of how 
     they handle this case. Their constituents, the citizens of 
     America, have a right to see how they perform and to fully 
     understand why they decided to retain or remove their elected 
     President.

  Mr. HARKIN. Mr. President, let me take off a little bit on one aspect 
of this. Some people say, ``Well, there is a benefit to Senators 
meeting quietly, privately to discuss these.'' I believe that, and I 
would not, in any way, want to close, for example, some of the caucuses 
that we have--the occupant of the Chair remembers we had the closed 
caucus between the two parties to reach an agreement under which we are 
operating. I think there is a benefit to that, as the Washington Post 
article pointed out. That is fine, as we meet unofficially off the 
floor amongst ourselves to discuss things. But when the Senate meets as 
the Senate, as soon as that opening prayer is given by the Chaplain, 
this place should be open, and the trial should be open.
  Next, I believe that unless we open this trial up, we are going to 
sow the seeds of confusion, misinformation, suspicion and unnecessary 
conflict. Here is why I say that. As some wag once said, there is 
nothing secret about any secret meeting held here in Washington.
  Think, if you will, of a closed session of the Senate. The galleries 
are cleared, the cameras are shut off, reporters are gone, and we 
engage in debate on whatever issue we are going to debate. The debate 
is over. We open the galleries again, and 100 Senators rush out of here 
and they see all the reporters standing out here.
  What happens? ``Well, what happened, Senator?''
  ``Well, don't quote me, not for attribution, but guess what this 
Senator said; guess what that Senator said?''
  And so you get 100 different versions of what happened here on the 
Senate floor.
  I believe that will sow a lot of confusion, misinformation and 
unnecessary conflict. If the doors are open and if we debate in the 
open, there is no filter, it is unfiltered, and the public can see how 
and why we reached the decisions we reached.
  The press, quite frankly, obviously, as perhaps is their nature, is 
quick to pick up on conflict and rumor. I believe if we follow the 
rules to close the doors of this trial it will turn it more into a 
circus than anything else. If we open the debate, I don't believe we 
will have any problems.
  I was interested in an op-ed piece that was in the New York Times by 
former Senator Dale Bumpers. I read it, and there is a part in there I 
think really hits home. Former Senator Bumpers said:

       In a visit with Harry Truman in his home in Missouri in 
     1971, he admonished me to always put my trust in the people. 
     ``They can handle it,'' he said.


[[Page S732]]


  ``They can handle it.'' I believe the American people can handle it, 
too. I believe they can handle any debate, any discussion, any 
deliberation that we have on the Senate floor. Not only can they handle 
it, I believe they have a right to it.
  So Senator Wellstone and I will, at the first opportunity, when the 
first motion is made to dismiss the case, if that motion is made--
obviously the debate about that under the rules would be held in 
secret--we intend at that point to offer a preferential motion that the 
debate, the discussion in the Senate on the motion to dismiss be held 
openly, to suspend the rules.
  Obviously, that is a hurdle. To suspend the rules requires a two-
thirds vote. It means that two-thirds of the Senate would have to vote 
to suspend the rules. As a further kind of anomaly, Mr. President, the 
motion to open up the Senate, to open up our debate and deliberation, 
the debate on that has to be held in private under the rules, strange 
as it may seem. And so we will at that point ask unanimous consent that 
the debate and discussion on whether we will open up the debate on the 
motion to dismiss be held openly. Of course, one Senator can object, 
and then we would have to go into a secret debate on our motion to open 
up the deliberation and the debate. And so that will happen sometime 
soon.

  Another issue has been raised, Mr. President--I would just like to 
cover it and then I am going to yield the floor to Senator Wellstone. 
The point has been raised, well, you know, if Senators start debating 
this and it gets in the open, then they get in front of the cameras, 
and, why, then this thing can go on and on and on because Senators--you 
know, we Senators like to talk, we can talk forever. Under the rules of 
the Senate, when we go into debate and deliberation on any motion, each 
Senator can be recognized only for 10 minutes--only for 10 minutes. And 
I think a lot of people are forgetting about that.
  Lastly, Mr. President, I remember in January of 1991 when I sat at 
the desk on that side over there and Senators had just been sworn in; 
housekeeping motions were being made. One motion was being made by the 
majority leader at that time that the Senate recess or adjourn--I 
forget--adjourn to a date certain--I think it was for the State of the 
Union--but during that period of time, that we would not have been in 
session, and the time would have run out on whether or not we would use 
force to get the Iraqis out of Kuwait, the gulf war.
  I stood at that time and raised an objection to the Senate recessing 
or adjourning over to that point. And I raised an objection that 
enabled us to have an open and public debate on whether or not we would 
authorize the President of the United States to conduct military 
operations in the gulf. We had that debate. And I think it was one of 
the Senate's finest hours. Even those with whom I disagreed I thought 
were eloquent and forceful in their arguments. We had the debate, we 
had the vote, and then we moved on. And I think the American people 
were better for that debate because it was held in the open.
  Mr. President, if we in the Senate can debate whether or not to send 
our sons and daughters off to distant lands to fight and die in a war--
something that touches every single American citizen--if we can debate 
that in open and in public, then in the name of all that is right about 
our Republic and our country and our openness and our system of 
government, why can we not debate and deliberate in the open something 
else that touches every American citizen? And that is, why or if the 
President of the United States should or should not be removed from 
office. If we can debate it openly, the issue of war, then certainly we 
can debate an issue in the open, the issue of whether or not the 
President would be removed from office.
  Mr. President, I yield the floor.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. I thank the Chair.
  Mr. President, let me, first of all, thank my colleague, Senator 
Harkin. We have been working very hard on this. There are other 
Senators who support this motion--Senator Leahy, Senator Feingold, 
Senator Boxer, and Senator Lieberman. And I know Senator Hutchison has 
indicated interest in this question. This will be a very important vote 
coming up next week.
  First, let me just, if I could, Mr. President, say that I feel very 
honored to be speaking from Dale Bumpers' desk. I don't think there is 
anybody who could match his oratory, but I am sure lucky to have this 
desk and this long cord. And Dale Bumpers, wherever you are, I will do 
my very best to try to carry on in your tradition, or at least give it 
everything that I have.
  Mr. President, next week before the Senate goes into its own 
deliberations on this question of whether to dismiss charges, we will 
take this one step at a time. We most definitely will try to move 
forward with a motion to suspend the rules so that the Senate 
deliberations will not be in closed session. We also would like to make 
sure that the very debate as to whether our deliberations are in closed 
session or secret session be open to the public. And we will, on the 
floor of the Senate, make every effort possible to keep that debate in 
the open.

  I am going to be very brief and just make the following arguments 
because there are some very, very good people who do a lot of work when 
it comes to interpretation of the rules. I will say, since the 
Parliamentarian is here, that Bob Dove has been eminently fair. He has 
treated all of us from both political parties with the utmost respect.
  My own feeling about this is that this trial has been momentous. I 
personally wish that it had not come over from the House. I have always 
made my point that I believe the House overreached on the impeachment 
charges. But, Mr. President, they are here in the Senate.
  I think here are the following questions: If in fact we as a Senate 
are going to go into deliberations over whether to dismiss the charges 
against the President, or later on whether we will have witnesses, or 
later on whether the President shall be removed, I cannot imagine that 
the U.S. Senate would go into closed session. I cannot imagine that our 
deliberations and our debate and the arguments we make would not be 
open to the public.
  The public isn't going to believe in this political process if we go 
into secret or closed session. The public is not going to have trust in 
what we are doing if they don't get a chance to evaluate our debate and 
what we are saying and why we reached the conclusions we reached.
  Mr. President, I really do believe that if there is to be healing in 
our country--and I certainly pray that there will be--it would be a 
terrible mistake for the U.S. Senators, Democrats or Republicans, to 
cut the public out. The part of the public that is looking at the 
proceedings right now, that is evaluating the arguments that are being 
made--and there are people who have made very good arguments on both 
sides of the question--to then say to them, ``Listen, when it comes to 
now the Senate, the U.S. Senate, going into our own deliberations and 
making our own decisions, you, the public, you're cut out of it,'' this 
goes against the very essence of accountability. It goes against the 
very essence of what a representative democracy is about.
  Mr. President, some of these rules go back to 1868. That was a time 
when the U.S. Senators were not even directly elected. They were 
elected by State legislatures. The 17th amendment changed all that in 
1913 as part of the Progressive movement and the progressive change in 
the country. The idea was that the U.S. Senators would be a part of 
representative democracy, directly elected by the people, accountable 
to the people.
  This is a huge decision we are going to be making in the U.S. Senate. 
And I think it will be a terrible mistake for the U.S. Senate to go 
into closed session, to cut the public out, to not let people have the 
opportunity to hear what we are saying in the debate.
  Mr. President, it is really quite amazing, if you think about it. 
People will know what our votes are--dismissal of charges, witnesses, 
whether the President should be removed from office--and somewhere 
there will be a transcript of the proceedings, but I don't think they 
will even be published. There will not even be a public record of what 
U.S. Senators--the Senator from Arkansas or the Senator from Minnesota 
or the Senator from Iowa--had to say in this debate.

[[Page S733]]

  I just say to all of my colleagues, I hope that, No. 1, you will 
agree to a unanimous-consent agreement that in our discussion or our 
debate whether or not we go into closed session, that it be open to the 
public. What an irony it would be if, in the very debate about whether 
or not our deliberations will be open or closed, our deliberations were 
closed. It seems to me that debate ought to be open to the public.

  Second, I certainly hope that we will have the two-thirds vote that 
it will take to suspend the current rule that says we must be in closed 
session.
  Mr. President, I think it is important for the public right now to be 
engaged in this process. I hope people will be calling their Senators, 
because I really do believe that part of our deliberations, part of our 
modus operandi as Senators, whatever States we represent, should be to 
stay in touch with people. Of course, we reach our own independent 
judgment. We reach our own independent judgment about the facts, about 
the charges.
  Then there is another question, the threshold question, about whether 
or not these charges rise to the level of removing a President from 
office.
  I think part of what we are about as Senators is to try to stay in 
close touch with the public, with people in our States, whatever 
decision we make. It can be a matter of individual conscience, but I 
think it is terribly important that we operate as a representative 
body, as the U.S. Senate, as a part of representative democracy of the 
United States of America. We can't on this question, we can't on these 
questions, if we go into closed session.

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