[Congressional Record Volume 145, Number 16 (Thursday, January 28, 1999)]
[Senate]
[Pages S1106-S1107]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              MOTIONS TO DISMISS AND TO SUBPOENA WITNESSES

 Mr. FEINGOLD. Mr. President, during yesterday's impeachment 
trial proceedings, I voted against the motion to dismiss offered by the 
senior Senator from West Virginia, Senator Byrd. I also voted in favor 
of allowing the House Managers to depose a limited number of witnesses 
in this case. I would like to explain the reasons for my votes.
  Let me state first that I understand that this trial is a unique 
proceeding; it is not precisely a ``trial'' as we understand that term 
to be used in the criminal context. The Senate, for example, as the 
Chief Justice made clear in upholding Senator Harkin's objection early 
in the trial, is both judge and jury, with the final authority to 
determine not only the ``guilt'' or ``innocence'' of the defendant, but 
also the legal standard to apply and what kind of evidence is relevant 
to the decision.
  Nonetheless, Sen. Byrd's motion was a motion to dismiss, which I 
believe gives the motion a legal connotation we must not ignore. I 
believe that in order to dismiss the case at this point, a Senator 
should be of the opinion that it is not possible for the House Managers 
to show that the President has committed high crimes and misdemeanors, 
even if they are permitted to call the witnesses that they want to 
call. Even apart from the possibility of witness testimony, in order to 
vote for the motion, a Senator should believe that regardless of what 
occurs in the closing arguments by the parties and in deliberations in 
the Senate, that a Senator would not vote to convict.
  So for me, this motion to dismiss was akin to asking the judge in 
this case not to send the case to the jury. In a

[[Page S1107]]

criminal trial, there is a strong presumption against taking a case out 
of the hands of the jury, and a very high degree of certainty on the 
facts of the case is demanded before a judge will take that step. 
Indeed, a judge must decide that a reasonable juror viewing the 
evidence in the light most favorable to the prosecution could not vote 
to convict the defendant, before he will direct a judgment of 
acquittal.
  My view, as of this moment, is that to dismiss this case would in 
appearance and in fact improperly ``short circuit'' this trial. I 
simply cannot say that the House Managers cannot prevail regardless of 
what witnesses might plausibly testify and regardless of what 
persuasive arguments might be offered either by the Managers or by 
Senators who support conviction. And when the history of this trial is 
written, I want it to be viewed as fair and comprehensive, not as 
having been shortened merely because the result seemed preordained.
  As Senator Collins and I indicated in a letter to Senator Byrd on 
Saturday and in a unanimous consent request we offered on Monday, my 
preference would have been to divide the motion to dismiss and allow 
separate votes on the two articles of impeachment to more closely 
approximate the separate final votes on the two articles contemplated 
by the impeachment rules. It would have allowed the Senate to consider 
the strength of the evidence presented on the two separate articles and 
the possibility that one of the articles comes closer to the core 
meaning of high crimes and misdemeanors than the other.
  I believe that many of my colleagues on the Republican side view the 
perjury article as less convincing than the obstruction article and 
might have voted to dismiss it had the opportunity to do that been made 
available. But we will never know. When a final vote is taken on the 
articles, and I now believe such votes will almost certainly occur, I 
hope that my colleagues who did not vote to dismiss the case today will 
carefully consider the two articles separately.
  I want to be clear that my vote not to dismiss this case does not 
mean that I would vote to convict the President and remove him from 
office or that I am leaning in that direction. I have not reached a 
decision on that question. It is my inclination, however, to demand a 
very high standard of proof on this question. Because the House 
Managers have relied so heavily on the argument that the President has 
committed the federal crimes of perjury and obstruction of justice as 
the reason that his conduct rises to the level of high crimes and 
misdemeanors, they probably should be required to prove each element of 
those crimes beyond a reasonable doubt. That is the standard that 
juries in criminal proceedings must apply. In this case, where the 
``impeachability'' question rests so much on a conclusion that the 
President's conduct was not only reprehensible but also criminal, I 
currently believe that standard is the most appropriate for a Senator 
to apply.
  It is my view at this point that the House Managers' case has some 
serious problems, and I am not certain that it can be helped by further 
testimony from witnesses. But I believe it is possible that it can, and 
the Managers deserve the opportunity to take the depositions they have 
requested.
  In voting against the motion to dismiss and to allow witnesses to be 
subpoenaed, I have not reached the important question of whether, even 
if the House Managers manage to prove their case beyond a reasonable 
doubt, the offenses charged would be ``impeachable'' and require the 
President to be removed from office. That is an important question that 
I decided should be addressed in the context of a final vote on the 
articles after the evidentiary record is complete. Therefore, I want to 
be clear that my vote against the motion does not mean I am leaning in 
favor of a final vote to convict the President. I am not.
  But I have determined, after much thought, that we must continue to 
move forward and not truncate the proceeding at this point. I believe 
that it is appropriate for the House Managers, and if they so choose, 
the President's Counsel, to be able to depose and possibly to present 
the live testimony of at least a small number of witnesses. And I want 
to hear final arguments and deliberate with my colleagues before 
rendering a final verdict on the articles.
  I reached my decision on witnesses for a number of reasons. First, 
although I recognize that this is not a typical, ordinary criminal 
trial, it is significant and in my mind persuasive that in almost all 
criminal trials witnesses are called by the prosecution in trying to 
prove its case. Because I have decided that the House Managers probably 
must be held to the highest standard of proof--beyond a reasonable 
doubt--I believe that they should have every reasonable opportunity to 
meet that standard and prove their case.
  Furthermore, witnesses have been called every time in our history 
that the Senate has held an impeachment trial. (In two cases, the 
impeachment of Sen. Blount in 1797 and the impeachment of Judge English 
in 1926, articles of impeachment passed by the House were dismissed 
without a trial.) Now I recognize that an unusually exhaustive factual 
record has been assembled by the Independent Counsel, including 
numerous interviews with, and grand jury testimony from, key witnesses. 
That distinguishes this case from a number of past impeachments. But in 
at least the three judicial impeachments in the 1980s, the record of a 
full criminal trial (two resulting in conviction and one in acquittal) 
was available to the Senate and still witnesses testified.
  In this case, the House Managers strenuously argued that witnesses 
should be called. It would call the fairness of the process into 
question were we to deny the House Managers the opportunity to depose 
at least those witnesses that might shed light on the facts in a few 
key areas of disagreement in this case. I regard this as a close case 
in some respects, and the best course to follow is to allow both sides 
a fair opportunity to make the case they wish to make.
  This does not mean that I support an unlimited number of witnesses or 
an unnecessarily extended trial. Furthermore, at this point, I am 
reserving judgment on the question of whether live testimony on the 
Senate floor should be permitted. I believe the Senate has the power, 
and should exercise the power, to assure that any witnesses called to 
deliver live testimony have evidence that is truly relevant to present.
  In this regard, I think we should allow somewhat greater latitude to 
the President's counsel since he is the defendant in this proceeding. I 
am inclined to give a great deal of deference to requests by the 
President's counsel to conduct discovery and even call additional 
witnesses if they feel that is necessary. But at least with respect to 
the House Manager's case, while we must be fair in allowing them to 
depose the witnesses they say they need to prove their case, we need 
not allow them to broaden their case beyond the acts alleged in the 
articles or inordinately extend the trial with witnesses who cannot 
reasonably be expected to provide evidence relevant to our decision on 
those articles.
  Finally, let me reiterate. My vote against the motion to dismiss 
should not be interpreted as a signal that I intend to vote to convict 
the President. Nor does it mean that I would not support a motion to 
adjourn or a motion to dismiss offered at some later stage of this 
trial, although I strongly prefer that this trial conclude with a final 
vote on the articles. It only means that I do not believe that 
dismissing the case at this moment is the appropriate course for the 
Senate to follow.

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