[Congressional Record Volume 145, Number 26 (Friday, February 12, 1999)]
[Senate]
[Pages S1639-S1641]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         DEPOSITION PROCEDURES IN THE SENATE IMPEACHMENT TRIAL

  Mr. LEAHY. Mr. President, no matter how each of us viewed the 
evidence in this case and no matter how each of us voted, we all share 
common relief that the impeachment trial of William Jefferson Clinton 
is concluding. In many respects, this was uncharted territory for us. 
We all felt the weight of history and precedent as we made our 
decisions on how to proceed.
  With this in mind, the procedures developed and followed for the 
three depositions taken during the course of this trial should be made 
a part of the record of this impeachment trial. Unfortunately, the 
complete depositions were not introduced into evidence and made a part 
of the Senate trial record until after the vote on the Articles 
themselves. Instead, at the request of the House Managers, the only 
parts introduced into evidence before then were those ``from the point 
that each witness is sworn to testify under oath to the end of any 
direct response to the last question posed by a party.'' (Cong. Rec., 
Jan. 4, 1999, p. S1209).
  I served as one of the six Presiding Officers at the depositions and 
attended all of them. In particular, I wish to thank Senators Dodd and 
Edwards for serving with me, and Senator DeWine with whom I jointly 
presided.
  The decisions made during those depositions may provide guidance in 
the future should any other Senate be confronted with challenges 
similar to those that we have confronted. For that reason, I have 
described below the manner in which we reached our decisions and 
summarize the issues we resolved both before and during the depositions 
of Monica S. Lewinsky, Vernon Jordan, and Sidney Blumenthal.
  I thank Thomas Griffith, Morgan Frankel and Chris Bryant in the 
Senate Legal Counsel's office for their assistance during the 
depositions and in preparing this summary of the rules and procedures.
  I ask unanimous consent that this summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Summary of Rulings and Procedures of the Presiding Officers During 
                Depositions in Senate Impeachment Trial


                           A. THE PROCEDURES

       Selection. An equal number of Presiding Officers from each 
     party were selected by the Minority and Majority Leaders.
       Presiding. One Presiding Officer from each party presided 
     jointly over each deposition at all times. The Presiding 
     Officers rotated from deposition to deposition and the 
     Democratic Presiding Officers chose to rotate during the 
     deposition of Ms. Lewinsky, with Senator Leahy presiding over 
     the first part and Senator Edwards presiding over the latter 
     part of that deposition.
       Attendance. All Presiding Officers were permitted to attend 
     each deposition in order to provide continuity in the 
     proceedings and ensure familiarity with both substantive and 
     procedural decisions made in each deposition.

[[Page S1640]]

       Consultation. All Presiding Officers present, whether or 
     not actually presiding over a specific deposition, were 
     invited to and did participate in discussions among Presiding 
     Officers about certain rulings.
       Opening Script. The first Presiding Officer to speak was 
     from the majority party. He used an opening script that 
     summarized Senate Resolution 30 authorizing the depositions 
     and set forth the ground rules for the timing of lunch and 
     other breaks, the overall time allotted for the deposition, 
     the scope of the examination, basic guidelines for 
     objections, an explanation of the confidentiality 
     requirements, and the oath required to be administered to the 
     witness. (Lewinsky Depo. Tr., pp. 5-8). Senator DeWine 
     reiterated the confidentiality requirement at the close of 
     the Lewinsky deposition. (Id., p. 174, ln. 10--p. 175, ln. 
     7).
       Senator Leahy made an opening statement at the Lewinsky 
     deposition to advise the witness of her rights, including 
     that she could correct the transcript, was free to consult 
     with her attorneys, and notified her of the criminal 
     liability she risked if she failed to tell the truth. 
     (Lewinsky Depo. Tr., pp. 9-11).
       Senator Dodd stressed the confidentiality requirement 
     before the Jordan deposition (Jordan Depo. Tr., p. 9, lns. 6-
     13).
       Senator Edwards stressed the confidentiality requirement 
     again before the Blumenthal deposition (Blumenthal Depo. Tr., 
     p. 8, lns. 8-10).
       Oath. The Presiding Officer from the majority party 
     administered the oath to the witness.
       Advise of Rights. Senator Leahy in his opening remarks at 
     the Lewinsky deposition informed the witness that should she 
     fail to tell the truth, she would risk violating a federal 
     law (18 U.S.C.  Section 1001), prohibiting a person from 
     making any materially false statement in any investigation 
     or review by Congress (Lewinsky Depo. Tr., p. 9, Ins. 4-
     13).
       Breaks. Senator DeWine called for 5-minute breaks on the 
     hour, and Senator Leahy made clear that the witness should 
     just ask should she want a break. At the conclusion of each 
     break, Senator DeWine informed counsel of the time remaining 
     for questioning. (See, e.g., 145 Cong. Rec. S1218, S1222 
     (Lewinsky)). Senator Thompson did likewise. (Id. at S1233, 
     S1238 (Jordan)). Senator Specter also called for 5-minute 
     breaks on the hour. (Id. at S1249, S1253; Blumenthal Depo. 
     Tr., p. 86, Ins. 6-7, 15). Senators Thompson and Dodd called 
     for a lunch break, even though Mr. Jordan asked to proceed 
     through lunch. (145 Cong. Rec. S1243). Brief breaks were also 
     taken when required to change the tapes, see, e.g., id. at 
     S1227, and during a power outage in the Jordan deposition. 
     (Id. at S1234).
       Reserving Time for Re-direct and Re-Cross Examinations. The 
     parties were allowed to reserve time out of their four hours 
     for re-direct and re-cross examination, with the 
     understanding, however, that should the President's counsel 
     fail to cross-examine, the Managers would have no opportunity 
     to re-direct. Likewise, should the Managers fail to re-direct 
     following cross-examination, the President's counsel would 
     have no opportunity to re-cross.
       During the Lewinsky deposition, the President's counsel 
     chose to ask no questions, which meant that the Managers 
     could ask no further questions. (Lewinsky Depo. Tr., p. 173, 
     Ins. 16-17). The President's counsel made a short apology to 
     the witness on behalf of the President, to which no objection 
     was made. (Id., p. 173, Ins. 18-20).
       During the Jordan deposition, the President's counsel asked 
     very few questions on cross-examination, and the Managers 
     asked no questions on re-direct examination. (145 Cong. Rec. 
     S1245).
       During the Blumethal deposition, the President's counsel 
     asked no questions on cross-examination, but the House 
     Managers were allowed to ask questions on a limited scope of 
     inquiry that had been the subject of an earlier objection 
     raised by the President's counsel. (Id. at S1253). Senators 
     Specter and Edwards had ruled that the Managers could develop 
     this line of inquiry at the conclusion of the deposition so 
     that should the objection be sustained, that portion of the 
     deposition could be easily excised (145 Cong. Rec. S1253). 
     Following the Managers' last line of inquiry, the President's 
     counsel was given the opportunity to ask, but had no 
     questions for Mr. Blumenthal. (Blumenthal Depo. Tr., p. 86, 
     Ins. 15-18).
       Recalling the Witness. At the completion of the Managers' 
     direct examination of Ms. Lewinsky, Senator Edwards asked 
     Manager Bryant whether he had concluded his direct 
     examination. Manager Bryant said he had. When the President's 
     counsel determined not to ask any questions, Senators DeWine 
     and Edwards ruled that the deposition was completed, meaning 
     that the deponent could not be compelled to testify again 
     unless the Senate voted to issue another subpoena. (Lewinsky 
     Depo. Tr., p. 173, In. 24). In so doing, they expressly 
     rejected a request from Managers Bryant and Rogan to retain 
     jurisdiction over the witness should she be called as 
     a witness before the Senate. (Id., p. 176, lns. 4-8).
       Off the Record. The Presiding Officers determined when to 
     go off the record. For example, Senator DeWine asked to go 
     off the record when conferring on a ruling with Senator 
     Leahy. (145 Cong. Rec. S1219 (Lewinsky)). Senator Edwards 
     also asked to go off the record to confer with Senator 
     Specter on a ruling. (Id. at S1250 (Blumenthal)). The parties 
     were also permitted to request that discussion take place off 
     the record. For example, upon Manager Bryant's request, 
     Senators DeWine and Leahy allowed discussion to take place 
     off the record. (Id. at S1229 (Lewinsky)). Similarly, upon 
     President's Counsel's request, Senators Specter and Edwards 
     allowed discussion to take place off the record. (Id. at 
     S1253 (Blumenthal)).
       Videotape. Senator Leahy advised Ms. Lewinsky at the outset 
     for her deposition of how the videotape of the deposition 
     might be used, including admitted into evidence in the 
     impeachment trial and used in a way that it becomes public. 
     (Lewinsky Depo. Tr., p. 10, lns. 10-12). Her attorney noted 
     for the record that the witness objected to the videotaping 
     of the deposition, and to any subsequent public release of 
     the videotape of Ms. Lewinsky's testimony (Id. p. 12; lns. 
     19-22).


                             b. the witness

       Counsel May Not Coach the Witness. Senator DeWine 
     instructed Ms. Lewinsky's counsel not to coach or prompt the 
     witness in her answers. He stated that she was free to ask 
     for a break to confer with her counsel, but they should not 
     whisper responses to her while a question was pending. (145 
     Cong. Rec. S1215).
       Relying on Prior Grand Jury Testimony. Ms. Lewinsky 
     objected to certain questions, answers to which were already 
     in the record. After conferring, Senators DeWine and Leahy 
     instructed Ms. Lewinsky to answer a Manager's question even 
     though the question might have been covered in her grand jury 
     testimony, though she ``certainly can reference previous 
     testimony if she wishes to do that.'' Senator Leahy 
     particularly noted that there may be ``some nuances 
     different,'' and that she could ``correct her testimony.'' 
     (145 Cong. Rec. S1213).
       Transcript Corrections. Senator Leahy made clear when he 
     presided at the Lewinsky deposition that the witness would be 
     given an opportunity to examine the transcript to make any 
     necessary corrections. By letter dated February 2, 1999, her 
     attorney provided a list of corrections to the deposition 
     (145 Cong. Res. S1229).


               c. objections to questions and statements

       Procedures for Resolving Scope Objections. Section 204 of 
     S. Res. 30 limited the examination of the witness to ``the 
     subject matters reflected in the Senate record.'' Prior to 
     the Lewinsky deposition, Senators DeWine and Leahy determined 
     that if objection was made to a question on the ground that 
     it exceeded the scope of the Senate record, the proponent of 
     the question would be allowed to identify where in the Senate 
     record the subject matter of the question was reflected. If 
     the proponent could satisfy the Presiding Officers that 
     the subject matter of the question was reflected in the 
     Senate record, the witness would be instructed to answer 
     the question.
       In the Blumenthal deposition, a scope objection arose about 
     questions regarding White House strategy discussions of 
     Kathleen Willey. (145 Cong. Rec. S1249). Senators Specter and 
     Edwards decided to reserve that line of questioning until the 
     end of the deposition. When the issue arose again, after 
     consultation off the record, Senators Specter and Edwards 
     decided that questions regarding Kathleen Willey were within 
     the scope, but not questions regarding strategy sessions on 
     any other women. (Id. at S1253). Senators Specter and Edwards 
     also overruled Mr. Blumenthal's attorney's scope objection to 
     another area of questions after Manager Graham had offered 
     proof to support the scope of the question, and the attorney 
     had withdrawn his objection. (Id. at S1251).
       Limitation on Scope. While S. Res. 30 broadly defined the 
     permissible scope of the deposition to cover subject matter 
     reflected in the Senate record, the Managers were reminded of 
     their representations to the Senate limiting the areas about 
     which they would examine the witnesses. For example, Senator 
     Leahy reminded Manager Bryant of his promise to the Senate 
     that he would not ask Ms. Lewinsky about her explicit sexual 
     relationship with the President. (145 Cong. Rec. 1213).
       Objections by Counsel for the Witness. Senators DeWine and 
     Leahy ruled that counsel for the witness were allowed to 
     interpose objections to a question. (Id. at S1219 
     (Lewinsky)).
       Answering the Question Subject to an Objection. Section 203 
     of S. Res. 30 required that ``the witness shall answer'' all 
     questions unless asserting a ``legally-recognized privilege, 
     or constitutional right.'' Senators DeWine and Leahy noted 
     all non-privilege objections and instructed the witness to 
     answer questions subject to the objection. (See, e.g., 145 
     Cong. Rec. S1221 (Lewinsky)). The attorney-client privilege 
     was asserted by Ms. Lewinsky's counsel in response to one 
     line of questioning. Senators DeWine and Leahy instructed 
     Manager Bryant to postpone that line of questioning until 
     after Ms. Lewinsky's counsel could determine whether prior 
     grand jury testimony had waived the privilege for that 
     subject matter. (Id. at S1223). Her counsel later withdrew 
     the objection, and Manager Bryant resumed his line of 
     questioning. (Id. at S1224).
       When Manager Graham asked about Mr. Blumenthal's prior use 
     of executive privilege, his attorney, Mr. McDaniel, objected 
     that the question was misleading because Mr. Blumenthal had 
     not raised the privilege, but the White House had. Senators 
     Specter and Edwards overruled the objection, and asked Mr. 
     Blumenthal to answer the question, which was rephrased. (Id. 
     at S1249).

[[Page S1641]]

       Compound or Ambiguous Questions. During the depositions, 
     there were numerous objections that the questions were 
     compound and/or ambiguous. In each instance, the Presiding 
     Officers invited the manager to rephrase the question and 
     allowed the questioning to proceed. (See, e.g., id. at S1214-
     15 (Lewinsky), S1228 (Lewinsky), S1252 (Blumenthal)). At 
     one point in the Blumenthal deposition, Senators Specter 
     and Edwards ruled that Mr. Blumenthal could answer a 
     question to which Mr. McDaniel objected as confusing, if 
     the witness understood it. (Id. at S1250).
       Open-ended Question. On cross-examination, Mr. Kendall 
     asked Mr. Jordan if he had anything to add to the testimony 
     he had given during his direct examination. That question 
     drew an objection from Manager Hutchinson that it was too 
     broad. Senator Thompson asked Mr. Kendall to rephrase the 
     question, which he did. (Id. at S1245).
       Witness Statement. At the conclusion of his examination, 
     Mr. Jordan asked the Presiding Officers if he could make a 
     statement. (Jordan Depo. Tr., p. 157, lnc. 6-7). Manager 
     Hutchinson reserved the right to object if the statement 
     exceeded the scope of the inquiry. (Id. at ln. 18). Mr. 
     Jordan then offered a statement defending his integrity, 
     which the Presiding Officers allowed. (Id. at ln. 24--p. 158, 
     ln. 23). Manager Hutchinson did not assert an objection 
     following the statement.
       Leading Questions. Senator Thompson allowed Manager 
     Hutchinson to ask a leading question of Mr. Jordan, since 
     according to S. Res. 30 these witnesses were to be treated as 
     adverse to the Managers. (145 Cong. Rec. S1238).
       Questions Assuming Facts Not in Evidence. Senator Edwards, 
     with Senator Specter's concurrence, sustained an objection to 
     a Manager's question that contained premises and 
     characterized events not in the record, and Manager Graham 
     rephrased the question. (Id. S1252).
       Speculation. Senators DeWine and Leahy asked Manager Bryant 
     to rephrase questions after objection was made that the 
     questions called for speculation about another person's state 
     of mind. (Id. at S1219, S1221 (Lewinsky)). Senators Specter 
     and Edwards asked Manager Graham to rephrase questions 
     calling for Mr. Blumenthal's speculation about other's 
     thoughts. (Id. at S1250, S1254).


                           d. use of exhibits

       Prior Production of Exhibits. Section 204 of S. Res. 30 
     requires ``[t]he party taking a deposition . . . [to] present 
     to the other party, at least 18 hours in advance of the 
     deposition, copies of all exhibits which the deposing party 
     intends to enter into the deposition.'' Following objection 
     from the President's counsel that the Managers had failed to 
     comply with this requirement and had largely supplied only 
     general descriptions of exhibits without copies of specific 
     documents, Senators DeWine and Leahy ruled that this 
     provision required production to the witness, the other 
     party, and the Presiding Officers of a copy of any document 
     that would be used during the deposition. A general 
     description of the exhibit document did not comply with the 
     resolution. (Lewinsky Depo. Tr., p. 14, ln. 16--p. 19, ln. 
     5).  The President's counsel lodged an objection to the tardy 
     production of deposition exhibits by the Managers prior to 
     the Lewinsky deposition and again prior to the Jordan 
     deposition, but agreed to proceed after the Presiding 
     Officers assured them they would have an adequate 
     opportunity to review any documents used in the 
     deposition. (Jordan Depo. Tr., p. 13, lns. 22-25). 
     Senators Thompson and Dodd put the Managers on notice that 
     failure to comply with the Presiding Officers' ruling 
     would preclude the use of documents not provided in a 
     timely fashion at the Blumenthal deposition scheduled for 
     the next day. (Id. at p. 13, ln. 22-p. 14, lns. 6, 16-23).
       Referring to Exhibits. Senators DeWine and Leahy ruled that 
     exhibits should be referred to according to their location in 
     the Senate record. (145 Cong. Rec. S1214, S1226 (Lewinsky)). 
     Senator Thompson reiterated that ruling in the Jordan 
     deposition. (Id. at S1236). Senator Thompson also ruled that 
     grand jury exhibits in the Senate record used as deposition 
     exhibits should not be referred to by their grand jury 
     exhibit number, but rather by an exhibit number for this 
     impeachment trial deposition. (Id.) Senators Thompson and 
     Dodd numbered the exhibits as they were presented, rather 
     than as they were admitted into evidence. (Id. at S1245).
       Admitting Exhibits into Evidence. S. Res. 16, the agreement 
     which emerged from the Senate's January 8, 1999 bipartisan 
     caucus in the Old Senate Chamber, provides that the material 
     the House filed with the Senate on January 13, 1999 ``will be 
     admitted into evidence.'' Those materials were printed, 
     bound, and distributed to Senators. (See S. Doc. No. 106-3, 
     vols. I-XXIV (1999)). Thus, any documents in that Senate 
     record were already admitted into evidence by the time the 
     depositions were taken. S. Res. 30, which governs the conduct 
     of these depositions, provides that ``[n]o exhibits outside 
     of the Senate record shall be employed, except for articles 
     and materials in the press, including electronic media.'' 
     When a party used a document during a deposition that was in 
     the Senate record, there was no need to seek admission of 
     that document into evidence. The only non-record documents 
     that could be used in these depositions were ``articles and 
     materials in the press, including electronic media.'' A party 
     needed to seek the admission of those documents into evidence 
     before they could become part of the record.
       During the Jordan deposition, Manager Hutchinson attempted 
     to use as an exhibit a summary of telephone records, a 
     redacted form of which was in the Senate record. Mr. Kendall 
     objected to the use of the exhibit because it had not been 
     properly authenticated. Senators Thompson and Dodd sustained 
     the objection. (145 Cong. Rec. S1241).
       After the Manager's examination of Mr. Blumenthal, the 
     President's counsel, Lanny Breuer, presented various news 
     articles that were admitted into evidence. (Blumenthal Depo. 
     Tr., p. 81, ln. 8-p. 82, ln. 2). Manager Graham also 
     submitted articles into evidence, including those not 
     referred to by Mr. Blumenthal, and they were admitted after 
     Mr. Breuer withdrew his objection that no reference had been 
     made to the articles during the examination. (Id. at p. 82, 
     lns. 16-25, p. 83, ln. 15-p. 85, ln. 25).

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