[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.
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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).
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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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