[Congressional Record Volume 145, Number 33 (Wednesday, March 3, 1999)]
[Senate]
[Pages S2229-S2230]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      IMPEACHMENT TRIAL PROCEDURES

 Mr. FEINGOLD. Mr. President, with the impeachment trial now 
behind us, I wanted to take a moment to make a few comments about the 
process that we experienced and suggest some of the lessons that we 
learned. I hope that in the weeks and months to come, we can look back 
dispassionately and try to take advantage of those lessons to make some 
changes in the Senate's rules that might serve us well in future 
impeachment trials.
  The process used in the impeachment trial in the Senate was 
imperfect, but this is not surprising. The only truly apposite source 
of precedents took place more than 130 years ago. The value of the 
Johnson procedural precedents has been undermined in part by the 
changes in our politics, our culture and our technology.
  There are many aspects of the trial that history will undoubtedly 
look upon with favor. Chief Justice Rehnquist, a son of Shorewood, 
Wisconsin, presided fairly and with dignity. His few rulings were not 
challenged. Perhaps most important, he provided a steady hand with a 
dose of humor. We are all in his debt.
  In addition, senators approached the trial with dignity and 
collegiality. At the moment of greatest tension between the advocates, 
good will among senators never faltered. I understand that this may, in 
part, be due to the fact that the ultimate outcome of this trial was 
never in doubt. Having said that, however, senators, really without 
exception, took their duties and each other seriously. The impeachment 
of a president is a painful process, and, as I will discuss further in 
a moment, it ought to be painful. The stakes were very high in this 
trial, yet the Senate remained a place of civility. This was in stark 
contrast to the impeachment process in the House of Representatives. I 
hope the relative harmony in the Senate restored to this process some 
of the legitimacy lost in the partisan din of the other body.
  The House Managers and the President's counsel did well in their 
individual presentations. At the outset we senators caucused together 
and reached a fair, if imperfect, roadmap for the early stages of the 
trial. Ultimately, we agreed on a procedural course that took us 
through the verdict. The tone throughout was civil and the arguments, 
by and large, on point.
  But we did tie the hands of the advocates in some ways, and perhaps 
denied ourselves the fullest possible presentation of the evidence and 
arguments. The trial consisted, except for the unusual, and not always 
helpful, question period, of opening arguments followed

[[Page S2230]]

by several iterations of closing arguments. These arguments were 
interspersed with video snippets from grand jury depositions and 
depositions by the House Managers. This arrangement, pieced together as 
we went along, did not always make for a coherent narrative.
  The House Managers' theory of the case required us to accept a 
narrative, a story of conspiracy, lies and efforts to thwart justice. 
As they told the story, each sinister act was offered as evidence of 
the coherent whole. They had trouble telling a story, due partly to 
flaws in their theory and, to be fair, perhaps in small part due to 
flaws in our process. We had no live witnesses. The parties alternated 
control of the floor, creating a dynamic of thrust and parry, rather 
than a methodically constructed narrative.
  The managers' complaints about the process in turn became a recurrent 
theme in their arguments, resulting in greater, and sometimes unfair, 
latitude for them in their efforts to make the case. For example, on a 
disappointing party line vote, the President was denied fair notice of 
the snippets of taped testimony that would be woven into the House 
Managers' arguments. Then the Senate allowed the House Managers to 
reserve two of their three hours of closing arguments for a 
``rebuttal'' which included new iterations of their various 
accusations, with no opportunity for the defense to reply.
  The question of witnesses was distorted on both sides by political 
considerations. The House Managers were counseled by their allies in 
the Senate not to seek too many witnesses, lest they unnerve Senators 
with visions of unseemly testimony on the floor. The President's 
defenders declared that no witnesses were necessary; they argued that 
the House Managers had passed up their chance to hear fact witnesses in 
the House Judiciary Committee hearings. Neither approach was sound--
witnesses would have helped, but they should have been chosen and 
presented in a thoughtful way. I believe, for example, that Betty 
Currie was a very important potential witness. She was nowhere to be 
found, apparently because the managers made a political calculation 
that they would do without her testimony, trading away the strongest 
piece of their obstruction case.
  In the end, both sides made strategic decisions in this trial at the 
mercy of a fluid and unpredictable procedure. That led to an element of 
chance in the trial that I believe was unfortunate. And it also led to 
complaints from each side about the fairness of the process that were a 
distraction from the substance of the trial. I therefore recommend to 
future presidential impeachment courts that at the very outset they try 
hard to achieve consensus on a procedure that will govern the entire 
trial.
  The process was not only flawed in the procedure on the floor. In the 
midst of the trial, the Independent Counsel, Kenneth Starr, at the 
behest of the House Managers, sought from the District Court an order 
compelling Monica Lewinsky to travel to Washington to submit to a 
private interview with the House Managers. This interposed the court 
and the Independent Counsel in matters properly reserved to the Senate, 
in which the Constitution vests the sole power to try impeachments. In 
so doing, he undermined the bipartisan agreement of the Senate that it 
would make procedural determinations regarding witnesses following the 
opening arguments and the question period.
  Both the Republican and Democratic caucuses met throughout the trial 
to discuss the proceedings. I attended these meetings and I do not 
assert that they were improper, but we could have better lived up to 
our oath to do impartial justice, if we had not held those regular 
party caucuses. Those meetings must have seemed to some of our 
constituents to be the place where we plotted a partisan course. This 
could not have helped the people to have confidence in our work.
  Time and again, we saw the House Managers and the President's lawyers 
clearly responding to advice from Senators. At times they held formal 
meetings with Senators. There were countless casual conversations about 
the case between Senators and the advocates for both sides. We are not 
solely jurors, in the traditional sense, but as triers of fact and law, 
we would do well in future impeachment trials to avoid these 
interactions, which really amount to ex parte communications.
  The greatest flaw in the process was the lack of openness in 
deliberations. The modern Senate has no excuse for locking the people 
out of any of its proceedings except for the most serious reasons of 
national security. The Chief Justice ruled forcefully that the Senate 
in an impeachment trial is not a jury in the ordinary sense of the 
word. With that ruling, any pretext for closed deliberations was 
destroyed. We should quickly take steps now that the trial is over to 
change the archaic rules that forced this process behind closed doors 
at crucial moments. The American people should be able to watch us and 
hear us at every stage in a process that could lead to removal of a 
President they elected. Secrecy in these proceedings is wrong and can 
only undermine public confidence in this important constitutional 
event.
  Mr. President, impeachment trials should be extremely rare. To make 
this more likely, the process of impeachment in the Senate should not 
be quick, convenient, and painless. Making it so only invites its 
further abuse. Adherence to a thorough process can provide a 
stabilizing bulwark against this kind of abuse. That is one of the 
reasons I opposed premature motions to dismiss the Articles of 
Impeachment and supported the House Managers' motions to depose 
witnesses and to admit those depositions into the record. The hasty and 
abbreviated impeachment process of the other body helped contribute to 
a feeling of two armed encampments facing each other in a high stakes 
contest rather than a search for truth or justice. Whether a President 
is convicted or acquitted, no credible or politically sustainable 
result can possibly come from such a process.
  I believe it is important for us to review and analyze the process by 
which we conducted this trial and look honestly and critically at what 
worked and what didn't. We should then make changes to the process, 
now, while the experiences of this trial are fresh in our minds, and 
hand down to the next Senate that faces the unfortunate task of 
mounting an impeachment trial rules and procedures that will help it 
conduct the trial in a manner worthy of the weighty constitutional duty 
that the Framers of the Constitution bequeathed to it.

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