The Senate Trial, All Over?
Jude Wanniski
January 21, 1999


Memo: To Senator Dianne Feinstein
From: From Jude Wanniski
Re: Let's Celebrate the Acquittal!!

What a difference a quarter century makes, plus the difference between a Republican in the dock and a Democrat on trial in the Senate on articles of impeachment. On April 3, 1974, as an editorial writer for The Wall Street Journal, I wrote the appended "Review & Outlook" suggesting "A Change in Venue" for the trial of President Richard Nixon. Back then, even before the House Judiciary Committee held hearings on the articles filed against Tricky Dick, as Nixon was called, Chairman Peter Rodino told reporters that he believed all the Democrats on his committee would vote as a bloc to impeach. Now, even though you and your fellow Senators have sworn an oath to remain impartial while hearing evidence on whether President Clinton broke his oath and committed perjury, we see several of you jumping to the conclusion that he is innocent, innocent, innocent, and we might as well all have a party to celebrate his acquittal. It's quite the reverse of 1974, isn't it?

In fact, Senator, if you keep your eyes and ears open, you may discover as the trial moves from its opening stage that there was good reason for an almost unanimous House Republican majority to conclude that the evidence is sufficient to require the President's removal from office. Bear in mind, I suggest, that the Senate should dismiss a President as long as it is persuaded he has become unfit to be President, even though he has not committed any capital crime. When the jury was deliberating O.J. Simpson's fate, 90% of the country believed beyond a shadow of a - doubt that he had murdered his wife. But because the jury had a reasonable doubt, it decided for acquittal, and the nation accepted the verdict because that is the way the criminal justice system works in this country. As much as you would like your party chief to escape conviction, you really should hold off judgment until you get the rest of the trial behind you.

The Wall Street Journal
April 3, 1974
A Change of Venue

We paid a visit to Washington, D.C. in the last few days and came away wondering if the President of the United States could get a fair trial in our nation's capital. The city seems so totally in the grip of Watergate fever that those elected representatives who will soon be sitting in solemn judgment of the President appear to have lost control of events and are in danger of being swept along by an impeachment machine that could turn the proceedings into a lurid Roman circus.

What seems to be happening is that Congress is demonstrating how difficult it is to suspend judgment to presume the innocence of the accused before the taking of evidence, testimony, and cross-examination. By its example it reveals why the law courts of the Western democracies for centuries have deemed the formalities and rituals of a criminal proceeding to be of such paramount importance. There is now no one in Congress, Democrat or Republican, urging even minimal rules of conduct for the juries and the judge, and the system of justice that the people provide the lowest and the highest is being suspended because Richard M. Nixon is in the dock.

We see members of Congress routinely predicting the President will quit sooner than face the music. We see them openly announcing their intention to impeach, even before they know what the charges will be, if indeed there are charges. Senate Majority Leader Mansfield and Wilbur Mills of the House blithely predict there are enough votes in the House to impeach, which can only be described as bandwagon politics. Jimmy the Greek, the Las Vegas oddsmaker, conducts a private poll, to detect which way members are leaning and, incredibly, gets responses. The franking privilege is being used to promote grass-roots impeachment petitions. And all over Capitol Hill there are lists being drawn up of Senators "likely" to convict and "likely" to acquit.

It's as if, during the trial of the "Chicago Seven," the jurors were permitted to pop up periodically to excoriate the defendants, Jimmy the Greek allowed in the jury box to conduct a running poll of sentiment that he could flash back to Vegas, and Judge Julius Hoffman allowed to collect petitions for conviction that he could lay before the court.

In a criminal proceeding, there is good reason why the defense is allowed to participate injury selection, challenging prospective jurors it believes would be prejudiced. There's good reason, in a sensational case involving a heinous crime, for the judge to order a change of venue when his court is overwhelmed by passion. And there's good reason, when an untarnished jury can be found in such a case, to sequester it from outside influence during the trial.

Of course, all these precautions are impossible in an impeachment proceeding. The President can't help pick his jury. Congress can't be sequestered from the influences of the press. And Capitol Hill can't be moved to Cedar Rapids or Salt Lake City. Nor should any of these things be done even it were possible.

But this makes it all the more important that Congress get a grip on itself and agree on formalities and rituals appropriate to a Grand Inquest, to require rules of conduct that will have the effect of changing venue from a court ruled by passion to one composed.

The Mansfields, Scotts and Alberts cannot simply wash their hands of responsibility, arguing they have no authority to impede the free speech or activities of freely elected Congressmen. If Congress would agree to rules of conduct, its leaders would per force have the power to at least verbally censure transgressors. The mere existence of a code, where there is none now, would provide a sobering frame of reference for the great majority in Congress who would otherwise say or do anything because of the provocative climate that prevails.

And if the leaders of Congress can't bring themselves to regain a semblance of control over these events, at least individual members of the House and Senate can make personal commitments to contribute nothing to the carnival that encroaches. Those who have already allowed themselves to slide can begin by straining mightily to suspend judgment, elbowing aside the oddsmakers and pollsters and asking their staffs to do the same. They can begin too by resisting the outrage or resentment they might feel over the way the accused insists on his rights and loudly proclaims his innocence.

If this be done, it will be possible for the President of the United States to get a fair trial in Washington, D.C., and however he is ultimately judged the American people will be able to say that justice was done.