How the Trial Looked a Month Ago Jude Wanniski February 11, 1999

Memo To: Website Fans and Browsers
From: Jude Wanniski
Re. My January 11 client letter

The Senate votes today on whether or not to convict the President. A month ago today I sent the following letter to my Polyconomics clients telling them what I thought they might expect. Knowing what we know now, things are turning out a little differently than I expected, but not by much. I think you might find this of some interest.

The Senate Impeachment Trial
by Jude Wanniski, January 11, 1999

On the one hand: The 100-to-0 Senate vote to set the rules for the impeachment trial of President Clinton makes it difficult for the House managers to call the witnesses they think they need to change the minds of enough Democratic senators to convict and oust the President. On the other hand: The unanimous vote makes it practically impossible for the Senate to refuse legitimate requests of the House managers to call specific witnesses they need. This is because the public and the press corps almost always want more information, not less, in matters of national importance and will support calls for witnesses. It is inconceivable that the leader of the House managers, Henry Hyde, would ask for witnesses, that almost all Republicans would agree with him, but that the 45 impartial Democrats would vote as a bloc against hearing a specific witness. Thus there will be witnesses, which will dramatically increase the likelihood the President will be convicted. The Senate only will need 67 votes of 100 to conclude that the two articles of impeachment voted by the House are iron-clad. Sen. Charles Schumer [D-NY] and Sen. Barbara Boxer [D-CA] have already announced that while they believe the President committed the felonious acts the House accuses him of committing, they do not believe felonies rise to the level of impeachment because the matter at bottom only involves sex. As long as the trial goes to a vote on whether to convict or acquit, it will be very difficult for 32 other Democrats to join Schumer and Boxer in lowering standards of presidential behavior that far.

The fact is, few Democratic senators at this point know what they are going to hear from the House. They did not have time to follow the House line of reasoning during the hearings. Most were persuaded by the White House that the House Judiciary Committee acted improperly, as did the House GOP leadership, in not permitting a censure vote instead of an impeachment vote. In presenting the case, Hyde will make it absolutely clear to them that this was the only thing the House could do, that the impeachment process required a vote up or down on the articles themselves by the House. Hyde also will make the argument on why witnesses are necessary in the trial while it was not necessary for him to call witnesses in order to impeach. Sen. Tom Harkin [D-IA] points out that the Judiciary Committee called witnesses in the hearings on President Nixon in 1974, but the process then did not include the hearings of a federal grand jury and the law that established the independent counsel. The House need only find probable cause for an impeachment trial. It could draw upon the 60,000 pages of testimony and evidence presented by Kenneth Starr in lieu of hearings.

Yes, there were time constraints when the hearings began if the process was to be completed before the end of the 105th Congress. But the decision to proceed on that time track was made prior to the November elections, when Democrats were frantic in worrying that Republicans would drag the process out to get the hearings into the 106th Congress -- as everyone assumed the GOP would pick up a dozen seats in the House and two or three in the Senate. When Henry Hyde on November 4 told his committee in a conference call that the hearings would proceed as planned even though the GOP lost ground the previous day, it was on the assumption that the House would read the election results and at least a few dozen Republican moderates would vote against impeachment. The House Republicans turned out to be almost unanimous in voting two articles of impeachment not because they were acting in partisan fashion, but because the President's lawyers did not want to defend the President on the facts, because they would have had to call witnesses. Hyde made it clear the President could call anyone he wished as a witness in his defense, but his lawyers were terrified that only would make matters worse. They called instead the equivalent of character witnesses, including an outrageous performance by Alan Dershowitz who practically insisted even serial rape would not be an impeachable offense. This is essentially the position of Senators Boxer and Schumer, who insist the President's crimes were "not against the state." The Constitution first had been written to say "high crimes and misdemeanors against the United States," but the "against the United States" wisely was dropped for this very reason, not for "reasons of style" as Sen. Boxer insists. The other distaff Democratic Senator from California, Diane Feinstein, at least seems to know it could be "against the nation," which means the offense only need be injurious to society, which was the intent of James Madison. In other words, Congress was given the power to get rid of a President who turned out to be a bad guy.

Now the Senate would not convict Mr. Clinton simply for being a bad guy, although that was Senator Feinstein's argument. She told Meet the Press yesterday that the President is in the position he is in because Republicans for six years have been out to get him. And when they could not get him on Whitewater, Travelgate or Filegate, they now resort to sex. Sen. Mike DeWine [R-OH] properly reminded her that how the articles of impeachment got to the Senate is irrelevant, that as jurors they must put that part of the process behind them and look at what the House delivered. Actually, Senator Feinstein will be more likely to vote conviction as the trial unfolds, because she will see that what the President is charged with is much worse than what the special prosecutor was trying to develop with Whitewater, Filegate and Travelgate. The nation will also come to understand that the slippery slope for Mr. Clinton began not with consensual sex, but with the federal civil-rights law prohibiting sexual harassment in the workplace. The President paid Paula Jones $750,000 to resolve her suit against him, which he could have taken care of much earlier with an apology. Once it is made clear that the special prosecutor had no choice but to pick up this trail when he discovered via the Linda Tripp tapes that the President and Monica Lewinsky had lied under oath in that trial, every step that follows is forced upon Starr. This led ineluctibly toward evidence of the President's perjury before the grand jury and his acts obstructing justice -- most particularly the testimony of his aide, Sidney Blumenthal, that Monica was the predator, the "stalker," and he the victim. The only defense left to the President rests upon his locutions that only oral sex was involved. Very tough to do.

Partisanship? Once I was sure I understood the case against the President, which occurred when I heard Rep. Lindsey Graham's discussion of the Blumenthal testimony on November 10, I changed from my year-long defense of the President to great skepticism that he could survive. On November 14, I wrote a note to Henry Hyde urging him to proceed even if he only could get Republican votes. "To see into the President's soul at a moment when he thought it was his word against that of his victim was enough to persuade me that he does not belong in the presidency. It will take a Senate trial to make it obvious he has to be removed in order to cleanse the office. What has to happen is a willingness of Democrats to strip themselves of their partisanship, which only can happen as they are willing to submit to the Golden Rule. They have to reverse the situation and play through all this as if the President were a Republican and the Republicans were in control of Congress. This isn't easy to do."

At this point, even though the Senate unanimously voted to set the rules, partisanship still is most in evidence with the Democrats. It's understandable that they would give the benefit of the doubt to their party leader longer than the Republicans. Partisanship is most evident when party members parrot a party line that has been developed for them. At times in the House proceedings, I thought I was watching The Invasion of the Body Snatchers, with every Democrat interviewed using the same words to denounce the Republicans. By contrast, among Republicans there is no party line but myriad viewpoints, indicating they are thinking things through as individuals, not party members. My guess is that as the trial unfolds, Democrats will do the same, as they confront the presentations of prosecution and defense. The national audience, which still thinks the case is about a popular President harassed by partisan Republicans over consensual sex, also will watch the trial and discuss its implications in a way it has not done thus far.