A Vast Conspiracy (72 page)

Lott spent much of the Christmas break on the telephone with his Republican colleagues in the Senate, and he learned that they viewed the approaching trial with dread. This round of phone calls yielded a plan bearing the name of Slade Gorton, a Republican from Washington State, and Joseph Lieberman, a Connecticut Democrat. Under their scenario, which was leaked around Christmas, the Senate would hear opening statements and then take a preliminary vote. If none of the three articles drew the support of two-thirds of the senators—as, surely, none would—then the trial would end, without the managers having called a single witness. It was a way of shuffling the impeachment controversy out the door of the Senate in about week.

Hyde’s chief aide, Tom Mooney, had never seen his boss so angry. Gorton-Lieberman was a slap in the face, Hyde said, a sign of disrespect to the entire House. Like many veteran House members, Hyde resented the institutional condescension of the senators, who regarded their House counterparts in both parties as unreflective zealots, and none too bright either. But Hyde was damned if he was going to let those arrogant bastards push impeachment under the rug. Hyde ordered Mooney to write Lott a stinging letter to this effect, which they would promptly release to the press. In the key passage of the letter, dated December 30, 1998, Hyde used the patronizing tone that he expected from senators. “As you know, the constitutional duty of the House of Representatives as the
accusatory
body differs greatly from the Senate’s constitutional duty as an
adjudicatory
body,” Hyde instructed. “As the entity granted the sole power to try an impeachment—i.e., to determine the guilt or innocence of President Clinton—the Senate should hear from live witnesses.” This intraparty dispute among Republicans formed the core drama of the Senate trial: Hyde and his band of true-believing managers against Lott and his election-minded colleagues.

Hyde’s complaints about witnesses enraged senators in both parties. As they all knew, “live witnesses” in the context of this trial meant Monica Lewinsky. Given the nature of the charges, for her testimony to be at all meaningful, Lewinsky would have to provide anatomical details of her encounters with the president. Paul Sarbanes, the Maryland Democrat who, like Lott, had served on the House Judiciary Committee during Watergate, made the point repeatedly during his party’s caucuses. “They didn’t call witnesses in the House because they didn’t want to be embarrassed with that kind of testimony,” Sarbanes said. “But now they say that we have to call witnesses? That’s outrageous.”

Sarbanes was exactly right—and many Republicans agreed with him. The Constitution said nothing about how either body should conduct its impeachment inquiry. As Clinton’s enemies always did, Hyde was simply hoping that the drama of live testimony would shake public opinion in a way that the words of the Starr report had not. But Hyde had no right to be sanctimonious about the rights of the House of Representatives. This was a political process, and just as he was representing the desires of the Republican base, Lott was speaking for the broader interests of the party. The Constitution, which Hyde invoked so promiscuously throughout this process, had nothing to say about whether Lewinsky should recite her tale from the well of the Senate.

The trial was scheduled to begin on Thursday, January 7, but no one had any clear idea how it would unfold. In a characteristic example of his passive management style, Hyde had essentially allowed any Judiciary Republican who wanted the assignment to become a “manager,” or prosecutor, on the Senate floor. That left him with an unmanageable group of thirteen, all of whom had to be given something to do. Over the New Year’s weekend, Hyde asked three of the more experienced prosecutors on the panel, Rogan, Asa Hutchinson of Arkansas, and Ed Bryant of Tennessee, to draw up a battle plan for a full-fledged trial. Rogan took the lead and came up with fifteen to twenty witnesses he regarded as essential. A couple of days before the trial was to begin, Lott came to the managers’ headquarters to talk about plans for the trial.

In deference to Hyde’s protests, Lott didn’t push Gorton-Lieberman, but he didn’t promise live witnesses, either. Lott chose a young first-term Republican senator named Rick Santorum, a former House member from Pennsylvania, as his unofficial deputy in dealing with Hyde and the managers. You know these people, Lott suggested to Santorum, maybe you can
talk some sense to them. Not surprisingly, perhaps, Lott’s choice of Santorum succeeded only in uniting the managers in contempt for their former colleague.

“So,” Lott said to the managers, “how many witnesses do you need?”

Rogan explained his plan and mentioned the number twenty. Lott blanched.

“That’s too many,” the majority leader said. “How many do you
really
need?”

Thus began a haggling process that lasted more than a month. On the surface, it appeared that Lott and the Senate completely controlled the outcome, but the managers weren’t without political muscle. From that first day, several of them, including Rogan and Chris Cannon of Utah, made clear that they would quit as managers rather than participate in a trial that gave them no chance to win. Several times in the next month the managers came close to a mass resignation. As the managers knew, such an exodus would have been a disaster for Lott—the nominal leader of the Republican Party—so the majority leader avoided categorical commitments of any kind. On a deeper level, this pas de deux over witnesses revealed what a sham the trial was. Both sides—Lott and his people and Hyde and his—paid far more attention to the number of witnesses than to the substance of what any of them might say.

“Gentlemen, shall we?” said Ed Bryant.

Shortly before ten on January 7, the House manager from Tennessee asked his fellow managers to bow their heads in prayer. This had become a tradition of sorts for the Republicans on Judiciary. Before they voted the articles in the committee, and before the full House began its impeachment debate, Bryant had led the group in asking God’s help. (“Gentlemen” was apt; the thirteen managers were all male.)

With that, Hyde directed the group in a solemn procession from the House to the Senate side of the Capitol. In this the managers were following the precedent laid down in the trial of Andrew Johnson in 1868. Lott was a stickler for tradition, and he directed his staff to choreograph the trial in line with the historical record. These solemn formalities, including an honor guard of senators for Chief Justice William H. Rehnquist, who presided, pleased Lott’s tradition-minded colleagues but also sent a message to the public. The Senate believed in fairness and order. In other
words, the Senate wasn’t the House. (The managers, for example, had asked to sit to Rehnquist’s left, in front of the Republican senators. Lott refused, reminding them that the managers in the Johnson trial had sat on the other side. As a result, the managers spent the entire trial under the grumpy stares of some of Clinton’s biggest supporters, like Barbara Boxer of California and Charles Schumer of New York, who happened to sit up front.)

January 7 marked only a ceremonial start to the trial, with a reading of the charges by Hyde and then a cavalcade of senators to sign a book recording their roles as “jurors.” They were each presented with a special pen for the occasion, but it somehow fit the seedy nature of the inquiry that the writing instruments were mistakenly imprinted with the words “Untied States Senate.” With those brief formalities completed, the full complement of one hundred senators—who, in ordinary circumstances, rarely gathered together—found themselves assembled with little to do. The senators began chatting with one another and the idea took hold that they should meet informally, to try to set some ground rules for the trial.

Lott and Daschle agreed that the full Senate should march down the hall to the Old Senate Chamber. Some Democrats were reluctant. The image of impeachment as a partisan donnybrook had served the party well in the House. But “winning by losing” wasn’t going to work in the Senate. The institutional self-image of the Senate called for a more dignified resolution, and even most Senate Democrats thought a little high-mindedness wouldn’t hurt their cause—or the president’s.

So, the following morning, the one hundred senators gathered in the room that had last been used for official business in 1859. Lott and Daschle presided jointly, and they began by recognizing Robert Byrd, the eighty-one-year-old West Virginia Democrat who was second in seniority to Strom Thurmond. Byrd had built his career as the custodian of the Senate’s traditions, writing much-admired if little-read histories of the place. “The House has fallen into the black pit of partisan self-indulgence,” he said. “The Senate is teetering on the brink of the same black pit.”

Byrd had one suggestion at the outset. “We can start by disdaining any more of the salacious muck which has already soiled the gowns of too many,” he said. Translated from Byrd’s fussy diction, this was actually an important substantive point. Since the case against Clinton was based on “salacious muck,” Byrd was obviously hoping that the gory details—and Monica Lewinsky—would be kept off the Senate floor.

Most of the comments followed in this vein—paeans to the glories of the Senate and attacks on the predations of the House. On the critical point of contention, the issue of live witnesses, the group quickly agreed on a most Senate-like solution: to put the decision off. They would allow the trial to start with opening statements from both sides, then allow the senators to ask questions of the lawyers, and only then would they turn to a vote on whether to allow witnesses. They were giving life to a favorite expression on Capitol Hill: “Let’s see how it plays out.” Democrats were betting that the managers would fail to shift the momentum, and Republicans were hoping they could play statesman without too much angering their political base.

Lott cleverly dubbed their plan the “Kennedy-Gramm solution,” making it a joint project of Ted Kennedy and Phil Gramm, perhaps the greatest ideological foes in the entire Senate. It passed unanimously.

During the opening statements by the managers, the trial quickly settled into a sort of routine, and the members of the Senate managed, even under a regime of enforced silence, to establish distinctive presences in the chamber. Joseph Biden of Delaware kept a diary of the impeachment experience, and he proved himself the Senate’s most aggressive notetaker, scribbling almost continuously into a leather-bound volume. In contrast, Dianne Feinstein of California was the most zealous multitasker, jotting notes to her staff on a yellow legal pad, glancing at the stacks of evidence in the case, and balancing her calendar book on her lap. Kennedy, the Senate veteran from Massachusetts, sagged in a resigned heap in his chair in the back row, making no effort to conceal his dismay at being compelled to participate in the process. John Kerry fidgeted; Paul Sarbanes guzzled water; Jesse Helms, among others, dozed. Throughout the long days, only a single senator emerged as a perfect model of unwavering attentiveness—ninety-six-year-old Strom Thurmond of South Carolina.

The “Kennedy-Gramm” proposal allowed the managers twenty-four hours of Senate time to make their case, and they used nearly all of it over three days. Hyde made a nominal effort to divide up the presentations into topics like “evidence,” “law,” and “precedents,” but they all wound up sounding remarkably similar. (For example, during the opening statements, the senators heard no fewer than five accounts of Betty Currie’s stashing Lewinsky’s gifts under the bed.) In a peculiar way, the repetitiveness
of the managers’ opening statements underlined the weakness of the case. Multiple tellings could not invest the tawdry facts with a significance they did not possess. Bill McCollum, aka Mr. Genitalia, did maintain a distinctive presence, informing the senators, “In her sworn testimony, Monica Lewinsky described nine incidents of which the president touched and kissed her breasts and four incidents involving contact with her genitalia.” Mark Penn’s daily tracking polls for the president showed increased support for the managers after their first day of presentations, but a quick fall off after the repetitions of days two and three.