The Senate Behaves Like Itself
For the first eight days of the trial, senators have behaved (more or less) like the jurors they're supposed to be: They've been pretty quiet, pretty circumspect, and pretty patient. Today, they revert to type. The trial's opening is delayed half an hour while senators squabble about whether to change the word "that" to "all" in a motion by Sen. Tom Harkin, D-Iowa. (This takes half an hour even though everyone knows the motion is going to fail.)
The mass cooperation of the last two weeks vanishes and is replaced by the Senate's usual method: every senator for himself. Instead of unanimous consent agreements, there is dissension. Sen. Robert Byrd, D-W.Va., introduces his own motion to dismiss the case. Sen. John Breaux, D-La., floats a modification of the Byrd proposal. Sen. Harkin proposes a motion to open Senate debate to the public. Sen. Kay Bailey Hutchison, R-Texas, proffers her own variation. Sens. Joseph Lieberman, D-Conn., and Slade Gorton, R-Wash., and Senate Minority Leader Tom Daschle, D-S.D., rally support for their scheme to schedule a final vote on the articles by week's end.
All this jockeying excites senators and the press corps: Today is the day, opines CNN, when "anything can happen." For nearly an hour in the morning, it looks like it might. The Capitol is buzzing about the Lieberman-Gorton-Daschle proposal, and it briefly appears to have bipartisan support. But "anything" doesn't happen. In fact, nothing happens. Senate Republicans shoot Lieberman-Gorton-Daschle down. The Breaux proposal withers. Hutchison's idea is put off to another day. Harkin's motion is defeated easily.
The only thing that remains is Byrd's motion to dismiss, and even that has lost some of its zing. When Byrd announced the motion on Friday, there was much anticipation that it would succeed. Senate Republicans firmed up their caucus over the weekend, and everyone now knows the motion will fail. (But it can't fail immediately. Before the Senate even votes on the Byrd motion, it must hear two hours of debate from the House managers, then conduct its own closed debate on the motion, then hear six hours of open debate over a motion to call witnesses, and then conduct a second closed debate on the witness motion. Then--probably not till Wednesday morning--they'll vote on both motions. It's enough to exhaust a parliamentarian!)
Today's principal public business is the two hours of back-and-forth on the Byrd motion. What the debate reveals, above all, is the psychological defeat of the House managers. The White House lawyers, sensing victory, have graduated to smug self-confidence. The House managers seem to be going slightly mad.
The White House argument introduces a new voice (if not a new face), Nicole Seligman. A partner of David Kendall's at Williams & Connolly, Seligman spends 54 minutes on a competent, if familiar, recitation of the case against the articles: They should be dismissed because they're too vague and too expansive and because the facts don't add up to high crimes. Seligman unleashes one especially fine line, a slap at the prosecution's use of the Paula Jones deposition videotape to "prove" that Clinton obstructed justice. "The managers have tried to turn a blank stare into a high crime."
(Seligman is also curiously fond of prepositional rhetoric. Toward the beginning of her presentation, she whacks the managers for seeking to punish Clinton with impeachment: "If it is punishment the House managers are seeking, they are in the wrong place, at the wrong time, in the wrong job." In closing, she asks the Senate to "end this ordeal, in this chamber, in this time, in this way.")
Compared to the low-key Seligman, the House managers seem on the verge of a nervous breakdown. Charles Canady, R-Fla., usually the most arid of the managers, barely controls his indignation. Manager Henry Hyde, R-Ill., manages to be both quizzical and outraged: "I looked at the motion to dismiss, and I was astonished!" Manager Lindsey Graham, R-S.C., flaps his arms wildly and his voice cracks as he pleads with the Senate not to shut the managers down.
The managers make two basic arguments against dismissal. The first is that "constitutional standards" require that the Senate conduct an up/down vote on the articles. Republican senators have been making this point all weekend, claiming that dismissing the case violates "constitutional precedent" because the Senate has never dismissed an impeachment trial. This seems weak to me: There is really only one precedent here--the Andrew Johnson trial--and one precedent does not a precedent make. Besides, the Senate's rules explicitly permit a motion to dismiss, and a motion to dismiss has all the force of an acquittal without requiring the unpleasantness of a long trial. The managers' second claim is that, as Graham puts it, "We have not had a chance to present our case, really."
As the managers make their presentation and reiterate their argument that they haven't made their case, a cloud of annoyance seems to envelop the Democrats. "There are only so many times you can say the same thing, and we have reached that point," grumps Sen. Ron Wyden, D-Ore., during a break.
Here is another way Democratic senators are behaving like senators again. During a slow point in last week's trial, I surveyed the chamber and found that two-thirds of Democrats (as well as two-thirds of Republicans) were actively listening. I conducted a similar survey during a trough today: Two-thirds of Republicans were still paying attention. Fewer than half the Democrats were. And this was a two hour day. I can hardly imagine what tomorrow's six hours of debate will be like.