Harkin's Objection

How you look at things.
Jan. 20 1999 3:30 AM

Harkin's Objection

The jury metaphor is bad for Clinton. That's why Republicans used it and Democrats killed it.

14000_14158_990118_harkin

Friday afternoon, as Rep. Bob Barr, R-Ga., was urging the Senate to convict President Clinton of perjury and obstruction of justice, Sen. Tom Harkin, D-Iowa, rose and objected to the "use of the word 'jurors' when referring to the Senate." Reporters scrambled for their notebooks and senators stirred from their slumber at this deviation from the trial's script. Sen. Judd Gregg, R-N.H., called Harkin's complaint a pointless distraction, and Barr dismissed it as a semantic quibble. But Harkin's objection was neither unscripted nor purely semantic. It was an important strategic maneuver.

Advertisement

"Regular jurors cannot overrule the judge," Harkin told Chief Justice William Rehnquist. "Not so here. Regular jurors do not decide what evidence should be heard, the standards of evidence, nor do they decide what witnesses shall be called. Not so here. Regular jurors do not decide when a trial is to be ended. Not so here. ... I think the framers of the Constitution meant us, the Senate, to be something other than a jury." Two days later, on ABC's This Week, Harkin added, "A jury decides one thing--facts--and sometimes the law. We have a much broader responsibility. ... We can't hide behind the curtain of saying, 'Oh, I'm just a juror, I can't take that into account.' We have to take everything into account."

Harkin proudly explained that he wasn't surprised when Rehnquist ruled in his favor, because he had read Rehnquist's book on impeachment and knew that Rehnquist believed senators in an impeachment trial were "more than just jurors." He asserted that Rehnquist's ruling "undermines their case for bringing any witnesses, because obviously we are not jurors." Above all, said Harkin, Rehnquist was affirming that the Senate "can take into account not just the facts and the law, but the public good ... [T]he chief justice really means that we can be expansive, that we can decide on a much broader set of findings than just the findings of fact or law."

What Rehnquist actually said, however, was narrower. "The Senate is not simply a jury. It is a court in this case," he ruled. The word "court," consisting of judges and jurors, is crucial. Rehnquist was agreeing that senators could decide questions such as "what evidence should be heard" and "when a trial is to be ended," which are the province of judges, not jurors. But judges, like jurors, are bound by facts and law. Harkin was distorting Rehnquist's ruling into an affirmation that senators could reach beyond the facts and the law to consider "the public good."

Harkin correctly construed the jury metaphor as a Republican strategy to frame the debate. (Click here for more analysis of that strategy.) "I believe that the continual use of the word 'juror' by the House managers was meant to sort of circumscribe ... what we could do in the Senate," he said. "They were trying to put us in a box" in which "all we could do was to take the facts and decide" Clinton's guilt or innocence. But Harkin's purpose was equally strategic: to break out of that box, dispense with witnesses, set aside persuasive facts and inconvenient law, and instead acquit Clinton based on the undefined "public good." All the while portraying the GOP's focus on facts as a cowardly ruse to "hide behind the curtain" of jury scruple.

The "public good" may indeed be a valid reason not to remove Clinton from office. But Rehnquist didn't authorize that consideration, the court metaphor doesn't square with it, and the Democrats have yet to define it.

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

iOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

My Father Was James Brown. I Watched Him Beat My Mother. Then I Married Someone Like Him.

  News & Politics
Weigel
Sept. 17 2014 12:02 PM Here It Is: The Flimsiest Campaign Attack Ad of 2014, Which Won’t Stop Running
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Outward
Sept. 17 2014 1:59 PM Ask a Homo: Secret Ally Codes 
  Double X
The XX Factor
Sept. 17 2014 1:26 PM Hey CBS, Rihanna Is Exactly Who I Want to See on My TV Before NFL Games
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Brow Beat
Sept. 17 2014 1:01 PM A Rare, Very Unusual Interview With Michael Jackson, Animated
  Technology
Future Tense
Sept. 17 2014 12:35 PM IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.
  Health & Science
Bad Astronomy
Sept. 17 2014 11:18 AM A Bridge Across the Sky
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.