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.
"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.
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