Opening Arguments

How you look at things.
Jan. 14 1999 3:30 AM

Opening Arguments

Should the Senate call witnesses at Clinton's trial? Let the rationalizations begin.

This weekend, various senators appeared on television to explain why witnesses should or should not testify at President Clinton's trial. Not surprisingly, every way in which the Republicans frame the question leads to calling witnesses, and every way in which the Democrats frame the question leads to not calling witnesses.

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Republicans want to focus attention on the facts of the case, which are strong. Democrats want to divert attention to the significance of the case, which is weak. So Republicans want witnesses, and Democrats don't. Republicans also want to focus scrutiny on the defendant (Clinton), whereas Democrats want to shift scrutiny to the prosecution (the GOP). Finally, Democrats want to underscore the constitutional costs of Clinton's conviction, while Republicans want to underscore the social costs of his acquittal. Here is a taxonomy of this week's frames and strategies, taken from a debate among six senators on NBC's Meet the Press.

William Saletan William Saletan

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

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1. Sex. This is the simplest Democratic frame. Its purpose is to keep witnesses out. The argument is that they will talk about sex, besmirch the Senate, and offend the viewing public. Example: "I don't understand why the House feels they have to sully the floor of the United States Senate" (Sen. Barbara Boxer, D-Calif.).

2. Rule of Law. This is the Republican rebuttal to the "sex" frame. Its purposes are 1) to get witnesses into the trial by arguing that the real subject of testimony is perjury and obstruction, not sex; and 2) to shift the burden to Clinton's defenders by warning that his acquittal would send the country a corrosive message. Example: "You can certainly argue ... that someone who breaks the law in not upholding and not telling the truth under oath and someone who obstructs justice does, in fact, threaten the republic" (Sen. Rick Santorum, R-Pa.).

3. Summary Judgment. This is the basic Democratic rebuttal to the "rule of law" frame. Its purposes are to shortcut the trial, change the subject from the facts of the case to their insignificance, and shift the burden back to Clinton's accusers. The argument is that even if all the facts are granted, they don't "rise to the level" that would justify his removal. Example: "We're willing to accept the facts, because the threshold question is this: Even if it's all true exactly as the House managers have put it forward, does this rise to the level of impeachment? Does it rise to the level of high crimes and misdemeanors? That's the threshold question" (Boxer).

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4. Censure. This is the advanced rebuttal to the "rule of law" frame. Its purpose is to fast-forward past the verdict to the sentence, with an emphasis on mitigating circumstances. The argument is that a resolution censuring Clinton is sufficient to reaffirm the laws against perjury and obstruction of justice. Example: "I came to the conclusion that the appropriate punishment for this kind of wrongdoing, lying about an extramarital relationship, was censure. ... Part of the rule of law is that the punishment should fit the crime" (Sen. Charles Schumer, D-N.Y.).

5.Constitutional Duty. This is the Republican response to the "censure" frame. Its purpose is to abort the censure movement before the censure movement aborts the trial. The argument is that the Constitution authorizes the Senate to vote only on conviction, not on censure. Example: "I don't think our business is to tell the president he has to ... make some magical act of contrition. ... Our job is defined very clearly in the Constitution" (Sen. Mike DeWine, R-Ohio).

6. Constitutional Duty 2. This Democratic rejoinder turns the GOP's strict constructionism on its head. The argument is that the Constitution says the president should be removed only for crimes that imperil the nation. Example: "George Mason, I think, put it succinctly. He said, 'Was this an attempt to subvert the Constitution?' All of President Clinton's untruths, all of his lying under oath, if you will, about an extramarital relationship does not subvert the Constitution" (Schumer).

7.Jury. This all-purpose Republican frame posits that the Senate is Clinton's jury and should behave accordingly. This accomplishes several objectives. First, it makes the strongest case for calling witnesses. Example: "I have never seen a trial before where you had factual disputes where you didn't have witnesses where you could watch their demeanor on the stand, listen to them, judge one witness vs. another witness" (DeWine). Second, it neutralizes the "summary judgment" frame, since summary judgments are up to the judge, not the jury. Example: "We have an obligation to sit back as jurors and let the case be presented" (Santorum). Third, it shortcuts the "summary judgment" and "censure" frames by organizing the trial's issues in temporal sequence rather than as a decision tree. Example: "We're prejudging this thing [when we say] it doesn't meet the standard of the high crimes and misdemeanors. That's what the trial's all about. ... We're going to listen to the evidence" (Sen. John Chafee, R-R.I.).

8. Jury Nullification. This Democratic rebuttal shatters the "jury" frame and diverts scrutiny from the defendant to the prosecution. The argument is that the Senate should reject the case not because it's unproven but because it's politically motivated. Example: "One of the reasons why we feel that this impeachment trial is really not what it's purported to be is that there have been four years of investigations. ... There are people that just want to get this president" (Sen. Dianne Feinstein, D-Calif.).