Defense Denied Preview of Finale

The impeachment trial’s odd hybrid of law and politics has caused some tricky moments throughout the Senate process, and Thursday’s proceedings were a case in point.

As a confused Senate looked on, White House lawyers and House managers skirmished over whether the prosecutors must provide advance notice of the videotape portions and written testimony excerpts that they intend to use in their closing presentations in the next few days.

White House lawyer David E. Kendall insisted that the prosecutors must disclose them or be guilty of “trial by surprise.”

In his rebuttal, House manager James E. Rogan (R-Glendale) quoted the late California Supreme Court Justice Otto Kaus, who, responding to a similar request from a lawyer to review the contents of his opposition’s summation, reportedly said, “It’s none of your damned business.”

No Experts Consulted

Typically, senators consulted no experts or law books, and U.S. Chief Justice William H. Rehnquist, who presided, was not eligible to offer an opinion on this dispute under rules applying to impeachment trials. A 54-46 vote decided the matter in favor of the House managers. Republican James M. Jeffords of Vermont was the lone senator to break party ranks, joining Democrats in the motion to seek advance notice.

Legal experts outside the trial generally agreed with the prosecutors’ position, ridiculing Kendall’s statement that “trial by surprise has no place here.”

“This is not going to be an ambush because [White House lawyers] know within a reasonable universe what is going to come up,” said Washington attorney Carter G. Phillips, a veteran trial lawyer who has practiced before the U.S. Supreme Court.

“They can figure out what is harmful in those depositions and what the other side is likely to use,” Phillips added. “So you have to be prepared. That is life in litigation.”

Another experienced litigator in the capital, Thomas M. Buchanan, said that, in an ordinary civil trial, “you must give the opposing side a transcript of videotaped testimony beforehand and disclose what sections you plan to present to the jury.”

‘The Request Is a Little Strange”

Videotaped depositions most often are used for witnesses who live in distant locations or are too ill to travel, he said. In the impeachment trial, videotaped testimony has been obtained from Monica S. Lewinsky, the central figure in the case, and two others.

However, Buchanan added, “in your closing argument you have no obligation to apprise the other side [of] what portions of testimony or what exhibits or charts you are planning to use.”

He said that “in all my years of practice, I have never heard a judge say: ‘I want you to disclose to the other side what exhibits or portions of testimony you plan to use in your closing argument.’ And I have never heard another lawyer ask to know that.”

Buchanan added: “The request is a little strange because White House lawyers cannot fail to know what’s in the videotapes since they were present for all of the depositions.”

The senators--in this case, acting as jurors--already have had an opportunity to view the videos, and many have done so.

Times staff writer David G. Savage contributed to this story.