Senate Girds for Witnesses, Fears Spectacle

On the eve of its first presidential impeachment trial in 130 years, the Senate remains divided on this key question:

Can you have a true trial with live testimony to determine whether President Clinton lied about his relationship with Monica S. Lewinsky, while avoiding a spectacle that turns the Senate into a long-running soap opera?

And while the Senate appeared late Wednesday to be leaning toward a plan to allow witnesses, their number and identity are likely to remain unsettled when the trial opens this morning.

Most Republicans, siding with their House counterparts, say the Senate has a duty to conduct an actual trial with real witnesses.

“We don’t think there’s any question that if you’re going to have a trial, you have witnesses,” Sen. Rick Santorum (R-Pa.) said Wednesday. Calling witnesses “may well be” a foregone conclusion once a trial opens, added Sen. Olympia J. Snowe (R-Maine).

Among the Democrats, however, “there is universal, unanimous opposition to witnesses,” said Senate Minority Leader Tom Daschle (D-S.D.).

A full-scale trial focusing on the Clinton-Lewinsky affair will prove to be a national embarrassment, they say, but will not result in the president’s removal because his alleged offenses are not “high crimes” against the nation.

“If we start down the road toward witnesses, you’re going to see this process deteriorate very quickly into what happened in the House,” said Sen. Richard Durbin (D-Ill.), referring to the highly partisan process in the other chamber. Once one witness is called, “where do you draw the line?”

Trial Demands Witnesses

Trial lawyers and legal experts generally agree with the Republicans that a trial demands witnesses. In a typical case, jurors have to hear from witnesses on both sides and then judge for themselves who is telling the truth.

But the legal experts also agree with the Democrats that there is no fair way to set limits on the time or the number of witnesses once a trial begins. And Democrats also point out that most of the crucial witnesses have already testified under oath.

“As a practical matter, there is a zero possibility to control it once you start,” said Washington attorney David O. Stewart, who defended a federal judge who was impeached and convicted in a Senate trial. “The trial must be full and fair, with the defense given a chance to call all of its witnesses.”

“You can’t open the door just a crack,” agreed Georgetown University law professor Paul Rothstein. “If you open it [to hearing witnesses], you have to open it all the way. It is unfair to limit the testimony in any substantial way.”

And that makes it impossible to limit the time of a trial, Rothstein added. “If you’re going to have a real trial, it will take months.”

White-collar defense lawyer Stanley Brand, a former House Democratic counsel, said lawmakers are used to controlling debates, but the same strictures cannot be applied to a trial.

“This isn’t a debate on HR 3200. It’s a trial, and it takes as long as each side needs,” he said. “If one side calls a witness, the other side usually responds by adding a witness to respond. You can’t put an arbitrary limit on that.”

On Wednesday, Senate Majority Leader Trent Lott (R-Miss.) was still seeking a middle ground, something between an open-ended trial or a debate with no live witnesses.

He told reporters he favors an approach that would require both the House prosecutors and the White House defense lawyers to win the support of 51 senators to call a witness. As a constitutional and legal matter, the Senate has the power to handle the trial however it chooses.

“We have a right to focus it and channel it,” Lott said.

While the outside lawyers all agree that the Senate can limit testimony, they also say that doing so might call into question the fairness of the process.

“What they have to avoid is the appearance of unfairness,” Stewart said. “In the past, all the impeachment trials have been full trials. I think it would set a terrible precedent to say this has to be less.”

The House Republicans have lodged two basic charges against Clinton. First, they say he lied under oath in August about whether he had certain sexual contacts with Lewinsky and then again when he defended his earlier testimony as being legally accurate. Second, they say he obstructed justice when he conspired to conceal the affair, including by arranging a job for Lewinsky and by hiding gifts he gave her.

House Judiciary Committee counsel David P. Schippers suggested in an interview that prosecutors would like to call “maybe a dozen” witnesses to try to show that the president lied under oath and conspired to conceal his affair with the former White House intern.

But his boss, Judiciary Committee Chairman Henry J. Hyde (R-Ill.), says he is willing to pare down the list to just a few witnesses. Besides Lewinsky, the House Republicans say they need to hear from the president’s secretary, Betty Currie, his friend Vernon E. Jordan Jr. and Linda Tripp, the onetime friend of Lewinsky’s whose secret tapes launched the case.

Sen. Arlen Specter (R-Pa.), a former prosecutor, said he favors calling Clinton as a witness to respond to the charges.

In one sense, the perjury charge is simple and straightforward. Lewinsky told prosecutors for independent counsel Kenneth W. Starr that Clinton fondled her during their brief encounters. Clinton acknowledged receiving oral sex but denied having fondled her.

‘It Won’t Be Pretty’

“This could be short, but it won’t be pretty,” said Washington attorney Pamela Stuart. “Because of the subject matter, it could easily become a spectacle.”

But other lawyers said that the “he said, she said” dispute cannot be resolved easily and might well lead to multiple witnesses.

Prosecutors could try to bolster Lewinsky’s testimony by bringing forward others whom she confided in about the details of her sexual encounters with Clinton. White House lawyers could counter with still others who contend that Lewinsky embellished her relationship with the president by telling false tales about trips or meals with the Clintons.

“If the case turns on her credibility, then you will have a trial on her veracity,” said Brand.

As Sen. John B. Breaux (D-La.) said recently, the nature of a trial is that one witness begets another.

“You’ll have witnesses called to rebut witnesses ad infinitum,” he said. “It may be the trial of the century, but it shouldn’t have to last into the next century.”

Times staff writer Richard A. Serrano contributed to this story.