Henry Hyde's Letter To Trent Lott Regarding Impeachment Trial

Dear Majority Leader Lott:

The press has recently reported a great deal of speculation about how the Senate may organize and conduct a Senate impeachment trial of President Clinton. The twelve other managers and I have discussed this matter at great length, and as the parties who must present and manage the case for conviction and removal on behalf of the House of Representatives, we fully agree with your remarks that "We (the Senate) need to go forward and do our constitutional duty to hear the evidence.'' However, we have concerns with your proposal that the parties call no witnesses during the Senate's consideration of the articles. We are also concerned with your proposal that you might foreclose any trial if the House position fails to get a two-thirds vote on a preliminary motion before the Senate has even had a full airing of the evidence. This proposal effectively grants one-third of the Senate the power to decide whether there will be any airing of the evidence.

I agree that we must move with all deliberate speed to resolve this matter. However, we must not act so hastily that the president and the House of Representatives do not have a fair opportunity to present the case and the Senate does not have a fair opportunity to review a meaningful factual record. We believe that a proper presentation of the evidence will likely require the appearance of a limited number of witnesses. We also believe that the president and his counsel may wish to call witnesses as part of their defense.

During the impeachment inquiry, the House Judiciary Committee relied on an extensive factual record consisting of grand jury testimony, depositions and interviews. Our independent analysis of this record formed a sufficient basis to impeach President Clinton. Indeed, even the president implicitly acknowledged the sufficiency of the record for this purpose. Despite repeated invitations, the president and his counsel declined to call and cross-examine a single fact witness to dispute the record during the inquiry.

As you know, the constitutional duty of the House of Representatives as the accusatory body differs greatly from the Senate's constitutional duty as the adjudicatory body. As the entity granted the sole power to try an impeachment -- i.e., to determine the guilt or innocence of President Clinton -- the Senate should hear from live witnesses. Indeed, federal courts have long recognized the importance of live testimony in their rulings and their instructions to juries. We believe that an appropriate cross- examination of witnesses by the managers, counsel to the managers, and counsel to the president will create a more complete record upon which the Senate can base its ultimate judgment on whether to convict and remove the president.

We are somewhat surprised that the Senate would seek to have a preliminary vote on whether the articles establish a violation sufficient to warrant removal. Perjury and lying under oath -- even outside the scope of official duties -- have played a central role in each of the four most recent impeachments (Judges Nixon, Claiborne and Hastings and President Nixon). For example, in the impeachment trial of Judge Walter Nixon, you and 88 other senators voted to convict and remove Judge Nixon because:

"In the course of his grand jury testimony and having duly taken an oath that he would tell the truth, the whole truth and nothing but the truth, Judge Nixon did knowingly and contrary to his oath make a material false or misleading statement to the grand jury.'' -- Article I in the Impeachment of Judge Walter L. Nixon, Jr.

Attached are copies of the roll call votes and a listing of current senators who voted to convict and remove Judge Nixon (perjury in a grand jury), Judge Hastings (perjury in a trial and obstruction of justice) and Judge Claiborne (false and misleading statements on tax returns under penalty of perjury). In these three impeachments, 50 current senators, as well as Vice President Gore, voted to convict and remove on at least one article of impeachment based on perjury. In the Judge Hastings impeachment trial, 95 senators voted for an article based on obstruction of justice.

We are especially concerned by your proposal to forgo a trial if one-third of the Senate fails to vote for the House position on a preliminary motion before the president and the House have fully presented their cases. The Constitution requires a two-thirds vote on the ultimate issue of conviction and removal. The Senate's rules and its impeachment precedents require only a majority vote to dispose of impeachment matters other than conviction.

For example, Judge Nixon filed a motion to dismiss Impeachment Article III for failure to make out an impeachable offense. After closed deliberations, the Senate voted 63-34 to deny his motion. Despite failing to achieve a two-thirds majority determination that Article III stated an impeachable offense, the Senate proceeded to hear the case on Article III. In that trial, the Senate recognized that the failure of the House position to get a two-thirds vote on a preliminary vote was not a sufficient reason to preclude hearing the evidence. I acknowledge that the Senate always has the authority to alter its procedures and precedents, but to do so in this instance would unwisely short-circuit the process.

I believe that a fair presentation of the evidence and a full defense by the president can be expeditious; we need not sacrifice substance and duty for speed. If the Senate organizes for trial on January 7 and proceeds to follow its regular impeachment procedures, it would have the president's answer to the articles and the House's replication by the end of January. After that, the presentation of evidence at trial should not be lengthy. The House may call a limited number of witnesses to present its case. Of course, the timetable would also depend upon the president. He must be given an opportunity to call witnesses, cross-examine witnesses, and present a full defense. Barring unnecessary delays, the Senate could surely have a swift, but complete, impeachment trial.

Sincerely,

Henry J. Hyde

Chairman

cc: Honorable Thomas Daschle
Senate Minority Leader

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