Asking questions is unique aspect of impeachment trial

Rehnquist will screen and ask questions submitted by senators

Trial In The Senate

January 22, 1999

WASHINGTON -- The senators' first chance to shape President Clinton's impeachment trial -- their opportunity to ask questions -- opens today and continues tomorrow.

The process is partly controlled by long-standing rules, but it may well change character -- several times -- as it unfolds.

Lyle Denniston of The Sun's national staff provides answers about the history of that phase of the trial, and how it could work this time.

Why are senators allowed to ask questions at all?

That is a traditional right, dating to the earliest impeachment trials. It reflects senators' hybrid role -- very different from the situation in regular court trials -- as both jurors and judges. It gives them a chance to clear up conflicts in the evidence and to better understand what has been put before them by House prosecutors and presidential lawyers.

In the only other presidential impeachment trial, of Andrew Johnson in 1868, senators had that right and used it.

Who will be answering the questions?

Only the House prosecutors and the president's defense team. No questions can be put to other senators and, at this stage, there are no witnesses to question.

How might the questioning shape the case?

It gives senators opportunities to actually help one side or the other bolster its case, by letting them emphasize earlier points or bring out new ones, and by aiding them in exploiting weaknesses in the other side's case. House prosecutors say they hope questions will give them a chance to make a rebuttal to the White House case; they were given no rebuttal time.

Some senators could use the question period to try to influence the choice the Senate will make next week on calling witnesses. That could be done by bringing out the depth of the disagreement between prosecutors and defenders.

Senators' questions can be hostile to one side or the other, but they are not likely to be written in aggressive tones or phrases. Although senators will be judges in the end, nothing in the rules or the traditions requires them to be as impartial as a normal judge should be, and nothing forbids them from submitting questions with the specific aim of trying to shape the case.

But they will try hard to avoid appearing partial. One thing not allowed: speeches of any kind while asking the questions. All questions must be submitted in writing, and Chief Justice William H. Rehnquist will read them out loud.

Could either side plant questions with senators?

Yes. That is not forbidden by the rules, and no one in the Senate would be surprised at a question that sounded as if the lawyers being asked that question knew it was coming.

Can anybody object to a senator's question?

Apparently not. In the Johnson trial in 1868, other senators could object to a colleague's question. In 1905 the rules were changed so that objections are allowed by the lawyers for either side, but only when a question is put to a witness. That is the way the rules now read. At this stage, there are no witnesses.

Must Rehnquist ask every question submitted?

No. It is up to him to decide, in the first instance, whether a question is out of bounds. For example, he almost certainly would not allow a senator to ask about alleged campaign finance abuses in Clinton's presidential campaigns, since that did not lead to charges by the House.

He could be a stickler about keeping questions within the evidence now before the Senate. The Senate can overrule by simple majority vote -- but without debate -- any rulings by Rehnquist to allow or bar individual questions. The chief justice, however, is likely to give the senators wide leeway.

Will the chief justice be able to stop lawyers from either side from using their answers to make speeches?

Yes. Rehnquist's well-known habit of running tightly disciplined hearings in the Supreme Court very likely will be on display in the Senate chamber; he is likely to be rigorous in policing long answers and in avoiding what he considers to be time-wasting answers.

How will the questioning procedure actually work today and tomorrow?

Some details remain to be ironed out. But a Republican senator will get the chance to ask the first question, followed by a Democrat, and so on, alternating on each side of the aisle.

Questions are likely to be sent to each party's leader at the front of the chamber and handed by them up to Rehnquist. The leaders are not expected to censor any questions, but they may use some discretion in the order they submit the questions. The two leaders may try to put follow-up questions, if they think that is necessary to add clarity.

Rehnquist is expected to announce each question, identify the senator making it, and then ask it -- unless he rules it out of order. If he does, the process could stop if a senator insists on having a vote on allowing such a question.

If the question survives a vote, the House prosecutors or presidential lawyers will then respond, since questions are likely to be specifically directed to one side or the other.

Neither side will be allowed to comment directly on the other's answers, although they could find ways to do so in answer to a later question put to them -- another thing Rehnquist probably will try to police quite closely.

Over the next two days, up to 16 hours of questioning will be allowed, but Senate leaders hope it will be less. If the question period is not concluded tomorrow, it will continue Monday afternoon.

Pub Date: 1/22/99

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