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Open the Impeachment Trial What Will Each Senator Say About Trump? We Deserve to Know
(about 4 hours later)
Twenty-one years ago, the public and the press were shut out of some of the most critical parts of the impeachment trial of President Bill Clinton. The Senate closed its doors so that senators could deliberate in secret on key motions and, most important, on whether to convict him.Twenty-one years ago, the public and the press were shut out of some of the most critical parts of the impeachment trial of President Bill Clinton. The Senate closed its doors so that senators could deliberate in secret on key motions and, most important, on whether to convict him.
The Senate did the same thing in 1868, closing the trial of Andrew Johnson, the only other president to have been impeached by the House until now. Like President Clinton, President Johnson prevailed. In both cases, though the deliberations were secret, the vote on whether to convict was public. But that’s not enough.The Senate did the same thing in 1868, closing the trial of Andrew Johnson, the only other president to have been impeached by the House until now. Like President Clinton, President Johnson prevailed. In both cases, though the deliberations were secret, the vote on whether to convict was public. But that’s not enough.
Chief Justice William Rehnquist, who was also a scholar of impeachment, presided over the Clinton trial. When the issue of opening it to the public in its entirety was raised, the chief justice acknowledged that the text of the Senate’s rules did not require closed deliberations but did permit them. Nonetheless, he determined that secrecy was required because the Senate rules seemed to intend it and in light of the “Senate’s longstanding practice.”Chief Justice William Rehnquist, who was also a scholar of impeachment, presided over the Clinton trial. When the issue of opening it to the public in its entirety was raised, the chief justice acknowledged that the text of the Senate’s rules did not require closed deliberations but did permit them. Nonetheless, he determined that secrecy was required because the Senate rules seemed to intend it and in light of the “Senate’s longstanding practice.”
But in the end, it’s not up to the chief justice — in this case, John Roberts — who will preside over the trial of President Trump. It’s up to the Senate whether to open its deliberations during the trial. And given the gravity of the proceedings and their bearing on the republic, that’s what the Senate should do, despite its practice of secrecy in impeachment deliberations. The public is entitled to hear what every senator says in support of or opposition to the president.But in the end, it’s not up to the chief justice — in this case, John Roberts — who will preside over the trial of President Trump. It’s up to the Senate whether to open its deliberations during the trial. And given the gravity of the proceedings and their bearing on the republic, that’s what the Senate should do, despite its practice of secrecy in impeachment deliberations. The public is entitled to hear what every senator says in support of or opposition to the president.
Senate rules are just that — rules the Senate chooses to impose on itself. It can change any of its rules or suspend their application. A bipartisan group of senators tried to suspend the secrecy rule during the Clinton impeachment. They failed, but they did manage to pass a motion that allowed a tortured sort of record to be published. Each senator could choose to place his or her statement in the Congressional Record. But if one senator’s remarks mentioned something another senator said during the closed-door proceedings, that senator had to agree to have that portion of the remarks included in the record.Senate rules are just that — rules the Senate chooses to impose on itself. It can change any of its rules or suspend their application. A bipartisan group of senators tried to suspend the secrecy rule during the Clinton impeachment. They failed, but they did manage to pass a motion that allowed a tortured sort of record to be published. Each senator could choose to place his or her statement in the Congressional Record. But if one senator’s remarks mentioned something another senator said during the closed-door proceedings, that senator had to agree to have that portion of the remarks included in the record.
It was a cumbersome procedure that resulted only in limited disclosure after the trial had concluded, and, if used again, would not ensure full and contemporaneous public disclosure of what senators said during deliberations leading up to a vote to acquit or convict.It was a cumbersome procedure that resulted only in limited disclosure after the trial had concluded, and, if used again, would not ensure full and contemporaneous public disclosure of what senators said during deliberations leading up to a vote to acquit or convict.
Critics within the Senate have emphasized the limitations of what has become the institution’s secrecy default.Critics within the Senate have emphasized the limitations of what has become the institution’s secrecy default.
During the Clinton impeachment trial, Senator Susan Collins, Republican of Maine, said “this is the most important issue to come before the Senate this year, and our debate should be conducted in full view of the American people, not behind closed doors.” Senator Patrick Leahy, Democrat of Vermont, observed that “opening deliberations would help further the dual purposes of our rule to promote fairness and political accountability in the impeachment process.”During the Clinton impeachment trial, Senator Susan Collins, Republican of Maine, said “this is the most important issue to come before the Senate this year, and our debate should be conducted in full view of the American people, not behind closed doors.” Senator Patrick Leahy, Democrat of Vermont, observed that “opening deliberations would help further the dual purposes of our rule to promote fairness and political accountability in the impeachment process.”
During the Clinton impeachment proceedings, CNN filed an application with Chief Justice Rehnquist and the Senate itself seeking public access to the proceedings but received no response. The request was rooted in the First Amendment and argued that its commands were “at war with closed-door impeachment deliberations.” In a Supreme Court case that CNN cited, Chief Justice Warren Burger had observed that “people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”During the Clinton impeachment proceedings, CNN filed an application with Chief Justice Rehnquist and the Senate itself seeking public access to the proceedings but received no response. The request was rooted in the First Amendment and argued that its commands were “at war with closed-door impeachment deliberations.” In a Supreme Court case that CNN cited, Chief Justice Warren Burger had observed that “people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
That is true generally, but it applies with special force when the Senate considers whether to remove a president from office. While the outcome of the Trump trial may not seem in doubt at this moment, the Senate’s willingness to adhere to First Amendment norms should not be in doubt at all.That is true generally, but it applies with special force when the Senate considers whether to remove a president from office. While the outcome of the Trump trial may not seem in doubt at this moment, the Senate’s willingness to adhere to First Amendment norms should not be in doubt at all.
The Senate should do the right thing and ensure that its deliberations are fully open to the public.The Senate should do the right thing and ensure that its deliberations are fully open to the public.
Floyd Abrams, a First Amendment lawyer, is senior counsel at Cahill Gordon & Reindel and a visiting lecturer at Yale Law School. Hillary Greene is a professor at the University of Connecticut School of Law. Melissa H. Maxman is the managing partner of the Washington office of Cohen & Gresser.Floyd Abrams, a First Amendment lawyer, is senior counsel at Cahill Gordon & Reindel and a visiting lecturer at Yale Law School. Hillary Greene is a professor at the University of Connecticut School of Law. Melissa H. Maxman is the managing partner of the Washington office of Cohen & Gresser.
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