Salon Newsreal | The culture of prosecution, page 2

A L S O+T O D A Y

That wasn't foreplay, that was a four-poster!
By Lori Leibovich
'Don't act like a bully.' In a full-trial impeachment, the questions won't be for the squeamish
(01/08/99)
Back from the brink
By Joshua Micah Marshall
A Senate compromise on the impeachment trial ends the partisan bickering, for now
(01/08/99)

T A B L E+T A L K
Speaker Howdy Doody? What do you think of Livingston replacement Dennis Hastert? Get partisan in the Politics area of Table Talk

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Search barnesandnoble.com for books about impeachment
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Portrait of a political "pit bull"
By Russ Baker
Rep. Dan Burton, who called President Clinton a "scumbag," has a few questions to answer about his own behavior
(12/22/98)

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R E C E N T L Y
Impeachment diary
By Anonymous
A senior Senate aide keeps busy by dishing the dirt on dealmaking, perjury and free food
(01/07/98)
Lott's losing control
By Joshua Micah Marshall
Impeachment proceedings in the Senate could get as ugly as in the House
(01/06/99)
The man Clinton could have been
By Jeff Stein
Sen. Tom Daschle, the Democrats' point man on impeachment, is a tough negotiator who could save Clinton from himself
(01/06/99)
My dinner with Jerry
By Joan Walsh
A reporter reflects that Jerry Brown's idiot-savant approach to race may carry Oakland into a multicultural future without rancor
(01/05/99)
Letter from Havana
By Frank Smyth
Gays, Catholics and transvestites find their place in the new Cuba
(01/04/99)
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THE CULTURE OF PROSECUTION | PAGE 1, 2
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Henry Hyde and his impeachment-managing comrades have accused Democrats of trying to short-circuit the trial by suggesting that senators ditch the whole proceeding after a few days of preliminary argument. But who's doing the short-circuiting? In any courtroom in the land, "due process" means that a defendant gets to challenge a prosecutor's indictment before any evidence or witnesses are brought to the table. Every day, for instance, hundreds of cases get tossed out on "summary judgment," a judge's decision that an indictment or lawsuit doesn't qualify for full trial. Summary judgment is an essential check on the power of prosecutors and lawsuits. The impeachment equivalent would be a version of the Gorton-Lieberman compromise, a quick vote to see whether the evidence presented to date merits a trial.
To the impeachment faction, of course, Clinton's "trial" means only the courtroom show and the predestined hanging afterward: the Salem Solution. But in American law -- as opposed, say, to the People's Republic of China, or Slobodan Milosevic's Serbia -- spectacle is trumped by process. Trials have credibility with the public precisely because the punitive powers of judge and jury are constrained by that group of rules and rituals known collectively as "due process."
Indeed, one of the most disturbing arguments -- heard from Democrats as well as Republicans -- is that the president should not rest his defense on what Sen. John Breaux, D.-La., called "legalese": such supposed technicalities as challenging Starr's motives, or questioning the constitutional probity of Congress' lame-duck impeachment. This is an extension of one of Starr's most pernicious charges, that the president obstructed justice by asking courts to review the independent counsel's subpoenas of White House lawyers and Secret Service.
No more dangerous argument has emerged from the entire Clinton-Starr confrontation: that the mere assertion of legal rights amounts to obstruction of justice. Now the impeachment faction would convict Clinton in the Senate for the high crime of mounting a vigorous defense.
This is no surprise. One of the cornerstones of Reagan-and-after conservatism has been the rhetoric of prosecution, the persistent drumbeat that criminal defendants are let out on "technicalities." Hyde, Bill McCollum, Phil Gramm and company are pursuing in Clinton's impeachment their precise image of how trials should be conducted: with as few rights as possible for the accused and no procedural checkpoints along the way. Clinton, too, has played more than a minor role in shredding the rights of criminal defendants, in particular the appeal rights of death-row prisoners. So it's fitting that now, like Robespierre, he seems trapped by the very culture of prosecution he's helped nurture.
With the Clinton trial, most Americans hope for some ratification of the calm and sanity that seemed to descend during the holiday interregnum. Which is precisely what the framers of the Constitution had in mind when they lodged the power to try impeachments in the Senate, which is more insulated than the House from immediate political pressure.
Though it seems ever less likely, Clinton's impeachment could still become a showcase for the nation's best constitutional values, winning credibility through senators' religious adherence to due process. If not, the Clinton trial will be what the O.J. Simpson trial was for many people: a dispiriting metaphor for the state of the union.
SALON | Jan. 8, 1999
Bruce Shapiro is legal affairs columnist for the Nation and a regular contributor to Salon.

A L S O+T O D A Y That wasn't foreplay, that was a four-poster! By Lori Leibovich 'Don't act like a bully.' In a full-trial impeachment, the questions won't be for the squeamish (01/08/99) Back from the brink By Joshua Micah Marshall A Senate compromise on the impeachment trial ends the partisan bickering, for now (01/08/99) T A B L E+T A L K Speaker Howdy Doody? What do you think of Livingston replacement Dennis Hastert? Get partisan in the Politics area of Table Talk ___________________ Search barnesandnoble.com for books about impeachment ___________________ Portrait of a political "pit bull" By Russ Baker Rep. Dan Burton, who called President Clinton a "scumbag," has a few questions to answer about his own behavior (12/22/98) - - - - - - - - - - - - - - - - R E C E N T L Y Impeachment diary By Anonymous A senior Senate aide keeps busy by dishing the dirt on dealmaking, perjury and free food (01/07/98) Lott's losing control By Joshua Micah Marshall Impeachment proceedings in the Senate could get as ugly as in the House (01/06/99) The man Clinton could have been By Jeff Stein Sen. Tom Daschle, the Democrats' point man on impeachment, is a tough negotiator who could save Clinton from himself (01/06/99) My dinner with Jerry By Joan Walsh A reporter reflects that Jerry Brown's idiot-savant approach to race may carry Oakland into a multicultural future without rancor (01/05/99) Letter from Havana By Frank Smyth Gays, Catholics and transvestites find their place in the new Cuba (01/04/99) - - - - - - - - - - - - - - - - Browse the Newsreal Archives - - - - - - - - - - - - - - - -
		THE CULTURE OF PROSECUTION \| PAGE 1, 2 - - - - - - - - - - Henry Hyde and his impeachment-managing comrades have accused Democrats of trying to short-circuit the trial by suggesting that senators ditch the whole proceeding after a few days of preliminary argument. But who's doing the short-circuiting? In any courtroom in the land, "due process" means that a defendant gets to challenge a prosecutor's indictment before any evidence or witnesses are brought to the table. Every day, for instance, hundreds of cases get tossed out on "summary judgment," a judge's decision that an indictment or lawsuit doesn't qualify for full trial. Summary judgment is an essential check on the power of prosecutors and lawsuits. The impeachment equivalent would be a version of the Gorton-Lieberman compromise, a quick vote to see whether the evidence presented to date merits a trial. To the impeachment faction, of course, Clinton's "trial" means only the courtroom show and the predestined hanging afterward: the Salem Solution. But in American law -- as opposed, say, to the People's Republic of China, or Slobodan Milosevic's Serbia -- spectacle is trumped by process. Trials have credibility with the public precisely because the punitive powers of judge and jury are constrained by that group of rules and rituals known collectively as "due process." Indeed, one of the most disturbing arguments -- heard from Democrats as well as Republicans -- is that the president should not rest his defense on what Sen. John Breaux, D.-La., called "legalese": such supposed technicalities as challenging Starr's motives, or questioning the constitutional probity of Congress' lame-duck impeachment. This is an extension of one of Starr's most pernicious charges, that the president obstructed justice by asking courts to review the independent counsel's subpoenas of White House lawyers and Secret Service. No more dangerous argument has emerged from the entire Clinton-Starr confrontation: that the mere assertion of legal rights amounts to obstruction of justice. Now the impeachment faction would convict Clinton in the Senate for the high crime of mounting a vigorous defense. This is no surprise. One of the cornerstones of Reagan-and-after conservatism has been the rhetoric of prosecution, the persistent drumbeat that criminal defendants are let out on "technicalities." Hyde, Bill McCollum, Phil Gramm and company are pursuing in Clinton's impeachment their precise image of how trials should be conducted: with as few rights as possible for the accused and no procedural checkpoints along the way. Clinton, too, has played more than a minor role in shredding the rights of criminal defendants, in particular the appeal rights of death-row prisoners. So it's fitting that now, like Robespierre, he seems trapped by the very culture of prosecution he's helped nurture. With the Clinton trial, most Americans hope for some ratification of the calm and sanity that seemed to descend during the holiday interregnum. Which is precisely what the framers of the Constitution had in mind when they lodged the power to try impeachments in the Senate, which is more insulated than the House from immediate political pressure. Though it seems ever less likely, Clinton's impeachment could still become a showcase for the nation's best constitutional values, winning credibility through senators' religious adherence to due process. If not, the Clinton trial will be what the O.J. Simpson trial was for many people: a dispiriting metaphor for the state of the union. SALON \| Jan. 8, 1999 Bruce Shapiro is legal affairs columnist for the Nation and a regular contributor to Salon.