Order In The Court

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The founders didn't invent the separation of powers, but they were the first to put it into practice. They were proud of the safety that checks and balances guaranteed and believed that only the most dangerous occasions warranted setting them aside. Last week the Senate unwrapped a constitutional mechanism that no one alive has ever witnessed: the trial of the President, prosecuted by the House, before the Senate, presided over by the Chief Justice, all the branches of government worshipping together for only the second time in history, and the most momentous thing about it was that it seemed to many people less important than the fact that the Dow nuzzled 9600, the NBA season was salvaged and the weather in most places turned rotten.

After months of predictions that we would never arrive here, that impeachment was dead after the election, that the House could play with matches because the Senate was fireproof, that Monica was more likely to be invited to tea with Hillary than to testify before the heirs of Daniel Webster, we begin a brand-new year full of startling events to misinterpret and fresh expectations to defy. And so on cue the Senate set about defying them, managing to do what no politicians on this stage had done last year: remain calm, act like grownups and find the safest way to an exit.

The Senators called on their best instincts and worst fears to drive both sides to unanimity by Friday afternoon: the trial will start this Thursday, with a week or so of arguments and questions from each side, and no witness will appear unless a majority of the Senators agree to call him--or her. In preserving Senate comity, they dealt a blow to both sides: to Henry Hyde and the House managers, who had been bucking all week at the idea that they might not be able to prosecute their case down to the last cigar, and to the White House, which was still holding out for a day pass.

And yet to watch these men and women stream out of the Senate chamber and into their press conferences and live-satellite feeds, praising themselves as though they had just passed the Marshall Plan, was to realize how hard this was to do, and how far they still have to go. In agreeing on a set of rules that they all could live with, they postponed the most difficult votes: Do we need to hear witnesses? Should the President be removed from office? Should the case be thrown out altogether? That they were all so surprised and proud at not having behaved like cannibals reminded everyone how many of their tribe had already been consumed by this story.

As for the defendant himself, Bill Clinton vanished last week beneath a historic avalanche of syllables, William Jefferson Clinton, the full name used for birth and burial. He had little choice but to stay away, and that put him in the company of much of the public. He spent Thursday working out, having lunch, worrying about what kids do after school. On Friday he went to a car show and gave a speech about how this sure is the greatest economy anyone has ever seen.

Ever since the House passed this cup to the Senate, no one has known for certain what an actual impeachment trial would look like--which is why the fight over whether to call witnesses and have the full, blowsy tale spill across the plush Senate floor was not some technical dispute. The decision would draw the road map for the year, determining how long this lasts and how ugly it gets and what our politics will look like when it's all over. The White House was passionately opposed to hearing from anyone; the House prosecutors started the bidding at 15 and threatened to include women with Clinton stories to tell that even Ken Starr didn't think warranted repeating.

Most Senators had strong feelings on the matter, but they fell like marbles on the floor, and no one could predict who would roll where. There were Democrats who felt you could not have a trial without witnesses; there were Republicans who were determined to avoid a circus. Many in both parties swatted at Hyde's efforts to shape the rules--he who had argued during the House phase that no witnesses were necessary because the record was so complete. "It's interesting to me that the House is asking for witnesses in the Senate trial that they did not want to call in the House," Utah's Bob Bennett, a staunch conservative and no Clinton friend, told TIME. "What could we learn from witnesses that the House did not need to learn?"

Trent Lott has been squeamish about witnesses from the start. Though a former House member himself, Lott didn't trust the House managers to muster the requisite dignity and restraint. And he knew that once witnesses were called, he would have little choice but to allow the President's lawyers time for discovery. If witnesses requested immunity, or refused to appear without a subpoena, the crocuses would be up before the defense rested.

But there were Republicans who felt differently. In a G.O.P. meeting, Mike DeWine of Ohio made a practical case: "When there are disputes over facts, like the gifts [from Bill to Monica], I don't know how you can ask us as jurors to decide without hearing from witnesses," he said. "I need to be able to look at people involved in that and hear them tell me who called whom and who did what. And you're telling me I shouldn't be allowed to hear those people?" Others were adamant about not playing hanky-panky with the rules. "I ain't a scholar, and I ain't no constitutional lawyer," Montana conservative Conrad Burns declared. "I'm a cattle auctioneer. And the reason I'm concerned is, our forefathers put impeachment in the Constitution because they knew the aristocracy had to be accountable to the people. Equal justice under the law. If those words aren't true anymore, then I'm going back to Montana to be a cattle auctioneer."

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