Order In The Court

By NANCY GIBBS

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."

Hardest to convince was the "damn the torpedoes" faction, conservatives who want to barbecue Clinton as long as possible or who hope something might turn up to draw 12 Democrats into the hanging party. Lott had to convince this crowd that a full-blown trial wouldn't pull Democrats in but would drive moderate Republicans out; it takes only 51 votes to adjourn. "You should never damn the torpedoes," said a G.O.P. leadership adviser, "because torpedoes explode."

Right up to the edge of the cliff they walked, in private meetings on Wednesday and Thursday, peering over and seeing the bodies of Newt Gingrich and Bob Livingston and the others who have been sacrificed to this scandal. But pride kept pushing them to the precipice. When the proceedings formally began Thursday morning, there was still no agreement, and the clock was ticking. The world's foremost deliberative body was ordered to keep quiet "on pain of imprisonment," and the proceedings began with, of all perfect things, an oath that the Senators would do "impartial justice" as they go about deciding in all likelihood that perjury doesn't matter.

But after the session was adjourned and the cameras turned off, something remarkable happened. Don Nickles, the majority whip, approached Lott, and the two started talking. Tom Daschle conferred across the aisle with three fellow Democrats. Oregon's Ron Wyden crossed from the Democratic side and sat down with Bill Frist, a moderate Republican from Tennessee. It looked like a junior high dance, when the boys and the girls finally tiptoe into the center of the gym. The group grew from six Senators to 10, to 25 to 40 to more than 50. Susan Collins, the moderate freshman Republican from Maine, was on the outer fringes when she felt drawn into the huddle. "Everyone wanted to be a part of it," she said. "You had to lean in to hear everything. It was extremely cordial. It wasn't tense. It was, 'Let's work this out.'" No one shouted; no one stormed away. No one talked over others. Everyone seemed to listen intently to what was being said.

And what was being said? "I am heartbroken right now," Republican Connie Mack told Daschle. "To think that we're going to march into our partisan camps and establish with our flags the beginning of this process just breaks my heart." In that fear and sorrow he was not alone. For all the disagreements, some consensus was plain: we don't want our first vote to be a party-line standoff. There has to be a way out. Let's throw out the staffs, get rid of the microphones and find out what we can all agree on. They would reconvene that afternoon in the Old Senate Chamber, a bipartisan caucus searching for a final game plan. Lott, looking relieved and even euphoric, told reporters that "I got up this morning thinking, 'I've gotta make a lot of important decisions today. I hope I make the right ones.'"

The group hug was so pleasing that the shock was that much worse when everything fell apart. Even though he had been in the center of the Senate-floor powwow, Daschle pulled the plug on the bipartisan conclave, complaining to Lott that he had not proposed the meeting formally. Something strange had happened quickly: privately, Republicans and some Democrats speculated that when the White House heard about the scrum--and the fact that it had produced a near compromise on a plan that would have led to a vote on whether to call witnesses--it pushed Daschle to cancel the meeting. The White House feared that in a room of 100 Senators, Clinton's interests might not be defended. Bitterness had returned, and the sniping was beginning, albeit in sober tones. Nickles, Arkansas' Tim Hutchinson, Olympia Snowe and others came out and criticized Daschle for not going along with the meeting.

In the Republican caucus late Thursday afternoon, some members argued for total war--a party-line vote to proceed however they chose. The Democrats were doing Clinton's bidding, they argued, and would never go along with a bipartisan deal; they were counting on a long trial to make Republicans look partisan and obsessed. The fear of a voter backlash was no reason to abandon principle. Rick Santorum of Pennsylvania, who won with just 49% of the vote in 1994, told the conference, "I'm up in 2000. And if you read the papers, I'm an endangered Republican species. But I'm not worried about that. I'm worried what my one-year-old daughter will read about the role her father played in the impeachment process in 20 years. So to those of you who are doing what you're doing to help the class up in 2000, stop it. Don't help me. Don't help me."

Then some people tried to hit the brakes. Snowe turned to fellow Maine Senator Susan Collins. "I've got to say something," she said. "This is wrong." They had just taken a historic oath, she reminded her colleagues--some of them still fingering the souvenir pens with which they signed the impeachment book. Did they really want to start the process with such a partisan move? She appealed to a sense of personal trust that has not dissolved completely; Senators still shake hands across the aisles. The mood in the room swept behind her as Republicans rose in agreement. Said Larry Craig of Idaho, a conservative: "If there's any chance of not having this be a partisan vote, let's go for it."

The Democrats, meanwhile, were aware that if Clinton could not get a fair trial in a G.O.P.-controlled Senate, it would be in part because of what the Democrats did to Robert Bork and John Tower, and to the methods the Democratic majority had long used to undercut Republican administrations. "If we can't do this," an off-message Democratic Senator said Thursday night, "we're all to blame." And so they agreed to try one last time to pull back from the brink.

The denouement came Friday, in a venue designed to humble warriors. The Old Senate Chamber was last regularly used in 1859 to debate the issues of a growing nation: territorial expansion, slavery, economic policy in the first industrial age. The nation outgrew the room, so when they assembled there shortly after 9:30 a.m., 100 Senators made do with 68 seats. Those not lucky enough to get antique seats were placed between the rows, so that tall Senators like Oregon's Gordon Smith sat with his knees pressed up against the chair in front of him. "It was like riding with two people in a wheelbarrow," said New Mexico Republican Pete Domenici.

The senators listened to their most respected historian, Robert Byrd, warn them that they too were on trial. The President had sullied the presidency; the House had fallen "into the black pit of partisan self-indulgence." The Senate needed to lift its eyes to higher things. Byrd quoted Ben Franklin, the Federalist papers, even Chaucer. Then the deal guys saved the day.

It was Phil Gramm and Ted Kennedy who persuaded their colleagues that they could agree on the basic approach, to let the trial open with arguments and questions and then decide which, if any, witnesses to call. That the Texas conservative and the Massachusetts liberal--"the most unlikely combination you could imagine," as Collins called them--could agree on anything suggests one of two things: either the compromise was hollow and symbolic, or something rare and impressive occurred.

It may be that both are true. Any vote that turns out 100 to 0 in the Senate is by definition symbolic. But on an issue as explosive as the trial of a popular President during an age of vengeance in a Senate controlled by the opposition party, no vote is easy. There are surely votes ahead that will divide the caucus, strain party loyalties, test principle against politics and test both against the law. But this vote was much harder than the final tally suggests.

By leaving open the possibility of witnesses and giving the House managers room to make their case, the vote looked like more of a victory for the hard-liners than the Democrats. But the fine print holds the trapdoors: the resolution forces the House prosecutors to present their case first, over the course of as long as 24 hours, without calling witnesses. Then comes the White House, followed by the Senators' questions. And only then do the House managers get a chance to argue in favor of hearing testimony.

There were some Clinton victories buried in the procedures. First, the managers are limited to what is already in the record. They must request witnesses en bloc, which means they must be careful about whom they call. The Senate will vote on the complete set, so just one objectionable witness could drag the whole bloc down. "That's a huge victory for the Democrats," said a Democratic strategist on the Hill, "and I'm not sure the White House gets it." And even if a majority votes yes on the set of witnesses, the vote only authorizes depositions; it will take another majority vote to hear them live.

With increasing rancor, the White House argued through the week that it would be unfair for the Senate to proceed with a trial in which the Senators made up the rules as they went along. On Friday, when every last one of the 45 Democrats voted for a plan that does precisely that, lawyer Greg Craig said tersely that the White House "respected" the Senate's decision.

The problem for the White House is that the interests of the President and those of his party are not quite the same. "From the Democratic Party perspective, I don't see any downside to having a long trial," says a White House official. The Democrats would prefer not to see Clinton thrown out of office. But they cannot have failed to notice that the bloodbath in the House helped their party and hurt the Republicans. In fact, the only Democrat to lose from what happened in the House was Clinton.

The political hands in the White House have understood from the beginning that postponing things is how the Senate operates. Now the White House will have to adopt a new operating style tailored for the more collegial body. "The problem is, our best defense has always been partisanship, and you can't do that in the Senate," says a White House official. "You've got to be more flexible and more willing to bend." The danger here is that the longer things go on, the more uncertain the outlook is for Clinton, the bigger the chance for surprises. And the only kind of surprises you get in these circumstances are bad ones.

So White House strategists huddled on Saturday, drafting scripts, dividing tasks among the lawyers, debating whether preparing for witnesses would make the prosecutors more likely to call them. Even those with the most courtroom experience will never be fully ready for a trial unlike any ever held. It is as much a political as a legal proceeding; the jury is also the judge; justice, which is supposed to be blind, has a party affiliation; prosecutors will be held to no specified standard of proof; and the verdict will under no circumstances be unanimous.

The President, through it all, remained detached, celebrating chief of staff John Podesta's 50th birthday Friday night by performing an X-Files skit with Hillary and showing a video of the actual cast singing "Happy Birthday, Skippy." Down Pennsylvania Avenue, the Senators too were in the mood to party. Perhaps because bliss may be fleeting, they got drunk on consensus. After the unanimous vote, Kennedy and his wife Victoria ran into Lott in a private room just off the Senate chamber. Lott gave her a big kiss: "How about some crawfish etouffe?" Lott joked when the discussion turned to favorite foods. Kennedy tried on his best Mississippi accent: "I want me a po'boy." The suggestion led to billows of laughter. "This is going to make the health-care bill of rights a piece of cake," said Kennedy.

"Piece of cake," said Lott. "Let's go do it now."

"Yes, and minimum wage," said Kennedy.

They broke up in a concert of chuckles. It may be the last good laugh anyone has for a long time.

--Reported by James Carney, John F. Dickerson, Viveca Novak and Karen Tumulty/Washington

With reporting by James Carney, John F. Dickerson, Viveca Novak and Karen Tumulty/Washington