Senate and the witness wild card

If at first you can't agree, delay the decision.

That is how US senators - entrusted with the job of carrying out the impeachment trial of President Clinton - decided to handle the crucial issue of whether to call witnesses to testify in the case.

The trial can proceed - at least for two weeks or so - without settling the witness question. By then, it's even possible a Senate majority will have ended the whole drama with a vote to dismiss.

But more likely, what the senators have done is buy some time. Ultimately, they will probably have to weigh the benefits of calling witnesses versus forgoing them - and make a decision about an issue fraught with risks for all concerned.

"Everybody is scared of witnesses," says Viet Dinh, a law professor at Georgetown University here and a former associate counsel for the Senate Whitewater Committee. "The biggest risk is to have this trial turn into something of a political circus that makes no one look good."

To the "managers" (House representatives who are prosecuting the case against Mr. Clinton), witnesses could be the only force that sways senators to convict and remove the president - a first in the nation's history. But calling witnesses also poses a risk, because so many potential testifiers are friendly to the president.

The White House, meanwhile, fears the unpredictability of witnesses. Neither does it want the trial to drag on - and witness testimony would definitely make the proceeding last longer.

Senators, too, are wary, especially of the salacious details that could be aired if Monica Lewinsky testifies. Many are concerned that such a scene would cast a shadow of disrepute on their revered institution.

It's not surprising then, that in their procedural outline of Jan. 8, senators erected several hurdles to calling witnesses.

For one, they've scheduled a motion to dismiss directly after the opening statements, which start Thursday. If that passes - and a simple majority will do - senators will have avoided the issue altogether. After the 64 hours allotted for both sides' arguments and for questions, senators may have heard enough - and had enough - to do just that.

Even if senators decide to go on, it's not an easy matter for the House managers to bring a witness to the Senate floor. While a simple Senate majority is required to approve witnesses, senators must agree to a block of names, and this puts pressure on the managers to whittle their list of 15 or so to a core group.

HOUSE Republicans are hoping to call six to 10 witnesses, and plan to use fewer than their allotted 24 hours for arguments so as not to weary the senators, who also act as jurors. At a minimum, they'd call Ms. Lewinsky, presidential secretary Betty Currie, and lawyer and Clinton friend Vernon Jordan to buttress their perjury and obstruction-of-justice charges.

Witnesses who are approved would have to be deposed, and senators would then vote whether to allow each witness to the floor. If satisfied with the depositions, they may not call any witnesses.

"It is much harder for the House managers to get the witnesses up there [under the Senate procedure] than if they would just call them," says Mr. Dinh.

If witnesses are so troublesome, why are the managers intent on pushing for them?

House managers know they have little likelihood of persuading two-thirds of the Senate to throw Clinton out. Such a vote would require all of the Republicans plus12 Democrats.

Witnesses, the managers say, could be more convincing than are lawyers talking about the written record. "It's easy to write off lawyers. It's harder to write off people who are sitting in front of you," Rep. Lindsey Graham (R) of South Carolina, one of the House managers, said on a Fox TV show yesterday.

This is true especially when testimony is conflicting - as it is between Lewinsky and Clinton, or between Ms. Currie and Lewinsky. "The only way to resolve it is to see the demeanor of the witnesses,... look into their eyes, and determine where the truth is," said Rep. Asa Hutchinson (R) of Arkansas, another of the House managers.

All along, the White House has insisted it wants no witnesses - primarily because it doesn't want to draw out the trial and eat into the president's timetable for "doing the people's business." But now it appears Clinton's team is considering calling Linda Tripp and her book agent, Lucianne Goldberg, as well as others who might undermine the integrity of Kenneth Starr's investigation.

George Washington University law professor Jonathan Turley says a key component of the witness issue is the American public. If there are witnesses, "without a doubt, the public will watch." Without witnesses, predicts Mr. Turley, public interest in the proceedings will be minimal.

Turley says a viewing public would focus more on the facts of the case, and less on the politics. "The longer the trial, the more likely the public will begin to view Clinton as a criminal defendant and not as a president," he says.

Turley sees some dangers in the new procedures. If they truncate the managers' presentation - or result in no witnesses at all - the House will have been deprived of a fair chance to make its case, he argues. Witnesses have been the norm in previous impeachment cases. The Senate procedure in the Clinton case represents a "historic change" that is too restrictive, he argues.

Professor Dinh sees it differently. "It's a very good process," he says, because it allows senators to decide on witnesses "when they have more information."