Open-and-Shut: Senate Impeachment Deliberations Must Be Public

During President William Clinton's impeachment trial, Chief Justice William Rehnquist denied a request to open the deliberations to the public, relying on Senate tradition and ambiguous rules of procedure. This article examines the current Senate impeachment rules in the context of an historical tradition of Senate secrecy, and argues for rule changes to create a clear rule of openness at all stages of an impeachment trial, including deliberations. Professor Cohn argues the rules adopted in the 19th century need to be modified to conform to 21st century America. Differences discussed include popularly elected senators, increased accountability of government stemming largely from the Watergate affair and the advent of television and First Amendment jurisprudence providing the right to a public trial.

A distinction is drawn between the functions of jurors in a judicial proceeding, whose deliberations are closed to the public, and senators in an impeachment trial, who are accountable to the electorate. The partisan debate on closure in the Clinton case is explicated with quotes from many of the Senators. Cohn advocates specific rule changes.