WASHINGTON — Americans tuning in to witness electrifying exchanges in the Senate impeachment trial of President Donald Trump might be in for a shock themselves: Lawmakers could pull the C-SPAN plug and go into closed session at critical moments of debate over the conduct of the trial and the fate of the president.
While it seems anachronistic today given the expectation of wall-to-wall news coverage and an emphasis on government transparency, impeachment rules and precedent allow the Senate to clear the chamber of journalists and spectators and bar the doors so senators can talk privately among themselves for hours on end.
Senators met extensively in closed session during the impeachment trial of President Bill Clinton in 1999 — at least six times — to debate questions of witnesses and whether to dismiss the articles of impeachment, and also to conduct final deliberations much as a court jury would on whether to remove him from office.
Such sessions also occurred in the impeachment trial of Andrew Johnson and have been typical in the impeachment trials of federal judges. But those events are in the past, and the notion of the Senate essentially going dark during such a momentous event might catch many people off guard.
Sen. John Thune of South Dakota, the No. 2 Republican, said Thursday that it was “hard to say” whether or how often the Trump impeachment trial might move into closed session. But gathering privately could occur as early as Tuesday, depending on how seriously Republicans and Democrats clash over ground rules for the remainder of the proceeding.
Senators from both parties said they would like the trial to be as open as possible — and are well aware of the troubling optics of shuttering the Senate while weighing the future of the president.
“I hope none of it is closed,” said Sen. John Cornyn, R-Texas.
That view might be shared by Trump, who has suggested that he is counting on a public trial in the Republican-controlled Senate to discredit the impeachment initiated by House Democrats and vindicate him, proving his frequent claim that he did nothing wrong in his dealings with Ukraine.
But given deep disputes between Republicans and Democrats over what the trial should entail and a prohibition on senators talking on the floor, Senate officials said that some closed sessions were probably inevitable. They are quietly laying the groundwork for that option, hoping to tamp down any criticism that information is being hidden.
They argue that closed-session deliberations are the only opportunity senators have during an impeachment trial, when the Senate’s rules compel them to stay silent, to actually discuss a dispute or argue an issue.
Still, lawmakers said any move to limit the public’s ability to follow the course of events is likely to fuel skepticism about what the Senate is up to and whether the Republican majority is trying to protect Trump from embarrassing disclosures. That is especially the case now, after the president stonewalled the House impeachment inquiry, blocking witnesses and refusing to turn over documents. Democrats have already accused the president’s allies in the Senate of assisting in a cover-up by refusing to seek more evidence during the trial.
Sen. Richard Blumenthal, D-Conn., said closed sessions would undermine the credibility of the trial and “simply feed the worst fears and exacerbate the suspicion and distrust that people understandably already feel.”
As the trial approaches, Senate leaders have already locked down the Capitol in extraordinary ways, tightening control over movement by the news media and denying a request to allow laptops in the chamber to ease coverage of the proceeding. An extra level of screening for electronics is being added at the entrance to the press gallery in the chamber. Some lawmakers told reporters that there was a fear that someone might stash a recorder to try to capture deliberations in a closed session.
The discussions in a closed Senate impeachment meeting are not classified. During the Clinton impeachment, senators often emerged to share what went on privately. Some even distributed the statements they delivered to their colleagues during final deliberations over whether to convict or acquit Clinton. But the flow of information is dependent on the willingness of participants to disclose what was said.
Those who participated in the Clinton trial said the closed sessions were unique, with the cameras turned off and the lights turned down. Russ Feingold, a former Democratic senator from Wisconsin, said he found the atmosphere slightly eerie.
Other former senators said the closed doors, combined with the inability of senators to posture for the cameras or the news media, led to more free-flowing and elevated discussion as lawmakers expressed their views without fear of retaliation — or today’s equivalent of a social media beatdown. Joe Lieberman, a former Democratic senator from Connecticut, said he remembered such debates in 1999 as some of the most meaningful of his time in the Senate.
“They were serious,” he recalled. “They were thoughtful, they respected the seriousness of the moment. It was quite different, the quality of the debate. Maybe we just felt something historic was going on.”
Tom Daschle, who at the time was a Democratic senator from South Dakota and the party leader, shared the sentiment.
“We had open and closed sessions during the Clinton trial,” he said. “Surprisingly, we found that the closed sessions were oftentimes more productive. There was more candor, less public positioning, fewer speeches directed to the cameras. There is a need for both open and closed sessions.”
Historians note that the expectation that government proceedings must be fully open is relatively new and that the government’s founding document — the Constitution — was drafted in secret behind guarded doors.
“There is clearly strong precedent for the use of secrecy in at least some phases of the deliberation,” said David Pozen, a law professor at Columbia Law School who has studied the issue. “That seems eminently defensible as long as it is buffered by transparency at the outset about the charge and transparency at the back end about the ultimate outcome.”
Even though “maximal transparency is not always conducive to honest and healthy deliberations,” Pozen said, “the cultural association of closed-door proceedings with bad motives and illegitimate actions has never been stronger.”
That might be an issue for the Senate if it has to shift into closed sessions to debate an impeachment that has already divided the public in an era when suspicions and conspiracy theories are easily stoked on social media.
“This is for the American people to witness,” said Sen. Richard Durbin, D-Ill., as he urged that the Senate avoid closed-door sessions to the extent possible. “For many of them, this will be the first time they have paid attention to this.”