The opinion of the court was delivered by: OBERDORFER
LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE.
Nixon sues the United States, James A. Baker III, Secretary of the State, and Ralph Mecham, Director of the Administrative Office of the United States Courts for a declaration that the conviction voted by the Senate on the impeachment charges is void. His theory on the merits derives from the terms of the U.S. Const. Art. I, § 2, cl. 5 which vests in the Senate "the sole Power to try all Impeachments." He contends that this language requires the Senate as a body to "try" an impeachment on the floor of the Senate so that all Senators can, if present, see the witnesses, hear their testimony, and thereby effectively appraise their credibility. He complains that in this case, despite his requests for trial before the "full" Senate, the Senate, as such, did not see witnesses and hear their testimony. Instead, operating pursuant to Rule XI, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, adopted in 1936 but employed for the first time in 1986 and 1989 for the impeachment trials of Judges Harry Claiborne and Alcee Hastings, the Senate appointed a committee of twelve Senators. Only the committee members viewed the evidence and took the testimony of witnesses. Therefore, plaintiff claims, in essence, that Rule XI and his conviction violate the literal requirement of Article I that only "the Senate" is authorized to "try" an impeachment and take testimony of witnesses.
Rule XI provides in relevant part:
Rule in the trial of any impeachment the Presiding Officer of the Senate, upon the order of the Senate, shall appoint a committee of twelve Senators to receive evidence and take testimony . . . .
. . . . The committee so appointed shall report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before such committee, and such report shall be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes . . . . as having been received and taken before the Senate . . . .
A Senate Resolution, adopted pursuant to Rule XI, appointed a Committee of twelve Senators to hold an evidentiary hearing, to submit to the Senate "a certified copy of the transcript of the proceedings before the committee and testimony had and given before it," and to "report to the Senate a statement of facts and a summary . . . . of evidence that the parties have introduced on the contested issues of fact."
The committee took testimony over four days. The House managers called four witnesses. Six witnesses, including the plaintiff, testified in his defense. The hearings were broadcast live to all Senate offices and videotaped for future reference by Senators. The record is silent as to how many Senators took advantage of these opportunities to view the committee proceedings. The committee was not authorized to, and did not, vote on guilt or innocence and made no recommendation. Its report, filed on October 16, 1989, did however note that:
Many specific details -- including some that are very important -- about each of these conversations are disputed by the parties. Indeed, the committee received dramatically inconsistent testimony concerning the substance, date, and result of these conversations from the participants in the conversations themselves -- Judge Nixon, Wiley Fairchild, and Bud Holmes -- as well as from a fourth witness, . . . . Familiarity with these witnesses' various, and divergent, testimony concerning these three conversations is critical to obtaining an understanding of the parties' respective positions . . . .
During the course of the proceedings, plaintiff filed a motion before the committee for a trial before the full Senate based on the provision of Rule XI that:
Nothing herein shall prevent the Senate from sending for any witness and hearing his ...