Senate rules are just that — rules the Senate chooses to impose on itself. It can change any of its rules or suspend their application. A bipartisan group of senators tried to suspend the secrecy rule during the Clinton impeachment. They failed, but they did manage to pass a motion that allowed a tortured sort of record to be published. Each senator could choose to place his or her statement in the Congressional Record. But if one senator’s remarks mentioned something another senator said during the closed-door proceedings, that senator had to agree to have that portion of the remarks included in the record.

It was a cumbersome procedure that resulted only in limited disclosure after the trial had concluded, and, if used again, would not ensure full and contemporaneous public disclosure of what senators said during deliberations leading up to a vote to acquit or convict.

Critics within the Senate have emphasized the limitations of what has become the institution’s secrecy default.

During the Clinton impeachment trial, Senator Susan Collins, Republican of Maine, said “this is the most important issue to come before the Senate this year, and our debate should be conducted in full view of the American people, not behind closed doors.” Senator Patrick Leahy, Democrat of Vermont, observed that “opening deliberations would help further the dual purposes of our rule to promote fairness and political accountability in the impeachment process.”

During the Clinton impeachment proceedings, CNN filed an application with Chief Justice Rehnquist and the Senate itself seeking public access to the proceedings but received no response. The request was rooted in the First Amendment and argued that its commands were “at war with closed-door impeachment deliberations.” In a Supreme Court case that CNN cited, Chief Justice Warren Burger had observed that “people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”