    [Senate Document 106-4]
    [From the U.S. Government Publishing Office]

    106th Congress                                                  S. Doc.
                                     SENATE
     1st Session                                                     106-4
    _______________________________________________________________________

                              PROCEEDINGS OF THE

                             UNITED STATES SENATE

                                    IN THE

                             IMPEACHMENT TRIAL OF

                      PRESIDENT WILLIAM JEFFERSON CLINTON

     VOLUME IV: STATEMENTS OF SENATORS REGARDING THE IMPEACHMENT TRIAL OF
                      PRESIDENT WILLIAM JEFFERSON CLINTON

                                VOLUME IV OF IV

                   February 12, 1999.--Ordered to be printed

                                   __________

                        U.S. GOVERNMENT PRINTING OFFICE
    57-104                     WASHINGTON : 1999

                     OFFICE OF THE SECRETARY OF THE SENATE

                             Gary Sisco, Secretary

                     Sharon A. Zelaska, Assistant Secretary

       Ronald Kavulick and Jerald D. Linnell, Chief Reporters of Debates

                         Bruce E. Kasold, Chief Counsel

                             Keith Simmons, Counsel

                                    ------

                          UNANIMOUS CONSENT AGREEMENT

                       In the Senate of the United States

                               February 12, 1999

        Mr. LOTT. I ask unanimous consent that the Secretary be
    authorized to include these statements [of Senators explaining
    their votes], along with the full record of the Senate's
    proceedings, the filings by the parties, and the supplemental
    materials admitted into evidence by the Senate, in a Senate
    document printed under the supervision of the Secretary of the
    Senate, that will complete the documentation of the Senate's
    handling of these impeachment proceedings.
        The CHIEF JUSTICE. Without objection, it is so ordered.
                     To the memory of Raymond Scott Bates,

                        Legislative Clerk of the Senate,

    who, until his untimely and tragic accidental death on February
    5, 1999, in the midst of these proceedings, brought to the
    conduct of this trial the constant dedication, skill, and
    professionalism that characterized his Senate career. Scott
    represented the best of the Senate staff who work tirelessly to
    support the institution and its members.
                                    FOREWORD

                                  ----------

        This document contains the full record of the United States
    Senate proceedings in the impeachment trial of President
    William Jefferson Clinton. Its purpose is to preserve for the
    future use of the Senate, the American people, and historians
    the formal record of the only Presidential impeachment trial of
    the 20th century. Together with the 24-volume Senate Document
    106-3, which contains all publicly available materials
    submitted to or produced by the Judiciary Committee of the
    House of Representatives, these four volumes represent the
    entire official record of the impeachment actions against
    President Clinton.\1\
    ---------------------------------------------------------------------------
        \1\ The Senate, by a unanimous-consent agreement of February 12,
    1999, authorized the Secretary of the Senate to oversee the printing of
    the Senate proceedings in order to complete the documentation of the
    impeachment trial.
    ---------------------------------------------------------------------------
        The present four volumes include the Senate proceedings in
    open session; filings by the parties; supplemental materials
    received in evidence that were not part of the House record,
    such as affidavits and depositions; floor statements of
    Senators in open session expressing their views regarding the
    proceedings; and statements delivered in closed deliberations
    that individual Senators elected to make public.
        The document is divided into four sections--
              Volume I: Preliminary Proceedings
              Volume II: Floor Trial Proceedings
              Volume III: Depositions and Affidavits
              Volume IV: Statements of Senators Regarding the
            Impeachment Trial of President William Jefferson
            Clinton

                       Volume I: Preliminary Proceedings

        This volume contains the portion of the Senate proceedings
    that occurred before the actual trial commenced. On December
    19, 1998, the House of Representatives adopted two articles of
    impeachment against President Clinton (House Resolution 611,
    105th Congress) and a subsequent resolution appointing managers
    on the part of the House (House Resolution 614, 105th
    Congress).
        Because the Senate of the 105th Congress had already
    completed its business and adjourned sine die, the House
    managers, in the late afternoon of December 19, 1998, delivered
    the articles of impeachment to the Secretary of the Senate. The
    Senate of the 106th Congress convened and organized on January
    6, 1999, and the House notified the Senate that it had
    reappointed the managers (House Resolution 10, 106th Congress).
    On January 7, 1999, the House managers exhibited the articles
    of impeachment to the Senate and the Chief Justice of the
    United States, as presiding officer during the impeachment
    trial, took the prescribed oath, as did all Senators.
        On January 8, 1999, the Senate unanimously directed that
    the summons be issued to President Clinton and that his answer
    to the articles be filed, together with the response of the
    House of Representatives (Senate Resolution 16, 106th
    Congress). This resolution admitted into evidence the materials
    submitted by the House Judiciary Committee and authorized their
    publication. It also allowed the parties to file preliminary
    motions (none was filed), established a schedule for the filing
    of trial briefs by the parties, and established further
    procedures for the conduct of the trial. Although all these
    documents were previously printed in Senate Document 106-2--as
    well as the text of the provisions of the United States
    Constitution applicable to impeachment and the Rules of
    Procedure and Practice of the Senate When Sitting in
    Impeachment Trials--they are reprinted here for ease of
    reference.

                       Volume II: Floor Trial Proceedings

        This volume reproduces the full record of the Senate floor
    proceedings in the impeachment trial as provided under Senate
    Resolution 16. The resolution first permitted the parties an
    extended period to make their presentations. The managers
    presented their case on behalf of the House of Representatives
    on January 14, 15, and 16, 1999. Counsel for the President
    presented their case on January 19 and 20, 1999. The Senate
    then devoted January 22 and 23, 1999, to posing questions to
    the House managers and counsel.
        Senate Resolution 16 also provided that, at the end of the
    question-and-answer period, the Senate would consider
    separately a motion to dismiss and a motion to subpoena
    witnesses and to present additional evidence not in the record.
    On January 25, 1999, the Senate heard argument on the motion to
    dismiss and, on January 26, 1999, considered the motion by the
    House managers to call witnesses and admit additional evidence.
    The Senate voted to deny the motion to dismiss and to grant the
    motion to subpoena witnesses.
        On January 28, 1999, the Senate established procedures for
    the taking of depositions (Senate Resolution 30), and three
    witnesses were deposed on February 1, 2, and 3, 1999. On
    February 4, 1999, the Senate heard argument and voted on
    motions to admit the deposition testimony into evidence, to
    call witnesses to testify on the Senate floor, and to proceed
    directly to closing arguments. The portions of the deposition
    transcripts admitted into evidence are reproduced in this
    volume, while the full transcripts of the three depositions
    appear in Volume III. Both parties presented evidence to the
    Senate on February 6, 1999.
        On February 8, 1999, the parties presented final arguments
    to the Senate. The Senate then considered proposals by various
    Senators to suspend the Senate impeachment rules to permit
    deliberation in open session, but all deliberations on motions
    and on the articles of impeachment occurred in closed session.
    (The proceedings in closed session are not published here, but
    statements that Senators elected to make public are printed in
    Volume IV.) Volume II concludes with the record of the February
    12, 1999, vote and judgment of the Senate to acquit President
    Clinton on both articles of impeachment.

                     Volume III: Depositions and Affidavits

        This volume reproduces the complete transcripts of the
    depositions taken by the Senate of witnesses Monica S.
    Lewinsky, Vernon E. Jordan, Jr., and Sidney Blumenthal. It also
    contains the affidavits of Christopher Hitchens, Carol Blue,
    and R. Scott Armstrong, which were admitted into evidence by a
    unanimous-consent agreement of February 12, 1999.

     Volume IV: Statements of Senators Regarding the Impeachment Trial of
                      President William Jefferson Clinton

        By unanimous consent, the Senate agreed to provide each
    Senator an opportunity to place in the Congressional Record a
    statement describing his or her own views on the impeachment.
    The statement could, if a Senator so chose, be a statement he
    or she had delivered during closed deliberations. Since not all
    Senators chose to publish their remarks, the fact that a
    statement of a particular Senator does not appear in Volume IV
    does not mean that the Senator did not address the Senate
    during its closed deliberations.

        The publication of these four volumes, supplemented with
    Senate Document 106-3, contributes to a fuller understanding of
    the way in which the Senate conducted these important and
    historic proceedings.

                                   Gary Sisco,
                              Secretary of the Senate.

                                C O N T E N T S

                                  ----------

                                                                       Page

    Foreword.........................................................     V

                       VOLUME I: PRELIMINARY PROCEEDINGS

    Constitutional Provisions on Impeachment.........................     1
    Rules of Procedure and Practice in the Senate When Sitting on
      Impeachment Trials.............................................     3

                                January 6, 1999

    Statements of Senators Lott and Reid regarding access to Senate
      floor, galleries, and wing during impeachment proceedings [145
      Cong. Rec. S7 (daily ed. Jan. 6, 1999)]........................    15
    Unanimous-consent agreement on access to Senate floor, galleries
      and wing during impeachment proceedings [145 Cong. Rec. S7-8
      (daily ed. Jan. 6, 1999)]......................................    16
    Notice of receipt of message from House of Representatives by
      Secretary of the Senate during sine die adjournment announcing
      impeachment of President and appointment of Managers [145 Cong.
      Rec. S14-15 (daily ed. Jan. 6, 1999)]\1\.......................    17
    Notice of receipt of message from House of Representatives
      announcing reappointment of Managers, H. Res. 10, 106th Cong.
      (1999) [145 Cong. Rec. S15 (daily ed. Jan. 6, 1999)]\2\........    19
    Unanimous-consent agreement on receiving Managers and requesting
      attendance of Chief Justice [145 Cong. Rec. S36 (daily ed. Jan.
      6, 1999)]......................................................    20
    Message from House of Representatives announcing reappointment of
      Managers [145 Cong. Rec. S36 (daily ed. Jan. 6, 1999)].........    22
    H. Res. 611, 105th Cong. (1998)..................................    23
    H. Res. 614, 105th Cong. (1998)..................................    29
    H. Res. 10, 106th Cong. (1999)...................................    31
    Sample of Senate Impeachment Trial gallery tickets...............    33

                                January 7, 1999

    Exhibition of Articles of Impeachment Against William Jefferson
      Clinton, President of the United States [145 Cong. Rec. S39-41
      (daily ed. Jan. 7, 1999)]......................................    35
    Resolution by Senators Lott and Daschle to authorize taking
      photograph in Senate Chamber of swearing-in, S. Res. 11, 106th
      Cong. (1999) [145 Cong. Rec. S41 (daily ed. Jan. 7, 1999)].....    38
    Appointment of escort committee to receive Chief Justice [145
      Cong. Rec. S41 (daily ed. Jan. 7, 1999)].......................    38
    Administration of oath to Chief Justice and Members of Senate
      [145 Cong. Rec. S41-42 (daily ed. Jan. 7, 1999)]...............    40
    S. Res. 11, 106th Cong. (1999)...................................    41
    Photographs taken pursuant to S. Res. 11, 106th Cong. (1999).....    42

                                January 8, 1999

    Resolution by Senators Lott and Daschle providing for issuance of
      summons to William Jefferson Clinton, President of the United
      States, and establishing trial procedures, S. Res. 16, 106th
      Cong. (1999) [145 Cong. Rec. S50 (daily ed. Jan. 8, 1999)].....    45
        Rollcall Vote No. 1 [145 Cong. Rec. S50 (daily ed. Jan. 8,
          1999)].....................................................    47
    S. Res. 16, 106th Cong. (1999)...................................    48
    Writ of Summons (January 8, 1999)................................    53

                                January 11, 1999

    Answer of President William Jefferson Clinton to Articles of
      Impeachment (January 11, 1999).................................    58
    Trial Memorandum of United States House of Representatives, with
      Appendix (January 11, 1999)....................................    71

                                January 13, 1999

    Trial Memorandum of President William Jefferson Clinton (January
      13, 1999)......................................................   365
    Appendix to Trial Memorandum of President William Jefferson
      Clinton (January 20, 1999)\3\..................................   500

                                January 14, 1999

    Replication of House of Representatives to Answer of President
      William Jefferson Clinton to Articles of Impeachment (January
      14, 1999)......................................................   735
    Reply of United States House of Representatives to Trial
      Memorandum of President William Jefferson Clinton (January 14,
      1999)..........................................................   740

                       VOLUME II: FLOOR TRIAL PROCEEDINGS
                                January 14, 1999

    Resolution by Senator Lott to authorize installation of
      appropriate equipment and furniture in Senate Chamber, S. Res.
      17, 106th Cong. (1999) [145 Cong. Rec. S59 (daily ed. Jan. 14,
      1999)].........................................................   773
    Unanimous-consent agreement on floor privileges during closed
      session [145 Cong. Rec. S59-60 (daily ed. Jan. 14, 1999)]......   774
    Unanimous-consent agreement on authority to print documents filed
      by the parties and other impeachment documents \4\ [145 Cong.
      Rec. S60 (daily ed. Jan. 14, 1999)]............................   775
    Writ of Summons and Return of Service by Sergeant at Arms
      (January 8, 1999) [145 Cong. Rec. S60-61 (daily ed. Jan. 14,
      1999)].........................................................   776
    Answer of President William Jefferson Clinton to Articles of
      Impeachment (January 11, 1999) [145 Cong. Rec. S61-63 (daily
      ed. Jan. 14, 1999)]............................................   778
    Trial Memorandum of United States House of Representatives, with
      Appendix (January 11, 1999) [145 Cong. Rec. S63-190 (daily ed.
      Jan. 14, 1999)]................................................   783
    Trial Memorandum of President William Jefferson Clinton (January
      13, 1999) [145 Cong. Rec. S191-214 (daily ed. Jan. 14, 1999)]..   938
    Replication of House of Representatives to Answer of President
      William Jefferson Clinton to Articles of Impeachment [145 Cong.
      Rec. S214-15 (daily ed. Jan. 14, 1999)]........................   992
    Reply of United States House of Representatives to Trial
      Memorandum of President William Jefferson Clinton (January 14,
      1999) [145 Cong. Rec. S215-21 (daily ed. Jan. 14, 1999)].......   994
    Presentation of case by House Managers [145 Cong. Rec. S221-51
      (daily ed. Jan. 14, 1999)].....................................  1007
    S. Res. 17, 106th Cong. (1999)...................................  1087
    Floor plan and seating arrangements in Senate Chamber for
      impeachment trial proceedings..................................  1089

                                January 15, 1999

    Presentation of case by House Managers [145 Cong. Rec. S260-79
      (daily ed. Jan. 15, 1999)].....................................  1091

                                January 16, 1999

    Presentation of case by House Managers [145 Cong. Rec. S281-300
      (daily ed. Jan. 16, 1999)].....................................  1144

                                January 19, 1999

    Presentation of case for President [145 Cong. Rec. S483-95 (daily
      ed. Jan. 19, 1999)]............................................  1195
    Statement of Senator Feingold in legislative session [145 Cong.
      Rec. S720-21 (daily ed. Jan. 19, 1999)]........................  1225

                                January 20, 1999

    Statement of Senator Harkin in legislative session [145 Cong.
      Rec. S729-32 (daily ed. Jan. 20, 1999)]........................  1227
    Statement of Senator Wellstone in legislative session [145 Cong.
      Rec. S732-33 (daily ed. Jan. 20, 1999)]........................  1234
    Presentation of case for President [145 Cong. Rec. S810-30 (daily
      ed. Jan. 20, 1999)]............................................  1237

                                January 21, 1999

    Presentation of case for President [145 Cong. Rec. S832-48 (daily
      ed. Jan. 21, 1999)]............................................  1292
    Statement of Senator Lott regarding procedure for question-and-
      answer period [145 Cong. Rec. S848 (daily ed. Jan. 21, 1999)]..  1335
    Notice of Intent to Suspend the Rules of the Senate by Senators
      Harkin and Wellstone [145 Cong. Rec. S848-49 (daily ed. Jan.
      21, 1999)].....................................................  1336

                                January 22, 1999

    Questions submitted by Senators and answers of House Managers and
      counsel for President [145 Cong. Rec. S869-92 (daily ed. Jan.
      22, 1999)].....................................................  1338
    Notice of Intent to Suspend the Rules of the Senate by Senators
      Hutchison, Specter, Lieberman, Hagel, Collins, and Snowe [145
      Cong. Rec. S892 (daily ed. Jan. 22, 1999)].....................  1396
    Sample question card used by Senators............................  1398

                                January 23, 1999

    Questions submitted by Senators and answers of House Managers and
      counsel for President [145 Cong. Rec. S933-56 (daily ed. Jan.
      23, 1999)].....................................................  1400
    Letter from Senator Harkin to Chief Justice (January 23, 1999)...  1461

                                January 25, 1999

    Letter from Chief Justice to Senator Harkin (January 25, 1999)...  1462
    Unanimous-consent agreement on argument on motion to dismiss and
      on motion to open debate [145 Cong. Rec. S962-63 (daily ed.
      Jan. 25, 1999)]................................................  1466
    Motion of Senator Byrd to dismiss impeachment proceedings [145
      Cong. Rec. S963 (daily ed. Jan. 25, 1999)].....................  1469
    Argument of House Managers in opposition to motion to dismiss
      [145 Cong. Rec. S963-65 (daily ed. Jan. 25, 1999)].............  1469
    Argument of counsel for President in support of motion to dismiss
      [145 Cong. Rec. S965-70 (daily ed. Jan. 25, 1999)].............  1476
    Rebuttal argument of House Managers in opposition to motion to
      dismiss [145 Cong. Rec. S970-73 (daily ed. Jan. 25, 1999)].....  1489
    Motion to Suspend the Rules of the Senate by Senators Harkin,
      Wellstone, Feingold, Leahy, Lieberman, Johnson, Inouye,
      Schumer, Wyden, Kerrey, Bayh, Torricelli, Lautenberg, Robb,
      Dodd, Murray, Dorgan, Conrad, Kennedy, Kerry, Durbin, Boxer,
      Graham, Bryan, Landrieu, and Mikulski [145 Cong. Rec. S973-74
      (daily ed. Jan. 25, 1999)].....................................  1495
        Rollcall Vote No. 2 [145 Cong. Rec. S973-74 (daily ed. Jan.
          25, 1999)].................................................  1496
    Closed deliberation [145 Cong. Rec. S974 (daily ed. Jan. 25,
      1999)].........................................................  1497
    Statement of Senator Mikulski in legislative session [145 Cong.
      Rec. S987 (daily ed. Jan. 25, 1999)]...........................  1498

                                January 26, 1999

    Motion and Memorandum in Support of Motion of United States House
      of Representatives for Appearance of Witnesses at Deposition
      and to Admit Evidence Not in Record (January 26, 1999).........  1500
    Motion of House of Representatives for appearance of witnesses
      and admission of evidence [145 Cong. Rec. S991-92 (daily ed.
      Jan. 26, 1999)]................................................  1531
    Argument of House Managers in support of motion for appearance of
      witnesses and admission of evidence [145 Cong. Rec. S992-99
      (daily ed. Jan. 26, 1999)].....................................  1532
    Unanimous-consent agreement on order of consideration of and
      deliberation on motions to suspend rules and for appearance of
      witnesses and admission of evidence [145 Cong. Rec. S999-1000
      (daily ed. Jan. 26, 1999)].....................................  1552
    Argument of House Managers in support of motion for appearance of
      witnesses and admission of evidence, cont. [145 Cong. Rec.
      S1000-02 (daily ed. Jan. 26, 1999)]............................  1552
    Argument of counsel for President in opposition to appearance of
      witnesses and admission of evidence [145 Cong. Rec. S1002-07
      (daily ed. Jan. 26, 1999)].....................................  1558
    Rebuttal argument of House Managers in support of motion for
      appearance of witnesses and admission of evidence [145 Cong.
      Rec. S1007-09 (daily ed. Jan. 26, 1999)].......................  1571
    Motion of Senator Harkin to Suspend the Rules of the Senate [145
      Cong. Rec. S1010 (daily ed. Jan. 26, 1999)]....................  1578
        Rollcall Vote No. 3 [145 Cong. Rec. S1010 (daily ed. Jan. 26,
          1999)].....................................................  1579
    Closed deliberation [145 Cong. Rec. S1010 (daily ed. Jan. 26,
      1999)].........................................................  1580

                                January 27, 1999

    Vote on motion to dismiss impeachment proceedings [145 Cong. Rec.
      S1017-18 (daily ed. Jan. 27, 1999)]............................  1582
        Rollcall Vote No. 4 [145 Cong. Rec. S1017-18 (daily ed. Jan.
          27, 1999)].................................................  1582
    Vote on motion for appearance of witnesses and admission of
      evidence [145 Cong. Rec. S1018 (daily ed. Jan. 27, 1999)]......  1582
        Rollcall Vote No. 5 [145 Cong. Rec. S1018 (daily ed. Jan. 27,
          1999)].....................................................  1583
    Materials admitted into evidence:
        Affidavit of Barry W. Ward, Law Clerk to Honorable Susan
          Webber Wright, U.S. District Judge for Eastern District of
          Arkansas...................................................  1585
        Declaration of T. Wesley Holmes, with attachments............  1586
        Telephone records documenting conversations between President
          Clinton and Monica S. Lewinsky.............................  1594
    Statement of Senator Hollings in legislative session [145 Cong.
      Rec. S1028-29 (daily ed. Jan. 27, 1999)].......................  1595
    Statements of Senator Abraham in legislative session [145 Cong.
      Rec. S1029-30, 1031 (daily ed. Jan. 27, 1999)]

    Resolution by Senators Lott, Daschle, McConnell and Dodd to authorize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    orize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    . Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    eachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    sed deliberation [145 Cong. Rec. S1437 (daily ed. Feb. 11, 1999)] I601986
    I21Resolution by Senators Lott, Daschle, McConnell and Dodd to authorize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
     deliberations [145 Cong. Rec. S1411�0912 (daily ed. Feb. 10, 1999)] I601982
    I21Closed deliberation [145 Cong. Rec. S1412 (daily ed. Feb. 10, 1999)] I601984
    I74February 11, 1999
    I21Closed deliberation [145 Cong. Rec. S1437 (daily ed. Feb. 11, 1999)] I601986
    I21Resolution by Senators Lott, Daschle, McConnell and Dodd to authorize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    Resolution by Senators Lott, Daschle, McConnell and Dodd to authorize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    tograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    ] I601986
    I21Resolution by Senators Lott, Daschle, McConnell and Dodd to authorize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (
    nators Lott, Daschle, McConnell and Dodd to authorize taking photograph in Senate Chamber of impeachment vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437�0938 (daily ed. Feb. 11, 1999)] I601987
    I21Appointment of committee to escort Chief Justice from Senate Chamber upon conclusion of impeachment trial [145 Cong. Rec. S1454�0955 (daily ed. Feb. 11, 1999)] I601987
    I21Unanimous-consent agreement on consideration of censure resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)] I601988
    I21S. Res. 36, 106th Cong. (1999) I601989
    I74February 12, 1999
    I21Unanimous-consent agreement on printing of statements of Senators in Congressional Record and for printing of Senate document containing full record of impeachment proceedings [145 Cong. Rec. S1457�0958 (daily ed. Feb. 12, 1999)] I601992
    I21Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601993
    A
    I21Vote on first article of impeachment [145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999)] I601994
    I23Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9, 1999)] I601995
    I21Vote on second article of impeachment [145 Cong. Rec. S1458�0959 (daily ed. Feb. 12, 1999)] I601997
    I23Rollcall Vote No. 18 [145 Cong. Rec. S1459 (

    Statement of Senator Lieberman in legislative session [145 Cong.
      Rec. S1030-31 (daily ed. Jan. 27, 1999)].......................  1599

                                January 28, 1999

    Resolution by Senator Lott and amendments thereto by Senator
      Daschle relating to procedures for taking depositions, S. Res.
      30, 106th Cong. (1999) [145 Cong. Rec. S1069-73 (daily ed. Jan.
      28, 1999)].....................................................  1605
        Rollcall Vote No. 6 [145 Cong. Rec. S1071 (daily ed. Jan. 28,
          1999)].....................................................  1608
        Rollcall Vote No. 7 [145 Cong. Rec. S1071-72 (daily ed. Jan.
          28, 1999)].................................................  1609
        Rollcall Vote No. 8 [145 Cong. Rec. S1072 (daily ed. Jan. 28,
          1999)].....................................................  1610
    Unanimous-consent agreement on taking of depositions [145 Cong.
      Rec. S1073-74 (daily ed. Jan. 28, 1999)].......................  1614
    S. Res. 30, 106th Cong. (1999)...................................  1616
    Leadership protocol on depositions pursuant to S. Res. 16 and S.
      Res. 30 (January 28, 1999).....................................  1623
    Statement of Senator Cleland in legislative session [145 Cong.
      Rec. S1105-06 (daily ed. Jan. 28, 1999)].......................  1624
    Statement of Senator Feingold in legislative session [145 Cong.
      Rec. S1106-07 (daily ed. Jan. 28, 1999)].......................  1628
    Statements of Senator Leahy in legislative session [145 Cong.
      Rec. S1107-10 (daily ed. Jan. 28, 1999)].......................  1631

                                January 29, 1999

    Subpoenas issued for witnesses to appear at depositions:
        Monica S. Lewinsky (January 29, 1999)........................  1639
        Vernon E. Jordan, Jr. (January 29, 1999).....................  1642
        Sidney Blumenthal (January 29, 1999).........................  1645

                                February 3, 1999

    Statement of Senator Dorgan in legislative session [145 Cong.
      Rec. S1117-19 (daily ed. Feb. 3, 1999)]........................  1648

                                February 4, 1999

    Motion of House of Representatives for admission of evidence,
      appearance of witnesses, and presentation of evidence [145
      Cong. Rec. S1199-1200 (daily ed. Feb. 4, 1999)]................  1653
    Argument of House Managers in support of motion for admission of
      evidence, appearance of witnesses, and presentation of evidence
      [145 Cong. Rec. S1200-05 (daily ed. Feb. 4, 1999)].............  1654
    Argument of counsel for President in opposition to motion for
      admission of evidence, appearance of witnesses, and
      presentation of evidence [145 Cong. Rec. S1205-07 (daily ed.
      Feb. 4, 1999)].................................................  1667
    Rebuttal argument of House Managers in support of motion for
      admission of evidence, appearance of witnesses, and
      presentation of evidence [145 Cong. Rec. S1207-08 (daily ed.
      Feb. 4, 1999)].................................................  1673
    Votes on motions for admission of evidence, appearance of
      witnesses, and presentation of evidence [145 Cong. Rec. S1209-
      10 (daily ed. Feb. 4, 1999)]...................................  1677
        Rollcall Vote No. 9 [145 Cong. Rec. S1209 (daily ed. Feb. 4,
          1999)].....................................................  1677
        Rollcall Vote No. 10 [145 Cong. Rec. S1209 (daily ed. Feb. 4,
          1999)].....................................................  1678
        Rollcall Vote No. 11 [145 Cong. Rec. S1209-10 (daily ed. Feb.
          4, 1999)]..................................................  1680
        Rollcall Vote No. 12 [145 Cong. Rec. S1210 (daily ed. Feb. 4,
          1999)].....................................................  1681
    Motion of Senator Daschle to proceed to closing arguments [145
      Cong. Rec. S1210 (daily ed. Feb. 4, 1999)].....................  1681
        Rollcall Vote No. 13 [145 Cong. Rec. S1210 (daily ed. Feb. 4,
          1999)].....................................................  1682
    Motion of counsel for President for provision of written notice
      by House Managers of designated video excerpts [145 Cong. Rec.
      S1210-11 (daily ed. Feb. 4, 1999)].............................  1683
        Rollcall Vote No. 14 [145 Cong. Rec. S1210-11 (daily ed. Feb.
          4, 1999)]..................................................  1685
    Unanimous-consent agreement on printing partial transcripts of
      depositions in Congressional Record [145 Cong. Rec. S1212
      (daily ed. Feb. 4, 1999)]......................................  1687
    Materials admitted into evidence:
        Deposition of Monica S. Lewinsky (Feb. 1, 1999) (partial
          transcript) [145 Cong. Rec. S1212-29 (daily ed. Feb. 4,
          1999)].....................................................  1687
        Deposition of Vernon E. Jordan, Jr. (Feb. 2, 1999) (partial
          transcript) [145 Cong. Rec. S1229-46 (daily ed. Feb. 4,
          1999)].....................................................  1736
        Deposition of Sidney Blumenthal (Feb. 3, 1999) (partial
          transcript) [145 Cong. Rec. S1246-54 (daily ed. Feb. 4,
          1999)].....................................................  1776

                                February 6, 1999

    Presentation of evidence by House Managers [145 Cong. Rec. S1290-
      1303 (daily ed. Feb. 6, 1999)].................................  1800
    Presentation of evidence by counsel for President [145 Cong. Rec.
      S1303-15 (daily ed. Feb. 6, 1999)].............................  1836
    Rebuttal presentation of evidence by House Managers [145 Cong.
      Rec. S1315-17 (daily ed. Feb. 6, 1999)]........................  1866
    Unanimous-consent request of Senator Boxer to show additional
      deposition testimony [145 Cong. Rec. S1317-18 (daily ed. Feb.
      6, 1999)]......................................................  1873
    Notice of Intent to Suspend the Rules of the Senate by Senators
      Lott, Daschle, Hutchison, Harkin, Collins, Specter, Wellstone,
      and Leahy [145 Cong. Rec. S1318 (daily ed. Feb. 6, 1999)]......  1873
    Statements of Senator Dodd in legislative session [145 Cong. Rec.
      S1330-32 (daily ed. Feb. 6, 1999)].............................  1874

                                February 8, 1999

    Unanimous-consent request of Senator Lott for admission of
      affidavits into evidence [145 Cong. Rec. S1337 (daily ed. Feb.
      8, 1999)]......................................................  1882
    Final arguments of House Managers [145 Cong. Rec. S1337-44 (daily
      ed. Feb. 8, 1999)].............................................  1882
    Final arguments of counsel for President [145 Cong. Rec. S1344-54
      (daily ed. Feb. 8, 1999)]......................................  1900
    Rebuttal final arguments of House Managers [145 Cong. Rec. S1354-
      65 (daily ed. Feb. 8, 1999)]...................................  1925
    Notice of Intent to Suspend the Rules of the Senate by Senators
      Daschle, Lott, Hutchison, Harkin, Wellstone, Collins, Specter,
      and Leahy [145 Cong. Rec. S1365 (daily ed. Feb. 8, 1999)]......  1955
    Notice of Intent to Suspend the Rules of the Senate by Senators
      Daschle and Feinstein [145 Cong. Rec. S1380 (daily ed. Feb. 8,
      1999)].........................................................  1955
    Letter from House Managers to Senators Lott and Daschle (Feb. 8,
      1999)..........................................................  1956

                                February 9, 1999

    Unanimous-consent request of Senator Specter to allow parties to
      take additional discovery [145 Cong. Rec. S1385 (daily ed. Feb.
      9, 1999)]......................................................  1964
    Motion of Senators Lott and Daschle to Suspend the Rules of the
      Senate [145 Cong. Rec. S1385-86 (daily ed. Feb. 9, 1999)]......  1964
        Rollcall Vote No. 15 [145 Cong. Rec. S1386 (daily ed. Feb. 9,
          1999)].....................................................  1965
    Motion of Senators Lott and Daschle to authorize Senators to
      insert statements delivered in closed deliberations into
      Congressional Record [145 Cong. Rec. S1386-87 (daily ed. Feb.
      9, 1999)]......................................................  1966
    Motion of Senator Lott to close doors of Senate for final
      deliberation [145 Cong. Rec. S1387 (daily ed. Feb. 9, 1999)]...  1970
        Rollcall Vote No. 16 [145 Cong. Rec. S1387 (daily ed. Feb. 9,
          1999)].....................................................  1970
    Closed deliberation [145 Cong. Rec. S1388 (daily ed. Feb. 9,
      1999)].........................................................  1971
    Statement of Senator Leahy in legislative session [145 Cong. Rec.
      S1406-09 (daily ed. Feb. 9, 1999)].............................  1971
    Statement of Senator Feingold in legislative session [145 Cong.
      Rec. S1409 (daily ed. Feb. 9, 1999)]...........................  1978
    Statement of Senator Dodd in legislative session [145 Cong. Rec.
      S1409-10 (daily ed. Feb. 9, 1999)].............................  1980

                               February 10, 1999

    Colloquy on record of closed deliberations [145 Cong. Rec. S1411-
      12 (daily ed. Feb. 10, 1999)]..................................  1982
    Closed deliberation [145 Cong. Rec. S1412 (daily ed. Feb. 10,
      1999)].........................................................  1984

                               February 11, 1999

    Closed deliberation [145 Cong. Rec. S1437 (daily ed. Feb. 11,
      1999)].........................................................  1986
    Resolution by Senators Lott, Daschle, McConnell and Dodd to
      authorize taking photograph in Senate Chamber of impeachment
      vote, S. Res. 36, 106th Cong. (1999) [145 Cong. Rec. S1437-38
      (daily ed. Feb. 11, 1999)].....................................  1987
    Appointment of committee to escort Chief Justice from Senate
      Chamber upon conclusion of impeachment trial [145 Cong. Rec.
      S1454-55 (daily ed. Feb. 11, 1999)]............................  1987
    Unanimous-consent agreement on consideration of censure
      resolution [145 Cong. Rec. S1455 (daily ed. Feb. 11, 1999)]....  1988
    S. Res. 36, 106th Cong. (1999)...................................  1989

                               February 12, 1999

    Unanimous-consent agreement on printing of statements of Senators
      in Congressional Record and for printing of Senate document
      containing full record of impeachment proceedings [145 Cong.
      Rec. S1457-58 (daily ed. Feb. 12, 1999)].......................  1992
    Closed deliberation [145 Cong. Rec. S1458 (daily ed. Feb. 12,
      1999)].........................................................  1993
    Vote on first article of impeachment [145 Cong. Rec. S1458 (daily
      ed. Feb. 12, 1999)]............................................  1994
        Rollcall Vote No. 17 [145 Cong. Rec. S1458 (daily ed. Feb. 9,
          1999)].....................................................  1995
    Vote on second article of impeachment [145 Cong. Rec. S1458-59
      (daily ed. Feb. 12, 1999)].....................................  1997
        Rollcall Vote No. 18 [145 Cong. Rec. S1459 (daily ed. Feb. 9,
          1999)].....................................................  1997
    Order to Secretary of the Senate to communicate judgment of
      Senate to Secretary of State and House of Representatives [145
      Cong. Rec. S1459 (daily ed. Feb. 12, 1999)]....................  1998
    Statement of Chief Justice [145 Cong. Rec. S1459 (daily ed. Feb.
      12, 1999)].....................................................  1998
    Resolution by Senators Lott and Daschle expressing gratitude of
      Senate to Chief Justice of the United States, S. Res. 37, 106th
      Cong. (1999) [145 Cong. Rec. S1459-60 (daily ed. Feb. 12,
      1999)].........................................................  1999
    Unanimous-consent agreement on admitting affidavits into evidence
      and making full deposition transcripts part of the record [145
      Cong. Rec. S1460 (daily ed. Feb. 12, 1999)]....................  2000
    Adjournment sine die [145 Cong. Rec. S1460 (daily ed. Feb. 12,
      1999)].........................................................  2000
    Statements of Senators Lott, Daschle and Chafee in legislative
      session [145 Cong. Rec. S1460 (daily ed. Feb. 12, 1999)].......  2001
    Motion of Senator Feinstein in legislative session to suspend the
      rules in order to permit the consideration of censure
      resolution [145 Cong. Rec. S1462 (daily ed. Feb. 12, 1999)]....  2002
    Motion of Senator Gramm in legislative session to indefinitely
      postpone consideration of motion to suspend rules [145 Cong.
      Rec. S1462 (daily ed. Feb. 12, 1999)]..........................  2002
        Rollcall Vote No. 19 [145 Cong. Rec. S1462 (daily ed. Feb.
          12, 1999)].................................................  2003
    Statement of Senator Feinstein in legislative session [145 Cong.
      Rec. S1664-66 (daily ed. Feb. 12, 1999)].......................  2004
    Statement of Senator Snowe in legislative session [145 Cong. Rec.
      S1546-47 (daily ed. Feb. 12, 1999)]............................  2010
    Statement of Senator Ashcroft in legislative session [145 Cong.
      Rec. S1461 (daily ed. Feb. 12, 1999)]..........................  2011
    Statement of Senator Chafee in legislative session [145 Cong.
      Rec. S1639 (daily ed. Feb. 12, 1999)]..........................  2013
    Statement of Senator Kohl in legislative session [145 Cong. Rec.
      S1656 (daily ed. Feb. 12, 1999)]...............................  2014
    Resolution by Senator Hollings in legislative session to censure
      President [145 Cong. Rec. S1657 (daily ed. Feb. 12, 1999)].....  2015
    Statement of Senator Daschle in legislative session [145 Cong.
      Rec. S1637-38 (daily ed. Feb. 12, 1999)].......................  2015
    Statement of Senator Warner in legislative session [145 Cong.
      Rec. S1667 (daily ed. Feb. 12, 1999)]..........................  2017
    S. Res. 37, 106th Cong. (1999)...................................  2019
    Photograph taken pursuant to S. Res. 36, 106th Cong. (1999)......  2021
    Legislative Clerk's tally sheets for Senate votes on articles of
      impeachment....................................................  2022
    Judgment of United States Senate (Feb. 12, 1999).................  2024

                             TABLE OF ROLLCALL VOTES
    ------------------------------------------------------------------------
                                     Measure/
     Vote No.        Date           Description           Result        Page
    ------------------------------------------------------------------------
    1........  1/8/99.........  S. Res. 16........  Resolution Agreed     47
                                                     to 100-0.
    2........  1/25/99........  Harkin motion to    Motion Rejected     1496
                                 suspend the rules.  43-57.
    3........  1/26/99........  Harkin motion to    Motion Rejected     1579
                                 suspend the rules.  41-58.
    4........  1/27/99........  Byrd motion to      Motion Rejected     1582
                                 dismiss the         44-56.
                                 impeachment
                                 proceedings.
    5........  1/27/99........  House Managers'     Motion Agreed to    1583
                                 motion to           56-44.
                                 subpoena
                                 witnesses and
                                 admit evidence
                                 not in record.
    6........  1/28/99........  Daschle Amdt. No.   Amendment           1608
                                 1 to S. Res. 30.    Rejected 44-54.
    7........  1/28/99........  Daschle Amdt. No.   Amendment           1609
                                 2 to S. Res. 30.    Rejected 43-55.
    8........  1/28/99........  S. Res. 30 as       Resolution Agreed   1610
                                 amended.            to 54-44.
    9........  2/4/99.........  Division I of       Motion Agreed to    1677
                                 House Managers'     100-0.
                                 motion re:
                                 admission of
                                 evidence.
    10.......  2/4/99.........  Division II of      Motion Rejected     1678
                                 House Managers'     30-70.
                                 motion re:
                                 appearance of
                                 witnesses.
    11.......  2/4/99.........  Murray motion to    Motion Rejected     1680
                                 substitute          27-73.
                                 Division III of
                                 House Managers'
                                 motion.
    12.......  2/4/99.........  Division III of     Motion Agreed to    1681
                                 House Managers'     62-38.
                                 motion re:
                                 presentation of
                                 evidence.
    13.......  2/4/99.........  Daschle motion to   Motion Rejected     1682
                                 proceed to          44-56.
                                 closing arguments.
    14.......  2/4/99.........  White House         Motion Rejected     1685
                                 Counsel's motion    46-54.
                                 on video
                                 deposition
                                 excerpts.
    15.......  2/9/99.........  Lott motion to      Motion Rejected     1965
                                 suspend the rules.  59-41.
    16.......  2/9/99.........  Lott motion to      Motion Agreed to    1970
                                 close the doors.    53-47.
    17.......  2/12/99........  Impeachment         Not Guilty 45-55.   1995
                                 Article I.
    18.......  2/12/99........  Impeachment         Not Guilty 50-50.   1997
                                 Article II.
    19.......  2/12/99........  Gramm motion to     Motion Rejected     2003
                                 postpone            43-56.
                                 consideration of
                                 rules suspension
                                 motion.
    ------------------------------------------------------------------------

                     VOLUME III: DEPOSITIONS AND AFFIDAVITS

    Deposition of Monica S. Lewinsky (Feb. 1, 1999) (full transcript)  2027
    Deposition of Vernon E. Jordan, Jr. (Feb. 2, 1999) (full
      transcript)....................................................  2224
    Deposition of Sidney Blumenthal (Feb. 3, 1999) (full transcript).  2399
    Affidavit of Christopher Hitchens (Feb. 5, 1999).................  2534
    Affidavit of Carol Blue (Feb. 7, 1999)...........................  2535
    Affidavit of R. Scott Armstrong (Feb. 8, 1999)...................  2536

     VOLUME IV: STATEMENTS OF SENATORS REGARDING THE IMPEACHMENT TRIAL OF
                    PRESIDENT WILLIAM JEFFERSON CLINTON \5\
                               February 12, 1999

    Sen. Specter \6\.................................................  2537
    Sen. Gorton......................................................  2537
    Sen. Feingold \7\................................................  2545
    Sen. Hutchison...................................................  2548
    Sen. Conrad......................................................  2558
    Sen. Hutchinson..................................................  2561
    Sen. Murray......................................................  2563
    Sen. McCain......................................................  2565
    Sen. Johnson.....................................................  2567
    Sen. Lugar.......................................................  2570
    Sen. Biden.......................................................  2573
    Sen. Abraham.....................................................  2616
    Sen. Mikulski....................................................  2622
    Sen. Grams.......................................................  2625
    Sen. Breaux......................................................  2627
    Sen. Domenici....................................................  2630
    Sen. Sarbanes....................................................  2633
    Sen. Campbell....................................................  2637
    Sen. Kerrey......................................................  2639
    Sen. Voinovich...................................................  2641
    Sen. Lautenberg..................................................  2643
    Sen. Bond \8\....................................................  2646
    Sen. Robb........................................................  2652
    Sen. Boxer.......................................................  2656
    Sen. Mack........................................................  2659
    Sen. Fitzgerald..................................................  2672
    Sen. Roth........................................................  2681
    Sen. Burns.......................................................  2684
    Sen. Inhofe \9\..................................................  2685
    Sen. Cleland.....................................................  2689
    Sen. Frist.......................................................  2694
    Sen. Bunning.....................................................  2703
    Sen. Durbin......................................................  2706
    Sen. Kyl.........................................................  2710
    Sen. Specter.....................................................  2715
    Sen. Levin.......................................................  2738
    Sen. Kohl........................................................  2758
    Sen. Thompson....................................................  2761
    Sen. Moynihan....................................................  2789
    Sen. Graham......................................................  2792
    Sen. Allard......................................................  2794
    Sen. McConnell...................................................  2799
    Sen. Kennedy.....................................................  2807
    Sen. Collins.....................................................  2812
    Sen. Harkin......................................................  2814
    Sen. Reid........................................................  2826
    Sen. Edwards.....................................................  2830
    Sen. Akaka.......................................................  2833
    Sen. Leahy \10\..................................................  2837
    Sen. Grassley....................................................  2867
    Sen. Craig.......................................................  2870
    Sen. Dodd \11\...................................................  2873
    Sen. Jeffords....................................................  2877
    Sen. Wellstone...................................................  2884
    Sen. Stevens.....................................................  2888
    Sen. Lieberman...................................................  2892
    Sen. Brownback...................................................  2905
    Sen. Bryan.......................................................  2913
    Sen. Ashcroft....................................................  2917
    Sen. Thurmond....................................................  2934
    Sen. Crapo.......................................................  2937
    Sen. Dorgan......................................................  2939
    Sen. Kerry.......................................................  2943
    Sen. DeWine......................................................  2948
    Sen. Lincoln.....................................................  2956
    Sen. Helms.......................................................  2959
    Sen. Hollings....................................................  2962
    Sen. Wyden.......................................................  2965
    Sen. Smith (Ore.)................................................  2967
    Sen. Hagel.......................................................  2971
    Sen. Rockefeller.................................................  2972
    Sen. Murkowski...................................................  2977
    Sen. Byrd........................................................  2981
    Sen. Inhofe......................................................  2987
    Sen. Leahy.......................................................  2996
    Sen. Snowe.......................................................  3000

                               February 22, 1999

    Sen. Nickles.....................................................  3005
    Sen. Landrieu....................................................  3013
    Sen. Smith (N.H.)................................................  3016
    Sen. Bingaman....................................................  3022
    Sen. Bennett.....................................................  3024
    Sen. Reed \12\...................................................  3026
    Sen. Enzi........................................................  3033
    Sen. Feingold....................................................  3042

                               February 23, 1999

    Sen. Daschle.....................................................  3053
    Sen. Bond........................................................  3058
    Sen. Sessions \13\...............................................  3059
    Sen. Coverdell...................................................  3063
    Sen. Hatch.......................................................  3066
    Sen. Leahy.......................................................  3090
    Sen. Sessions....................................................  3094
    Sen. Dodd........................................................  3099
    Sen. Leahy.......................................................  3102

                               February 24, 1999

    Sen. Reed........................................................  3103

        \1\ On December 19, 1998, the House of Representatives agreed to H.
    Res. 611, 105th Cong., the Articles of Impeachment, [144 Cong. Rec.
    H12040-42 (daily ed. Dec. 19, 1998)] and H. Res. 614, 105th Cong.,
    which provided for the appointment of managers and procedures relating
    to impeachment proceedings [id. at H12042-43].
        \2\ The House of Representatives agreed to H. Res. 10, 106th Cong.,
    on January 6, 1999 [145 Cong. Rec. H216-17 (daily ed. Jan. 6, 1999)].
        \3\ The Appendix to Trial Memorandum of President William Jefferson
    Clinton, consisting of exhibits, was filed separately on January 20,
    1999, but is inserted here for ease of reference.
        \4\ For ease of reference, the documents contained in S. Doc. 106-
    2, i.e., the pertinent constitutional provisions, the Senate
    Impeachment Rules, the Articles of Impeachment, the Answer of President
    Clinton, and the Replication of the House of Representatives, are
    reprinted in this publication. Separately, the Senate admitted into
    evidence and authorized the printing, pursuant to S. Res. 16, 106th
    Cong., of the publicly available materials submitted to or produced by
    the House Judiciary Committee, including transcripts of public hearings
    or mark-ups and any materials printed by the House of Representatives
    or the House Judiciary Committee pursuant to H. Res. 525 and H. Res.
    581, 105th Cong. (1998). That evidentiary record, S. Doc. 106-3 (1999)
    [24 vols.], is not reproduced here.
        \5\ The unanimous-consent agreement of February 9, 1999, allowed
    each Senator to place in the Congressional Record his or her statement
    delivered during closed deliberations. Not all Senators chose to
    publish their remarks; the fact that a statement of a particular
    Senator does not appear here does not mean that Senator did not address
    the Senate during the closed sessions. Additionally, the unanimous-
    consent agreement of February 12, 1999, allowed Senators to have
    statements and opinions explaining their votes printed in the
    Congressional Record.
        \6\ Sen. Specter submitted an additional statement on February 12,
    see p. 2715 below.
        \7\ Sen. Feingold submitted an additional statement on February 22,
    see p. 3042 below.
        \8\ Sen. Bond submitted an additional statement on February 23, see
    p. 3058 below.
        \9\ Sen. Inhofe submitted an additional statement on February 12,
    see p. 2987 below.
        \10\ Sen. Leahy submitted additional statements on February 12 and
    February 23, see pp. 2996, 3090, 3102 below.
        \11\ Sen. Dodd submitted additional statements on February 23, see
    pp. 3099 and 3100 below.
        \12\ Sen. Reed submitted an additional statement on February 24,
    see p. 3103 below.
        \13\ Sen. Sessions submitted an additional statement on February
    23, see p. 3094 below.
           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Arlen Specter*
    ---------------------------------------------------------------------------

                                       * * * * *
    *Sen. Specter submitted an additional statement on February 12, see p.
    2715, below.
    ---------------------------------------------------------------------------
        Mr. SPECTER. Mr. Chief Justice, between the time I made my
    statement in the closed Senate deliberations on February 11 and
    the time I cast my vote on February 12, I consulted with the
    Parliamentarian and examined the Senate precedents and found
    that if I voted simply ``not proven,'' I would be marked on the
    voting roles as ``present.'' I also found that a response of
    ``present,'' and inferentially the equivalent of ``present,''
    could be challenged and that I could be forced to cast a vote
    of ``yea'' or ``nay.''
        I noted the precedent on June 28, 1951, recorded on pages
    S7403 and S7404 of the Congressional Record, when Senator
    Benton of Connecticut and Senator Lehman of New York voted
    ``present'' during a rollcall vote. Senator Hickenlooper of
    Iowa challenged these votes and argued that a Senator must vote
    either ``yea'' or ``nay'' unless the Senate votes to excuse the
    Senator from voting. Senator Hickenlooper's challenge was
    upheld, and the Senate voted against excusing these Senators
    from voting by a vote of 39 to 35 in the case of Senator Lehman
    and a vote of 41 to 34 in the case of Senator Benton.
        I also noted the precedent on August 3, 1954, on page
    S13086 of the Congressional Record, when Senator Mansfield of
    Montana voted ``present'' during a rollcall vote. Senator
    Cordon of Oregon objected and asked that the Senate vote on
    whether Senator Mansfield should be excused from voting. By
    voice vote, the Senate voted against excusing Senator Mansfield
    from voting.
        In order to avoid the possibility that some Senator might
    challenge my vote, I decided to state on the Senate floor,
    ``not proven, therefore not guilty,'' when my name was called
    on the rollcall votes on article I and article II of the
    articles of impeachment. That avoided the possibility of a
    challenge and also more accurately recorded my vote as ``not
    guilty'' since I did not wish to be recorded as merely
    ``present.''
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Slade Gorton

        Mr. GORTON. Mr. Chief Justice, the statement that I am
    placing in the Record is the statement I would have given had I
    been permitted to speak longer and in open session. During our
    closed deliberations, I gave a similar but abridged statement.
        For almost 2 years, the President of the United States was
    engaged in what he has come to describe as an ``inappropriate
    intimate'' relationship with a young woman who came to his
    attention as a White House intern. He then lied about their
    relationship, publicly, privately, formally, informally, to the
    press, to the country, and under oath, for a period of about a
    year.
        This course of conduct requires us to face four distinct
    questions.
        First, we must determine if the material facts alleged in
    the articles of impeachment have been established to our
    satisfaction.
        Second, do the established facts constitute either
    obstruction of justice or perjury, or both?
        Third, are obstruction of justice and perjury high crimes
    and misdemeanors under the Constitution?
        Fourth, even if the acts of the President are high crimes
    and misdemeanors, are they of sufficient gravity to warrant his
    conviction if it allows for no alternative other than his
    removal from office?
        The first article of impeachment alleges that the President
    committed perjury while testifying before the Starr grand jury.
    Although the House managers assert that his testimony is
    replete with false statements, it is clear, at the least, that
    his representations about the nature and details of his
    relationship with Ms. Lewinsky are literally beyond belief.
        From November 1995 until March 1997, the President engaged
    in repeated sexual activities with Monica Lewinsky, who was
    first a volunteer at, and then an employee of the White House
    and eventually the Pentagon. Though he denies directly few of
    her descriptions of those activities, he testified under oath
    that he did not have ``sexual relations'' with her. His
    accommodation of this paradox is based on the incredible claim
    that he did not touch Ms. Lewinsky with any intent to arouse or
    gratify anyone sexually, even though she performed oral sex on
    him.
        It seems to me strange that any rational person would
    conclude that the President's description of his relationship
    with Ms. Lewinsky did not constitute perjury.
        In addition, while we are not required to reach our
    decision on these charges beyond a reasonable doubt, I have no
    reasonable doubt that the President committed perjury on a
    second such charge when he told the grand jury that the purpose
    of the five statements he made to Ms. Currie after his Jones
    deposition was to refresh his own memory.
        The President knew that each statement was a lie. His goal
    was to get Ms. Currie to concur in those lies.
        The other allegations of perjury are either unproven--
    particularly those requiring a strict incorporation of the
    President's Jones deposition testimony into his grand jury
    testimony--or are more properly considered solely--with those
    already discussed--as elements of the obstruction of justice
    charges in article II.
        To determine that the President perjured himself at least
    twice, however, is not to decide the ultimate question of guilt
    on article I. That I will discuss later.
        All the material allegations of article II seem to me to be
    well founded. Four of them, however, those regarding the
    President's encouraging Ms. Lewinsky to file a false affidavit
    and then to give false testimony, those regarding the
    President's failure to correct his attorney's false statements
    to the Jones court, and those bearing upon the disposal of his
    gifts to her are not, in my mind, proven beyond a reasonable
    doubt. Again, I do not believe this standard to be required in
    impeachment trials, but because I believe that the other three
    factual allegations of article II do meet that standard, I
    adopt it for the purposes of this discussion.
        From the time she was transferred to the Pentagon in April
    1996, Ms. Lewinsky had pestered the President about returning
    to work at the White House, and, other than some vague
    referrals, until October 1, 1997, the President had done
    nothing to make this happen and little to help her find another
    job.
        On the first of October 1997, the President was served with
    interrogatories in the Jones case asking about his sexual
    relationships with women other than his wife, and during the
    rest of October the President and his agents stepped up their
    efforts to find Ms. Lewinsky a job. Three weeks later, on
    October 21, the U.S. Ambassador to the United Nations, Bill
    Richardson, called Ms. Lewinsky personally to schedule an
    interview in her apartment complex, though apparently he
    interviewed no one else. Shortly after this unusual interview,
    the Ambassador created a new position in New York and offered
    it to Ms. Lewinsky.
        What is perhaps most striking about the U.N. job is not
    even how promptly it materialized, nor that the U.S. Ambassador
    was so personally involved in hiring a young woman with
    precious little job experience, but that Ambassador Richardson
    held the specially crafted sinecure open for 2 months while the
    former intern kept him waiting on her decision.
        When Ms. Lewinsky decided that she preferred the private
    sector, the President enlisted the help of one of his closest
    personal friends, one of the most influential men in the United
    States, Vernon Jordan. Ms. Lewinsky met with Mr. Jordan in
    early November. Mr. Jordan, who was acting at the President's
    behest, apparently did not fully appreciate how important it
    was for him to cater to Ms. Lewinsky and took no action for a
    month.
        The President and Mr. Jordan realized, however, on December
    5, 1997, the importance of satisfying Ms. Lewinsky's fancy when
    her name appeared on the Jones witness list. Before that date,
    the President needed Ms. Lewinsky only to commit a lie of
    omission--simply to refrain from making their relationship
    public. Her appearance on the witness list now meant that she
    would have to lie under oath.
        Fully appreciative of the higher stakes, the President
    redoubled his efforts and those of his agents to find Ms.
    Lewinsky a job and keep her in his camp. In the weeks after Ms.
    Lewinsky's name appeared on the witness list, Mr. Jordan kept
    the President apprised of his efforts to find work for her in
    the private sector. He called his contacts at American Express,
    Young and Rubicam, and MacAndrews & Forbes, Revlon's parent
    corporation. When Ms. Lewinsky was subpoenaed on December 19,
    1997, to be deposed in the Jones case, Mr. Jordan oversaw the
    preparation of the affidavit that the President had suggested
    she file in lieu of testifying. On January 7, 1997, Ms.
    Lewinsky signed the affidavit, which she later admitted was
    false, denying that she had a ``sexual relationship'' with the
    President. On January 8, she interviewed with MacAndrews &
    Forbes. When she told Mr. Jordan that she had done poorly, he
    called the Chairman of the Board, Ronald Perelman, to recommend
    Ms. Lewinsky, whom he commended as ``this bright young girl,
    who I think is terrific.'' As a result of this conversation,
    Ms. Lewinsky was called back for another interview with
    MacAndrews the following day and given an informal offer. On
    January 9, she reported this to Mr. Jordan, who called Ms.
    Currie with the message, ``mission accomplished'' and then
    called the President himself to share his success.
        The President's lawyers arranged for Ms. Lewinsky's
    affidavit to be filed on January 14, 1998. After this date,
    although Ms. Lewinsky did not end up with a job in the private
    sector, neither the President nor Mr. Jordan, who so resolutely
    pursued their earlier mission, lifted a finger to help the
    ``bright . . . terrific'' young woman. Why? Because shortly
    thereafter the fiction of the President's platonic relationship
    with Lewinsky had exploded. Monica Lewinsky was the same Monica
    Lewinsky, but she now could no longer protect the President.
        It is impossible to reconcile the President's course of
    conduct with any purpose other than to preclude Ms. Lewinsky's
    truthful testimony in the Jones case, or, indeed, to prevent
    her testifying at all. The case for obstruction of justice is
    clear. Obstruction was the President's only motive.
        Next we have the Currie conversation--a set of statements
    by the President in the nominal form of questions, addressed by
    the President to Ms. Currie on the Sunday evening following his
    Jones deposition when she was called to the White House at an
    extraordinary time and for apparently a single purpose. We are
    all familiar now with the questions he posed:
        ``I was never really alone with Monica, right?''
        ``You were always there when Monica was there, right?''
        ``Monica came on to me, and I never touched her, right?''
        ``You could see and hear everything, right?''
        ``She wanted to have sex with me, and I cannot do that.''
        Those five statements have a single common thread: the
    President knew each and every one of them to have been totally
    false.
        Had Ms. Currie been willing to confirm the President's
    suggestions, she would have been a devastatingly effective
    witness for him.
        There is no reasonable explanation of this incident other
    than it is the President's clear attempt to obstruct justice,
    both in the Jones case and in the subsequent grand jury
    investigation.
        The false self-serving statements by the President to
    senior members of his staff, to his Cabinet, and to the
    American people just after his affair became public present a
    somewhat different face. It is reasonably clear that, at the
    time at which they were made, the President's goal, at least in
    part, was to save face with his staff and put a less
    humiliating spin on the Lewinsky matter. At the same time,
    coupled with his public statements, the President's assertions
    to his staff were designed to influence their testimony at some
    future time and place and to enlist them in disguising his
    conduct. In fact, they did obstruct the grand jury
    investigation. The President's manipulation of friendly
    witnesses to testify falsely, if unknowingly, extended for
    months until the DNA evidence shattered both his public and
    private positions.
        The President's attempt to derail the independent counsel's
    inquiry--an inquiry the very purpose of which was to discover
    whether the President gave false testimony and tampered with
    witnesses--by lying to his colleagues, his Cabinet, his
    confidantes, the media, the American people, and ultimately,
    the grand jury, is--beyond a reasonable doubt--a wide-ranging
    and highly public obstruction of justice, deeply damaging to
    the judicial fabric of the United States.
        One final note: to the extent that there are unresolved
    questions of fact, almost every one of them could be resolved
    by truthful and complete testimony by the President himself.
    That is a course of action he spectacularly avoided both in his
    Jones deposition and before the Starr grand jury. Now, he
    refuses to answer interrogatories from Senator Lott and refuses
    to appear at this trial to testify on his own behalf.
        Under the circumstances, is it not appropriate to infer
    that to tell the truth would be to confirm all of the
    questionable charges against him? I have not done so for the
    purposes of this argument, and have considered only those
    charges proven beyond a reasonable doubt, but the President's
    silence allows the inference that every one of the factual
    charges by the House managers is true.
        With sufficient material facts alleged in the two articles
    of impeachment either essentially uncontested or established by
    overwhelming evidence, and with those facts clearly
    constituting both perjury and obstruction, we arrive at the
    third question before the Senate. Are perjury and obstruction
    of justice high crimes and misdemeanors under the impeachment
    clause of the Constitution?
        This is the easiest of the four questions to answer.
    Perjury and crimes less serious than obstruction of justice
    have always and properly been considered high crimes and
    misdemeanors.
        In 1986 Judge Claiborne was convicted by the Senate and
    removed from office for filing a false income tax return under
    penalties of perjury. By a vote of 90 to 7, the Senate rejected
    his argument that he should not be convicted because filing a
    false return was irrelevant to his performance as a judge. In
    1989, Judge Nixon was convicted by the Senate and removed from
    office for perjury: in fact, for lying under oath to a grand
    jury. And in that same year, Judge Hastings was convicted of
    lying under oath and removed by the Senate even though he had
    already been acquitted in a criminal trial--it is generally
    recognized that an act need not be criminal in order to be
    impeachable. As these examples illustrate, perjury is and
    historically has been a sufficient cause for conviction and
    removal. Although no person has been convicted and removed for
    obstruction of justice, the nature and gravity of this crime,
    punished more harshly under our laws than bribery, clearly is
    also a sufficient cause for conviction and removal.
        Most of the Senate's precedents, of course, are based on
    the impeachment trials of judges. President Clinton argues that
    those precedents should not apply; that Presidents, who hold
    the highest office in the land, should benefit from a lower
    standard for removal than the judges they appoint and the
    military officers they command. This President would have
    Presidents remain in office for acts that have resulted in the
    dismissal of military officers under his command, in the
    removal of judges, and for acts that would have resulted in the
    removal of Senators like Bob Packwood, who, like the President,
    are popularly elected for a fixed term. As House Manager Canady
    has pointed out, the 1974 report by the staff of the Nixon
    impeachment inquiry concluded that the constitutional provision
    stating that judges would hold office during ``good
    Behaviour,'' does not limit the relevance of judges'
    impeachments with respect to standards for Presidential
    impeachments. The President's argument that he should be held
    to a lower standard than judges, military officers and Senators
    has no basis in the Constitution, in precedent, in equity, or
    in common sense.
        The fourth and ultimate question, nevertheless, is
    considerably more difficult to answer. For me, the proof of
    material facts supporting some of the allegations is
    overwhelming, the proposition that the established facts of the
    President's conduct constitute perjury and obstruction of
    justice almost impossible to deny, and the conclusion that
    perjury and obstruction of justice are high crimes and
    misdemeanors a given.
        The inevitable result of a guilty verdict in this trial is
    the President's removal from office, and I believe that
    reasonable minds can differ on whether or not that consequence
    is appropriate. So does at least one of the House managers. In
    answering the question of whether removal is too drastic a
    remedy for these alleged acts of perjury and obstruction of
    justice, Lindsey Graham, one of the most thoughtful managers,
    stated that great minds may not necessarily agree on the
    question of whether, for the good of the nation, one should or
    should not remove this President for these high crimes.
    Removal, he said, is the equivalent of the political death
    penalty, and the death penalty is not imposed for every felony.
    Considerations such as repentance and the impact of removal on
    society should also be considered. Mr. Graham's view was not ,
    incidentally, that reasonable minds could differ on any of the
    first three questions that I have outlined, but only on the
    ultimate question of removal.
        While removal upon conviction has not always been
    considered inevitable, I agree that article II, section 4 of
    the Constitution requires a mandatory sentence of removal upon
    conviction of high crimes and misdemeanors. Nevertheless, a
    number of thoughtful commentators, and at least a few Members
    of this Senate, have already decided that removal is too
    drastic a sanction. These commentators and Members--who are
    convinced, perhaps, that the President committed perjury and
    obstruction of justice, which, as classes of crime, are high
    crimes and misdemeanors--may nevertheless vote not to convict
    because they believe that removal from office is unwarranted
    for this perjury and this obstruction of justice.
        I share that conclusion with respect to article I, but not
    article II.
        On article I, I have decided, with some regret, that the
    instances of perjury I believe were established beyond a
    reasonable doubt are offenses insufficient for removing the
    President from office--based on the gravity of the offenses as
    against the drastic nature of removal. Equally important is the
    fact that these instances of perjury are also elements of the
    obstruction of justice charges in article II. One conviction
    for the same acts of perjury is enough.
        Nevertheless, I am convinced that one other reflection must
    precede a decision based on the belief that removal is
    disproportionate to the gravity of the offenses established
    here, and that is: what are the consequences of a not guilty
    finding by the Senate? The consequences are, of course, no
    sanction whatsoever.
        It is precisely because the absence of any sanction is so
    objectionable to those who choke over removal that there has
    been such a spirited search for a third way. But, fellow
    Senators, there is no third way. There is no third way.
        Article I, section 3 of the Constitution states: ``Judgment
    in Cases of Impeachment shall extend no further than to removal
    from Office, and disqualification to hold and enjoy any Office
    of honor, Trust, or Profit under the United States. . . .''
        The drafters did not intend to allow Congress to choose
    among a range of punishments analogous to those available to
    the judiciary, and for this reason they specified that the
    impeached party was to remain subject to judicial process and
    specifically limited to two--removal and disqualification--the
    sanctions that Congress could apply.
        We must, I believe, by reason of this harsh choice
    consciously forced on us at the Constitutional Convention in
    1787, weigh seriously the effect on the Republic of either of
    our two possible courses of action. Will the Republic be
    strengthened, or will it be weakened, by determining that a
    President shall remain in its most exalted office after
    perjuring himself and obstructing the pursuit of justice both
    of a private citizen and of a federal grand jury, in a case
    occasioned by the President's sexual activities? Will the
    Republic be strengthened or weakened by removing the President
    from office by an impeachment conviction for this perjury and
    this obstruction?
        Early in our history an incident involving one of the
    authors of the Constitution, Alexander Hamilton, shows clearly
    the bright line between, on the one hand, a private sexual
    scandal, and on the other, a public obligation--a line the
    President has intentionally crossed.
        In No. 65 of ``The Federalist Papers,'' Mr. Hamilton
    described impeachable offenses as ``those offences which
    proceed from the misconduct of public men, or, in other words,
    from the abuse or violation of some public trust. They are of a
    nature which may with peculiar propriety be denominated
    POLITICAL, as they relate chiefly to injuries done immediately
    to the society itself.'' The President's defenders place great
    reliance on this explanation.
        Within 4 years of the composition of this essay, Mr.
    Hamilton had an opportunity to reflect on his own words. In the
    summer of 1791, Hamilton, then the Secretary of the Treasury,
    had an adulterous affair with a Maria Reynolds. Her husband
    discovered the affair and demanded a job in the Treasury
    Department. Though Secretary Hamilton turned him down, he did
    pay blackmail from his personal funds.
        A year later, three Congressmen, all politically opposed to
    Hamilton, learned of the payments, suspected that they might
    involve Treasury funds, and confronted Hamilton. Despite the
    tremendous political advantage the story, which eventually
    leaked, offered them, he immediately and without hesitation
    told them the truth and nothing but the truth.
        The author of Federalist No. 65 knew very well the
    distinction between a private scandal and the profound
    embarrassment arising out of its publication--and the violation
    of a public duty in an attempt to avoid that embarrassment. He
    chose not to use his Treasury position in a way that would
    justify an impeachment. The personal cost was immense and he
    assumed it without blinking.
        President Clinton could hardly have chosen a more different
    course of action. He chose to violate both his oath of office
    and his oath as a witness, using his office, his staff, and his
    position to try to avoid personal embarrassment. In any event
    even the personal consequences for him have been far worse than
    those visited upon Alexander Hamilton. But it is our duty to
    determine whether he merits a drastic public sanction--or none
    at all.
        Some will say that the President can be charged with crimes
    related to this affair after his term of office is over.
        First, such charges lie outside our jurisdiction or duty.
        Second, such charges seem to me to be unlikely if we acquit
    the President, or in any event.
        But third, and most important, let us assume that President
    Clinton is charged, convicted, and sentenced in 2001. What a
    devastating judgment on the Senate of the United States that
    would be! We ourselves would be convicted, by history and
    forever, of having permitted a felon who abused his office in
    committing his felonies to remain in office as President of the
    United States for 2 long years.
        I simply cannot imagine any Senator willing to carry that
    burden of conscience.
        No, we must choose between the sanction of removal and no
    sanction at all. We know how Alexander Hamilton would vote
    today on our question. We know how James Madison, one of
    Hamilton's interrogators and the careful author of the
    impeachment provision, would have voted. And merely to call up
    the name of George Washington is to answer the question of how
    he would vote.
        The Republic will not be weakened if we convict. The
    policies of the Presidency will not change. The administration
    will not change. If we acquit, if we say that some perjuries,
    some obstructions of justice, some clear and conscious
    violations of a formal oath are free from our sanction, the
    Republic and its institutions will be weakened. One exception
    or excuse will lead to another, the right of the most powerful
    of our leaders to act outside the law--or in violation of the
    law--will be established. Our republican institutions will be
    seriously undermined. They have been undermined already, and
    the damage accrues to all equally--Republicans, Democrats,
    liberals, and conservatives.
        If there is one thing this President can be relied on to
    do, it is to put his interests before those of his office and
    of the Republic. President Clinton has debased the Presidency
    now and, if he is allowed to remain in office, the low level to
    which he has brought the presidency will continue, and that is
    not tolerable.
        I cannot will to my children and grandchildren the
    proposition that a President stands above the law and can
    systematically obstruct justice simply because both his polls
    and the Dow Jones index are high.
        Our duty in this case is as unpleasant as it was unsought.
    But our duty is clear. It was imposed on us, by history,
    without equivocation, 212 years ago. It requires us to convict
    the President of article II of these articles of impeachment.
    And that is how I vote, with clear conscience and a saddened
    heart.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                   Statement of Senator Russell D. Feingold*
    ---------------------------------------------------------------------------

                                       * * * * *
    * Sen. Feingold submitted an additional statement on February 22, see
    p. 3042, below.
    ---------------------------------------------------------------------------
        Mr. FEINGOLD. Mr. Chief Justice, my colleagues, like many
    others, the day the President wagged his finger at the American
    people and indicated he had not been involved with Ms.
    Lewinsky, I had the sense that he wasn't telling the truth and
    I felt some genuine regret. The President and I began here in
    Washington in the same month, in 1993. I had high hopes and
    actually felt very close to what he was trying to accomplish.
    So all along in this process, I have had to fight an urge to
    personalize that regret in a way that would affect my ability
    to do my job in this impeachment trial. And I will tell you
    that taking that separate oath helped me get into the mindset
    necessary to do that task.
        I do regret that the President's public conduct--not his
    private conduct--has brought us to this day.
        But we are here, and I want to take a minute to praise my
    colleagues on the process. I think it would have been
    unfortunate had we not had any witness testimony--at least in
    the form of deposition testimony. I think it would have been an
    unfortunate historical precedent. I found the video testimony
    helpful. I didn't enjoy it, but I found it helpful in
    clarifying some of the things that I was thinking about. So I
    am glad, on balance, that we did not dismiss the case at the
    time it was first suggested.
        As we get to the final stage and get immersed in the law
    and facts of this case, it is too easy to forget the most
    salient fact about this entire matter, and that is one simple
    fact that many others have mentioned: In November 1996, 47
    million Americans voted to reelect President Clinton. The
    people hired him. They are the hiring authority. An impeachment
    is a radical undoing of that authority. The people hire and
    somehow, under this process, the Congress can fire. So, I
    caution against, with all due respect to the excellent
    arguments made, the attempt to analogize this to an employee-
    employer relationship, or a military situation, or even the
    situation of judges--those situations are all clearly
    different. Along with the choice of the Vice President, in no
    other case do the American people choose one person, and in no
    other case can a completely different authority undo that
    choice.
        Having said that, the Presidential conduct in this case, in
    my view, does come perilously close to justifying that extreme
    remedy. There really have been three Presidential impeachments
    in our Nation's history. I see this one as being in the middle.
    The Andrew Johnson case is usually considered by historians to
    have been a relatively weak case. President Johnson had a
    different interpretation of the constitutionality of the
    statute that he believed allowed him to remove the Secretary of
    War, Mr. Stanton. He was not convicted, and subsequently the
    U.S. Supreme Court, I believe, ruled that in fact that was
    constitutional. I see that as having been a relatively weak
    case.
        The case of Richard Nixon, in my view, was a pretty strong
    case, involving a 1972 Presidential election and attempts to
    get involved with the aspects of that election--frankly--an
    attempt to cover up what happened during that 1972 election. I
    think that had more to do with core meaning of ``high crimes
    and misdemeanors.''
        This is a closer case; this is a close case. In that sense,
    it may be the most important of the three Presidential
    impeachments, in terms of the law of impeachment, as we go into
    the future. I agree neither with the House managers who say
    their evidence is ``overwhelming,'' nor with the President's
    counsel who says the evidence against the President is
    ``nonexistent.'' The fact is, this is a hard case, and
    sometimes they say that hard cases make bad law. But we cannot
    afford to have this be bad law for the Nation's sake.
        So how do we decide? There have been a lot of helpful
    suggestions, but one thing that has been important to me is the
    way the House presented their case. That doesn't bind us, but
    they did suggest that two Federal statutes had been violated.
    Mr. Manager McCollum said that ``you must first determine if a
    Federal crime has occurred.'' Many others have said that. I
    will reiterate a point. If that is the approach you want to
    take, then it is clear, in my view as one Senator, that you
    must prove that beyond a reasonable doubt. Otherwise, you are
    using the power and the opprobrium of the Federal criminal law
    as a sword but refusing to let the President and the defense
    counsel have the shield of the burden of proof that is required
    in the criminal law.
        I do not have time to discuss the perjury count this
    afternoon, but will do so in a longer presentation for the
    Record. Suffice it to say, I do not believe the managers have
    met their burden of proving perjury beyond a reasonable doubt.
        As to obstruction of justice, the President did come
    perilously close. Three quick observations make me conclude
    that, in fact, he did not commit obstruction of justice beyond
    a reasonable doubt. First, I am very concerned about the
    conversations between the President and Betty Currie concerning
    the specifics of his relationship with Ms. Lewinsky. But the
    critical question there is intent. Was his intent about
    avoiding discovery by his family and the political problems
    involved? Or was the core issue trying to avoid the Jones
    proceeding and the consequences of that?
        I don't think it has been shown beyond a reasonable doubt
    that the Jones proceeding was the President's concern. Perhaps
    Ms. Currie could have shed some light on this. That is why I
    was extremely puzzled when the House managers didn't call Betty
    Currie. Let me be the first to say that I don't think in this
    instance the House managers ``wanted to win too badly.'' I
    don't think they wanted to win badly enough to take the chance
    of calling Betty Currie, a crucial witness.
        I was very concerned about the false affidavit until I saw
    Ms. Lewinsky's Senate deposition testimony. I am persuaded that
    you cannot say beyond a reasonable doubt that she was urged by
    the President to make a false statement in that affidavit.
        Finally, I was very concerned about the hiding of the
    gifts. And maybe everyone will disagree with me on this. But
    when I watched her testimony, I thought Ms. Lewinsky was the
    most indefinite about whether or not she had gotten that call
    from Ms. Currie than any other part of her testimony. I happen
    to believe that Ms. Lewinsky was the one who was the most
    concerned about the gifts. And I believe a showing beyond a
    reasonable doubt has not been made that the President
    masterminded the hiding of the gifts.
        So I cannot deny what Representative Graham said: If you
    call somebody up at 2:30 in the morning, you are probably up to
    no good. But if you call somebody up at 2:30 in the morning,
    you have not necessarily accomplished the crime of obstruction
    of justice.
        I realize there is a separate question of whether these
    same acts by the President, apart from the Federal criminal
    law, constitute high crimes and misdemeanors. I do not. I will
    discuss that in more detail in a future statement in the
    Record.
        But I would like to conclude by just talking a little bit
    about this impeachment issue in the modern context. When I say
    that the vote in 1996 is the primary issue, I don't just mean
    that in terms of the rights of people. I mean it in terms of
    the goal of the Founding Fathers, and our goal today; that is,
    political stability in this country. We don't want a
    parliamentary system. And we don't want an overly partisan
    system.
        I see the 4-year term as a unifying force of our Nation.
    Yet this is the second time in my adult lifetime that we have
    had serious impeachment proceedings, and I am only 45 years
    old. This only occurred once in the entire 200 years prior to
    this time. Is this a fluke? Is it that we just happened to have
    had two ``bad men'' as Presidents? I doubt it. How will we feel
    if sometime in the next 10 years a third impeachment proceeding
    occurs in this country so we will have had three within 40
    years?
        I see a danger in this in an increasingly diverse country.
    I see a danger in this in an increasingly divided country. And
    I see a danger in this when the final argument of the House
    manager is that this is a chapter in an ongoing ``culture war''
    in this Nation. That troubles me. I hope that is not where we
    are and hope that is not where we are heading.
        It is best not to err at all in this case. But if we must
    err, let us err on the side of avoiding these divisions, and
    let us err on the side of respecting the will of the people.
        Let me conclude by quoting James W. Grimes, one of the
    seven Republican Senators who voted not to convict Andrew
    Johnson. I discovered this speech, and found out that the Chief
    Justice had already discovered and quoted him, and said he was
    one of the three of the ablest of the seven. Grimes said this
    in his opinion about why he wouldn't convict President Johnson:

        I cannot agree to destroy the harmonious working of the
    Constitution for the sake of getting rid of an unacceptable President.
    Whatever may be my opinion of the incumbent, I cannot consent to trifle
    with the high office he holds. I can do nothing which, by implication,
    may be construed as an approval of impeachment as a part of future
    political machinery.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                   Statement of Senator Kay Bailey Hutchison

        Mrs. HUTCHISON. Mr. Chief Justice, if a university
    president, a minister or priest, general or admiral, or a
    corporate chief executive had engaged in a sexual relationship
    with an intern under his charge, he would lose his position,
    with scant attention paid to whether or not such a relationship
    were ``consensual.'' We place in certain individuals so great a
    measure of trust that they are seen as acting essentially in
    loco parentis.
        The question before us today is: Should the President of
    the United States be held to a lower standard?
        The answer is: No. To the contrary; we can bestow no higher
    honor than to select one individual to represent us all as
    President. In one person we endow the character of our Nation,
    as the head of state and the head of government.
        It is with great disappointment, but firm resolve, that I
    have concluded the President has not lived up to this high
    standard and that he should be removed from office. The House
    managers have demonstrated beyond reasonable doubt that, in
    addition to indefensible behavior with an intern, which was not
    illegal, the President engaged in the obstruction of justice
    and, as an element of that obstruction, committed perjury
    before a Federal grand jury, which is.
        This case began as an alleged civil rights violation of a
    young woman who came to the bar seeking justice. The Supreme
    Court unanimously decided to permit her case against the
    President to go forward. It was that case which led to the
    revelations regarding the President's relationship with Monica
    Lewinsky, the White House intern.
        Incredibly, an element of the President's defense is that
    we should take the long view. We are told by the President's
    defenders that we should not judge his actions toward one
    individual, in which he schemed to impede her ability to seek
    redress, because his overall actions on civil rights are so
    positive. We are asked not to judge his treatment of one woman,
    or two women, but to evaluate his policies that affect all
    women.
        Would the President's defenders forgive a schoolteacher who
    molests a student, simply because the teacher's classes are
    popular and his students all go on to college? Should we ignore
    the police officer who personally enriches himself by accepting
    graft, so long as his arrest record is high? Would we look away
    from the corporate executive who illegally profits from insider
    information, as long as his shareholders are happy with the
    return on their investment? We would not sustain civil society
    for long with such moral relativism as our guide.
        The President had it solely within his power to keep the
    country from the course on which it has been for the past year.
    First, of course, he could have chosen not to engage in the
    behavior in question. Having behaved as he did, though, and
    having been discovered, the President could have acknowledged
    his own actions and accepted the consequences. This could have
    been an honorable resignation, or an admission, contrition, and
    a firm resolve to take responsibility; with a request for
    resolution in a manner short of impeachment and trial.
        Instead, the President chose to deny the allegations, and
    fight them with a coordinated scheme of manipulation and
    obstruction. He lied outright to the American people, to his
    close associates, and to his Cabinet. An enduring image of this
    whole tale will be his finger-pointing lie to the American
    people, even after admonishing us to listen closely, because he
    didn't want to have to say it again.
        Even in view of these actions, the President missed
    numerous opportunities to right this matter and get it behind
    him and the country. At virtually every opportunity, though, he
    chose an action that further prolonged the matter and led
    directly to his impeachment.
        The President chose to impede the pursuit of justice by the
    independent counsel, who was given the authority to investigate
    this matter by the President's own Attorney General.
        The President chose to construct a cover story with Ms.
    Lewinsky, should their relationship become public.
        The President chose to direct his personal staff to
    retrieve items from Ms. Lewinsky that he knew were under
    subpoena in a Federal investigation.
        The President chose to seek the assistance of friends to
    find a job for Ms. Lewinsky, and to intensify that job search
    when it became clear that Ms. Lewinsky had become a target of
    the civil suit against him.
        The President chose to lie to his staff about the nature of
    his relationship with Ms. Lewinsky herself, with the
    expectation that these lies would become part of the public
    perception.
        The President chose to lie before a Federal grand jury
    about his actions with regard to some of the elements of
    obstruction of justice, including the concealment of the gifts
    that were likely to become evidence in the civil case against
    him.
        As a result of these choices by the President of the United
    States, the Senate was left with no choice other than to
    confront the charges and hear the case pursuant to the
    President's impeachment in the House of Representatives.
        In so doing, the Senate conducted a fair and expeditious
    trial. We rejected the idea of an early test vote that would
    have truncated the process. We rejected the motion for an early
    dismissal. The Senate is fulfilling its constitutional
    responsibility to hold a trial with a complete evidentiary
    record and a final vote on each article of impeachment sent to
    the Senate by the House of Representatives.
        Through skillful use of the written record compiled by the
    independent counsel, videotaped depositions, and hard evidence,
    the House managers presented a compelling case. The case for
    perjury was difficult. The President's testimony before the
    grand jury was guarded. He was fully aware of the evidence the
    prosecutors had with respect to this case. He chose his words
    carefully. He admitted his relationship with Ms. Lewinsky
    before the grand jury, but did so only after confronted with
    clinical evidence of its existence.
        He lied to the grand jury to deny other key facts. He
    perjured himself as an element of a broader attempt to obstruct
    justice. There are two false statements that are the most
    persuasive. First, when asked if he directed Betty Currie to
    retrieve gifts from Ms. Lewinsky, he stated unequivocally, ``No
    sir, I did not do that.''
        The facts are contrary to that allegation. Ms. Lewinsky
    testified that Betty Currie called her to suggest that Ms.
    Lewinsky give her the gifts. We have cellular telephone records
    that indicate a call from Ms. Currie to Ms. Lewinsky at about
    the time the gifts were picked up. It was clear that Ms. Currie
    initiated a retrieval of the gifts at the direction of the
    President, for this was the only source of information she had
    that there were gifts. The evidence is overwhelming that the
    President directed Betty Currie to retrieve these gifts. Thus,
    his statement is false. Not only is this perjury, it is
    obstruction of justice.
        The President also lied before the grand jury about his
    conversations with White House aides regarding Ms. Lewinsky. He
    testified that ``I said to them things that were true about
    this relationship.'' We know this to be completely false from
    the testimony of Sidney Blumenthal, who stated directly and
    unequivocally that the President had lied to him about the
    nature of his relationship with Ms. Lewinsky.
        The legal standard for perjury is high. Under 18 U.S.C.
    1623(a), a person is guilty of perjury if he or she knowingly
    makes a false, material statement under oath in a Federal court
    or grand jury. I believe these statements were false,
    intentional and material in that they attempt to put a false
    impression on key events in a series of attempts to obstruct
    justice. In effect, the President knew his relationship with
    Ms. Lewinsky was shameful, but not necessarily illegal. But he
    knew his obstruction of justice was illegal--so he lied about
    it to a grand jury.
        In many ways, obstruction of justice is even more corrosive
    than perjury to the machinery of our legal system. As the
    target of a grand jury and an independent prosecutor, the
    President has defended himself against charges of perjury by
    claiming he was caught off guard, was misinterpreted, was
    attempting to mislead but not lie.
        Obstruction of justice, though, is a quite different
    matter. It is an affirmative act that occurs at the person's
    own initiative; in this case, the President. It involves
    actions taken that were not instigated by anyone else.
        It has been said in his defense that the President did not
    initiate his perjury in that he was led to it by the
    prosecutor. But there is no similar argument regarding article
    II, the obstruction of justice. Without the affirmative actions
    of the President, there would have been no article II.
        The President sought out Mr. Blumenthal to tell his
    misleading story about the nature of his relationship and the
    character of Ms. Lewinsky.
        Separately, the President enlisted his personal secretary
    to further his obstruction of justice. He asked Ms. Currie to
    retrieve the gifts. He summoned her to coach her testimony
    under the guise of ``trying to figure out what the facts
    were.'' He did so within hours after coming back to the White
    House on January 17 from his deposition in the civil sexual
    harassment lawsuit. He required a face-to-face meeting with her
    the next day, a Sunday. It couldn't be done over the phone, and
    it couldn't wait until Monday. It was clear he needed her to
    reaffirm his false testimony. This is obstruction of justice.
        The edifice of American jurisprudence rests on the
    foundation of the due process of law. The mortar in that
    foundation is the oath. Those who seek to obstruct justice
    weaken that foundation, and those who violate the oath would
    tear the whole structure down.
        Every day, thousands of citizens in thousands of courtrooms
    across America are sworn in as jurors, as grand jurors, as
    witnesses, as defendants. On those oaths rest the due process
    of law upon which all of our other rights are based.
        The oath is how we defend ourselves against those who would
    subvert our system by breaking our laws. There are Americans in
    jail today because they violated that oath. Others have
    prevailed at the bar of justice because of that oath.
        What would we be telling Americans--and those worldwide who
    see in America what they can only hope for in their own
    countries--if the Senate of the United States were to conclude:
    The President lied under oath as an element of a scheme to
    obstruct the due process of law, but we chose to look the other
    way?
        I cannot make that choice. I cannot look away. I vote
    ``guilty'' on article I, perjury. I vote ``guilty'' on article
    II, obstruction of justice.
        I ask unanimous consent that an analysis of the articles of
    impeachment be printed in the Record.
        There being no objection, the material was ordered to be
    printed in the Record, as follows:

                    Analysis of the Articles of Impeachment

                       (By Senator Kay Bailey Hutchison)
        ``Do you solemnly swear that in all things appertaining to the
    trial of the impeachment of William Jefferson Clinton, President of the
    United States, now pending, you will do impartial justice according to
    the Constitution and laws: So help you God?''
        When the Chief Justice of the United States administered this oath
    and I signed my name to it on January 7, 1999, as one of one hundred
    triers of fact and law in the Court of Impeachment of the President of
    the United States, I did so with a heavy heart, but with a clear mind.
        That solemn occasion in the well of this Senate, and the weight of
    the burden imposed on us as ``jurors'' in only the second such
    proceeding in the history of our Nation, reminded me with vivid clarity
    that our Constitution belongs to all of us.
        I was reminded as well, however, that the laws of our Country are
    applicable to us all, including the President, and they must be obeyed.
    The concept of equal justice under law and the importance of absolute
    truth in legal proceedings is the foundation of our justice system in
    the courts.
        In this proceeding, I have drawn conclusions about the facts as I
    see them, and I have applied the law to those facts as I understand
    that law to be.
                  underlying facts leading to this proceeding
        The details of an intimate personal relationship that occurred
    during the years 1995, 1996, and 1997 between the President of the
    United States and a 22-year-old female White House Intern who was
    directly under his command and control have been chronicled throughout
    the world and are described in thousands of pages of evidence and
    materials filed with both the House and the Senate in this case and in
    bookstores across America. They involved intimate sexual relations
    within the White House, personal gifts, jobs within and outside of
    government, and ``missions accomplished.'' The underlying details will
    not be repeated by me here.
        While some facts about that relationship and the timing of some
    events were disputed at the trial in the Senate, their essence has been
    publicly admitted by the President, by his Counsel, and by the Intern
    in written or verbal form, including sworn testimony in various forms.
        However inappropriate the behavior of the President was, the legal
    issues in the impeachment trial do not deal with this relationship. All
    accusations against the President here relate instead to alleged
    attempts to prevent the disclosure of this relationship in a pending
    civil rights lawsuit against the President in an Arkansas Federal court
    and to the public. That is the critical factor that has brought us to
    this extraordinary moment in our Nation's history when we are
    considering whether or not to remove from office the President of the
    United States.
               core facts leading to the articles of impeachment
        In May, 1994, a female citizen and employee of the State of
    Arkansas filed a lawsuit in an Arkansas Federal District Court,
    alleging, in summary, that, in 1991 while President Clinton was
    Governor of Arkansas, the Governor committed the civil offense of
    sexual harassment against her by insisting that she perform sexual acts
    identical or similar to those later performed by the Intern.
        In the course of preparing for the trial of the Arkansas case, the
    plaintiff, with the consent of the presiding Federal Judge, attempted
    to develop evidence that defendant Clinton had, before and afterward,
    engaged in patterns of conduct that were similar to the allegations of
    the plaintiff in the case.
        In December, 1997, the Arkansas Judge ordered defendant Clinton to
    answer a written interrogatory naming every state and federal employee
    with whom he had had sexual relations since 1986. President Clinton
    answered: ``none.''
        In an alleged attempt to avoid giving a personal deposition in the
    case pursuant to a December, 1997, subpoena, the White House Intern,
    who had since become employed at the Pentagon, on January 7, 1998,
    signed an affidavit denying any sexual relationship with President
    Clinton. Six days later, on January 13, the Intern accepted a job offer
    at a major corporation in New York City. A friend called the President
    shortly thereafter with the message: ``Mission accomplished.''
        While the President was giving his own deposition in the Arkansas
    case, his counsel tendered this affidavit to the Arkansas Federal
    Court, referred to it, and vouched for its accuracy in the presence of
    the President. The President, knowing the affidavit to be false, sat by
    and said nothing. The President's counsel subsequently advised the
    Court that this affidavit was not reliable and should be ignored.
        Defendant Clinton was subpoenaed to give the above-mentioned
    deposition in the case and did so on January 17, 1998. In a rare event,
    the Arkansas Judge attended for the purpose of supervising the
    deposition of the President in a Washington lawyer's offices. While
    there, the Judge and participating counsel for the parties, either
    knowingly or unknowingly, formulated a definition of the meaning of the
    words ``sexual relations'' to exclude certain forms of human contact
    that in their commonly accepted meaning would be included. But,
    allegedly upon the basis of this definition, President Clinton denied,
    under oath, among other things, that he had sexual relations with the
    Intern.
        On January 21, 1998, the existence of an alleged inappropriate
    relationship between the President and the White House Intern blazed
    across the Nation from a story first published in the Washington Post
    carrying the headline: ``Clinton Accused of Urging Aid to Lie; Starr
    Probes Whether President Told Woman to Deny Alleged Affair to
    (plaintiff's) Lawyers.''
        Evidence introduced and debated by the House Managers and the
    President's Counsel in the Senate painted a picture of frantic
    activities within and without the White House throughout the month
    before and during the week following this public disclosure, by the
    President, by his friends, by White House staff and employees, and
    others. It was alleged, among other things, that the President coached,
    manipulated, and influenced false testimony of witnesses, including the
    Intern, engineered the hiding of gifts and evidence that was subject to
    subpoena, lied to his staff and friends about the facts in order to
    assure that they would give false testimony in public and legal
    proceedings, manipulated the Intern into signing the false affidavit in
    the Arkansas Federal Court, and, after failures to obtain employment
    for her elsewhere, rewarded the Intern by obtaining for her an out-of-
    town job in return for her cooperative falsehoods or silence. The
    sequence and importance of such activities, much of which is not
    disputed in the evidence, were debated aggressively by the House
    Managers and the President's Counsel in the Senate, but the essence of
    those activities was not seriously denied.
        After numerous public denials immediately after the public
    disclosure, and after several days of alleged ``damage control''
    designed to synchronize false stories to be provided by various parties
    in response to all inquiries, and event of major, historic, and future
    national importance occurred.
        On January 26, 1998, the President addressed the Nation about this
    issue at a press conference in Washington, since replayed in television
    broadcasts thousands of times. On that occasion, the President looked
    sternly into the camera and pointed his finger directly at the American
    people and stated:
        ``I want to say one thing to the American people. I want you to
    listen to me. I'm going to say this again: I did not have sexual
    relations with that woman (naming the Intern). I never told anybody to
    lie, not a single time. Never. These allegations are false.''
        During the following months, the gist of this representation filled
    the news media around the World and in every conceivable form, provided
    by every conceivable spokesman for the President, including government
    employees, Cabinet officials, lawyers, public relations specialists,
    political advisors, friends, Members of Congress, and others.
        After an immunity agreement was reached between the Independent
    Counsel (discussed below) and the Intern on July 28, 1998, the Intern
    delivered a dress to the Independent Counsel that, according to her
    testimony, had been worn by her on February 28, 1997, during a sexual
    encounter with the President in the White House. The dress was tested
    for the President's DNA. The test was positive.
        The President of the United States had lied directly to the
    American people.
                the president's appearance before the grand jury
        After months of negotiation for an appearance by the President, on
    July 17, 1998, the President was subpoenaed to appear before a Federal
    grand jury in Washington by the Independent Counsel assigned to
    investigate multiple issues concerning the President, including issues
    involving potential perjury by both the President and the Intern in the
    Arkansas sexual harassment case, issues relating to the President's
    relationship with the Intern, and issues relating to alleged actions
    taken to influence the testimony of witnesses in the Arkansas case and
    before the grand jury, attempts to discredit the Intern by describing
    her as a ``stalker,'' as ``ignorant,'' and as ``stupid,'' all done in
    an alleged effort to cover up and conceal the underlying relationship
    between the President and the Intern, to obstruct the right of the
    Arkansas plaintiff to pursue her sexual harassment claims in the
    Arkansas Federal Court, and to obstruct the proceedings of the grand
    jury itself.
        After various losing motions and court proceedings asserting
    various executive privileges against a Presidential appearance before
    the grand jury, the President, on August 17, 1998, gave testimony
    voluntarily to the grand jury by deposition given in the White House
    and piped live to the grand jury. The prior subpoena was withdrawn by
    the Independent Counsel.
        During and since this appearance, the President has repeatedly
    acknowledged publicly that he had an inappropriate relationship with
    the White House Intern but has insisted that he was misleading but
    truthful in his depositions in the Arkansas case and before the Federal
    grand jury and did not commit any act that would constitute an
    obstruction of any legal proceeding or the rights of any party
    associated with any portion of this historic tale.
                          impeachment of the president
        The Ethics in Government Act, 28 U.S.C. Sec. 595(c), directs any
    Independent Counsel appointed under that law to advise the House of
    Representatives of any substantial and credible information received
    during the course of an investigation that may constitute grounds for
    the impeachment of the President of the United States.
        On September 9, 1998, the Office of Independent Counsel submitted
    its referral to the House of Representatives consisting of thousands of
    pages of sworn testimony from many parties, recorded telephone
    conversations, video tapes, interviews, reports, legal briefs, and
    arguments, including the following partial introduction:
        ``This Referral presents substantial and credible information that
    President Clinton criminally obstructed the judicial process, first in
    a sexual harassment lawsuit in which he was a defendant and then in a
    grand jury investigation.''
        The Judiciary Committee of the House, in its report to the full
    House of Representatives, recommended four Articles of Impeachment of
    the President. On December 19, 1998, the House of Representatives
    declined to approve two of the proposed Articles, but did approve the
    following two Articles, and delivered H. Res. 611 to the Senate for
    trial in accordance with the provisions of Section 3 of Article I of
    the Constitution of the United States:
        Impeachment Article I, the ``perjury'' article, accuses the
    President of violating his constitutional duty to take care that the
    laws are faithfully executed, of willfully corrupting and manipulating
    the judicial process, and of impeding the administration of justice for
    personal gain and exoneration, in that:
        While under oath before the Federal grand jury, the President gave
    perjurious testimony before the grand jury concerning one or more of
    the following: (i) the nature and details of his relationship with the
    Intern; (ii) prior perjurious, false, and misleading testimony he gave
    in the Arkansas case; (iii) prior false and misleading statements he
    allowed his attorney to make about the Intern's affidavit in the
    Arkansas case; and (iv) his corrupt efforts to influence the testimony
    of witnesses and to impede the discovery of evidence in the Arkansas
    case.
        Impeachment Article II, the ``obstruction of justice'' and
    ``witness tampering'' article, accuses the President of violating his
    constitutional duty to take care that the laws are faithfully executed,
    of preventing, obstructing, and impeding the administration of justice,
    and, to that end, of engaging personally and through his subordinates
    and agents in a course of conduct or scheme designed to delay, impede,
    cover up, and conceal the existence of evidence and testimony related
    to the Arkansas Federal sexual harassment case.
        In support of the accusation, Article II accuses the President of
    seven specific acts of obstruction: (i) corruptly encouraging the
    Intern to execute false affidavit in the Arkansas case, (ii) corruptly
    encouraging the Intern to give false testimony in the Arkansas case if
    and when she was called to testify personally in that case, (iii)
    corruptly engaging in, encouraging, or supporting a scheme to conceal
    evidence that had been subpoenaed in the Arkansas case, (iv) obtaining
    a job for the Intern in order to corruptly prevent her truthful
    testimony in the Arkansas case, (v) corruptly allowing his attorney in
    the Arkansas case to make false statements to the Federal Judge
    characterizing the Intern's affidavit in order to prevent questioning
    deemed relevant by the Judge, (vi) corruptly influencing his personal
    secretary to give false testimony in the Arkansas case, and (vii)
    making false and misleading statements to witnesses in the Federal
    grand jury proceeding, confirmed by the witnesses, in order to
    corruptly influence the testimony of those witnesses.
                            the trial in the senate
        H. Res. 611 was received in the Senate on December 19, 1998. The
    trial commenced on January 7, 1999. During the trial, we have listened
    to hours of arguments from the House Managers and Counsel for the
    President, and have engaged in hours of internal Senate debate, both
    public and private. We have been provided with access to thousands of
    pages and other forms of evidence relating to the accusations contained
    in the two Articles of Impeachment.
        Under the Constitution, the power to impeach (or ``accuse'') a
    President of an impeachable offense is vested solely in the House of
    Representatives. As Senators and triers of both the facts and the law,
    we cannot ``accuse,'' ``venture outside the record,'' or ``create and
    assert new allegations.'' We are bound to cast our votes of ``guilty''
    or ``not guilty'' solely on the two Article of Impeachment as presented
    by the House.
        I do not hold to the view of our Constitution that there must be an
    actual, indictable crime in order for an act of a public officer to be
    impeachable. It is clear to this Senator that there are, indeed,
    circumstances, short of a felony criminal offense that would justify
    the removal of a public officer from office, including the President of
    the United States. Manifest injury to the Office of the President, to
    our Nation, and to the American people, and gross abuses of trust and
    of public office clearly can reach the level of intensity that would
    justify the impeachment and removal of a leader. One of the Articles of
    Impeachment presented by the House Judiciary Committee to the full
    House of Representatives in this case charged the President with
    precisely such an offense. The House of Representatives did not approve
    that Article, and such a charge is, therefore, not before us in this
    proceeding.
        The two Articles of Impeachment before the Senate in this
    proceeding do in fact accuse the President of committing three actual
    crimes, ``perjury before the grand jury,'' `'obstruction of justice,''
    and ``witness tampering,'' that meet the requirements for conviction of
    an indicted defendant in a criminal case brought under Federal law. The
    House Managers and Counsel for the President reviewed those laws
    extensively. Thus, in order to find the President ``guilty'' under
    either Article, this Senator must conclude that all of the statutory
    prerequisites to conviction are present that would be required to
    convict the President of one or more of those crimes, if this
    proceeding were, instead, the prosecution of felony criminal
    indictments in a United States District Court under Federal law.
        The President's Counsel did not significantly challenge the
    underlying facts in the case, but insisted throughout (i) that no
    crimes have been committed, and (ii) that, even if crimes have been
    committed, they ``do not rise to the level of the high crimes and
    misdemeanors'' contemplated by the Constitution that would permit a
    conviction in this proceeding, since a finding of ``guilty'' by 67
    Senators under either Article would, under the Constitution,
    automatically result in the removal of the President from office and
    prohibit him forever from holding another office of profit or trust
    under the United States.
     perjury, obstruction of justice, and witness tampering as impeachable
                                    offenses
        Section 4 of Article II of our Constitution provides:
        ``The President . . . shall be removed from Office on Impeachment
    for, and Conviction of, Treason, Bribery, or other high crimes and
    misdemeanors.''
        Because of the uniqueness of this Constitutional process in which
    ``guilt'' and ``punishment'' are combined, each Senator, as a trier of
    both fact and law, before voting as to the guilt or innocence of the
    President under either of the Articles must answer the basic question:
    Do the crimes of perjury, witness tampering, and obstruction of justice
    as alleged in this proceeding rise to the level of the ``high crimes
    and misdemeanors'' included in our Constitution that would justify the
    automatic removal from office of the President of the United States?
        The Supreme Court of the United States has observed that there is
    an occasional misunderstanding to the effect that the crime of
    ``perjury'' is somehow distinct from ``obstruction of justice.'' United
    States v. Norris, 300 U.S. 564, 574 (1937). They are not. While
    different elements make up each crime, each is calculated to prevent a
    court and the public from discovering the truth and achieving justice
    in our judicial system. Moreover, it is obvious that ``witness
    tampering'' is simply another means employed to obstruct justice.
        This Senate on numerous occasions has convicted impeached Federal
    Judges on allegations of perjury. Moreover, the historical fact is that
    ``high crimes and misdemeanors,'' as used and applied in English law on
    which portions of our Constitution were founded, included the crimes of
    ``obstructing the execution of the lawful process'' and of ``willful
    and corrupt perjury.'' Blackstone, Commentaries on the Laws of England,
    a treatise described by James Madison as ``a book which is in every
    man's hand.'' See article entitled ``The True History of High crimes
    and misdemeanors,'' by Gary L. McDowell, Director of the Institute of
    United States Studies at the University of London, appearing in the
    Wall Street Journal, January 25, 1999.
        Some argue that the precedents of the Senate in cases involving
    Federal Judges are not applicable because Federal Judges are not
    elected by the people and the President is. This is a shocking analysis
    to this Senator. That the President is elected should call for a
    ``higher'' standard of conduct, not a lower one. The fact is that the
    standards are set by the Constitution for all officers of the Federal
    government. They are precisely the same, and we are obligated to apply
    them evenly.
        It is argued by others that this test leaves Presidents at risk of
    being impeached and convicted for trivial offenses. The two-thirds vote
    requirement for conviction imposed by the Constitution, itself, is
    designed to protect public officers from precisely such a result.
        The President's Counsel and a number of Senators advance a
    ``felony-plus'' interpretation of the Constitutional terms ``high
    crimes and misdemeanors.'' They seem to agree that the crimes of
    perjury and obstruction of justice are ``high crimes'' under the
    Constitution, but they argue that, even if guilt is admitted,
    nevertheless, a Senator should vote ``not guilty,'' on any article of
    impeachment of a President, if the ``economy is good,'' if the
    underlying facts in the case are ``just about sex,'' or if the Senator
    simply feels for whatever personal reason that the President ought to
    stay in office despite having committed felonies while holding it.
        To this Senator, this astounding application of the plain language
    of our Constitution strikes at the very heart of the rule of law in
    America. It replaces the stability guaranteed by the Constitution with
    the chaos of uncertainty. Not only does it obliterate the noble ideal
    that our highest public officer should set high moral standards for our
    Nation, it says that the officer is free to commit felonies while doing
    it if the economy is good, if the crime is just about sex, or if,
    except for the crime, ``things are going pretty well right now,'' or
    simply that ``they can indict and try the President for the crime after
    leaving office in a couple of years.''
        I will not demean our Constitution or the office of the Presidency
    of the United States by endorsing the felony-plus standard.
                  elements required for conviction of perjury
        Lying is a moral wrong. Perjury is a lie told under oath that is
    legally wrong. To be illegal, the lie must be willfully told, must be
    believed to be untrue, and must relate to a material matter. Title 18,
    Section 1621 and 1623, U.S. Code.
        If President Washington, as a child, had cut down a cherry tree and
    lied about it, he would be guilty of ``lying,'' but would not be guilty
    of ``perjury.''
        If, on the other hand, President Washington, as an adult, had been
    warned not to cut down a cherry tree, but he cut it down anyway, with
    the tree falling on a man and severely injuring or killing him, with
    President Washington stating later under oath that it was not he who
    cut down the tree, that would be ``perjury.'' Because it was a material
    fact in determining the circumstances of the man's injury or death.
        Some would argue that the President in the second example should
    not be impeached because the whole thing is about a cherry tree, and
    lies about cherry trees, even under oath, though despicable, do not
    rise to the level of impeachable offenses under the Constitution. I
    disagree.
        The perjury committed in the second example was an attempt to
    impede, frustrate, and obstruct the judicial system in determining how
    the man was injured or killed, when, and by whose hand, in order to
    escape personal responsibility under the law, either civil or criminal.
    Such would be an impeachable offense. To say otherwise would be to
    severely lower the moral and legal standards of accountability that are
    imposed on ordinary citizens every day. The same standard should be
    imposed on our leaders.
        Nearly every child in America believes that President Washington,
    as a child himself, did in fact cut down the cherry tree and admitted
    to his father that he did it, saying simply: ``I cannot tell a lie.''
        I will not compromise this simple but high moral principle in order
    to avoid serious consequences to a successor President who may choose
    to ignore it.
     elements required for conviction of witness tampering and obstruction
                                   of justice
        Whoever knowingly uses intimidation or physical force, threatens,
    or corruptly persuades another person, or attempts to do so, or engage
    in misleading conduct toward another person, with intent to--
              (i) influence, delay, or prevent the testimony of any person
            in an official proceeding;
              (ii) cause or induce any person to (A) withhold testimony or
            evidence from an official proceeding, (B) alter or destroy
            evidence in an official proceeding; (C) evade legal process
            summoning that person as a witness or produce evidence in an
            official proceeding to which the person has been summoned;
              (iii) harass another person and thereby hinder, delay,
            prevent, or dissuade any person from attending or testifying in
            an official proceeding; or
              (iv) corruptly influence, obstruct, or impede, or endeavor to
            influence, obstruct, or impede, the due administration of
            justice;
    is guilty of witness tampering and/or obstruction of justice. Title 18,
    Sections 1512 and 1503, U.S. Code.
        The elements of these crimes are evident from the laws themselves
    and do not need amplification here.
                    my votes on the articles of impeachment
        Based upon my analysis of the facts of this case and my own
    conclusions of law, I have concluded:
        (i) The President of the United States willfully, and with intent
    to deceive, gave false and misleading testimony under oath with respect
    to material matters that were pending before the Federal grand jury on
    August 17, 1998, as alleged in Article I presented to the Senate. I,
    therefore, vote ``Guilty'' on Article I of the Articles of Impeachment
    of the President in this Proceeding.
        (ii) The President of the United States engaged in a pattern of
    conduct, performed acts of willful deception, and told and disseminated
    massive falsehoods, including lies told directly to the American
    people, that were designed and corruptly calculated to impede,
    obstruct, and prevent the plaintiff in the Arkansas Federal sexual
    harassment case from seeking and obtaining justice in the Federal court
    system of the United States, and to further prevent the Federal grand
    jury from performing its functions and responsibilities under law, I,
    therefore, vote ``Guilty'' on Article II of the Articles of Impeachment
    of the President in this proceeding.
                    article i, perjury--explanation of vote
        This Article accuses the President, while giving sworn testimony on
    August 17, 1998, before the Federal grand jury in Washington, D.C., of
    willfully corrupting and impeding the judicial process and the
    administration of justice by giving false and perjurious testimony
    about his relationship with the White House Intern, about his January
    17, 1998, deposition testimony in the Arkansas sexual harassment case,
    about his role in developing and tendering to the Federal Judge in the
    Arkansas case an affidavit that was knowingly false while giving his
    deposition in the Arkansas case, and about his attempts to influence
    the testimony of White House employees and other witnesses in the
    Arkansas case who were at the time also subject to the jurisdiction of
    the grand jury.
        In reaching my decision with respect to this Article, I have
    concluded beyond a reasonable doubt that the President gave false and
    misleading testimony in the Arkansas sexual harassment case and in his
    appearance before the Federal grand jury.
        At the trial in the Senate, the President's Counsel argued that,
    even if it were to be admitted that the testimony in both instances
    were false and misleading, the testimony would, nevertheless, not
    amount to perjury because it does not reach the level of
    ``materiality'' that is required for a lie to rise to the level of a
    crime under Federal law.
        They attempt to trivialize the issues raised by Article I by
    reference to such questions as ``Who touched whom, and where,'' and to
    answers to questions by the President such as ``It depends on what the
    meaning of `is' is.''
        The false testimony complained of in Article I of the Articles of
    Impeachment relates to testimony before the grand jury, and only
    indirectly to the testimony in the Arkansas case. The Federal grand
    jury was investigating broad issues and many persons at the time the
    President gave false and misleading testimony before it.
        Willful, corrupt, and false sworn testimony before a Federal grand
    jury is a separate and distinct crime under applicable law and is
    material and perjurious if it is ``capable'' of influencing the grand
    jury in any matter before it, including any collateral matters that it
    may consider. See, Title 18, Section 1623, U.S. Code, and Federal court
    cases interpreting that Section.
        The President's testimony before the Federal grand jury was fully
    capable of influencing the grand jury's investigation and was clearly
    perjurious.
            article ii, obstruction of justice--explanation of vote
        When, on January 26, 1998, the President of the United States
    pointed his finger at the American people and represented to them that
    he was the victim of lies and not their perpetrator, he lied to
    America. The evidence is overwhelming that he did so because all of his
    ``ducks were in a row.''
        The White House Intern had executed a false affidavit; subpoenaed
    gifts had been hidden; his own false deposition had been given; other
    witnesses had testified falsely based upon his own false
    representations to them; retribution against the White House Intern had
    been programmed should she abandon loyalty; and loyalty had been
    confirmed by the Intern's acceptance of a special new job in New York,
    that represented, according to a friend of the President, ``Mission
    accomplished.''
        Then came the dress, the tapes, and the Federal grand jury. The
    attempt to obstruct and cover-up grew, expanded, and developed a life
    of its own. It overpowered the underlying offense itself. A new
    strategy was required, fast: The President was advised: ``Admit the
    sex, but never the lies.'' Shift the blame; change the subject. Blame
    it on the plaintiff in the Arkansas case. Blame it on her lawyers.
    Blame it on the Independent Counsel. Blame it on partisanship. Blame it
    on the majority members of the House Judiciary Committee. Blame it on
    the process.
        The blame belongs to the President of the United States. This juror
    has concluded that the President is guilty of obstructing justice
    beyond a reasonable doubt, as alleged in Article II of the Articles of
    Impeachment in this proceeding.
                              concluding statement
        This has been a case about civil rights. It has been about the
    right of the weakest and the strongest among us to have equal access to
    our system of justice in order to pursue legal and Constitutional
    rights and to fix responsibility for alleged legal wrongs.
        During the last half of this passing century, we have managed to
    maintain the proposition established over 200 years ago that every
    American is entitled to equal justice under the law.
        In the middle of the century, our Country and our courts began to
    recognize the inherent evil of discrimination based on race and
    national origin. In the last two decades, we have begun to address
    issues of gender. We have enacted sexual harassment laws that have
    become the symbols of the high moral standards of our Country. They
    permit half of our citizens to work freely among us without fear of
    harm and sexual abuse.
        It has been said by many, in attempts to demean this proceeding,
    that this case is, simply, ``all about sex.'' In some ways, it is. It
    is about the right of an employed female American living in the State
    of Arkansas to hold a job without being forced to engage in it by the
    Governor of that State. That is not the question before us, and I
    express no opinion on that subject. But I do know that the President of
    the United States willfully and unlawfully obstructed her efforts in
    the Federal courts of our Land to pursue her cause. We are forced to
    leave it to history to determine whether her cause was factually just,
    and to define the message that the conduct of our Country's highest
    public officer sends into the next century.
        If only the President had followed the simple, high moral principle
    handed to us by our Nation's first leader as a child and had said early
    in this episode ``I cannot tell a lie,'' we would not be here today. We
    would not be sitting in judgment of a President. We would not be
    invoking those provisions of the Constitution that have only been
    applied once before in our Nation's history.
        But we should all be thankful that our Constitution is there, and
    we should take pride in our right and duty to enforce it. A hundred
    years from now, when history looks back to this moment, we can hope for
    a conclusion that our Constitution has been applied fairly and
    survives, that we have come to principled judgments about matters of
    national importance, and that the rule of law in American has been
    sustained.
                                     ______

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Kent Conrad

        Mr. CONRAD. Mr. Chief Justice, I have served 12 years in
    the U.S. Senate.
        I respect this institution and all of you as colleagues. I
    especially respect the job our leaders have done in this trial.
    They have performed in the highest tradition of the U.S.
    Senate. Most of all, I respect our oath of office: to
    ``preserve, protect, and defend the Constitution of the United
    States.'' I know all of us take that oath seriously.
        At the end of this proceeding, however, we may reach
    different conclusions about what the Constitution compels us to
    do. The simple truth is that this case is not black and white.
    As Mr. Manager Graham said, reasonable people may come to
    different conclusions.
        There is one thing on which we all agree: The President's
    conduct was wrong. In fact, it was very wrong. But the question
    before us is not whether the President's conduct was wrong. The
    question is whether that conduct meets the constitutional
    standard for removing a President from office.
        That requires us to make a profound judgment on whether we
    should overturn the results of a national election. Sixty-seven
    Members in this Chamber can nullify the votes of the 47 million
    Americans who voted for President Clinton. That is an awesome
    power. It must be used with great restraint.
        There are three questions we must answer in the affirmative
    to remove a President: First, did the President commit the
    crimes he is charged with? Second, are these crimes properly
    addressed by impeachment, or would they be better left to the
    criminal justice system? Third, do the charges rise to the
    level of high crimes and misdemeanors and justify the removal
    of the President of the United States?
        Let me start with the first question. The charges against
    the President are perjury and obstruction of justice.
        Five experienced Federal prosecutors representing both
    Republican and Democratic administrations concluded that no
    responsible Federal prosecutor would bring perjury charges
    based on the facts in this case.
        The President in his grand jury testimony acknowledged an
    intimate and inappropriate relationship with Monica Lewinsky.
    The details of that relationship are in conflict. But I do not
    believe relatively minor differences in the details of that
    relationship would result in a perjury conviction.
        On the obstruction charges, again the Federal prosecutors
    told us they would not bring charges based on the facts in this
    case.
        Ms. Lewinsky has testified that no one ever asked her to
    lie or promised her a job for her silence. Ms. Lewinsky further
    testified she never discussed the contents of her testimony
    with the President, ever. Finally, she also testified that she
    believed she could file a truthful affidavit.
        There are two elements of the obstruction of justice
    charges that do trouble me. One is the transfer of gifts from
    Ms. Lewinsky to Betty Currie. That could constitute concealment
    of evidence. But Betty Currie has testified five times that Ms.
    Lewinsky called her to arrange for the transfer of gifts. And
    both the President and Betty Currie have denied that the
    President initiated the transfer.
        The second troubling charge is the questioning of Betty
    Currie by the President after his deposition in the Jones case.
    I find it hard to believe the President was just refreshing his
    memory when on two occasions he put the same set of questions
    to Ms. Currie. That could constitute witness tampering, but at
    the time of these conversations, Betty Currie was not a witness
    in any judicial proceeding. And she has testified that she did
    not feel pressured to agree with the President.
        Although I am not certain that there was no wrongdoing, I
    do conclude that the charges have not been proven beyond a
    reasonable doubt.
        That leads me to the second question: even if these charges
    were proven, is this a matter for impeachment, or should it be
    left to the ordinary course of judicial proceeding?
        For me, it is a question best answered by the rule of law
    that governs us all: the Constitution of the United States.
        James Madison kept a journal of the Constitutional
    Convention. In it, he said many of the Founders opposed
    impeachment altogether. Others believed impeachment was needed
    to protect against treason, bribery, or other ``attempts to
    subvert the Constitution.'' So a carefully crafted, very narrow
    compromise was adopted.
        Article II, section 4 originally read: ``The President . .
    . shall be removed from office on impeachment for, and
    conviction of, Treason, Bribery or other high crimes and
    misdemeanors against the United States.''
        James Wilson, a 19th century constitutional scholar has
    written that impeachment was designed for ``great and publick
    [sic] offences by which the Commonwealth was brought into
    danger.''
        These charges against the President just do not measure up
    to that standard. Hiding presents under a bed, asking a
    secretary leading questions, these can hardly be the great and
    public offenses that our Founding Fathers had in mind. These
    charges, and the facts behind them, simply do not bring our
    Commonwealth into danger.
        So is the President above the law? Most emphatically, no.
        William Rawle, a contemporary of the Founders and a
    distinguished commentator on the Constitution wrote: ``In
    general, those offenses which may be committed equally by a
    private person as a public officer, are not the subject of
    impeachment . . . [A]ll offenses not immediately connected with
    office, except the two expressly mentioned, are left to the
    ordinary course of judicial proceeding.''
        I do not argue that no private wrongs can rise to the level
    of impeachable offense, but they must be heinous crimes.
        Article I, section 3, of the Constitution says: ``Judgment
    in Cases of Impeachment shall not extend further than to
    removal from Office . . . but the party convicted shall
    nevertheless be liable and subject to Indictment, trial,
    judgment and punishment according to law.''
        The President is not above the law. He can be prosecuted,
    indicted, convicted, and sentenced for alleged wrongful acts,
    just like any other American.
        We have our Founding Fathers' own words, distinguishing
    between public crimes and those that involve the President's
    conduct as a private individual. We have their deeds to guide
    us as well. When Vice President Aaron Burr killed Alexander
    Hamilton in a duel and was indicted for murder, impeachment was
    not even considered.
        Almost 200 years later, the House Judiciary Committee
    dismissed a tax evasion charge against President Nixon when an
    overwhelming majority of the committee concluded, in the words
    of Congressman Ray Thornton, ``These charges may be reached in
    due course in the regular process of law.''
        In the case before us today, the underlying offense is that
    the President had an extramarital affair. He is alleged to have
    lied about that under oath, and to have obstructed justice.
    These are serious allegations, and we have considered them
    seriously.
        Offensive as they were, the President's actions have
    nothing to do with his official duties, nor do they constitute
    the most serious of private crimes. In my judgment, these are
    matters best left to the criminal justice system.
        That brings me to the third and final question: do the
    charges so fundamentally threaten our democratic system of
    government that they constitute high crimes and misdemeanors
    and justify removal of the President from office?
        Our Founding Fathers told us two things about impeachment.
    First, the matter at hand had better be a very significant
    crime--a ``high crime'' that threatens our fundamental
    freedoms. These alleged crimes do not meet that standard.
    Second, they told us that it better not be partisan. That is
    why they required a two-thirds vote in the Senate to remove a
    President.
        They feared the passions of what they called a ``faction.''
    This is a classic case of just that. This proceeding was
    partisan in the House. It has become partisan here. I am not
    casting aspersions here. I am stating a fact.
        Impeachment will fail. And it should. It lacks the
    fundamental legitimacy only a bipartisan consensus can provide.
        My colleagues, the Republic still stands. Our safety as a
    Nation is not in jeopardy. Our Constitution has not been
    shaken.
        Voting to impeach the President under these circumstances
    would undermine the core principle that lies at the heart of
    our system of government: the separation of powers. Our
    Founding Fathers made it difficult to remove a sitting
    President by design. They were convinced of the wisdom of
    having three coequal branches of government. They did not want
    the President serving at the pleasure--or being removed at the
    displeasure--of the legislative branch.
        Our Founding Fathers were right. Removing a popularly
    elected President from office would have implications not only
    for this President, but for every President to follow, and
    ultimately for the very system of government we hold so dear.
    Thomas Jefferson once said, ``I know of no safe depository of
    the ultimate powers of the society but the people themselves.''
        My colleagues, we are a democracy. In a government ``of the
    people, by the people, and for the people,'' we cannot ignore
    the will of the people. Removing the President under these
    circumstances would be the most fundamental violation of the
    rule of law. It would overturn the rule of the people as
    expressed in a free election. It would adopt minority rule,
    overturning the clear wishes of a majority of the American
    people.
        Our freedom and liberty are not threatened by the wrongful
    acts of this President. But our freedom and liberty might be
    threatened if a minority can overturn the will of the majority.
        There may yet come a time when we have no choice but to
    substitute our judgment for the will of the people. I pray I
    never see that time. I know it has not come in this case.
        My colleagues, I will vote against the articles of
    impeachment in the case of William Jefferson Clinton.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Tim Hutchinson

        Mr. HUTCHINSON. Mr. Chief Justice, we are nearing one of
    the most important votes most of us will ever cast.
        As an Arkansan, the impeachment process has been long and
    difficult. President Clinton is a dominating political
    influence in Arkansas and still immensely popular in my home
    State, so I am acutely aware of the political implications of
    this vote for me.
        As an Arkansan, I share pride in one of our own having
    achieved so much and having attained the highest elective
    office in the land. Arkansas has produced more than its share
    of political leaders--the Joe T. Robinsons, the Hattie
    Caraways, the John McClellans, and the J.W. Fulbrights. But
    never before has an Arkansan reached the Presidency. I, with
    all of Arkansas, was proud. We knew William Jefferson Clinton's
    intellect, his grasp of policy issues. We knew his personality,
    his charisma. We had seen for years his remarkable political
    skills, his uncanny ability to connect with people. I believe I
    am like most Arkansans--deeply conflicted--pride mixed with
    embarrassment, and most of all pain.
        This trial is not about private conduct. It is not about
    the President's personal behavior. We are all sinners. We are
    all flawed human beings. The President's personal life is his
    personal life. It is his business, not mine. The facts that are
    relevant are those relating to law.
        This trial is not about process. It seems to me that
    throughout this long drama, many have sought to put Ken Starr
    on trial or the House managers on trial. Was Ken Starr on a
    vendetta or was he just doing an unpleasant job? Whichever, we
    have to deal with the facts and the evidence. Did the House
    managers, as we have heard from the President's counsel so
    often, ``want to win too much?'' Frankly, both sides wanted to
    win, both sides were fervent in their presentations, and I am
    glad we didn't hear half-hearted arguments. A vigorous
    prosecution and defense is the basis of a successful
    adversarial system. What we are doing is important. I am glad
    they believe in what they are doing, but in the end it is the
    facts, the evidence, with which we must grapple. The process
    with all its flaws is secondary. The reality is, we are faced
    with a body of evidence.
        This trial is not about punishment. It is not about getting
    our pound of flesh from the Democrats. It is not about getting
    our retribution on the President. It is not political
    vengeance. It is not about polls. If polls had prevailed,
    Andrew Johnson would have been removed, and that would have
    been wrong. To argue that a popular President should not be
    removed regardless of his actions, merely because he is
    popular, is to lower our constitutional Republic to a
    meaningless level.
        To say popularity should be a factor in our decision is to
    say that bad poll numbers and unpopularity is an argument for
    removal of a President. How contrary to our constitutional
    system. The popularity of this President should never have been
    mentioned, in my opinion. Nor should political consequences of
    our votes be the basis for our decision of whether to remove
    this President.
        What I had to weigh was the evidence. Voting to remove a
    President--the very thought sobers and humbles me. But the
    facts are so inescapable, the evidence so powerful.
        I am convinced beyond a reasonable doubt that when the
    President testified before the Federal grand jury and said that
    he had been truthful to his aides in what he had said about his
    relationship with Ms. Lewinsky--that he committed perjury and
    obstructed justice. When he told Sidney Blumenthal that Ms.
    Lewinsky was a stalker and he was a victim, he was not being
    truthful. He was trying to destroy her reputation and he would
    have, had it not been for the dress. He lied, and he lied about
    his lie to the grand jury.
        I am convinced beyond a reasonable doubt that when the
    President led Betty Currie through a false rendition of his
    relationship with Ms. Lewinsky that he was tampering with a
    witness and obstructing justice. He did this not once, but
    twice. His explanation that he was refreshing his memory
    offends all common sense. When he denied this coaching before
    the grand jury, he obstructed justice and committed perjury. Of
    course, there is much more to this case, but how much do we
    need?
        If this trial was only about one man's actions, it might be
    easier. But this trial is about so much more--the office of the
    Presidency, the precedent of lowering the bar on the importance
    of our Nation's rule of law. It is about the oath Bill Clinton
    took when he was sworn in as our President, to uphold our
    Nation's laws. And it is about the oath the President took when
    he swore to tell the truth, the whole truth and nothing but the
    truth before the grand jury. The sanctity of the oath is the
    basis of our judicial system. To lessen the significance of
    violating the oath is in fact an attack on our legal system and
    the rule of law.
        There are men and women across America who languish behind
    bars today because they committed the crime of perjury, lying
    under oath. How can we tell America that our President, the
    highest government official in the land, is treated
    differently?
        While I was growing up in Gravette, AR, life seemed much
    more simple than it is today. It was a simpler time. But then
    and now, the bedrock of our society is still truth and justice.
    This hasn't changed. On August 25, 1825, Daniel Webster said,
    ``Whatever government is not a government of laws, is a
    despotism, let it be called what it may.''
        Today is a somber day for our country. This trial has been
    a sad chapter of American history, and I have a heavy heart. As
    difficult as these votes will be, I know that I could not serve
    the people of Arkansas with a clear conscience unless I do what
    I believe is right and uphold the law. I will vote guilty on
    both articles of impeachment.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Patty Murray

        Mrs. MURRAY. Mr. Chief Justice, this past year certainly
    has been a difficult time for America. I have to say, as a
    citizen, as a woman, and as a parent, I cannot begin to
    describe how deeply disappointed and angry I am with the
    President.
        I came to Washington, DC, in 1992. Over the last 6 years I
    have worked with Bill Clinton. I trusted him. I thought I knew
    him. I refused to believe he would demean the Presidency in the
    way that he has. His behavior was appalling and has hurt us
    all.
        As a Senator, I have an obligation under the Constitution
    that transcends any sense of personal betrayal I might have. I
    am sworn to render my judgment based on the evidence presented
    and the larger question of what the framers of the Constitution
    meant when they wrote the impeachment clause.
        I have listened carefully throughout this debate. I have
    read and listened to every available article and argument. Like
    all of you, I have spent more hours on this case than I ever
    wanted to and have felt the tremendous weight of this decision.
        I believe that perjury and obstruction of justice can be
    considered high crimes. The question is whether the facts in
    this case support the allegations that the President committed
    these crimes.
        The Republican House managers presented a theory. But after
    listening carefully to both sides and, most importantly,
    reviewing the words of the witnesses themselves, they did not
    prove their theory of perjury and obstruction of justice beyond
    a reasonable doubt to me. If we are to remove a President for
    the first time in our Nation's history, none of us should have
    any doubts.
        We must also ask ourselves how it would affect the country
    to remove this President after such a partisan process. A
    conversation I had with a constituent not long ago really
    struck a chord with me. He said to me:

        I am old enough to remember President Nixon's resignation. I know
    how deeply it affected the psyche of an entire generation. I know it
    made many of us cynical of politics for a long, long time. Please don't
    put us all through that turmoil again. This country would be punished
    and hurt by a Presidential removal. This country doesn't deserve to be
    punished for this President's behavior.

        So despite my personal disgust with the President's
    actions, I intend to vote ``not guilty'' on both articles of
    impeachment.
        Our founders were wise. They knew the President would be
    imperfect. They knew he would stumble and fall. While it would
    be wrong to suggest they approved of such behavior, they were
    not interested in the individual and his flaws. They sought to
    protect the Nation.
        They set a very high standard for the legislative body to
    meet before overturning the results of an election--the very
    basis of our democracy. They declared it would only be for the
    crimes most threatening to our Nation. They did not establish
    the impeachment process to punish a wrongdoer; they established
    it to protect America.
        This President's behavior was reprehensible, but it does
    not threaten our Nation. In the past year, despite the scandal
    that ran on the front page nearly every day, our country has
    prospered. Our economy is growing. Our waters and air are
    cleaner. Our communities are safer. Our education system is
    stronger. America is not poised on the brink of disaster. Our
    democracy is safe.
        But what of our legacy in this process? What will I tell my
    daughter, or tell a classroom of young students? Well, it
    doesn't take a lawyer or a constitutional scholar to tell them
    that no matter how difficult it is, tell the truth. The lie
    will hurt you much, much more. It can consume you, your
    friends, your family, your nation. It can destroy those you
    love and diminish you forever in their eyes.
        This President now knows that. His legacy will be tainted
    with the anguish he inflicted on the people and country he
    loves because of his selfish and disgraceful behavior. It is a
    weight that he alone will bear for the rest of his life.
        We have heard a lot of emotions and strong feelings on this
    floor from both sides. I respect the deep convictions of
    everyone in this room. I am saddened it has appeared partisan.
    But it is my hope that we can now turn the page on this sad
    part of America's history and put an end to the recriminations.
        Mr. Chief Justice, a point of personal privilege.
        It is hard to stand before you without Scott Bates behind
    me. I knew him as all of you did as a loyal, excellent Senate
    employee. But I also knew him as a dad. We stood together as
    parents on a soccer field cheering on our daughters in victory
    and hugging them in defeat. He will be missed, but his absence
    should serve as a reminder that although we have been totally
    engrossed in this issue for far too long, there is life outside
    of these doors. There are friends to be hugged, kids to be
    educated, parents to take care of.
        I hope when this day is over, we will set aside our
    differences and remember there are a lot more important things
    each of us needs to be concentrating on, both professionally
    and personally. It is time to move on.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator John McCain

        Mr. McCAIN. Mr. Chief Justice, I intend to vote to convict
    the President of the United States on both articles of
    impeachment. To say I do so with regret will sound trite to
    some, but I mean it sincerely. I deeply regret that this day
    has come to pass.
        I bear no animosity for the President. I take no partisan
    satisfaction from this matter. I don't lightly dismiss the
    public's clear opposition to conviction. And I am genuinely
    concerned that the institution of the Presidency not be harmed,
    either by the President's conduct, or by Congress' reaction to
    his conduct.
        Indeed, I take no satisfaction at all from this vote, with
    one exception--and an important exception it is--that by voting
    to convict I have been spared reproach by my conscience for
    shirking my duty.
        The Senate faces an awful choice, to be sure. But, to my
    mind, it is a clear choice. I am persuaded that the President
    has violated his oath of office by committing perjury and by
    obstructing justice, and that by so doing he has forfeited his
    office.
        As my colleagues across the aisle have so often reminded
    me, the country does not want the President removed. And, they
    ask, are we not, first and foremost, servants of the public
    will? Even if we believe the President to be guilty of the
    offenses charged, and even if we believe those offenses rise to
    the level of impeachment, should we risk the national trauma of
    forcing his removal against the clearly expressed desire of the
    vast majority of Americans that he should not be removed even
    if he is guilty of perjury and obstruction of justice?
        I considered that question very carefully, and I arrived at
    an answer by reversing the proposition. If a clear majority of
    the American people were to demand the conviction of the
    President, should I vote for his conviction even if I believed
    the President to be innocent of the offenses he is charged
    with? Of course not. Neither, then, should I let public opinion
    restrain me from voting to convict if I determine the President
    is guilty.
        But are these articles of impeachment of sufficient gravity
    to warrant removal, or can we seek their redress by some other
    means short of removing the President from office? Some of
    those who argue for a lesser sanction, including the
    President's able counsel, contend that irrespective of the
    President's guilt or innocence, neither of the articles charge
    him with high crimes and misdemeanors. Nothing less than an
    assault on the integrity of our constitutional government rises
    to that level. The President's offenses were committed to cover
    up private not public misconduct. Therefore, if he thwarted
    justice he did so for the perfectly understandable and
    forgivable purpose of keeping hidden an embarrassing personal
    shortcoming that, were it discovered, would harm only his
    family and his reputation, but would not impair our system of
    government.
        This, too, is an appealing rationalization for acquittal.
    But it is just that, a rationalization. Nowhere in the
    Constitution or in the expressed views of our founders are
    crimes intended to conceal the President's character flaws
    distinguished from crimes intended to subvert democracy. The
    President thwarted justice. No matter how unfair he or we may
    view a process that forces a President to disclose his own
    failings, we should not excuse or fail to punish in the
    constitutionally prescribed manner evidence that the President
    has deliberately thwarted the course of justice.
        I do not desire to sit in judgment of the President's
    private misconduct. It is truly a matter for him and his family
    to resolve. I sincerely wish circumstances had allowed the
    President to keep his personal life private. I have done things
    in my private life that I am not proud of. I suspect many of us
    have. But we are not asked to judge the President's character
    flaws. We are asked to judge whether the President, who swore
    an oath to faithfully execute his office, deliberately
    subverted--for whatever purpose--the rule of law.
        All of my life, I have been instructed never to swear an
    oath to my country in vain. In my former profession, those who
    violated their sworn oath were punished severely and considered
    outcasts from our society. I do not hold the President to the
    same standard that I hold military officers. I hold him to a
    higher standard. Although I may admit to failures in my private
    life, I have at all times, and to the best of my ability, kept
    faith with every oath I have ever sworn to this country. I have
    known some men who kept that faith at the cost of their lives.
        I cannot--not in deference to public opinion, or for
    political considerations, or for the sake of comity and
    friendship--I cannot agree to expect less from the President.
        Most officers of my acquaintance would have resigned their
    commission had they been discovered violating their oath. The
    President did not choose that course of action. He has left it
    to the Senate to determine his fate. And the Senate, as we all
    know, is going to acquit the President. As much as I would like
    to, I cannot join in his acquittal.
        The House managers have made, and I believe some of my
    colleagues on the other side of the aisle would agree, a
    persuasive case that the President is guilty of perjury and
    obstruction. The circumstances that led to these offenses may
    be tawdry, trivial to some, and usually of a very private
    nature. But the President broke the law. Not a tawdry law, not
    a trivial law, not a private law.
        The tortured explanations with which the President's
    attorneys have tried to defend him against both articles fail
    to raise reasonable doubts about his guilt. It seems clear to
    me, and to most Americans, that the President deliberately lied
    under oath, and that he tried to encourage others to lie under
    oath on his behalf. Presidents may not be excused from such an
    abuse no matter how intrusive, how unfair, how distasteful are
    the judicial proceedings they attempt to subvert.
        The President's defenders want to know how can I be certain
    that the offenses, even if true, warrant removal from office.
    They are not expressly mentioned in the Constitution as
    impeachable offenses. Nor did the founders identify perjury or
    obstruction as high crimes or high misdemeanors. Were an
    ordinary citizen accused of perjury in a civil proceeding, he
    or she would in all likelihood not be prosecuted or forced out
    of political necessity into a perjury trap.
        No, an ordinary citizen would not be treated as the
    President has been treated. But ordinary citizens don't enforce
    the laws for the rest of us. Ordinary citizens don't have the
    world's mightiest armed forces at their command. Ordinary
    citizens do not usually have the opportunity to be figures of
    historical importance.
        Presidents are not ordinary citizens. They are
    extraordinary, in that they are vested with so much more
    authority and power than the rest of us. We have a right;
    indeed, we have an obligation, to hold them strictly
    accountable to the rule of law.
        Are perjury and obstruction of justice expressly listed as
    high crimes and misdemeanors? No. Why? Because they are self-
    evidently so just as the President is self-evidently the
    Nation's chief law enforcement officer, despite his attorneys'
    quibbling to the contrary. It is self-evident to us all, I
    hope, that we cannot overlook, dismiss or diminish the
    obstruction of justice by the very person we charge with taking
    care that the laws are faithfully executed. It is self-evident
    to me. And accordingly, regretfully, I must vote to convict the
    President, and urge my colleagues to do the same.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Tim Johnson

        Mr. JOHNSON. Mr. Chief Justice, the great question now
    before the Senate is not whether the rule of law will prevail--
    it surely will--both by the actions of this body and by
    possible proceedings within the judicial system.
        The question before the Senate is whether we should take
    action against the President beyond that allowed for in our
    Nation's courts. We are, I believe, confronted by two threshold
    questions which must first be resolved before consideration can
    or need be given to weighing the evidence presented by the
    House managers. First, is whether the articles of impeachment
    have been adequately drawn to allow the accused to know with
    precision the wrongdoing to which he is accused, and to require
    that a two-thirds majority vote of the Senate be secured upon a
    single act of wrongdoing in order to convict. As a second
    threshold matter, if the articles are at least adequately
    drawn, do they, if true, allege wrongdoing of sufficient import
    to justify for the very first time in our Nation's long
    history, the overturning of the people's will as expressed in a
    free, fair, and democratic national election? I am troubled by
    the adequacy of the articles, but even accepting them, the
    second threshold question of impeachability is simply not met.
        Only if these threshold questions are adequately met in the
    mind of an individual Senator, can that Senator proceed to
    determine whether the weight of the evidence is sufficient to
    convict. And even if both threshold questions are ignored, it
    is impossible for me to say that the circumstantial evidence
    presented reaches a ``beyond a reasonable doubt'' standard on
    either article. Reasonable doubt means that if there are
    multiple reasonable theories as to what occurred--if one of the
    reasonable theories is consistent with innocence, then an
    acquittal must follow. Especially relative to article two--I
    can understand the belief of some that a plausible scenario of
    obstruction was established. Some may even believe that the
    President was more likely than not obstructing justice. But the
    evidence is clearly not so powerful as to lead anyone to
    believe that no reasonable and innocent scenario remains.
        I am both profoundly honored and humbled to have this
    historic responsibility to participate with my Senate
    colleagues, Republican and Democrat, in perhaps the most grave
    proceeding envisioned by the authors of our national
    Constitution. I have listened carefully to both sides of this
    dispute, and I have also carefully reviewed the thoughts of
    many of our Nation's leading scholars of history and
    constitutional law. It is clear to me that the results of this
    trial have ramifications which go far beyond the fortunes of
    William Jefferson Clinton.
        The decision made by the Senate this week will have an
    utterly profound impact on the relationship between the
    executive and legislative branches of our government for the
    rest of time. Accordingly, it is essential that the decisions
    made in this proceeding not be driven by transitory passions of
    partisan politics but rather with an eye toward the long-term
    stability and integrity of our democracy.
        My humble reading of history leads me to believe that the
    never-failing bipartisan honoring of national Presidential
    elections over these past two centuries has been one of the
    greatest sources of our national success. While holding a
    President accountable to all the same civil and criminal laws
    that apply to the general citizenry is absolutely essential,
    the writers of our Constitution properly intended for the
    reversal of fair elections at the hands of Congress to be
    exceedingly rare and difficult.
        The learned opinions of our Nation's leading scholars
    overwhelmingly support the understanding that Presidents should
    not be removed from office by Congress short of some horrific
    personal misconduct or misconduct which arises from executive
    authority and threatens the Nation--such as treason or bribery.
    By requiring a two-thirds vote for the overturning of
    Presidential elections, the founders of our Nation also made it
    crystal clear that such an extraordinary step should not and
    cannot be taken unless there is an overwhelming bipartisan
    outcry against the President's actions.
        The American public and most Members of Congress, including
    myself, have criticized President Clinton's personal conduct in
    harsh terms. But the American public also seems to understand
    that at stake is not simply Bill Clinton's future, but the
    integrity of our election system and the long-term freedom of
    the executive branch from partisan congressional attack--this
    understanding about the need for stability, for
    proportionality, for continuity, is a natural and a deeply
    conservative inclination on the part of our citizenry.
        The writers of our Constitution wanted some degree of
    proportionality between a President's conduct and the penalties
    applied--otherwise they would have made impeachment applicable
    to all crimes and misdemeanors. It is certainly conceivable
    that the will of the people expressed in an election may
    someday be rightly overturned by Congress. But it is also
    certain to me that while this President's personal conduct,
    involving immaterial testimony to a lawsuit dismissed by a
    Federal court as having no merit, is deserving of public
    condemnation, and even possible prosecution within the judicial
    system, it simply does not rise to the level of extraordinary
    danger to the Nation that justifies removal from office.
        Some will no doubt say that I have set a high standard for
    overturning Presidential elections. I would very much agree.
    Particularly as a recently former member of the House of
    Representatives, I have witnessed firsthand the depth and the
    intensity of partisan anger that can occur from time to time in
    Congress and among portions of the national public. It is a
    reaction to that open partisanship demonstrated by the House
    and the independent counsel that surely is at the foundation of
    the American public's overwhelming contempt for this proceeding
    and the view that this process is politics as usual, an
    exercise in raw political power and beneath what should be the
    dignity of Congress.
        I have no certain solutions for that sad and angry state of
    affairs, other than to attempt to conduct my own political life
    in as thoughtful and moderate a manner as I am capable, but I
    believe the Constitution provided our Nation with a strong
    bulwark against negative and hateful partisanship by creating
    an executive branch which is largely shielded from
    congressional partisanship and which is instead disciplined by
    law and by the electoral will of the people.
        I greatly fear that any lesser standard would result, even
    without an independent counsel law, in a situation whereby
    civil actions against standing Presidents will be routinely
    brought as yet another destructive partisan political tactic.
    These multiple and nefarious actions will then be followed by
    never-ending legal discovery proceedings, and they in turn
    followed by impeachment articles or the threat of impeachment
    each time the House is controlled by a different political
    party than the Presidency. I fear the wrong decision here will
    lead our Nation into an ever downward spiral where impeachment
    proceedings will be routine.
        It is critically important, in my view, for this U.S.
    Senate to say, ``Stop! Enough!'' We must send an unmistakable
    message to the House, the Nation and the world, that we will
    not permit the stability and independence of the executive
    branch of our government to be jeopardized by anything less
    than heinous crimes or gross threats to the Nation.
        This leaves, of course, other avenues for Congress and the
    public to express great displeasure with the President's
    dishonorable conduct. If illegal activity did in fact take
    place, that activity would be subject to discipline in the
    courts. While there are divided opinions on its wisdom, it is
    possible that some sort of collective censure may be agreed
    upon by the Senate, and certainly individual Senators are free
    to place their condemnations of the President's personal
    behavior in the Congressional Record. The House impeachment of
    the President, the public humiliation of Bill Clinton and his
    family, as well as the great private fortune this dispute will
    have consumed will also serve as punishment enough. But I think
    it is also important for this Senate to understand that the
    writers of our Constitution did not create an impeachment
    process as one more form of punishment, but exclusively to
    protect the viability of our Nation.
        Given my sacred oaths as a U.S. Senator and as a
    participant in this impeachment trial, and given my abiding
    commitment to the Constitution and the well-being of our
    Nation, I have no choice but to vote against both articles of
    impeachment. I do not know nor do I care what the political
    consequences might be of the decision I make here--I am a
    Democrat elected six consecutive times State-wide from my
    largely Republican State, and I have long been proud of the
    bipartisan support extended to me by the good people of South
    Dakota. In turn, I have long recognized that neither political
    party has a monopoly on good ideas or bad, good people or bad.
    But I know this--the issue before me is too grave for politics.
    At the end of the day, when my service in this body is done, I
    want my children, my family and myself to view my decisions
    here as honorable, as an exercise in responsible judgment, and
    in a small way, as efforts that strengthened the bulwark of
    democracy that our Constitution represents.
        The President dishonorably lied to the American people,
    however, the two articles before the Senate fail, first because
    they do not allege offenses that give rise to removal from
    office, and secondly, because it cannot be said that the
    evidence proves guilt of perjury or obstruction of justice
    beyond all reasonable doubt, to such a degree that no innocent
    and reasonable explanation exists.
        I will vote not guilty on both article I and article II.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Richard G. Lugar

        Mr. LUGAR. Mr. Chief Justice, for the first time in 120
    years, and only for the second time in U.S. history, the Senate
    is about to conclude a Presidential impeachment trial. Our
    Founding Fathers viewed the power to remove a President as a
    necessary constitutional safeguard, but they wanted to make
    certain that the process was sufficiently difficult that the
    will of the voters would be overturned only for the gravest of
    reasons. They wrote the words ``high crimes and misdemeanors''
    as a threshold, but left it to us to determine what
    transgressions met this standard. All of us have endeavored to
    fulfill this enormous responsibility.
        From the beginning of the consideration of impeachment last
    year, many Members of Congress in both parties have made public
    statements expressing their opinions that the President lied to
    a Federal grand jury and that he obstructed justice on numerous
    occasions. These judgments are apparently shared by large
    majorities of the American people as illustrated in frequent
    public opinion polls. The same polls have consistently found
    that a large majority of Americans do not want the President to
    suffer the constitutional consequence of these breaches of law,
    namely, removal from office.
        Since the House voted for impeachment, almost all 45
    Democrats and some Republicans in the Senate have voiced their
    skepticism about voting to remove President Clinton from
    office. Early in the trial, 44 Democrats voted to dismiss the
    impeachment proceedings outright. Thus, a two-thirds majority
    vote needed for a guilty verdict has never been a likely
    outcome of the trial.
        In the background, most Senate Democrats and several
    Republicans have worked on a motion to censure President
    Clinton. Our distinguished colleague, Senator Feinstein,
    drafted a censure resolution that attracted substantial
    bipartisan support and was published in the New York Times of
    February 6, 1999. It stated:

        Whereas William Jefferson Clinton, President of the United States,
    engaged in an inappropriate relationship with a subordinate employee in
    the White House, which was shameless, reckless and indefensible;
        Whereas William Jefferson Clinton, President of the United States,
    deliberately misled and deceived the American people and officials in
    all branches of the United States Government;
        Whereas William Jefferson Clinton, President of the United States,
    gave false or misleading testimony and impeded discovery of evidence in
    judicial proceedings;
        Whereas William Jefferson Clinton's conduct in this matter is
    unacceptable for a President of the United States, does demean the
    Office of the President as well as the President himself, and creates
    disrespect for the laws of the land;
        Whereas President Clinton fully deserves censure for engaging in
    such behavior;
        Whereas future generations of Americans must know that such
    behavior is not only unacceptable but also bears grave consequences,
    including loss of integrity, trust and respect;
        Whereas William Jefferson Clinton remains subject to criminal and
    civil actions;
        Whereas William Jefferson Clinton's conduct in this matter has
    brought shame and dishonor to himself and to the Office of the
    President; and
        Whereas William Jefferson Clinton, through his conduct in this
    matter, has violated the trust of the American people: Now, therefore,
    be it
        Resolved, That the United States Senate does hereby censure William
    Jefferson Clinton, President of the United States, and condemns his
    conduct in the strongest terms.

        Citizens might ask how a Senator could vote for a
    resolution stating that President Clinton ``deliberately misled
    and deceived the American people and officials in all branches
    of the United States Government'' and ``gave false or
    misleading testimony and impeded discovery of evidence in
    judicial proceedings'' and yet fail to vote ``guilty'' on
    articles of impeachment that specifically mention perjury and
    obstruction of justice. The answer to that question is at the
    heart of understanding the Senate trial.
        With few exceptions, Senators recognize that the
    Constitution gives only one outcome to a verdict of ``guilty,''
    namely, removal from office. At the same time, many Senators
    are shocked by conduct which they call ``shameless, reckless,
    and indefensible,'' and they want their constituents to know
    that they have not been fooled or overwhelmed by Presidential
    charm. They have taken the initiative to explicitly denounce
    the bizarre conduct and the extraordinary corruption of this
    President. Members of both parties have deplored the fact that
    the President conducted an illicit sustained physical sexual
    relationship in spaces close to the Oval Office and publicly
    denied this to his family, his staff, and in televised
    statements to the world only to see all of the elaborate cover-
    up collapse after DNA tests on the dress of a young woman, but
    the impeachment trial of President Clinton is not about
    adultery. The impeachment trial involves the President's
    illegal efforts to deny a fair result in the suit brought by
    Ms. Paula Jones. I have no doubt that the President worked
    deliberately to deny justice in this suit. In doing so, he lied
    to a Federal grand jury and worked to induce others to give
    false testimony, thus obstructing justice.
        Ms. Jones has often been described as a small person in our
    judicial system. In contrast, the President, who at the time of
    his inaugural takes a solemn oath to preserve and protect equal
    justice under the law for even the most humble of Americans, is
    a giant figure. As Senators who also take a solemn oath, we
    must ask ourselves the fundamental question: ``Is any man or
    woman above the law?''
        The legal defense team for the President does not admit
    that there is adequate proof of either perjury or obstruction
    of justice. They contend that Senators must embrace a theory of
    ``immaculate obstruction'' in which jobs are found, gifts are
    concealed, false affidavits are filed, and the character of a
    witness is publicly impugned, all without the knowledge or
    direction of the President, who is the sole beneficiary of
    these actions. The President's lawyers further contend that
    such crimes are, in any event, insufficient to remove the
    President. The drafters of the Constitution would have rejected
    these rationalizations for the indefensible Presidential
    misconduct at issue. They were political men with a profound
    reverence for the sanctity of the oath and our entire system of
    justice. They did not suggest that Senators park their common
    sense and their stewardship for the security of our country at
    the Senate door as they entered into an impeachment trial.
        In fact, we have discovered in this trial that the Founding
    Fathers wanted the Senate to act as ``triers'' of fact and in
    the roles of both trial court and jury. Most importantly, they
    wanted us to act as guardians of the Constitution and thus the
    liberty and the rights under law of each individual American.
    Liberty itself is directly threatened when a President subverts
    the very judicial system that secures those rights.
        During this trial, I have concluded that the prosecutors
    made their case. I will vote to remove President Clinton from
    office not only because he is guilty of both articles of
    impeachment, but also because I believe the crimes committed
    here demonstrate that he is capable of lying routinely whenever
    it is convenient. He is not trustworthy. Simply to be near him
    in the White House has meant not only tragic heartache for his
    wife and his daughter but enormous legal bills for staff
    members and friends who admired him and yearned for his success
    but who have been caught up in his incessant ``war room''
    strategies to maintain him in office. Senator Feinstein begins
    her censure resolution with the appropriate word ``shameless.''
    The President should have simply resigned and spared his
    country the ordeal of this impeachment trial and its aftermath.
        We have been fortunate that this damaged Presidency has
    occurred during a time of relative peace and prosperity. In
    times of war or national emergency, it is often necessary for
    the President to call upon the Nation to make great economic
    and personal sacrifices. In these occasions, our President had
    best be trustworthy--a truth teller whose life of principled
    leadership and integrity we can count upon. Some commentators
    have suggested that with the President having less than 2 years
    left in his term of office, the easiest approach is to let the
    clock expire while hoping that he is sufficiently careful, if
    not contrite, to avoid reckless and indefensible conduct. But
    as Senators, we know that the dangers of the world constantly
    threaten us. Rarely do 2 years pass without the need for strong
    Presidential leadership and the exercise of substantial moral
    authority from the White House.
        Of particular concern are the implications of the
    President's behavior for our national security. As Commander in
    Chief, President Clinton fully understood the risks that he was
    imposing on the country's security with his secret affair in
    the White House. Even in this post-cold war era, foreign
    intelligence agents constantly look for opportunities for
    deception, propaganda, and blackmail. No higher targets exist
    than the President and the White House. The President even
    acknowledged in a phone call with Ms. Lewinsky that foreign
    agents could be monitoring their conversations. Yet this
    knowledge did not dissuade the President from continuing his
    affair. With premeditation, he chose his own gratification
    above the security of his country and the success of his
    Presidency. Then he chose to compound the damage by
    systematically lying about it over the span of many months.
        I believe that our country will be stronger and better
    prepared to meet our challenges with a cleansing of the
    Presidency. The President of the United States is the most
    powerful person in the world because we are the strongest
    country economically and militarily, and in the appeal of our
    idealism for liberty and freedom of conscience. Our President
    must be strong because a President personifies the rule of law
    that he is sworn to uphold and protect. We must believe him and
    trust him if we are to follow him. His influence on domestic
    and foreign policies comes from that trust, which a lifetime of
    words, deeds, and achievements has built.
        President Clinton has betrayed that trust. His leadership
    has been diminished because most Americans have come to the
    cynical conclusion that they must read between the lines of his
    statements and try to catch a glimmer of truth amidst the spin.
    His subordinates have demeaned public life by contending that
    ``everybody does it'' as a defense of why the President has
    erred so grievously. But every President does not lie to a
    Federal grand jury. Every President does not obstruct justice.
    The last President to do so was President Nixon, and he had
    sufficient reverence for the office to resign before the House
    even voted articles of impeachment.
        The impeachment trial must come to an end. The Presidency
    will be strengthened and our ability as Americans to meet
    important challenges will be strengthened if we begin to
    restore our faith in the truth and justice that our government
    must exemplify and preserve. It will not be enough simply to
    condemn the tragic misdeeds of President Clinton. He must be
    removed from office as the Constitution prescribes, and we must
    celebrate the strength of that same Constitution which also
    provides a path for a new beginning.
        Thank you, Mr. Chief Justice. I yield the floor.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                   Statement of Senator Joseph R. Biden, Jr.

        Mr. BIDEN. Mr. Chief Justice, let me begin by stating what
    I believe the American people view as the obvious. There are no
    good guys in this sordid affair. Rightly or wrongly, the public
    has concluded that the President is an adulterer and liar; that
    Ken Starr has abused his authority by unfair tactics born out
    of vindictiveness; that the House managers have acted in a
    narrowly partisan way and are now desperately attempting to
    justify their actions for their own political reputation.
    Finally, they have concluded that Monica Lewinsky was both used
    and a user, while Linda Tripp, Lucianne Goldberg, Paula Jones
    and her official and unofficial legal team are part of a larger
    political plot to ``get the President.''
        All of that is beyond our ability to effect. Our job is not
    to dissect the motives or even the tactics of Ken Starr, the
    trial lawyers, Linda Tripp, and others. Our only job is to
    determine whether the President of the United States by his
    conduct committed the specific acts alleged in the two articles
    of impeachment. Not generally, but specifically: Did he do what
    is alleged? And if he did, do these actions rise to the level
    of high crimes and misdemeanors necessary to justify the most
    obviously antidemocratic act the Senate can engage in--
    overturning an election by convicting the President?
        It is very important--both for history's sake and for
    fairness' sake--that we keep our eye on the ball. When I tried
    cases, I learned from a man named Sid Balick--he used to say at
    the outset to the jury:

        Keep your eye on the ball. The issue is not whether my client is a
    man you would want your daughter to date--a man you would invite home
    to dinner. The issue is did my client kill Cock Robbin--period.

        If we listen to the oft-times confusing presentation of the
    House managers, they would have us think that it is sufficient
    for us to conclude that we would not trust him with our
    daughters and not invite him home for dinner in order to
    convict.
        Much more is required. The House set the standard we must
    repair to in the articles--did he commit a criminal offense?
    That is what they allege; that is what they must prove.
        The managers keep saying that this case is about what
    standards we want our President to meet. We hear Flanders
    Fields intoned--the honor of our most decorated heroes. How
    incredibly self-serving and autocratic such a plea is.
        The American people are fully capable--without our guidance
    or advice--to determine what standards they want our President
    to meet. That is an appropriate question to ask ourselves when
    we enter the voting booth to vote--it is not when we rise on
    this floor to vote.
        Spare me from those who would tell the American people what
    standard they must apply when voting for President. Ours is an
    impeachment standard and our oath to do justice under that
    standard.
        Impeachment is about what standard to use in deciding
    whether or not to remove a President duly elected by the
    people.
        These are two very different questions and we must not, we
    cannot, get them confused. You and I and the American people
    can apply any standard we want our President to meet when we go
    to the polls on election day.
        Only the Constitution can supply the standards to use in
    deciding whether or not to remove the President--and--in my
    view, this case does not meet that standard, for two reasons.
        First, the facts do not sustain the House managers' case.
    According to the House's own theory, we must find that the
    President has violated Federal criminal statutes--not just that
    he did bad things. In all good conscience, I just cannot
    believe that any jury would convict the President of any of the
    criminal charges on these facts. I also believe that it is our
    constitutional duty to give the President the benefit of the
    doubt on the facts. To me, the allegations that the President
    violated title 18 were left in a shambles on this floor.
        I do not have time to dwell on the facts. So let me turn to
    the second reason: the President's actions do not rise to the
    level required by the Constitution for the removal of a sitting
    President.
        We have heard it argued repeatedly that the Constitution
    does not create different standards for judges and the
    President. But that argument fails to comprehend the organizing
    principle of our constitutional system--the separation of
    powers. The framers divided the power of the Federal Government
    into three branches in order to safeguard liberty. This
    innovation--the envy of every Nation on earth--can only serve
    its fundamental purpose if each branch remains strong and
    independent of the others.
        We needed a President who was independent enough to
    spearhead and sign the Civil Rights Act. We needed a President
    who was independent enough to lead the Nation and the world in
    the Persian gulf war. We still need an independent President.
        The constitutional scholarship overwhelmingly recognizes
    that the fundamental structural commitment to separation of
    powers requires us to view the President as different than a
    Federal judge. Consider our power to discipline and even expel
    an individual Senator. In such a case, we do not remove the
    head of a separate branch and so do not threaten the
    constitutional balance of powers. To remove a President is to
    decapitate another branch and to undermine the independence
    necessary for it to fulfill its constitutional role.
        Only a President is chosen by the people in a national
    election. No Senator, no Representative can make this claim. To
    remove a duly elected President clashes with democratic
    principles in a way that simply has no constitutional parallel.
    By contrast, there is nothing antidemocratic in the Senate
    removing a judge who was appointed and not elected by the
    people.
        Another contention we continue to hear is that the framers
    clearly thought that obstruction of justice of any kind by a
    President was a high crime and misdemeanor. For this they cite
    the colloquy between Colonel George Mason and James Madison,
    who argued that a President who abused his pardon power could
    be impeached. That colloquy illustrates that it is not any
    obstruction that would satisfy the Constitution--rather, that
    the framers were immediately concerned about abuses of official
    power, such as the pardon power.
        The House managers have relied repeatedly on Alexander
    Hamilton's explanation of impeachment found in Federalist No.
    65. But careful reading demonstrates that these articles of
    impeachment are a constitutionally insufficient ground for
    removing the President from office. Federalist No. 65 states:

        The subjects of [the impeachment court's] jurisdiction are those
    offenses which proceed from the misconduct of public men, or, in other
    words, from the abuse or violation of some public trust. They are of a
    nature which may with peculiar propriety be denominated POLITICAL, as
    they relate chiefly to injuries done immediately to the society itself.

        Hamilton had the word ``political'' typed in all capital
    letters to emphasize that this is the central, defining element
    of any impeachable offense. Having emphasized its meaning, he
    did not leave its definition to chance. While all crimes by
    definition harm society, impeachable offenses involve a
    specific category of offenses. Using Hamilton's terms, these
    are offenses committed when ``public men'' who ``violat[e] some
    public trust'' cause ``injuries done immediately to the society
    itself.'' The public trust that resides in, to use Hamilton's
    hoary phrase, ``public men'' is what we would call today
    official power.
        What other construction can be given these words? Hamilton
    did not define an impeachable offense to be any offense
    committed by public men. He did not define an impeachable
    offense to be any reprehensible act committed by a bad man.
    Only those acts that abuse public office and so harm the public
    directly and politically are impeachable.
        While I would like to take credit for this insight into
    Hamilton's meaning, I actually stand in a line of
    interpretation that stretches back to the founding era. William
    Rawle wrote the first distinguished commentary on the
    Constitution, ``A View of the Constitution of the United States
    of America.'' In this treatise, he came to precisely the same
    interpretation I have described. He said, ``The causes of
    impeachment can only have reference to public character and
    official duty. . . . In general those which may be committed
    equally by a private person as a public officer are not the
    subject of impeachment.''
        Joseph Story was not only a long-serving and important
    Justice of the Supreme Court of the United States, he was a
    preeminent constitutional scholar and author of a treatise that
    remains an important source for understanding the
    Constitution's meaning. He, too, emphasized that ``it is not
    every offense that by the constitution is . . . impeachable.''
    Which offenses did he regard to be impeachable? ``Such kinds of
    misdeeds . . . as peculiarly injure the commonwealth by the
    abuse of high offices of trust.'' Justice Story tied the
    definition of impeachable offenses to the purpose that
    underlies the separation of powers--safeguarding the liberty of
    the people against abusive exercise of governmental power. He
    observed that impeachment ``is not so much designed to punish
    an offender as to secure the state against gross official
    misdemeanors.''
        There is no question that the Constitution sets the bar for
    impeachment very high--especially where the President is
    involved. Federalist 65 bears this out, as do numerous other
    commentaries.
        But Federalist 65 also sounds a warning--again, it is a
    warning that has been invoked over and over again--that
    impeachments inevitably risk being hijacked by partisan
    political forces.
        Federalist 65 worried that the ``animosities, partialities,
    influence, and interest on one side or the other'' would enable
    partisans to find a way to interpret words such as high crimes
    and misdemeanors to match the outcome they otherwise wished to
    reach--not necessarily out of any malevolence, but simply
    because of the great capacity that we all have to rationalize.
        Here the rationalization is pretty easy--the President is a
    disgrace to the office, I honor and revere the office of the
    Presidency, so there must be some way to get this man out of
    that office. Therefore, his actions must rise to the level of
    high crimes and misdemeanors.
        It is tempting to go down that road--but this is precisely
    the temptation that the framers urged us to avoid.
        In Federalist 65, Hamilton defended the U.S. Senate as the
    only body that could possibly hear a Presidential impeachment.
    ``Where else than in the Senate could have been found a
    tribunal sufficiently dignified, or sufficiently independent?
    What other body would be likely to feel confidence enough in
    its own situation to preserve, unawed and uninfluenced the
    necessary impartiality between an individual accused and . . .
    his accusers?''
        Hamilton was placing the responsibility to be impartial
    squarely upon us--a responsibility that has become embodied in
    the oath we took when the trial began.
        Charles Black, the renowned constitutional law professor
    from Yale, boiled down the attitude that we as Senators must
    adopt in order to achieve an impartiality and independence
    sufficient to the responsibilities of impeachment. He said we
    must act with a ``principled political neutrality.''
        That is a tough standard to meet. In the Johnson
    impeachment, for example, James Blaine originally voted for the
    impeachment of the President in the House. Years later he
    admitted his mistake, saying that `the sober reflection of
    after years has persuaded many who favored Impeachment that it
    was not justifiable on the charges made, and that its success
    would have resulted in greater injury to free institutions than
    Andrew Johnson in his utmost endeavor was able to inflict.''
        And in our contemporary situation, former President Ford
    and our distinguished colleague and former majority leader,
    Robert Dole, have both urged us not to go down the road to
    impeachment, but to seek other means to express our
    displeasure.
        Charles Black knew that principled political neutrality was
    hard to achieve, so he suggested one approach. He suggested
    that prior to voting, a Senator should ask:

        Would I have answered the same question the same way if it came up
    with respect to a President towards whom I felt oppositely from the way
    I feel toward the President threatened with removal?

        In reaching a final decision, the question I wish to pose
    to my colleagues is this: Can you legitimately conclude that
    you would vote to remove a sitting President if he were a
    person towards whom you felt oppositely than you do toward Bill
    Clinton?
        Given the essentially antidemocratic nature of impeachment
    and the great dangers inherent in the too ready exercise of
    that power, impeachment has no place in our system of
    constitutional democracy except as an extreme measure--reserved
    for breaches of the public trust by a President who so violates
    his official duties, misuses his official powers or places our
    system of government at such risk that our constitutional
    government is put in immediate danger by his continuing to
    serve out the term to which the people of the United States
    elected him.
        In my judgment, trying to assume a perspective of
    principled political neutrality, the case before us falls far,
    far short on the facts and on the law.
        I ask unanimous consent that the text of a more
    comprehensive statement be printed in the Record.
        There being no objection, the material was ordered to be
    printed in the Record, as follows:

       Senator Joseph R. Biden's Comprehensive Statement On Impeachment
                                 Deliberations

        There are no good guys in this sordid affair. Rightly or
    wrongly, the public has concluded that the President is an
    adulterer and liar. Ken Starr has abused his authority by
    unfair tactics born out of vindictiveness. The House Managers
    have acted in a narrowly partisan way and are now desperately
    attempting to justify their actions for their own political
    reputation and that Monica Lewinsky was both used and a user,
    while Linda Tripp, Lucianne Goldberg, Paula Jones and her
    official and unofficial legal team are part of a larger
    political plot to ``get the President''.
        At this point, all that occurred before this is beyond my
    ability to affect. My job as a United States Senator hearing an
    impeachment trial is not to dissect the motives or even the
    tactics of Ken Starr, the trial lawyers, Linda Tripp and
    others. My only job is to determine whether the President of
    the United States, by his conduct committed the acts alleged in
    the two Articles of Impeachment before us. Not generally, but
    specifically, did he do what is alleged--and if he did, do
    these actions rise to the level of high crimes and misdemeanors
    necessary to justify the most obviously antidemocratic act the
    Senate can engage in--overturning an election.

                          the articles of impeachment

        When the framers designed our elected branches of
    Government, they established a system of separate but equal
    branches. The independence of the President from the Congress,
    and vice versa, is constitutionally anchored in the fact that
    each answers directly to the people through the ballot box. The
    people determine who will serve in either branch.
        As I said in a speech last September at Syracuse Law School
    and in another on the floor of the United State Senate, the
    independence of the President from the Congress was no minor
    detail in the constitutional design. The single major goal and
    idea that best explains how the framers constructed the office
    of the Presidency was to make the Presidency as politically
    independent of the Congress as they could. They believed his
    independence vital to the protection of our liberties.
        It takes a strong and independent President to sign the
    Emancipation Proclamation in the face of congressional
    opposition, as Abraham Lincoln did. It takes a strong and
    independent President to sign the executive order integrating
    the Armed Services in the face of congressional resistance, as
    Harry Truman did. It takes a strong and independent President
    to veto legislation in the face of strong majorities, as Ronald
    Reagan, George Bush and all of our Presidents have done.
        We can, and we do, disagree about the wisdom of any
    particular Presidential decision, but none of us can doubt that
    the institution of a strong and independent Presidency has
    enhanced our freedoms and made us a stronger Nation.
        For us to remove a duly elected President will unavoidably
    harm our constitutional structure.
        Accordingly, for this Senator, the starting point in my
    thinking about the articles of impeachment must begin with
    giving the President the benefit of the doubt, and to err on
    the side of sustaining the independence of that office so vital
    to the framers and to the constitutional system they designed.
    Impeachment must be used against a President only as an extreme
    measure, when the President has so breached the public trust
    that our system of government is put in danger by his
    continuing to serve out the term to which the people of the
    United States elected him.
        Have the House managers presented a case of sufficient
    severity, and have they proved it with sufficient clarity, to
    justify the drastic and awesome, step of convicting a duly
    elected President?
        On January 12, when the House managers walked across the
    rotunda to the Senate and presented their case against the
    President, the country moved from the realm of sound bites and
    political attacks to a serious and sober consideration of the
    precise nature of the House's allegations against the
    President, and of the full extent of the record evidence
    against him.
        The House managers have told us that in their judgment two
    dangers to our system of government justify taking this
    unprecedented and awesome step.
        First, they said that failing to remove the President will
    undermine the rule of law and the administration of justice.
    Permitting a serial perjurer and obstructor of justice to
    escape punishment will bring disgrace on the oath ``to tell the
    truth.'' It will mean that we can no longer with good
    conscience punish other people who have committed perjury or
    obstructed justice. The ultimate effects would be felt
    throughout the judicial system. Like a pebble dropped into a
    pond, they said, it will send out ripples to all corners of our
    judicial system.
        Second, they said that failing to remove the President will
    also condone his plot or scheme to deny a specific civil rights
    plaintiff--Paula Jones--of a full opportunity to litigate her
    civil rights claims against the President. Regardless of the
    ripple effects of his actions, the acts themselves were
    violations of law that amounted to a failure of the President
    to ``take care that the laws be faithfully executed,'' in
    violation of his oath of office.

               multiple violations of the criminal law necessary

        As I have said in earlier speeches on the impeachment
    power, not all crimes are impeachable, and an impeachable
    offense does not have to be a crime.
        In this case, however, the House managers have made it
    quite clear that their case against the President depends
    entirely on proving that he has committed crimes, and not just
    a few crimes, but an elaborate scheme that included ``lots and
    lots of perjury'' and ``many obstructions of justice,'' to
    quote Mr. McCollum. The dangers the President supposedly poses
    flow not from the President's reprehensible conduct, or from
    the fact that he misled his family, his aides, his cabinet and
    the Nation about that conduct. This impeachment is not about
    sex, they have insisted.
        I asked Mr. Barr about this during the trial, and he said
    ``What brings us here . . . is the belief by the House of
    Representatives in lawful public vote that this President
    violated, in numerous respects, his oath of office and the
    Criminal Code of the United States of America--in particular,
    that he committed perjury and obstruction of justice.'' Mr.
    McCollum made the same point in his opening presentation, when
    he said, ``The first thing you have to determine is whether or
    not the President committed crimes. It's only if you determine
    he committed the crimes of perjury, obstruction of justice and
    witness tampering, that you ever move on to the question of
    whether he is removed from office. . . . None of us would argue
    to you that the President should be removed from office unless
    you conclude he committed the crimes that he is alleged to have
    committed.''

               the burden of proof in assessing the house's case

        So the question before the Senate is whether the President
    is a serial perjurer and a massive obstructor of justice.
        What standard of proof should a Senator apply in deciding
    whether the record supports the accusations contained in the
    articles of impeachment--the accusations that the President
    violated the Federal criminal law? The House managers quite
    correctly pointed out that the Senate has never sought to
    determine for the entire body what the burden of proof should
    be in an impeachment. In effect, we have left it to the good
    judgment of each Senator to decide whether or not they are
    convinced by the evidence presented to us.
        For this Senator, fundamental fairness as well as the
    nature of the House's case dictate that I ought to be convinced
    beyond a reasonable doubt that the President violated the laws
    that the House alleges. Proof beyond a reasonable doubt is the
    same standard applied in criminal cases--it is the standard
    that would apply if the President were tried in a criminal
    court for perjury or obstruction of justice.
        It seems to me that fundamental fairness counsels that I
    apply the same standard as a criminal court precisely because
    the House asserts that what makes his actions impeachable is
    that he has violated Federal criminal statutes regarding
    perjury and obstruction of justice. It strikes me as absurd
    that the Senate would have the arrogance to throw out a duly
    elected President on these grounds unless it was convinced that
    he would be convicted of those charges. Otherwise, we would be
    saying in effect that even though the President would not be
    convicted on these crimes, we are nevertheless throwing him out
    of office because he committed those crimes. That would clearly
    be giving the President less protection than we provide any
    other citizen when charged with a crime.
        Someone else can try to explain the logic of that decision,
    but not me.
        In addition, the standard of proof beyond a reasonable
    doubt seems to me compelled by the fact that in the House's
    explanation of the harm to our system of government if the
    President is not thrown out, their entire explanation rises and
    falls depending upon whether or not the President would be
    convicted in a court of law for the crimes alleged. If he could
    not be convicted in a court of law, then the Senate is not
    ``condoning'' perjury or obstruction of justice any more than a
    criminal court is condoning those crimes when someone is
    acquitted on such charges. But if the Senate is not condoning
    those crimes, there is no conceivable basis for concluding that
    the public will be harmed by the President's remaining in
    office.
        Furthermore, in applying the standard of proof beyond a
    reasonable doubt, the Senate simply must pay attention to the
    precise legal definitions of the crimes. What the pundits have
    condemned as legal hair splitting, and what the public rightly
    condemns in the President's penchant for evasive answers when
    responding to questions in a public setting, must now
    necessarily occupy our attention with regard to the President's
    answers under oath, such as a deposition or a grand jury
    proceeding because the claim made by the House is that the
    President violated specific criminal laws. If your aim is to
    respect the rule of law, you must also respect the rules of
    law--the precise legal definitions of the crimes, as found in
    18 U.S.C. Sec. 1623, the federal perjury statute, and in 18
    U.S.C. Sec. Sec. 1503 and 1512, the applicable Federal
    obstruction of justice statutes.
        I have now studied the record sent to us by the House,
    listened to the presentations and arguments of the House
    Managers and the President's counsel, reviewed the videotape
    testimony of Monica Lewinsky, Vernon Jordan and Sidney
    Blumenthal, and listened to the views of my colleagues.
        On that basis, I have reached the conclusion that the House
    has not presented evidence that could persuade a criminal jury
    beyond a reasonable doubt that the President has violated the
    applicable federal criminal statutes. There are too many holes,
    too many conclusions reached only by drawing negative
    inferences against the President, and too much evidence that
    apparently contradicts or is inconsistent with the House's
    case.
        Now, let me be frank with you. I do not know for sure what
    actually occurred. Notwithstanding that, I am forced to make a
    judgment. In order to preserve the constitutional separation of
    powers, the independence of the presidency and the sovereignty
    of democratic elections, the President deserves the benefit of
    the doubt. This record falls well short of the certainty
    required to remove a President from office.

               the constitutional balance the senate must strike

        While I believe that I must apply a standard of proof
    beyond a reasonable doubt because of the nature of the charges
    that the House has brought to us, it is also quite true--and I
    have said as much on prior occasions--that the Senate does not
    sit as a court of law when it tries an impeachment. As
    Alexander Hamilton stated in Federalist 65, impeachment is a
    political process.
        ``Political'' in Hamilton's usage had two meanings as it
    relates to impeachments. The first I have mentioned already,
    and I have spoken about in this chamber before: impeachable
    offenses are offenses against the body politic. In the words of
    James Wilson, ``in the United States . . . impeachments are
    confined to political characters, to political crimes and
    misdemeanors, and to political punishments.''
        The Senate's judgment in an impeachment trial is ultimately
    political in a second sense, too. It is political in the sense
    that the Senate has the responsibility to weigh all the
    consequences to the body politic in making its decision--the
    consequences that might flow from removing the President as
    well as the consequences that might flow from failing to remove
    him.
        That is what I mean, and what Hamilton meant, by the
    ultimate judgment being a political one. As Senator Bumpers
    reminded us, the consequences of the decision we make will live
    on long after Bill Clinton has left office and long after each
    of us has left office. We must hand our constitutional
    structure on to our children and to future generations with its
    foundation as solid as it was when it was handed to us. It is
    our responsibility as Senators to make a judgment as to how
    best to accomplish that objective.
        The obligation to evaluate the competing costs of retention
    and removal, incidentally, is what clearly distinguishes
    judicial impeachments and Presidential impeachments--very
    different institutional and long term consequences weigh in the
    balance in these two cases.
        Removing the President from office without compelling
    evidence would be historically antidemocratic. Never in our
    history has the Senate overturned the results of an election
    and removed a President from office. History could not more
    plainly demonstrate what a dramatic step removing an elected
    President would be. The founding of our republic was the most
    dramatic assertion of the sovereignty of the people that the
    world had ever known. Abraham Lincoln dedicated the battlefield
    at Gettysburg to this proposition recalling that our union
    stands for ``government of the people, for the people, and by
    the people.''
        The sovereignty of the people is exercised through national
    elections. All citizens, but particularly those of us who have
    had the honor to stand for election, have an instinctive
    respect for the will of the people as expressed through
    national elections. Thomas Jefferson, in his first inaugural
    address, aptly called this democratic instinct a ``sacred
    principle.'' Reversing the people's sovereign decision would be
    in radical conflict with the principle on which our Nation is
    founded as understood and applied throughout our history.
        For one branch to remove the head of a co-equal branch
    unavoidably harms our constitutional structure. The framers
    intentionally chose not to create a parliamentary system of
    government. They meant for the President and Congress to be
    independent of and co-equal with one another. Maintaining each
    of those branches as strong and independent is fundamental to
    the Constitution's very structure--a structure they designed to
    safeguard the liberty of the governed against abuses of power
    by those who govern.
        It is true that impeachment is part of this structure.
    Removing a President from office for sufficient reasons and
    upon sufficient proof is therefore consistent with that
    structure. At the same time, the great dangers inherent in the
    too ready exercise of that power mean that impeachment should
    be seen as an extreme measure.
        The framers were accomplished, practical statesmen. They
    recognized that impeachment could be misapplied to undermine
    the primary structural guarantee of liberty--the separation of
    powers. They worried that Congress would be tempted to use the
    impeachment power to make the President ``less equal.'' As
    Charles Pinckney warned his colleagues at the Philadelphia
    Convention, Congress could hold impeachment ``as a rod over the
    Executive and by that means effectively destroy his
    independence.''
        How are we to keep the impeachment power within its
    constitutional boundaries, so that it stands ready to be used
    appropriately but does not become a ``rod'' in the hands of a
    partisan Congress, threatening the independence of the
    Presidency, as Charles Pinckney worried during the
    Constitutional convention?
        The solution to this problem must lie in approaching the
    Senate's ultimate decision from as much of a position of
    bipartisanship as we can possibly achieve. This is the only way
    in which we can possibly focus primarily on the institutional
    consequences of our actions to see them in terms of their long
    term consequences instead of their short term partisan ones.
        Nonpartisan faithfulness to the Constitution's structure,
    which protects the liberty of the governed must determine our
    action today.
        This was my view of our role in 1974, when I rose on the
    floor of the United States Senate and made a ``plea . . . for
    restraint on the part of all parties involved in the affair.''
    That was in the case of the possible impeachment of Richard
    Nixon. And it was my view last year, when I urged restraint and
    bipartisanship as the attitude I hoped my colleagues would
    adopt. And it remains my view.
        Viewed from that perspective, it is hard for me to see how
    the harms flowing from keeping Bill Clinton in office outweigh
    the harms to our constitutional democracy that would result
    from removing him.

                       harmful consequences reconsidered

        I have listened attentively to the House managers' case. In
    all honesty, I can sympathize with their sense of outrage at
    the President's actions and his unwillingness to be fully
    accountable for those actions for so many months.
    Notwithstanding that, from the vantage point of a restrained
    view, and as nonpartisan a view as I can muster, the dangers
    they see from keeping President Clinton in office seem less
    dire than they claim. At the same time the harms to our system
    of government from removing him seem to me to be quite serious.
        The House managers warn that failure to remove the
    President would destroy or undermine the sound administration
    of justice and threaten the rule of law. If true, that would be
    a big deal.
        But we need to step back a moment and cool down the
    rhetoric. Manager Graham suggested as much when he reminded us
    all of the resiliency of the American system of government.
    ``So when we talk about the consequences of this case,'' he
    said, ``no matter what you decide, in my opinion, this country
    will survive. If you acquit the President, we will survive. If
    you convict him, it will be traumatic, and if you remove him,
    it will be traumatic, but we will survive.''
        That same calmer judgment ought to apply to the
    administration of justice and the rule of law. The House
    managers presented no evidence whatsoever of the dire
    consequences they predict. And there is no evidence of such
    dire consequences that they could present--because their
    evaluation of the consequences is nothing but speculation.
        I would submit to you that the consequences of failing to
    remove the President will most likely be very different from
    those described by the House. This is one pebble whose ripples
    will in all likelihood simply wash up harmlessly on the shores
    and be forgotten forever. I, frankly, do not see how failing to
    remove the President will alter the conduct of the next
    prosecutor having to decide whether to bring a perjury
    indictment, nor do I think that juries will be persuaded by a
    lawyer's argument that because the President ``got away with
    it'' the jury should acquit his client. The fact of the matter
    is, lots of perjury trials result in acquittals without
    impacting the ability of the criminal justice system to bring
    such charges where appropriate.
        The House managers' cry of alarm ignores the fact that we
    are in an impeachment trial. This is not a criminal proceeding
    and thus the manner in which the Senate deals with the question
    has no implications at all for how a court of law would deal
    with it.
        The Constitution is very clear about this. In article I,
    Sec. 3, cl. 7, the Constitution provides that whether or not a
    person is removed from office through impeachment that party
    ``shall nevertheless be liable and subject to Indictment,
    Trial, Judgment and Punishment, according to Law.'' If the
    evidence is as overwhelming as the managers say, the President
    can be prosecuted for perjury and obstruction after he leaves
    office.
        The American people have a very robust understanding that
    impeachment is a political process--and a particularly clear
    understanding that this impeachment has been thoroughly
    politicized until it got to the Senate--I don't think anyone is
    confusing it with a legal process. No one, therefore, will take
    any solace from the President's acquittal in terms of their
    ability to commit perjury or obstruct justice and thereby avoid
    criminal charges.
        Now don't misunderstand me--I am not suggesting that
    letting a guilty person off from a crime he or she has
    committed is OK. I am saying, first, that the President has not
    been charged with a crime in a criminal court, so that failing
    to acquit him is not at all letting him off from a crime, and
    second, that our decision will not have the kind of ``sky is
    falling'' consequences described by the House in any event. In
    my judgment, the rule of law and the sound administration of
    justice in this country will be unaffected by the action we
    take in the Senate, one way or the other.
        The House managers have also warned that failing to remove
    the President will also condone his plot or scheme to deny a
    specific civil rights plaintiff--Paula Jones--her day in court,
    by withholding from her, through acts of perjury and
    obstruction, full information about the ``nature and details''
    of his relationship with Monica Lewinsky. Just how accurate and
    complete a description is this one? In order to answer that
    question, we need a fuller picture of the ``nature and
    details'' of the Jones litigation itself.
        If you listened just to the House managers, you would think
    that the Jones lawsuit was just a run-of-the-mill typical
    sexual harassment civil rights case.
        It was not. From the very beginning, that lawsuit had been
    politically motivated. All the facts we know about this case,
    even taking Paula Jones at her word that the incident in the
    Excelsior Hotel actually occurred, demonstrate that the lawsuit
    was also without merit. She had never been harmed in any way in
    her job, and the President had never repeated anything remotely
    resembling an unwanted sexual advance on her again. She had
    received merit pay raises in her State employment and she had
    received good job performance reviews. She was unable to prove
    that she had been damaged in any way by the President's
    actions.
        Actually, what damages she did assert--what caused her to
    file the lawsuit, according to her testimony--was the result of
    the publication of a hatchet-job article against President
    Clinton run in the American Spectator. The article was one
    salvo in an on going right wing probe into Clinton's life in
    Arkansas, aimed simply at digging up anything that could be
    politically damaging to the President. When the American
    Spectator ran a story making an unflattering reference to a
    ``Paula,'' Jones found a lawyer to file suit in order to
    ``reclaim her good name.''
        The lawyers Paula Jones eventually found were also
    underwritten by right wing conservative Republican money. In
    fact, investigative reporters as recently as this past Sunday
    continue to reveal more and more details of the tightly knit
    web of conservative lawyers and conservative financial backers
    who have hounded this President relentlessly since the day he
    took the office.
        Now the President knew that the lawsuit was without merit--
    he might have behaved obnoxiously with Paula Jones, but he did
    not commit sexual harassment. He also knew that the real
    motivation of the lawsuit, the motivation that funded it and
    kept it going, was a political assault on him, not a legal
    assault. The law suit and its powers of discovery were being
    used to engage in a fishing expedition throughout Arkansas in
    search of political dirt. Leaks from that discovery appeared
    regularly in the Washington press.
        The President knew something else, as well. He knew that
    his illicit relationship with Monica Lewinsky had nothing to do
    with the merits of the Jones litigation. On this matter, you do
    not have to rely on the President's assessment or mine, because
    the court independently concluded the same thing. In the order
    denying the plaintiff's discovery into the Lewinsky facts,
    Judge Wright said that the Lewinsky facts, even if the
    allegations concerning them were true, had nothing to do with
    the essential or core elements of Paula Jones lawsuit.
        So keeping Lewinsky out of the politically motivated Jones
    case did not jeopardize Paula Jones' chances of prevailing,
    which were nonexistent in any event. What it did do was to
    prevent the President's political enemies from using the Jones
    discovery procedures to pry open that secret relationship and
    expose it, all to the political damage of the President.
        In this context, it is understandable that the President
    wanted to frustrate the Jones litigation. What is more, the
    President can hardly be said to have prevented Paula Jones from
    presenting a case, because there was no meritorious case to
    present.
        That doesn't justify perjury or obstruction, of course, but
    it does provide an accurate context for appraising the House
    managers' second claim. If they are permitted to convert a
    meritless and politically motivated lawsuit into a Presidential
    conviction for impeachable offenses, the Senate will be
    rewarding behavior that we ought to condemn. We need to think
    more than once about rewarding this kind of political witch
    hunt.
        All of what I have just said informs this Senator's
    judgment concerning the harms to the country that would be
    caused by failing to convict a President who had committed the
    acts alleged by the House.
        In fact, if the rule of law and the fair administration of
    justice will not be destroyed--contrary to the House managers'
    assertions--and if the American people understand that the
    President's actions were in the context of a politically-
    motivated lawsuit and involved concealing an embarrassing
    improper relationship that was irrelevant to that lawsuit--then
    it is very hard for this Senator to see how the President's
    continuing in office poses the sort of grave danger to our
    system of government that the framers had in mind when they
    gave the Congress the awesome power to impeach and remove an
    elected President.
        In weighing the competing consequences of removal and
    retention in office, we must honor the constitutional
    obligation we undertook when we swore to do ``impartial
    justice.''
        To that end, I think we all could benefit from the wisdom
    on several participants in the impeachment of Andrew Johnson,
    131 years ago.
        Two of them--Chief Justice Salmon Chase and Congressman
    James G. Blaine--both of whom historians record as being highly
    critical of Johnson and initially favoring his removal--were
    nevertheless able to step back from the partisanship of that
    moment and weigh the competing harms in the way I have
    suggested is proper.
        Chief Justice Salmon Chase, who himself had political
    Presidential ambitions, wrote to a friend on the day the trial
    ended, saying, ``What possible harm can result in the country
    from continuance of Andrew Johnson months longer in the
    Presidential chair, compared with that which must arise if
    impeachment becomes a mere mode of getting rid of an obnoxious
    President?''
        And years later, James G. Blaine, who had voted for
    impeachment in the House, said, ``The sober reflection of after
    years has persuaded many who favored Impeachment that it was
    not justifiable on the charges made, and that its success would
    have resulted in greater injury to free institutions that
    Andrew Johnson in his utmost endeavor was able to inflict.''
        And in our contemporary situation, former President Ford
    and our distinguished colleague and former majority leader,
    Robert Dole, have both urged us not to go down the road to
    impeachment, but to seek other means to express our
    displeasure.
        We ought to follow these lessons, and to be attentive to
    the damage that removing a duly elected President on these
    charges will inflict on our system of government.
        A decision to remove Bill Clinton will not destroy our
    system of government. But it will stand as a precedent--the
    very first time the U.S. Senate has removed any President from
    office. If we vote to convict and remove the President after a
    highly partisan impeachment for conduct that appears to be
    private and non-official, we will create an opportunity for
    impeachments to become a tool of partisan politics by other
    means.

                                   conclusion

        Engaging in the balance that the Constitution requires, I
    cannot vote to convict the President. The evidence of proof
    beyond a reasonable doubt that the President violated federal
    criminal statutes has not been presented. Even were the
    evidence stronger, the Constitution demands that we weigh the
    competing considerations in a nonpartisan manner.
        The President deserves our condemnation. He has brought
    shame to himself.
        But we have not reached this point due to his failings
    alone. It has taken the volatile combination of his
    blameworthiness and the unalloyed animosity of others toward
    him that have brought us to the brink of a profound
    constitutional moment.
        Given the essentially antidemocratic nature of impeachment
    and the great dangers inherent in the too ready exercise of
    that power, impeachment has no place in our system of
    constitutional democracy except as an extreme measure--reserved
    for breaches of the public trust by a President who so violates
    his official duties, misuses his official powers or places our
    system of government at such risk that our constitutional
    government is put in immediate danger by his continuing to
    serve out the term to which the people of the United States
    elected him.
        I urge my colleagues to remain faithful to the
    constitutional design and to our obligation to do impartial
    justice.
        (Below are significant issues of constitutional law,
    positive law, or Senate procedure that have arisen during the
    impeachment trial of President Clinton. As the impeachment
    process moved forward in the House to the point where its
    arriving in the Senate appeared likely, I began an intensive
    study of the Constitution, the framers' understanding, and our
    historical constitutional practices in the Senate to prepare
    for a possible impeachment trial, which I continued once the
    Senate assumed jurisdiction over the matter. Over the past
    several months, I have shared some of my conclusions with my
    colleagues and the public in speeches and memoranda, portions
    of which are below. Bracketed comments are additions to the
    original text, inserted to assist in comprehension.)
                                 bipartisanship
        Mr. President, during the past twenty-six years as a United States
    Senator, I have been confronted with some of the most significant
    issues facing our Nation. Issues ranging from who sits on the highest
    court in the land to whether we should go to war. These are weighty
    issues. But none of these decisions has been more awesome, more
    daunting, more compelling, than the issue confronting us at the present
    time.
        The issue of whether to impeach a sitting President is a monumental
    responsibility. A responsibility that no Senator will take lightly.
        And as imposing as this undertaking is, I am sad to say that I have
    had to contemplate this issue twice during my service in the Senate;
    once during President Nixon's term and now.
        And while the circumstances surrounding these two events are
    starkly different, the consequences are starkly the same. The gravity
    of removing a sitting President from office is the same today as it was
    twenty-five years ago. Listen to what I said on the floor of the United
    States Senate on April 10, 1974 during the Watergate crisis:
        ``In the case of an impeachment trial, the emotions of the American
    people would be strummed, as a guitar, with every newscast and each
    edition of the daily paper in communities throughout the country. The
    incessant demand for news or rumors of news--whatever its basis of
    legitimacy--would be overwhelming. The consequential impact on the
    federal institutions of government would be intense--and not
    necessarily beneficial. This is why my plea today is for restraint on
    the part of all parties involved in the affair.''
        I could have said these same words today. It is uncanny how much
    things stay the same.
        Furthermore, in 1974 I urged my colleagues in the United States
    Senate to learn from the story of Alice in Wonderland. Then I cautioned
    that we remember Alice's plight when the Queen declared ``sentence
    first, verdict afterwards.''
        But the need for restraint is even greater today than it was in
    1974. In 1974, the impeachment question was not as politically charged
    as it is today. In 1974 we were willing to hear all the evidence before
    making a decision. Today, I hope, for our Nation's sake, that we do not
    follow the Queen's directive in Alice in Wonderland and that we will
    make a wise judgment after deliberate consideration.
        My legal training combined with more than a quarter century of
    experience in the United States Senate has taught me several important
    lessons. Two of these lessons are appropriate now.
        First, an ordered society must first care about justice.
        Second, all that is constitutionally permissible may not be just or
    wise.
        And it is with these two very important lessons guiding me, that I
    embark upon a very important decision regarding our country, our
    Constitution, and our President.
        The power to overturn and undo a popular election of the people,
    for the first time in our Nation's history, must be exercised with
    great care and sober deliberation.
        We should not forget that 47.4 million Americans voted for our
    President in 1996, 8.2 million more than voted for the President's
    opponent.--[Speech, 10/2/98]
              * * * * * * *
        Let me now stand back from the issues of substance and procedure,
    and look at the impeachment mechanism as it has actually functioned in
    our country's history. The proof of the Framers' design, after all,
    will be in how the mechanism has worked in practice.
        As we have seen, the Framers worried that impeaching a sitting
    President would most likely be highly charged with partisan politics
    and pre-existing factions, enlisting all the ``animosities,
    partialities, and influence and interest'' that inevitably swirl around
    a sitting President. History shows that they had a right to be worried.
        Prior to the case of President Nixon, Presidential impeachment had
    only been used for partisan reasons.
        History tells us that John Tyler was an enormously unpopular
    President, facing a hostile Congress dominated by his arch political
    enemy, Henry Clay. After several years of continual clashes, numerous
    Presidential vetoes and divisive conflicts with the senate over
    appointments, a select committee of the House issued a report
    recommending a formal impeachment inquiry.
        President Tyler reached out to his political enemies: he signed an
    important bill raising tariffs which he had formerly opposed--and he
    found other means of cooperating with the Congress. In the end, even
    Henry Clay, speaking from the Senate, urged a slowdown in the
    impeachment proceedings, suggesting instead the lesser action of a
    ``want of confidence'' vote rather than formal impeachment proceedings.
    In early 1843, the resolution to proceed with an impeachment inquiry
    was defeated on the House floor, 127 to 83.
        In 1868, Andrew Johnson came much closer to conviction on charges
    of serious misconduct. Although Johnson's impeachment proceedings
    ostensibly focused on his disregarding the tenure in office act,
    historians uniformly agree that the true sources of opposition to
    President Johnson were policy disagreements and personal animosity.
    [Text note: The conflict this time was between Johnson's moderate post
    Civil War policies toward the Southern states and the overwhelming
    Radical Republican majorities in both chambers. One especially volatile
    division was over whether Southern Senators and Representatives ought
    to be admitted to Congress prior to the enactment of Constitutional
    amendments expressly denying the right of state succession. The
    Republicans feared dilution of their voting strength if the southerners
    were seated, especially since an effect of President Lincoln's
    Emancipation Proclamation would be to increase House representation for
    the Southern states, by virtue of the fact that each freed slave would
    count as a whole person, instead of the abandoned constitutional
    formula of three-fifths.
        The Tenure in Office Act had been enacted over his veto to restrict
    his ability to remove the Secretary of War--who was allied with the
    Radical Republicans--from that office without the Senate's consent.
    Johnson fired Edwin M. Stanton anyway, claiming that the restriction on
    his removal authority was unconstitutional.]
        The conflict this time was between Johnson's moderate post-Civil
    War policies toward the southern states and the overwhelming Republican
    majorities in both chambers. The Republicans feared dilution of their
    voting strength if the southerners were seated.
        Johnson's defenders in the Senate were eventually able to hold on
    to barely enough votes to prevent his conviction. In professor Raoul
    Berger's view, ``Johnson's trial serves as a frightening reminder that
    in the hands of a passion-driven congress, the process may bring down
    the very pillars of our constitutional system.''
        Yet, if the cases of Tyler and Johnson substantiate the Framers'
    fears, the Nixon situation vindicates the utility of the impeachment
    procedures. Notice how different the Nixon proceedings were from
    Tyler's and Johnson's. As the Nixon impeachment process unfolded, there
    was broad bipartisan consensus each step of the way.
        While it would be foolish to believe that Members of Congress did
    not worry about the partisan political repercussions of their actions,
    such factional considerations did not dominate decision making.
        Political friends and foes of the President agreed that the charges
    against the President were serious, that they warranted further inquiry
    and, once there was definitive evidence of serious complicity and
    wrongdoing, a consensus emerged that impeachment should be invoked. The
    President resigned after the House Judiciary Committee voted out
    articles of impeachment by a 28-10 vote.
        For me, several lessons stand out from our constitutional
    understanding of the impeachment process and our historical experience
    with it. Furthermore, I believe that a consensus has developed on
    several important points.
        While the founders included impeachment powers in the Constitution,
    they were concerned by the potential partisan abuse. We should be no
    less aware of the dangers of partisanship. As we have seen, the process
    functions best when there is a broad bipartisan consensus behind moving
    ahead. The country is not well served when either policy disagreements
    or personal animosities drive the process.
        Many scholars who have studied the Constitution have concluded that
    it should be reserved for offenses that are abuses of the public trust
    or abuses that relate to the public nature of the President's duties.
    Remember, what is impeachable is not necessarily criminal and what is
    criminal is not necessarily impeachable.--[Speech, 10/2/98]
              * * * * * * *
        I am here today to call for bipartisanship in the impeachment
    process. It is a concept many will say they agree with. But actions
    speak louder than words.
        The Framers of the Constitution knew that the greatest danger
    associated with impeachment was the presence of partisan factions that
    could dictate the outcome.
        It is clear from the debates and from the commentaries on the
    Constitutional Convention that the Framers were concerned that anything
    less than bipartisanship could, and would, do great damage to our form
    of government. They knew that to contemplate an action as profound as
    undoing a popular election requires at a minimum that members of both
    parties find that the alleged wrong is grave enough to overturn the
    will of the majority of the American people.
        The Framers also understood the sentiment expressed nearly 200
    years later by Congresswoman Barbara Jordan during the impeachment
    proceedings of Richard Nixon.
        She said, ``it is reason, and not passion, which must guide our
    deliberations, guide our debate, and guide our decision.''
        But the current debate is guided by faction, not reason. One
    example: The House Judiciary Committee this month heard a battery of
    witnesses address the question of what is an impeachable offense.
    Democrats called legal experts who testified that the President's acts
    are not impeachable offenses, and Republicans called witnesses who were
    just as certain they were. By the end of the hearing, anyone listening
    would have the overwhelming impression that there was no consensus in
    the legal community on the issue, that it was an open question.
        Yet the vast majority of historians and legal scholars have
    concluded--and stated publicly--that nothing that President Clinton has
    been accused of rises to the level of an impeachable offense. The
    hearing was a political charade. We are told that ultimately, this is a
    political process. Ultimately, it is. The question is whether it is
    going to be a fair process. I argue that it can, and must be fair.
        In his marvelous book on the impeachment process, published while
    the country was in the throes of President Nixon's Watergate troubles,
    Professor Charles Black alerted us to the danger of partisanship.
        Because the constitution and its history provide us with more
    questions about impeachment than answers, he said, ``it is always
    tempting to resolve such questions in favor of the immediate political
    result that is palatable to us, for one can never definitely be proved
    wrong, and so one is free to allow one's prejudices to assume the guise
    of reason.''
        Black was echoing Alexander Hamilton, who warned in Federalist 65
    that impeachments:
        ``will seldom fail to agitate the passions of the whole community,
    and to divide it into parties, more or less friendly or inimical, to
    the accused. In many cases, it will connect itself with the pre-
    existing factions, and will enlist all their animosities, partialities,
    influence and interest on the one side, or on the other; and in such
    cases there will always be the greatest danger, that the decision will
    be regulated more by the comparative strength of parties than by the
    real demonstrations of guilt or innocence.''
        I don't think I am being partisan myself in warning about the risks
    of partisan excess. As a 32 year-old Senator, I expressed this same
    concern about the fate of a Republican President. On April 10, 1974, I
    rose on the floor of the United States Senate and said:
        ``In the case of an impeachment trial, the emotions of the American
    people would be strummed, as a guitar, with every newscast and each
    edition of the daily paper in communities throughout the country.
        The incessant demand for news or rumors of news--whatever its basis
    of legitimacy--would be overwhelming. The consequential impact on the
    federal institutions of government would be intense--and not
    necessarily beneficial. This is why my plea today is for restraint on
    the part of all parties involved in the affair.''
        I make the same plea for restraint today. And while the
    circumstances surrounding these two events are starkly different, the
    consequences for our Nation are the same. The gravity of removing a
    sitting President from office is the same today as it was twenty-four
    years ago.
        The American people understand that the consequences of impeaching
    a sitting President are grave and, thus far, they have shown a
    remarkable restraint--more than some of the pundits and experts. But I
    believe they have reached two clear conclusions: Congress should
    resolve the matter expeditiously and resolve the matter in a fair and
    non-partisan manner.
        These conclusions have great significance to the impeachment
    process. I believe the American people will ultimately make their
    judgment about the proceedings and the outcome based in part, on
    whether the House Judiciary Committee votes along strict party lines
    and whether the House of Representatives acts in a similar manner.
        That may not be fair, but I believe that is how they will judge it.
    Therefore, it seems clear to me that for history's sake, and with the
    Committee's legacy in mind, Chairman Hyde and the Republican majority
    in the House must bend over backwards to demonstrate that they have
    conducted this proceeding based on principle, not politics.
        There is yet another issue where public opinion comes into play.
    That is the question of whether the President's transgressions warrant
    impeachment. We know from survey after survey that the American people
    believe the President's actions do not justify impeaching him.
        Should that have any bearing on the outcome? Many of my colleagues
    say they will ignore public opinion. In most cases, this is a sound
    position for a member of Congress to take. When we are elected to the
    House and the Senate, we are sent here to exercise judgment, not simply
    to be weathervanes that shift with the political winds. The fact that
    this is an impeachment proceeding doesn't change that--it makes it even
    more important that we exercise our best judgment.
        But I believe it is a serious mistake to take the position that
    public opinion should have no bearing on how we act and what we do. Let
    me explain. Many people--and many legal scholars--have said that
    impeachment should be reserved for grave breaches of the public trust.
    Surely, if we are trying to decide whether an offense is a breach of
    the public trust, it is important to know what the public thinks. If
    the American people think the President's actions do not warrant
    impeachment, we should listen to their views, and take them seriously.
        It would be a serious mistake to ignore public opinion for another,
    more fundamental reason. This is their President we are talking about.
    The President of the United States doesn't serve at the pleasure of the
    legislature, as a prime minister does in a parliamentary system. He is
    elected directly by the people of the United States.
        The election of a President is the only nationwide vote that the
    American people ever cast. That is a big deal. If the American people
    don't think they have made a mistake in electing Bill Clinton, we in
    the Congress had better be very careful before we upset their decision.
        This was brought home to me several weeks before the elections at a
    filling station in Wilmington. The woman working the cash register
    looked up at me with something of a scowl on her face. I assumed--
    incorrectly, it turned out--that she had voted against me the last time
    I ran. She said, ``You're Joe Biden, aren't you?'' I nodded. She said,
    ``What are you going to do to President Clinton on this Lewinsky
    thing?'' I started to give her a noncommittal answer about the process
    needing to go forward, but she brought me up short. ``Don't you or
    anyone else take my vote away, Joe. He's my President! If you remove
    him, I will never vote again.''
        This woman--and the American people--understand the genius of the
    American system in their bones. They know that the Congress and the
    President are separate branches of government. They understand that
    each branch is responsible to them, not to the other branch of
    government. Just as they know that the Senators from their state are
    theirs, and the Representative from their district is theirs, they know
    that the President is theirs, too.
        Anyone who wants to impeach Bill Clinton needs to keep in mind what
    the American people think about it, because he is their President.
        Let me be absolutely clear. This does not mean just doing what the
    opinion polls say. It means proceeding in a manner that the American
    people understand to be fair. In the case of an impeachment, fair means
    bipartisan. It means putting aside the disagreements that stem from
    partisan factions. The time for partisan factions to play a role is in
    the process of elections, where candidates advance competing policies
    and platforms and the people vote. Once the election is held, our
    leaders hold office until the next election. It is simply antithetical
    to our constitutional democracy to use impeachment to overturn an
    election on partisan grounds. It violates the independence of the
    Presidency and it usurps the people's voice.
        The Framers saw this danger when they wrote the impeachment power
    into the Constitution. Hamilton warned that an impeachment would
    ``connect itself with pre-existing factions,'' just as Black much later
    saw that impeachment was an occasion for ``prejudices to assume the
    guise of reason.''
        So those who wish to proceed with impeachment in the face of the
    public's contrary opinion bear a special obligation and confront a
    special risk. The obligation they face is that they must proceed in a
    bipartisan manner, so that we can defend the Congress' actions as fair
    and consistent with the constitutional framework--so that if
    impeachment goes forward, those who support it can look my constituent,
    or their constituent, straight in the eyes and defend the process as
    fair and just.
        Should they fail to do this, the risk they face is the chance that
    they will inflict more damage on our system of government and induce
    more cynicism and disgust with politics than anything the President has
    done so far.
        So we must be prudent. Otherwise we will succumb to the danger the
    Framers warned against. We will subject the President to what amounts
    to a vote of no confidence. If you disapprove of his presidency and its
    policies, or if you do not like the man, vote to impeach. If, on the
    other hand, you support his presidency and his policies, or if you do
    like the man, vote to acquit. But that is not our system of government.
        When Benjamin Netanyahu returned home after signing the Wye
    accords, he faced a vote of no confidence. If he had lost, he would
    have been out of office and another government would have to be formed.
        That is simply not our system of government. Ours is not a
    parliamentary system. That is not how impeachment is supposed to
    operate.
        Reflect for just a moment on how different our government is. Here,
    the President and the Congress are separate branches of government.
    Each is elected directly by the people. The President and Vice
    President are the only officials elected by ALL the people. Through the
    electoral process, they answer to all the people. In such a system, a
    vote of no confidence, as a means of removing the head of government
    when the Congress disapproves of his leadership, contradicts the theory
    of separated powers. It would trample on the choice made by the people
    through the electoral process.
        This is no small matter. It goes to the heart of the constitutional
    design. As Jack Rakove, the Stanford historian, noted during the
    recently held House hearings on the standard for impeachment, the
    prevailing principle that guided the Framers in shaping the institution
    of the Presidency during the Philadelphia Convention, the one major
    goal and idea that best explains how that office took shape over the
    summer of 1787, was their intention on ``making the presidency as
    politically independent of the Congress as they could.''
        The Framers saw the system of separated powers and checks and
    balances as a bulwark in support of individual liberty and against
    government tyranny. The separation of powers prevents government power
    from being concentrated in any single branch of government. Permit one
    branch of government to subjugate another to its partisan wishes, and
    you permit the kind of concentration of power that can lead to tyranny.
        So the system the Framers established is utterly incompatible with
    the idea that sharp partisan divisions could be sufficient to impeach.
    Preserving our system, with its checks and balances and separation of
    powers, ought to be part of our consideration as we attempt to resolve
    the current controversy.
        How do we ensure that impeachments do not become the partisan
    showdowns that the Framers warned about? The answer is both simple and
    elusive. The only thing that prevents the impeachment power from being
    abused is the good faith of Members of Congress.
        Professor Black proposed a simple test. He said that for the
    purposes of impeachment, members take off their party's hat--shed their
    partisan identity--and then try to take on the identity of a member of
    the other party. In other words, Republicans who favor Clinton's
    impeachment should try to pretend they are Democrats, and see if they
    still hold that same conclusion. Democrats who scoff at impeachment in
    the present instance should try to see it from the Republicans' point
    of view.
        It is very difficult to perform this test, especially in the highly
    charged partisan atmosphere in which we live, but you get the point.
    Before we undertake such a solemn act as impeachment, we should examine
    our reasoning very carefully to be sure we are not simply following
    partisan instincts.
        Impeachment can be legitimate if and only if it emanates from a
    bipartisan conviction that the President has committed high crimes and
    misdemeanors--when people of opposing viewpoints can come together in
    agreement over the seriousness of the offense and the appropriateness
    of the sanction.
        Partisanship need not disappear entirely--that would be impossible.
    It simply must be held in check for a time--a few weeks, perhaps a
    month--and by a relatively small number of people, so that a bipartisan
    consensus can take shape.
        Look back at the Nixon impeachment. It took on legitimacy when a
    core of Republicans on the House Judiciary Committee were moved by the
    nature of President Nixon's offenses to break party ranks and vote for
    articles of impeachment. In the Senate, it was the stark reality of
    eroding Republican support that prompted President Nixon to resign.
    There was bipartisan consensus that what Nixon did was impeachable.
        Partisanship did not evaporate entirely during the impeachment
    trial of Andrew Johnson. In fact, the entire episode was riddled with
    partisanship, and overall it stands as an excellent example of how not
    to conduct an impeachment.
        Still, seven Republican Senators did vote with the Democrats for
    acquittal, shedding their partisan preferences, to prevent that
    impeachment from succeeding. It took only that amount of bipartisanship
    to save the country from an impeachment that most people--in
    retrospect--have concluded would have been a terrible mistake. The fact
    that a conviction in the Senate requires a two-thirds majority
    guarantees a measure of necessary bipartisanship except in all but the
    most lopsided Senates.
        But bipartisanship should not wait until the matter reaches the
    Senate chamber. In previous impeachments the votes in both the House
    and the Senate have been by overwhelming majorities. In the past,
    except for the Johnson impeachment, the only times articles of
    impeachment reached the floor were in cases of tremendous bipartisan
    consensus that the offenses satisfy the constitutional standard and
    that the officer ought to be removed.
        As for the Johnson impeachment itself, according to James Blaine,
    one of the Republican House members who voted for impeachment, he and
    others came in time to regret the effort. In private correspondence,
    Blaine wrote that, ``the sober reflection of after years has persuaded
    many who favored impeachment that it was not justifiable on the charges
    made, and that its success would have resulted in greater injury to
    free institutions than Andrew Johnson in his utmost endeavor was able
    to inflict.''
        The conclusion I reach is this. The burden is, as it always has
    been, on those who seek to impeach and convict a President. To overturn
    a popular election, they must convince the American people and at least
    some in the President's party that the President's actions meet the
    high standard for impeachment settled upon by our founders in the
    Constitution.
        This is what I mean by bipartisanship.
        The standard is ``principled political neutrality.''
        And one measure of whether a member has met that principle is to
    ask in Professor Black's words: ``Would they have answered the same
    question the same way if it came up with respect to a President towards
    whom [they] felt oppositely from the way [they] feel toward the
    President threatened with removal.''
        The American people will know whether each member met that test.
    They will not demand unanimity, but they will demand consensus.
        Thus far, the House Judiciary Committee has proceeded without
    dignity, causing the American people to lose respect for the Committee.
        As a result, the burden of demonstrating that they are proceeding
    with a standard of ``principled political neutrality'' will be
    politically difficult to meet.
        Ken Starr will make his case, the President should be allowed to
    make his. Then let them decide if the President's conduct meets the
    test of what the Framers had in mind by ``high crimes and
    misdemeanors.''
        The choice is not whether the President's self-evidently shameful
    and possibly criminal conduct must be punished by impeachment or be
    condoned. The choice is whether the process for dealing with his
    conduct is removal from office or some other means--censure, or perhaps
    even a criminal trial after he has left office.
        To those who say that failure to bring articles of impeachment
    against the President would amount to condoning his immoral behavior or
    overlooking a criminal act, notwithstanding the fact it does not meet
    the test of an impeachable offense, I say they do not understand our
    system of government. For the Constitution contemplates and the law
    provides for such a circumstance--it is called a criminal trial after
    his term is served. It is a way to punish the President without doing
    damage to the system of separated powers or overruling the judgment of
    the American people.
        Failure to impeach, even failure to proceed with a criminal action,
    does not mean that the President has not paid for his immoral
    behavior--he has already been sentenced to a hundred years of shame in
    the history books, which is not an insignificant penalty.
        So I say to my colleagues in the House, do your duty. Proceed with
    principled political neutrality. For if you do, history will judge you
    kindly. And if you do not, it will judge you harshly.
        And for those of us who hold high public office and the public
    trust, history is a judge.--[Speech, 11/18/98]
                                burden of proof
        What is the standard of proof? The Constitution does not set forth
    an express standard of proof that the evidence must meet in order to
    allow the Senate to convict the President. Practice has left to each
    Senator to determine for him or herself what standard to apply.
        From the judicial setting there are three major standards from
    which to choose. Most civil trials require a plaintiff to prove his or
    her case by a preponderance of the evidence. This means that the
    plaintiff must prove that it is more likely than not that the
    plaintiff's assertions are true. Criminal trials require the most
    exacting degree of proof. The prosecution must prove the defendant's
    guilt beyond a reasonable doubt. A third, middle course is applied in
    some cases. This standard, clear and convincing evidence, requires
    proof that substantially exceeds a mere preponderance but that does not
    eliminate all reasonable doubt. There must be a very high degree of
    probability that the evidence proves what the plaintiff asserts, but
    the proof may fall short of certainty.
        Many Senators, analogizing to a criminal trial, have expressed that
    they would require the House Managers to prove their case ``beyond a
    reasonable doubt.'' In anticipation of an impeachment trial of
    President Richard Nixon, Senators Sam Ervin, Strom Thurmond, and John
    Stennis all declared that they would apply the beyond a reasonable
    doubt standard. But it is clear that individual Senators may opt for a
    civil standard.
        This issue may not have more than rhetorical significance for the
    impeachment trial of President Clinton. These standards are meant to
    guide juries in their fact-finding capacity. Insofar as the trial
    focuses on the question whether the President's conduct justifies
    conviction and removal from office, the proceedings will call on the
    Senate in its judicial character. Resolving that question requires the
    Senate to exercise its legal and political judgment in order to
    determine whether the constitutional punishment fits the misconduct. It
    does not call upon the Senate to make a factual determination about
    what conduct actually occurred.--[Memorandum, 12/28/98]
               the burden of proof in assessing the house's case
        But can the President rightly be charged with having committed the
    massive number of crimes that the House Managers allege? As Mr.
    McCollum said, if we cannot conclude that the President has violated
    the law, even the House Managers would agree that he should not be
    removed from office. Even if you accept their recitation of the dire
    consequences of President Clinton remaining in office, if the President
    cannot be shown to have been a serial perjurer and a massive obstructor
    of justice, the Senate should acquit.
        What standard of proof should a Senator apply in deciding whether
    the record supports these charges? Both the House Managers and the
    President's counsel addressed this significant issue. The House
    Managers quite correctly pointed out that the Senate has never sought
    to determine for the entire body what that burden of proof should be in
    an impeachment. In effect, we have left it to the good judgment of each
    Senator to decide whether or not they are convinced by the evidence
    presented to us.
        For this Senator, fundamental fairness as well as the nature of the
    House's case indicate that I ought to be convinced beyond a reasonable
    doubt that the President violated the laws that the House alleges.
    Proof beyond a reasonable doubt is the same standard applied in
    criminal cases--it is the standard that would apply if the President
    were tried in a criminal court for perjury or obstruction of justice.
        It seems to me that fundamental fairness counsels that I apply the
    same standard a criminal court would apply precisely because the House
    asserts that what makes his actions impeachable is that he has violated
    the criminal statutes regarding perjury and obstruction of justice. It
    strikes me as absurd that the Senate would have the arrogance to throw
    out a duly elected President on these grounds unless it was convinced
    that he would be convicted of those charges. Otherwise, we would be
    saying in effect that even though the President would not be convicted
    on these crimes, we are nevertheless throwing him out of office because
    he committed those crimes. Someone else can try to explain the logic of
    that decision to the voters, but not me.
        In addition, the standard of proof beyond a reasonable doubt seems
    to me compelled by the fact that in the House's explanation of the harm
    to our system of government if the President is not thrown out, their
    entire argument rises and falls depending upon whether or not the
    President would be convicted in a court of law for the crimes alleged.
    If he could not be convicted in a court of law, then the Senate is not
    ``condoning'' perjury or obstruction of justice any more than a
    criminal court is condoning those crimes when someone is acquitted on
    such charges. The Senate, like a court, is simply saying, ``not
    proven.'' But if the Senate is not condoning those crimes, there is no
    conceivable basis for concluding that the public will be harmed by the
    President's remaining in office.
        (There is another way to look at this: In any impeachment, a
    Senator must simply be convinced to his or her satisfaction that the
    defendant committed the acts alleged. That standard never changes.
    However, when the articles of impeachment allege that offenses rise to
    an impeachable level because these actions violate the law and have
    harmful consequences to the country because the defendant has violated
    the law and would not be punished, in that case a Senator must be
    convinced that a defendant would in fact be punished by a criminal
    court. In other words, the Senator must simply be convinced that a
    court would find that there is proof beyond a reasonable doubt.
        (In contrast, if the charges were that the President had lied to
    the American people, the Congress or foreign leaders, and that the
    harmful consequences flowed from being unable to rely upon his word,
    then a Senator must simply be convinced that the President lied,
    relying upon whatever level of proof is sufficient to convince him or
    her of that fact.)--[Memorandum, 1/21/98]
                                    censure
        In recent days, some have suggested that because the Starr report
    provides prima facie evidence of what are arguably impeachable
    offenses, the House and the Senate have a constitutional responsibility
    to see the impeachment process through to its conclusion. In my view,
    the constitutional history that I have sketched here this evening shows
    this position to be entirely mistaken. Indeed, if anything, history
    shows a thoroughly understandable reluctance to have the procedure
    invoked.
        Stopping short of impeachment would not be reaching a solution
    ``outside the Constitution,'' as some suggest--it would be entirely
    compatible and consistent with the Constitution.
        The 28th Congress [which contemplated but then terminated
    impeachment proceedings against President Tyler] hardly violated its
    constitutional duty when the House decided that, all things considered,
    terminating impeachment proceedings after cooperation between the
    Congress and the President improved was a better course of action than
    proceeding with impeachment based on his past actions, even though it
    apparently did so for reasons no more laudable than those that
    initiated the process.
        Impeachment was and remains an inherently political process, with
    all the pitfalls and promises that are thus put into play. Nothing in
    the document precludes the Congress from seeking means to resolve this
    or any other putative breach of duty short of removing him from office.
    In fact, the risky and potentially divisive nature of the impeachment
    process may counsel in favor of utilizing it only as a last resort.
        Of course, impeachment ought to be used if the breach of duty is
    serious enough--what the Congress was prepared to do in the case of
    Richard Nixon was the correct course of action. However, nothing in the
    Constitution precludes the congress from resolving this conflict in a
    manner short of impeachment.
        The crucial question--the question with which the country is
    currently struggling--is whether the President's breaches of conduct--
    which are now well-known and which have been universally condemned--
    warrant the ultimate political sanction. Are they serious enough to
    warrant removal?
        In answering that, we need to ask ourselves, what is in the best
    interest for the country?
        And while I have not decided what ultimately should happen, I do
    want to suggest that it is certainly constitutionally permissible to
    consider a middle ground as a resolution of this matter. Such an
    approach might bring together those of the President's detractors who
    believe there needs to be some sanction, but are willing to stop short
    of impeachment, as well as those of the President's supporters who
    reject impeachment, but are willing to concede that some sanction ought
    to be implemented.
        As a country, we have not often faced decisions as stark and
    potentially momentous as the impeachment of a President. On the other
    hand, we would be wise not to overstate such claims--surely we have
    faced some moments just as stark and serious as this one. We have
    survived those moments, and we will survive this one.
        Whatever the outcome of the present situation, I am confident that
    our form of government and the strength of our country present us not
    with any constitutional crisis, but rather with the constitutional
    framework and flexibility to deal responsibly with the decisions we
    face in the coming months.--[Speech, 10/2/98]
                         crimes and misdemeanors, high
        Let me say at the outset, that what President Clinton did was
    reprehensible. It was a horrible lapse in judgment and it has brought
    shame to him personally and to the office of the President. His actions
    have hurt his family, his friends, his supporters and the country as a
    whole. President Clinton has said this himself.
        Let me also say that I have not made any decision as to what I
    think should happen. I have not come to any conclusion as to what
    consequences the President should face for his shameful behavior. I
    believe the oath I have taken precludes me and other Senators from
    prejudging, as I may be required to serve as a judge and juror in the
    trial of the century.
        I can only make an assessment after hearing all of the evidence:
    evidence against the President, and evidence in support of the
    President.
        No one knows how this will turn out. However, I have given the
    topic some thought and would like to explore some of the issues that
    surely will confront responsible Members of Congress and all Americans
    as we enter this difficult period in our history.
        The Framers of the Constitution who met in Philadelphia in the
    summer 1787 considered offering the country a constitution that did not
    include the power to impeach the President. After all, any wrongs
    against the public could be dealt with by turning the President out in
    the next election.
        One delegate to the constitutional convention, Charles Pinckney of
    South Carolina, worried that the threat of impeachment would place the
    President under the thumb of a hostile congress, thereby weakening the
    independence of the office and threatening the separation of powers.
    According to James Madison's notes, Pinckney called impeachment a
    ``rod'' that congress would hold over the President.
        In being reluctant to include an impeachment power, the Framers
    were not trying to create an imperial presidency. In fact, what they
    were worried about was protecting all American citizens against the
    tyranny of a select group.
        In their view, the separation of powers constituted one of the most
    powerful means for protecting individual liberty, because it prevented
    government power from being concentrated in any single branch of
    government. To make the separation of powers work properly, each branch
    must be sufficiently strong and independent from the others.
        The Framers were concerned that any process whereby the legislative
    branch could sit in judgment of the President would be vulnerable to
    abuse by partisan factions. Federalist No. 65 begins its defense of the
    impeachment process by warning of the dangers of abuse. It argues that
    impeachments:
        ``Will seldom fail to agitate the passions of the whole community,
    and to divide them into parties, more or less friendly or inimical, to
    the accused. In many cases, it will connect itself with the pre-
    existing factions, and will enlist all their animosities, partialities,
    influence and interest on one side, or on the other; and in such cases
    there will always be the greatest danger, that the decision will be
    regulated more by the comparative strength of the parties than by the
    real demonstration of guilt or innocence.''
        So the Framers were fully aware that impeachment proceedings could
    become partisan attacks on the President--charged with animosities
    generated by all manner of prior struggles and disagreements, over
    executive branch decisions, over policy disputes, over resentment at
    losing the prior election. Federalist No. 65 expresses the view that
    the use of impeachment to vindicate these animosities would actually be
    an abuse of that power.
        This sentiment is as true today as it was when the constitution was
    being written. It was also true when Richard Nixon faced impeachment in
    1974. In fact, it would have been wrong for Richard Nixon to have been
    removed from office based upon a purely partisan vote. No President
    should be removed from office merely because one party enjoys a
    commanding lead in either house of the congress.
        Yet while the Framers knew that impeachment proceedings could
    become partisan, they needed to deal with strong anti-federalist
    factions.
        The anti-federalists strenuously argued that the federal government
    would quickly get out of step with the sentiments of the people and
    become vulnerable to corruption and intrigue, arrogance and tyranny.
    This charge proved close to fatal as the ratifying conventions in the
    states took up the proposed constitution.
        The Framers of the Constitution knew that the Constitution would
    have been even more vulnerable to charges of establishing a government
    remote from the people if the President were not subject to removal
    except at the time of re-election.
        James Madison's notes of the Philadelphia constitutional convention
    record his observations of the debate. He:
        ``Thought it indispensable that some provision should be made for
    defending the community against the incapacity, negligence or perfidy
    of the chief magistrate [that is, the President]. The limitation of the
    period of his service was not a sufficient security. He might lose his
    capacity after his appointment. He might pervert his administration
    into a scheme of speculation or oppression. He might betray his trust
    to foreign powers.''
        So in the end, the Framers of the Constitution risked the abuse of
    power by the congress to gain the advantages of impeachment.
        Once the decision to include the power of impeachment had been
    made, the remainder of debate on the impeachment clauses focused on two
    issues:
              1. What was to constitute an impeachable offense or what were
            the standards to be?
              2. How was impeachment to work or what were the procedures to
            be?
        As we shall see, the Framers proved unable to separate these two
    issues entirely. Understanding how they are intertwined, however, helps
    us to understand the full implications of the power.
        The Constitution provides that ``the House of Representatives shall
    . . . have the power of impeachment.'' (Article I, Section 2, Clause
    5).
        The Framers decision that the House of Representatives would
    initiate the charges of impeachment follows the pattern of the English
    Parliament--where the House of Commons initiates charges of
    impeachment. Beyond this, the choice must have seemed fairly compelled
    by two related considerations.
        The first, already mentioned, was the need to provide the people as
    a whole with assurances that the government they were being asked to
    create would be responsive to the interests and concerns of the people
    themselves.
        The second was the Framers' substantive understanding of the
    impeachment power. It was a power to hold accountable government
    officers who had, in Hamilton's terms, committed ``an abuse or
    violation of some public trust'' thereby committing an injury ``done
    immediately to the society itself.''
        If the gravamen of an impeachment is the breach of the public's
    trust, no branch of the federal government could have seemed more
    appropriate to initiate such a proceeding than the House, which was
    conceived and defended as the chamber most in tune with the people's
    sympathies and hence most appropriate to reflect the people's views.
        The Constitution further provides that the President shall be
    ``removed from office on impeachment for, and conviction of, treason,
    bribery, or other high crimes and misdemeanors.'' (Article II, Section
    4).
        This language went through several changes during that summer of
    1787. In initial drafts, the grounds for impeachment were restricted to
    treason and bribery alone. When the matter was brought up on September
    8, 1787, George Mason of Virginia inquired as to why the grounds should
    be restricted to these two provisions.
        He argued that ``attempts to subvert the constitution may not be
    treason as above defined.'' Accordingly, he moved to add
    ``maladministration'' as a third ground.
        James Madison objected to Mason's motion, contending that to add
    ``so vague a term will be equivalent to a tenure during the pleasure of
    the senate.'' Here again, we see the worry that impeachment would be
    misused by the congress to reduce the independence of the President,
    allowing partisan factions to interfere at the expense of the larger
    public good.
        The objection apparently proved effective because mason
    subsequently withdrew the motion and substituted the phrase ``or other
    high crimes and misdemeanors.''
        What does the phrase mean? It is clear the Framers thought it to be
    limited in scope. But beyond this, constitutional scholars have been
    debating the meaning of this phrase from the very early days of the
    republic.
        Yet despite this on-going dialogue, I believe there are two
    important points of agreement as to the original understanding of the
    phrase, and a third issue where the weight of history suggests a
    settled practice.
        First, as we have already seen, the Framers did not intend that the
    President could be impeached for ``maladministration'' alone.
        Second, a great deal of evidence from outside the convention shows
    that both the Framers and ratifiers saw ``high crimes and
    misdemeanors'' as pointing to offenses that are serious, not petty, and
    offenses that are public or political, not private or personal.
        In 1829, William Rawle authored one of the early commentaries on
    the Constitution of the United States. In it, Rawle states that ``the
    legitimate causes of impeachment . . . can only have reference to
    public character and official duty.''
        He went on to say, ``in general, those offences which may be
    committed equally by a private person as a public officer are not the
    subjects of impeachment.''
        In addition, more than one hundred fifty years ago, Joseph Story,
    in his influential Commentaries on the Constitution, stated that
    impeachment is:
        ``Ordinarily'' a remedy for offenses ``of a political character,''
    ``growing out of personal misconduct, or gross neglect, or usurpation,
    or habitual disregard of the public interests, in the discharge of the
    duties of political office.''
        The public character of the impeachment offense is further
    reinforced by the limited nature of the remedy for the offense. In the
    English tradition, impeachments were punishable by fines, imprisonment
    and even death. In contrast, the American constitution completely
    separates the issue of criminal sanctions from the issue of removal
    from office.
        The Constitution states that ``judgment in cases of impeachment
    shall not extend further than to removal from office, and
    disqualification to hold and enjoy any office of honor, trust or profit
    under the United States.'' (Article I, Section 3, Clause 7).
        The remedy for violations of the public's trust in the performance
    of one's official duties, in other words, is limited to removal from
    that office and disqualification from holding future offices. Remedies
    that I might add, correspond nicely to the public nature of the
    offenses in the first instance.
        Additional support comes from yet another commentator, James
    Wilson, a delegate to the convention from Pennsylvania. In his lectures
    on the Constitution, Wilson wrote that ``in the United States and
    Pennsylvania, impeachments are confined to political characters, to
    political crimes and misdemeanors, and to political punishments.''
        All in all, the evidence is quite strong that impeachment was
    understood as a remedy for abuse of official power, breaches of public
    trust, or other derelictions of the duties of office.
        The third point to make about the scope of the impeachment power is
    this: to be impeachable, an offense does not have to be a breach of the
    criminal law.
        The renowned constitutional scholar and personal friend and
    advisor, the late Phillip Kurland, wrote that ``at both the convention
    that framed the constitution and at the conventions that ratified it,
    the essence of an impeachable offense was thought to be breach of trust
    and not violation of the criminal law. And this was in keeping with the
    primary function of impeachment, removal from office.''
        If you put the notion that an impeachable offense must be a serious
    breach of an official trust or duty, together with the point that it
    does not have to be a criminal violation, you reach the conclusion that
    not all crimes are impeachable, and not every impeachable offense is a
    crime.--[Speech, 10/2/98]
              * * * * * * *
        Reference has been made to an exchange between George Mason and
    James Madison at the Virginia Ratifying Convention. Mason is reported
    to have worried that a President might ``stop [an] inquiry'' into
    wrongdoing involving the President. Madison is reported to have replied
    that this concern was not substantial because the House of
    Representatives could impeach the President if he did so. The exchange,
    it has been argued, proves that the Framers viewed obstruction of
    justice as clearly an impeachable offense.
        A more extended look at the colloquy shows that Mason's precise
    concern was that the President would use his pardon power to pardon
    people whose investigations might reveal Presidential involvement in
    criminal activities. Mason used this concern as the basis for arguing
    that the pardon power should be placed in the House, and not with the
    President. To this concern, Madison replied that if the President so
    abused the pardon power, he could be impeached. So it was an action
    that abused an official power of the President that Madison thought was
    impeachable.
        Here is a condensed version of the exchange as reported in Eliot's
    Debates.
        Mr. GEORGE MASON, animadverting on the magnitude of the powers of
    the President, was alarmed . . . Now, I conceive that the President
    ought not to have the power of pardoning, because he may frequently
    pardon crimes which were advised by himself. It may happen, at some
    future day, that he will establish a monarchy, and destroy the
    republic. If he has the power of granting pardons before indictment, or
    conviction, may he not stop inquiry and prevent detection?
        Mr. MADISON, adverting to Mr. Mason's objection to the President's
    power of pardoning, said it would be extremely improper to vest it in
    the House of Representatives, and not much less so to place it in the
    Senate. . . . There is one security in this case to which gentlemen may
    not have adverted: if the President be connected, in any suspicious
    manner, with any person, and there be grounds to believe he will
    shelter him, the House of Representatives can impeach him. . . . This
    is a great security.''--[Memorandum, 2/9/99]
              * * * * * * *
         ii. the meaning of ``high crimes and misdemeanors'' under the
                                  constitution
        The Constitution establishes that the President ``shall be removed
    from Office on Impeachment for and Conviction of Treason, Bribery, or
    other high crimes and misdemeanors.'' That instrument, by design, does
    not contain an express definition of the phrase ``other high crimes and
    misdemeanors.'' The Framers intended the Constitution to endure for
    centuries and recognized that they could not provide a more specific
    definition that would justly serve the Nation's interest into an
    unknowable future. Instead, they wisely entrusted the construction and
    adaptation of that phrase to the judgment and conscience of the
    people's chosen representatives in Congress. Thus, the Senate is left
    to exercise what Alexander Hamilton termed our ``awful discretion'' to
    judge whether the President's conduct warrants removing him from
    office.
        While the Constitution calls upon each Senator to bring his or her
    good faith political judgment to bear on the meaning of the
    constitutional standard of ``other high crimes and misdemeanors,'' it
    does not abandon us to an ad hoc or partisan exercise of our
    discretion. Indeed, the Framers strongly urged in both the Philadelphia
    convention and the state ratifying conventions that the constitutional
    standard is not properly understood to allow impeachment to be used as
    a tool of partisan punishment. The Constitution itself, the history of
    its framing and ratification, and the construction given through
    faithful interpretation and practice since its ratification converge to
    provide powerful guidance for determining what offenses justify
    impeachment and conviction. These touchstones of constitutional
    interpretation reveal that high crimes and misdemeanors are great
    offenses characterized by two elements: (1) grave harm to the
    constitutional system of government that (2) results from official
    misconduct.
                         a. the history of impeachment
        The Framers met in Philadelphia in 1787 because the government
    under the Articles of Confederation was so ineffectual as to have
    brought the fledgling union to ``the last stage of national
    humiliation.'' They intended to establish a government through which
    the people could effectively define and pursue the general welfare. To
    do so, the Framers understood that the government whose charter they
    were about to write would have to be entrusted with broad coercive
    powers to act directly upon American citizens. At the same time, the
    Framers were practical statesmen who understood that the powers
    necessary to make a government effective could be misused to make it
    potentially an instrument of oppression. Madison explained the dilemma:
        ``If men were angels, no government would be necessary. If angels
    were to govern men, neither external nor internal controls on
    government would be necessary. In framing a government which is
    administered by men over men, the great difficulty lies in this: you
    must first enable the government to control the governed; and in the
    next place oblige it to control itself.''
        To meet this potential threat to liberty, the Framers divided the
    federal government into three co-equal branches and further divided the
    legislative branch into two houses in order to require the concurrence
    of the branches before the government's coercive power could be brought
    to bear on the people. Thus, while Article 1, Section 1 of the
    Constitution vests the legislative power in Congress, this power is
    subject to Presidential veto and judicial review for constitutionality.
    Executive action generally requires a legislative basis or
    appropriation or other legislative support and is subject to judicial
    review.
        Finally, the establishment and jurisdiction of the federal courts
    generally depend upon legislative authorization, subject again to
    Presidential veto. Within this structure each branch is to be
    independent and is ``armed'' to defend itself against encroachments by
    the others. As Justice Robert Jackson observed, ``the Constitution
    diffuses power the better to secure liberty. . . . It enjoins upon its
    branches separateness but interdependence, autonomy but reciprocity.''
        Maintaining the independence of the three branches of government
    dominated the debates regarding impeachment at the Constitutional
    Convention. Initially, the Framers considered offering the country a
    constitution that did not include the power to impeach the President.
    After all, any wrongs against the public could be dealt with by turning
    the President out in the next election. One delegate to the
    constitutional convention, Charles Pinckney of South Carolina, worried
    that the threat of impeachment would place the President under the
    thumb of a hostile congress, thereby weakening the independence of the
    office and threatening the separation of powers. According to James
    Madison's notes, Pinckney called impeachment a ``rod'' that congress
    would hold over the President.
        In being reluctant to include an impeachment power, the Framers
    were not trying to create an imperial presidency; they were concerned
    about protecting all American citizens and the Nation as a whole. In
    their view, the separation of powers constituted one of the most
    powerful means for protecting individual liberty, because it prevented
    government power from being concentrated in any single branch of
    government. To make the separation of powers work properly, each branch
    must be sufficiently strong and independent from the others.
        The Framers' worry was largely animated by the concern that any
    process whereby the legislative branch could sit in judgment over the
    President would be vulnerable to abuse by partisan factions. Federalist
    No. 65 begins its defense of the impeachment process by warning of its
    potential for abuse. It argues that impeachments:
        ``Will seldom fail to agitate the passions of the whole community,
    and to divide them into parties, more or less friendly or inimical, to
    the accused. In many cases, it will connect itself with the pre-
    existing factions, and will enlist all their animosities, partialities,
    influence and interest on one side, or on the other; and in such cases
    there will always be the greatest danger, that the decision will be
    regulated more by the comparative strength of the parties than by the
    real demonstration of guilt or innocence.''
        The Framers were fully aware that impeachment proceedings could
    become partisan attacks on the President charged with animosities
    generated by all manner of prior struggles and disagreements over
    executive branch decisions, over policy disputes, over resentment at
    losing the prior election. Federalist No. 65 expresses the view that
    the use of impeachment to vindicate these animosities would actually be
    an abuse of that power.
        Although the Framers were concerned about impeachment proceedings
    becoming partisan, they needed to deal with strong anti-federalist
    factions. They were very aware that the anti-federalists strenuously
    urged that the federal government would quickly get out of step with
    the sentiments of the people and would become vulnerable to corruption
    and intrigue, arrogance and tyranny. This charge proved close to fatal
    as the ratifying conventions in the states took up the proposed
    constitution. The Framers of the constitution knew that the
    constitution would have been even more vulnerable to charges of
    establishing a government remote from the people if the President were
    not subject to removal at all except at the time of re-election.
        James Madison's notes of the Philadelphia Constitutional Convention
    record his observations of the debate where he:
        ``Thought it indispensable that some provision should be made for
    defending the community against the incapacity, negligence or perfidy
    of the chief magistrate. The limitation of the period of his service
    was not a sufficient security. He might lose his capacity after his
    appointment. He might pervert his administration into a scheme of
    speculation or oppression. He might betray his trust to foreign
    powers.''
        So in the end, the Framers of the constitution risked the abuse of
    power by the Congress to gain the advantages of impeachment.
                    b. the constitution's text and structure
        The Constitution does not define impeachable offenses, yet its text
    and structure provide clear manifestation that these words refer to
    official misconduct causing grave harm to our constitutional system of
    government. The starting point for any analysis of the Constitution's
    meaning must be its text, which in relevant part reads, ``the President
    . . . shall be removed from Office on Impeachment for and Conviction of
    Treason, Bribery, or other high crimes and misdemeanors.''
        Here, the text sets forth a list that begins with terms that have
    definite meaning (treason, which is defined in the Constitution itself,
    and bribery, whose definition was fixed at common law) and proceeds to
    relatively indefinite terms, high crimes and misdemeanors. In this
    setting, two rules of construction, ejusdem generis and noscitur a
    sociis, instruct that the meaning of the indefinite terms are to be
    understood as similar in kind to the definite terms. Application of
    these canons of construction is bolstered here by the text itself. The
    indefinite element, ``high crimes and misdemeanors,'' is introduced by
    the term ``other.'' This specifically refers the reader back to the
    preceding definite terms, treason and bribery, as supplying the context
    and parameters for the meaning of the indefinite phrase, ``high crimes
    and misdemeanors.''
        Every criminal offense, including such trivial infractions as
    parking offenses, involves public or societal harm. It is for this
    reason that criminal cases are titled, ``The State versus . . .'' or
    ``The Government versus. . . .'' Each of the definite impeachable
    offenses, treason and bribery, are distinct in that they cause grave
    harm to the public not in some undifferentiated sense but in a way that
    strikes directly at our system of constitutional government. The
    Constitution defines treason as ``levying War against [the United
    States] or in adhering to their Enemies, giving them Aid and Comfort,''
    which plainly involves the most serious offense against our system of
    government. Similarly, bribery inescapably involves a serious
    subversion of the processes of government. In describing the common
    characteristics of treason and bribery, Professor Charles Black of Yale
    Law School explained that each offense ``so seriously threaten[s] the
    order of political society as to make pestilent and dangerous the
    continuance in power of their perpetrator.''
        Furthermore, Professor Edwin Corwin quoted with approval the
    statement of Justice Benjamin Curtis who said in defense of President
    Andrew Johnson that ``treason and bribery . . . these are offenses
    which strike at the existence of [the] government. `Other high crimes
    and misdemeanors.' Noscitur a sociis. High crimes and misdemeanors; so
    high that they belong in this company with treason and bribery.''
        In this constitutional setting, the terms treason and bribery take
    on a second distinctive aspect. As used in Article II, Section 4, each
    term involves official misconduct. Bribery, by definition, occurs only
    where a public official undertakes an official act in return for
    payment or some other corrupt consideration. Likewise, treason
    necessarily involves official misconduct in the impeachment context. To
    be sure, it is possible for a private citizen to commit treason by
    giving aid and comfort to the enemies of the United States. It must be
    remembered that impeachment proceedings may be pursued only against
    civil officers of the United States. By limiting impeachable treason to
    civil officers, the Constitution expressly contemplates that treason
    will provide a grounds for impeachment and conviction only where a
    civil office is used to adhere to or aid the enemies of the United
    States.
        The textual construction expressed above--that high crimes and
    misdemeanors refer to grave harms to our constitutional system of
    government that result from official misconduct--comports with and
    draws significant support from the Constitution's structure. First, the
    structure reflects the Framers' conscious decision not to adopt a
    parliamentary system of government, in which the executive power is
    subordinate to and controlled by the legislature. The structure also
    reflects the Framers' judgment that the executive branch not be
    accorded primacy; their experience with the tyranny of the British
    monarchy was too recent to have permitted them to accept executive
    supremacy. Instead, the Constitution establishes three branches that
    are independent, strong, and co-equal. Construing the category of high
    crimes and misdemeanors too broadly would threaten the independence of
    the executive and judicial branches. This specific concern animated
    James Madison in the Philadelphia Convention and moved him to object to
    vague and potentially expansive formulations of the grounds upon which
    the President could be impeached and removed from office.
        The formulation of high crimes and misdemeanors must be understood
    as consistent with the Constitution's overall structure. In as much as
    the Constitution's structure specifically rejects the parliamentary
    form, the power of impeachment and removal must be construed and
    exercised in a way that respects this fundamental constitutional
    judgment. Understanding the grounds for impeachment to be limited to
    cases of official misconduct that cause serious harm to our system of
    government allows the Congress to protect the public against oppressive
    official action without undermining the necessary independence of the
    President or the judiciary.
        The Constitution's structure also supports limiting the category of
    impeachable offenses to those involving official misconduct. The
    constitutional separation of powers is designed to safeguard liberty
    against tyrannical or oppressive exercise of the government's power. In
    advocating the specific governmental structure erected in the
    Constitution, Madison repeatedly described the motivating concern to be
    establishing internal mechanisms, specifically the system of checks and
    balances, to control the federal government's power and minimize threat
    to the liberty of the people. This supports limiting the scope of
    impeachable offenses to official misconduct; that is, to conduct in
    which the civil officer misuses his or her official power. Other sorts
    of misbehavior by civil officers are simply beyond the concern of the
    separation of powers, of which the impeachment powers are a significant
    component. Indeed, the Constitution specifically provides that civil
    officers, including the President, remain subject to criminal
    prosecution and punishment for wrongdoing that does not involve
    official conduct.
         c. history of the debates and ratification of the constitution
        Moving beyond the text and structure of the Constitution itself,
    the debates at the Philadelphia Convention of 1787, where the
    Constitution was drafted, and those in the subsequent state ratifying
    conventions provide important insight into the meaning of ``high crimes
    and misdemeanors.'' Close examination of these proceedings demonstrates
    that the Framers gave careful consideration to Congress' impeachment
    powers. This consideration led them to understand the Constitution as
    setting forth a very narrow category of impeachable offenses.
        Through most of the convention, the drafts of the Constitution
    denominated treason and bribery as the exclusive grounds for
    impeachment and removal of civil officers. In September 1787, as the
    convention was drawing to a close, Colonel George Mason and James
    Madison undertook colloquy that gave this provision its ultimate
    formulation. Because treason was expressly and narrowly defined in the
    Constitution itself, Mason was concerned that the impeachment power
    would not reach ``great and dangerous offenses'' and that ``attempts to
    subvert the Constitution may not be treason'' as defined in Article III
    of the Constitution. Mason moved to add ``maladministration'' as a
    catchall category. Significantly, this offense, which had been an
    accepted ground for impeachment in British practice, comprises
    exclusively official misconduct.
        Madison objected to this addition, not because it was too
    restrictive, but because it was too vague and so potentially too
    expansive. He feared that ``so vague a term will be equivalent to a
    tenure during the pleasure of the Senate.'' Here again it is clear that
    the Framers were concerned that impeachment would be misused by the
    Congress to reduce the independence of the President. In response Mason
    withdrew his own original motion and moved to add ``or other high
    crimes and misdemeanors.'' His motion was quickly approved.
        The purpose of Mason's motions was to include all offenses that
    pose a threat to our system of constitutional government similarly to
    that posed by treason. Madison expressed the important concern that the
    expansion not be left so far open as to erode the essential
    independence of the other branches, and particularly of the President.
    In responding to Madison's concern, Mason must be understood to have
    intended to narrow a definition that already applied solely to official
    misconduct. The colloquy between Mason and Madison, then, strongly
    supports construing the phrase high crimes and misdemeanors to cover
    only official misconduct that threatens grievous harm to our
    governmental system.
        Madison was not alone in his concern that Congress might use
    impeachment as a tool for encroachments upon the executive branch. This
    concern was raised in various state ratifying conventions as well. For
    example, in supporting the Constitution at the Pennsylvania Convention,
    James Wilson repeatedly assured the delegates that only ``great
    injuries'' could serve as a basis for invoking impeachment. In his
    lectures on the Constitution, Wilson went on to say that ``in the
    United States and Pennsylvania, impeachments are confined to political
    characters, to political crimes and misdemeanors, and to political
    punishments.'' In the North Carolina Convention, several defenders of
    the Constitution, including James Iredell who was a delegate to the
    Philadelphia Convention and later became a Justice of the Supreme
    Court, argued that impeachment would ``arise from acts of great injury
    to the community.'' The debates surrounding ratification in New York
    produced the Federalist Papers. Alexander Hamilton explained that,
        ``[t]he subjects of [the Senate's impeachment] jurisdiction are
    those offenses which proceed from the misconduct of public men, or, in
    other words, from the abuse or violation of some public trust. They are
    of a nature which with peculiar propriety may be denominated POLITICAL,
    as they relate chiefly to injuries done to the society itself.''
        Like Hamilton, the founding generation understood impeachment to be
    a political remedy for political offenses. It is important to bear in
    mind what they meant by ``political.'' They meant that which relates to
    government and the pursuit of the general welfare; that which involves
    the system of government or ``society in its political character.''
    They specifically did not mean political in the sense of partisan which
    the Framers affirmatively feared. Charles Pinckney, James Wilson, and
    Alexander Hamilton, for example, each decried construing the
    impeachment powers in ways that would allow these powers to be put to
    partisan ends. They lodged the power to try impeachments in the Senate
    precisely because they thought the Senate would have the necessary
    independence, stature, and impartiality to prevent the impeachment
    powers from becoming a tool of factionalism and partisanship. The
    Framers expected that the Senate was, among government institutions,
    uniquely capable of fidelity to the constitutional limits partisanship
    that the Framers understood to be implicit in the phrase high crimes
    and misdemeanors.
        Leading constitutional scholarship of the founding era reflects the
    same view of the intended narrow scope of high crimes and misdemeanors.
    Justice Joseph Story, in his pathbreaking Commentaries on the
    Constitution, looked to British practice to understand the scope of
    impeachment in the United States Constitution. Recognizing that the
    U.S. Constitution intended to confine impeachment to a narrower set of
    offenses than those permitted under British law, he observed that even
    in Great Britain, ``such kinds of misdeeds . . . as peculiarly injure
    the commonwealth by the abuse of high offices of trust are the most
    proper and have been the most usual ground for this kind of prosecution
    in parliament.'' Story went on to say that impeachment is a remedy for
    offenses ``of a political character,'' ``growing out of personal
    misconduct, or gross neglect, or usurpation, or habitual disregard of
    the public interests, in the discharge of the duties of political
    office.''
        The public character of the impeachment offense is further
    reinforced by the limited nature of the remedy for the offense. In the
    English tradition, impeachments were punishable by fines, imprisonment
    and even death. In contrast, the American Constitution completely
    separates the issue of criminal sanctions from the issue of removal
    from office. The Constitution states that ``judgment in cases of
    impeachment shall not extend further than to removal from office, and
    disqualification to hold and enjoy any office of honor, trust or profit
    under the United States.'' The remedy for violations of the public's
    trust in the performance of one's official duties, in other words, is
    limited to removal from that office and disqualification from holding
    future offices.
        Therefore, the Constitution contemplates both an impeachment and a
    criminal action as consequences for Presidents who commit impeachable
    offenses. This differs from the English model which only provides for
    criminal punishments after an impeachment conviction. If, however, a
    President engages in egregious but non-impeachable activity, the
    Constitution subjects the President to criminal liability. Impeachment
    therefore, is viewed not as a mechanism to punish a President, but
    rather a device to protect the populace. As Story said, impeachment
    proceedings are ``not so much designed to punish an offender as to
    secure the state against gross official misdemeanors.''
        Impeachment, therefore, is intended to preserve the constitutional
    form of government by removing from office an official who subverts the
    Constitution and is not intended to be a remedy for someone who breaks
    the law in connection with a private matter.
        At least one important early treatise writer, William Rawle,
    concluded that only official misconduct could provide a basis for
    impeachment. He contended that ``the causes of impeachment can only
    have reference to public character and official duty. . . . In general
    those which may be committed equally by a private person as a public
    officer are not the subject of impeachment.'' Additional support for
    this proposition comes from the renowned constitutional scholar,
    Phillip Kurland who wrote that ``at both the convention that framed the
    Constitution and at the conventions that ratified it, the essence of an
    impeachable offense was thought to be breach of trust and not violation
    of the criminal law. And this was in keeping with the primary function
    of impeachment, removal from office.'' Finally, additional support for
    this proposition comes from the United States Department of Justice. As
    a legal memorandum produced by the Justice Department's Office of Legal
    Counsel during impeachment proceedings against President Nixon
    observed, ``[t]he underlying purpose of impeachment is not to punish
    the individual, but is to protect the public against gross abuse of
    power.''
                    d. constitutional practice and precedent
        Another important guide to the meaning of the Constitution is the
    construction applied throughout our history by those who have been
    charged with applying its provisions. The significance of
    constitutional practice is heightened in the absence of applicable
    judicial interpretation. As Justice Frankfurter stated:
        ``The Constitution is a framework for government. Therefore the way
    the framework has consistently operated fairly establishes that it has
    operated according to its true nature. Deeply embedded traditional ways
    of conducting government cannot supplant the Constitution or
    legislation, but they give meaning to the words of a text or supply
    them. It is an inadmissibly narrow conception of American
    constitutional law to confine it to the words of the Constitution and
    to disregard the gloss which life has written upon them.''
        In the history of the United States, the Senate has never convicted
    any President of an impeachable offense. This fact stands out as the
    sum total of the Senate's practical construction of the Constitution's
    impeachment provisions as they relate to the President of the United
    States. It must serve as a chilling call to self-restraint in
    construing those provisions.
        The Senate has convicted other civil officers of impeachable
    offenses, including high crimes and misdemeanors. There is reason to
    doubt whether these cases, mostly involving federal judges, provide
    directly analogous precedent for cases involving the President. First,
    the Madison-Mason colloquy and the debates in the state ratifying
    conventions demonstrate the Framers' primary concern was with the use
    of impeachment as a vehicle for encroachments on the President's
    structurally necessary independence from the legislature. Second,
    federal judges serve life terms and are not elected. The automatic
    removal of the President upon conviction of high crimes and
    misdemeanors has the widely remarked upon consequence of artificially
    altering the expected result of an election and thus is regarded as in
    tension with democratic principles. Moreover, because the President
    serves a limited term of four years, the need for an artificial removal
    mechanism is less urgent than it is in the case of judges who would
    otherwise serve an illimitable term.
        These caveats aside, an examination of congressional practice in
    the case of the fifteen officers who have been impeached by the House
    strongly supports construing high crimes and misdemeanors as aimed
    primarily at official misconduct that results in grave harm to our
    constitutional system of government. In every case, the misconduct
    cited as impeachable involved the misuse of office or the power of
    office. No case involved impeachment for conduct that did not involve
    the exercise of the impeached person's office or official power. The
    closest the Congress has come to impeaching and convicting an officer
    for conduct not involving abuse of office was the case of Judge Harry
    Claiborne. Judge Claiborne was impeached, convicted, and removed from
    office for committing tax evasion. Superficially, this conduct did not
    itself involve his judicial office in any direct way. The income he was
    convicted of withholding, however, allegedly came from improper
    payments to him, which were made because of his judicial office. In
    their essence, then, the charges against him were charges of serious
    abuse of office involving what amounted to bribery, though the articles
    of impeachment did not formally recount the source of the income at the
    heart of the tax evasion case against Judge Claiborne. [Memorandum, 12/
    22/98]
                               evidence, rules of
        Are the Federal Rules of Evidence Applicable? Neither the Senate
    nor its presiding officer, the Chief Justice, is required to follow the
    Federal Rules of Evidence in ruling on evidentiary objections during an
    impeachment trial. As a matter of practice these decisionmakers have
    relied upon the Federal Rules in considering evidentiary objections,
    but have not always excluded evidence that the Federal Rules would
    exclude or admitted evidence that the Federal Rules would allow. The
    Senate's approach has been to receive all evidence except where doing
    so would be unfair to one of the parties. In determining what is fair,
    the Senate has placed great weight on the Federal Rules.
        The refusal to adopt the Federal Rules of Evidence is apparently
    based on the judgment that the Senate is highly sophisticated as a jury
    examining political crimes and weighing political remedies.
    Consequently, the Senate does not need the sort of protections that
    juries commonly require. The concern raised by not adopting the Federal
    Rules is that, where the only limit on the discretion of individual
    Senators is their sense of fairness, party-line voting may emerge and
    the impeachment process could come to be viewed as lacking the
    necessary impartiality.
        While the Senate has never accepted that it is bound by the Federal
    Rules, it may vote to require their application in a given case. In
    fact, the Senate did just that on at least one occasion. During the
    Rule XI committee deliberations in the impeachment trial of Judge Harry
    Claiborne, Senator Orrin Hatch argued that the committee should accept
    the Federal Rules as binding. Then-Senator Albert Gore argued against
    accepting the Federal Rules.
        Is the Starr Report Admissible? Either or both parties may seek to
    introduce the referral and supporting documentation that independent
    counsel Kenneth Starr submitted to the House Judiciary Committee. Much
    of this material would not be admissible in a judicial proceeding. The
    referral itself is not evidence, but a summation of evidence contained
    in the attachments. The attachments include grand jury testimony where
    witnesses were not subject to cross-examination and other material
    could represent hearsay.
        There is some precedent for admitting the record and proceedings
    from a judicial proceeding as substantive evidence in an impeachment
    trial. In the impeachment trial of Judge Harry Claiborne, one of the
    House Managers, then-Representative Michael DeWine, argued that the
    Rule XI committee should accept the record of the criminal trial in
    which Judge Claiborne was convicted of tax evasion charges.
    Specifically, Manager DeWine argued that accepting the evidence would
    establish an important precedent in favor of economy and efficiency in
    impeachment proceedings. The committee accepted DeWine's argument and
    received the trial record as substantive evidence.
        In Judge Claiborne's case, the committee agreed to receive evidence
    that had been subject to cross-examination by Judge Claiborne's
    attorneys. If the President's counsel objects to the Senate receiving
    the Starr report and supporting materials, he could distinguish the
    Claiborne precedent on the ground that the President's lawyers had no
    opportunity to cross examine grand jury witnesses.
        Is Evidence of Prosecutorial Misconduct Admissible? The President's
    counsel may seek to introduce evidence of prosecutorial misconduct. The
    House Managers or Senators may object on the grounds that such evidence
    is irrelevant. Either the President committed high crimes or
    misdemeanors, or he did not; evidence relating to what the independent
    counsel may have done to investigate the President is beside the point.
        The President, however, would have a powerful contrary argument,
    particularly if the Starr report and supporting documents are admitted
    as substantive evidence. The report itself represents the conclusions
    drawn by the independent counsel. The supporting documents represent
    evidence and testimony collected by the independent counsel without
    opportunity for supplementation, challenge or cross-examination by the
    President. Understanding the independent counsel's bias or impartiality
    is crucial to assessing the weight and credibility of this type of
    evidence. For example, the independent counsel's office will have
    chosen to pursue certain lines of questioning with witnesses before the
    grand jury. If the independent counsel acted from bias, there is a
    reasonable inference that the roads the prosecutor chose not to follow
    would have revealed evidence favorable to the President. If, on the
    other hand, the independent counsel is impartial, one may reasonably
    infer that he sought to uncover all relevant information whether
    favorable or unfavorable to the President.
        In addition, if officials in the Office of the Independent Counsel
    threatened witnesses, that fact is relevant to assessing the
    credibility of the testimony and evidence given by those witnesses.
        In one previous case, the Rule XI committee voted to allow the
    defense to present evidence of prosecutorial misconduct, although it
    did not allow the defense to pursue elements of its theory that were
    purely speculative and highly dubious.--[Memorandum, 12/28/98]
                                findings of fact
        Various proposals to have the Senate vote on ``findings of fact''
    prior to a final vote on the articles of impeachment are circulating.
    The most onerous of these would ask the Senate to ``find'' that the
    President had violated federal laws against perjury and obstruction of
    justice.
        Under one presumed scenario, the findings of fact would pass, while
    the subsequent vote on the articles would fail. Thus, while the
    President would remain in office, his legacy would be besmirched by an
    impeachment trial's finding that he was guilty of crimes.
        There are several constitutional arguments against this procedure,
    each based on the fact that it is either equivalent to, or tantamount
    to, separating a vote on guilt or innocence from a vote on removal.
        Very early in the Senate's history, the Senate did in fact separate
    these two votes, notably in the case of Judge John Pickering. Pickering
    was charged with drunkenness, among other things, but not with any
    crimes. The Senate voted separately on whether he was guilty under the
    articles and then on whether or not he should be removed from office.
    (They voted to convict and to remove.)
        This procedure might signal that the Senate believed that in an
    impeachment trial a person could be found guilty by the Senate of
    offenses that did not rise to the level of ``treason, bribery, or other
    high crimes and misdemeanors.'' Under that interpretation, the second
    vote would be necessary to establish whether or not the offenses
    justified removal from office.
        However, this possible interpretation of the trial procedure was
    repudiated in the 1936 impeachment trial of Judge Halstead Ritter, when
    the chair ruled that removal followed automatically from a finding of
    guilty, so that a separate vote on removal was not in order. The ruling
    was based on the text of Article II, Section 4, of the Constitution
    which provides that ``The President [and other civil officers] shall be
    removed from Office on Impeachment for, and Conviction of, treason,
    bribery, or other high crimes and misdemeanors.''
        The dominant view of constitutional scholars is that the chair's
    ruling in the Ritter case was correct. Notice that there are two
    significant components of the Ritter interpretation: (1) the President,
    vice President or other civil officers can only be impeached for
    ``treason, bribery, or other high crimes and misdemeanors,'' and (2)
    removal then follows by operation of Constitutional law upon
    conviction.
        Against this background, the proposed findings of fact could
    produce substantial constitutional mischief. Suppose they received a
    two-thirds vote. If the offenses outlined in the findings of fact are
    high crimes and misdemeanors, the President would have been removed
    from office by operation of Constitutional law.
        Suppose, further, that the Senate then took the final vote on the
    articles and on that vote the yeas were less than two-thirds. Looking
    strictly at this vote, the President has been acquitted, and remains in
    office.
        Who, then, is the President of the United States after these two
    votes have been cast--Bill Clinton or Al Gore? In other words, who
    decides whether the first vote convicted the President of high crimes
    and misdemeanors?
        Senators might well argue that the very fact that the Senate took
    the second vote proves that the first vote was not on offenses that
    justified removal. That would be an ironic position for many Republican
    Senators to be in, however, as many of them are on record defending the
    proposition that perjury and obstruction of justice are clearly
    impeachable offenses.
        One argument against the proposed findings of fact, then, is that
    it could create enormous uncertainty about who occupies the office of
    President. The impact of that uncertainty on foreign and domestic
    policy would potentially be quite great, infecting every official
    action the President might undertake. (Perhaps Bill Clinton and Al Gore
    could do everything in tandem--co-sign all official documents, co-
    attend all foreign negotiations, etc.--thereby eliminating the legal
    ambiguities by creating a true co-presidency.)
        The uncertainty would, in all likelihood, result in litigation.
    Suit could be brought by someone adversely affected by a law ``signed''
    by Bill Clinton that would otherwise have been pocket vetoed due to the
    adjournment of Congress, claiming that the bill never became law. Or it
    could be brought by someone seeking the benefits of a law that Bill
    Clinton had ``vetoed,'' claiming that the veto had no effect because
    Bill Clinton was not President.
        Even if such litigation would eventually lead to a resolution of
    the uncertainty, the country would suffer during the interim.
        There is a real possibility, however, that the Supreme Court would
    find the question of what constitutes a ``high crime and misdemeanor''
    to be nonjusticiable. In United States v. Nixon, the Court held that
    nearly all questions regarding the Senate's power to try impeachments
    are nonjusticiable, and it might well so find in this instance, as
    well.
        Even if the findings of fact did not garner two-thirds support, a
    second argument against the findings of fact can be based on the two-
    part Ritter interpretation of the impeachment power (i.e., impeachment
    available only for high crimes and misdemeanors; removal follows
    automatically from conviction). The contemplated bifurcated vote
    provides a mechanism for doing exactly what the Ritter interpretation
    and the prevailing view among scholars say the constitution does not
    permit: impeaching and convicting a person of lesser offenses than high
    crimes and misdemeanors.
        The consequences of sanctioning impeachment for ``low'' crimes and
    misdemeanors in this way are spelled out nicely in a draft op-ed by Jed
    Rubenfeld. He argues that if the Senate proceeds with the proposed
    findings of fact,
        ``[t]he Senate would then have taken another big step toward
    transforming impeachment into a tool of partisan politics.
        ``The Clinton Impeachment would then establish the proposition that
    it is a legitimate senatorial function in an impeachment proceeding to
    ``find'' that the President committed crimes or serious misconduct (but
    not high crimes). In that case, why shouldn't a majority of the House
    impeach every President who has engaged in conduct worthy of censure?
    It would no longer matter whether this conduct rose to the level of
    high crimes and misdemeanors, for after all, one of the Senate's
    legitimate and proper functions would be to find that the President had
    committed ``low'' or ``medium'' crimes or other serious misconduct not
    requiring removal from office.
        ``If the Senate wants to censure the President, let it. But
    impeachment is not about finding criminal guilt or innocence, and it is
    not about censure. It is about removal from office. The Senate must
    vote, up or down, on conviction and removal. Anything less or in-
    between is more partisan mud.''
        The idea that the House could routinely start up the Senate
    impeachment trial apparatus on the basis of offenses insufficient to
    constitute high crimes and misdemeanors because the bifurcated vote
    procedure supplied the Senate with a way to cope with such charges
    would probably have been anathema to the Framers, who thought that
    impeachment ought to be rarely used and reserved for the most serious
    breaches of public trust.
        Judge Bork agrees that the bifurcated approach poses serious
    separation of powers problems. He wrote in the February 1, edition of
    the Wall Street Journal:
        ``That course would also create an unconstitutional political
    weapon in the permanent struggle between the legislative and executive
    branches. Had the Isenbergh-Kmiec proposition been accepted during
    Iran-Contra, is there any doubt that the Democratic House and Senate
    would have impeached Ronald Reagan and, unable to convict him by a two-
    thirds vote, adopted findings of fact by a majority vote that
    effectively condemned him as the perpetrator of high crimes and
    misdemeanors? This is precisely what the separation of powers does not
    allow and what anyone who thinks ahead should disavow.''
        (The Isenbergh-Kmiec proposition mentioned by Judge Bork refers to
    a law review article by Professor Isenbergh of Chicago Law School
    arguing that the Ritter interpretation is wrong--that in fact people
    can be impeached under the Constitution for offenses less than high
    crimes and misdemeanors, in which case lesser sanctions than removal
    are also available to the Senate.)
        These are powerful arguments. There are responses to them, however,
    which I believe make the ultimate judgment as to whether or not the
    bifurcated procedure passes constitutional muster open to reasonable
    disagreement.
        As to the complaint that the procedure unconstitutionally
    bifurcates a unitary vote, the complaint just misconceives what the
    findings of fact motion is. It is not a vote on guilt or innocence of
    impeachable offenses at all because it doesn't by its terms convict the
    President of anything. It is antecedent to any question of conviction
    for impeachable offenses or of remedy. It leaves Senators free to vote
    any way they wish on guilt or innocence and thus does not split up the
    conviction/remedy questions. If necessary, this could be made crystal
    clear through careful drafting, such as by phrasing the motion as,
    ``Without prejudice to the final question of guilt or innocence on any
    of the articles of impeachment, the Senate finds . . .''
        This interpretation also responds to the complaint urged by
    Rubenfeld and echoed by Bork. Because the findings of fact are
    toothless as regards guilt or innocence, passing such a motion is not
    equivalent to convicting the President of low crimes and misdemeanors.
    The Rubenfeld-Bork objection would lie if and only if the Senate
    purported to convict the President of such offenses, and then sought to
    avoid removing him by rejecting the articles. But it is not doing that
    when it makes findings of fact. Because such findings lack any
    conceivable juridical effect, they are no more offensive to the
    Constitution than a censure resolution.
        One could even imagine a findings of fact motion serving a purpose
    that would be beneficial to the impeachment process. Findings of fact
    could help provide a clear historical record as to what this United
    States Senate believed did not rise to the level of impeachable
    offenses (or did rise to that level, depending upon the outcome of the
    vote on conviction). Historically, the Senate has left to each
    individual Senator the responsibility to make an overall unitary
    determination as to the facts that have been proven, the requisite
    burden of proof as to those facts, and the ultimate consequences that
    flow from those facts, taking into account both the costs of retaining
    the civil officer in office as well as the costs of removing him or
    her. It could be argued that our constitutional practices would be just
    as well served if the basis for the final judgment was expressed in
    more discrete and articulated collective judgments, first as to the
    facts proven, and then as to their consequences.
        This last point runs counter to the Senate's current rules and
    practices, of course. Rule XXIII of the rules of impeachment provides
    that ``an article of impeachment shall not be divisible for the purpose
    of voting thereon at any time during the trial.'' This provision was
    adopted in 1986. Some of its legislative history is pertinent:
        ``The portion of the amendment effectively enjoining the division
    of an individual article into separate specifications is proposed to
    permit the most judicious and efficacious handling of the final
    question both as a general matter and, in particular, with respect to
    the form of the articles that proposed the impeachment of President
    Richard Nixon. The latter did not follow the more familiar pattern of
    embodying an impeachable offense in an individual article but, in
    respect to the first and second of those articles, set out broadly
    based charges alleging constitutional improprieties followed by a
    recital of transactions illustrative or supportive of such charges. The
    wording of Articles I and II expressly provided that a conviction could
    be had thereunder if supported by `one or more of the' enumerated
    specifications. The general view of the Committee at that time was
    expressed by Senators Byrd and Allen, both of whom felt that division
    of the articles in question into potentially 14 separately voted
    specifications might `be time consuming and confusing, and a matter
    which could create great chaos and division, bitterness, and ill will .
    . .' ''
        The rule and its history suggest that the Senate currently operates
    under a norm of maximum individual Senatorial autonomy in reaching an
    overall unitary judgment as to guilt or innocence, without the
    interposition of potentially divisive antecedent motions seeking to
    clarify exactly what acts the Senate as a body has found the accused to
    have committed.
        It is possible to object to the proposed findings of fact as being
    inconsistent with Rule XXIII. The rejoinder to that objection, of
    course, is a version of what has already been stated: the findings need
    not be construed as ``dividing'' any article of impeachment, but rather
    as a motion antecedent to an eventual vote on the articles. Still, the
    findings do seem inconsistent with the spirit of Rule XXIII and with
    its evident intention to avoid divisive preliminary votes of this kind.
        Putting aside constitutional or rule-based objections to the
    proposed findings of fact, Rubenfeld-Bork make a very powerful
    practical argument that this bifurcation will have pernicious
    consequences. We are currently living through proof of how all-
    consuming an impeachment and trial of a President can be. The country
    loses time and attention that could be devoted to constructive matters
    of public interest, trust in the ability of elected officials to work
    together by placing the Nation's business first is eroded, and the
    Presidency is placed under a cloud of uncertainty during the pendency
    of the proceedings. Lowering the impeachment bar through the use of
    this bifurcated procedure would be unwise and, as suggested earlier,
    would most likely be viewed with alarm by the Framers who drafted the
    impeachment power into the Constitution.
        There is, finally, an argument that such findings would amount to
    an unconstitutional Bill of Attainder. The risk that such findings
    would be found to be an unconstitutional ``trial by legislature'' is
    enhanced (a) by the fact that under some of the proposals, the finding
    would be that the President had violated the law; (b) by the fact that
    the findings would occur in the context of a Senate trial.
        Such Senate action could well have an adverse effect on President
    Clinton's bar membership. Bar rules disqualify individuals who have
    been convicted of perjury or obstructed justice. If those consequences
    followed from the Senate action, they could be construed as punishment,
    thus bringing the findings of fact within the constitutional
    prohibition on bills of attainder.--[Memorandum, 2/2/99]
                         impeachment rules, changes to
        The existing Senate Rules establish the basic contours of how an
    impeachment trial will proceed. Many questions remain open, however--
    just as in civil cases, the federal rules of civil procedure provide
    the basic contours, but the actual route traveled by any trial depends
    upon the particular facts and law of each case, the motions that
    parties choose to bring, and, in general, the manner in which the
    parties choose to litigate the matter.
        This section highlights the major questions that deserve
    examination before the trial begins. It also discusses the available
    mechanisms for resolving outstanding procedural issues.
        Should any of the existing rules be modified? The existing Rules
    were last amended in 1986. Should the Senate wish to revise any of
    them, motions to do so would be in order on the first day and would be
    fully debatable. Once the actual trial begins motions are not
    debatable, and a motion to suspend, modify, or amend the rules would
    require unanimous consent. Before the trial begins (the period between
    the exhibition of the articles of impeachment and the presentation of
    opening statements by the parties), Senate precedent supports allowing
    debate on preliminary motions that relate to how the Senate will
    organize itself to conduct the trial. It appears that such motions are
    subject to the Standing Rules of the Senate, and not the limitations on
    debate contained in the impeachment Rules. Thus, they could be
    filibustered during the pre-trial stage. As a motion to suspend,
    modify, or amend the rules, any such motion would be subject to a
    heightened cloture requirement. Standing Rule XXII requires a two-
    thirds vote to invoke cloture and end debate on a motion to suspend,
    modify, or amend the rules.
        The impeachment rules provide for the proceedings to be ``double-
    tracked'' (with legislative business conducted in the morning session
    and the impeachment trial conducted in the afternoon). Even after the
    trial has commenced, then, a motion to suspend, modify, or amend could
    be made in a morning legislative session, but would be subject to
    filibuster with a two-thirds cloture requirement.--[Memorandum, 12/28/
    98]
                             obstruction of justice
        The House relies on two different federal obstruction of justice
    statutes. The first, 18 U.S.C. Sec. 1503, is the general obstruction of
    justice statute. The second, 18 U.S.C. Sec. 1512(b), addresses witness
    tampering.
        A. Elements of the General Obstruction of Justice Statute
        To establish a violation of the general obstruction of justice
    statute (Sec.  1503), the government must prove each of the following:
              (1) that there was a pending judicial proceeding;
              (2) that the defendant knew this proceeding was pending; and
              (3) that the defendant corruptly influenced, obstructed, or
            impeded the due administration of justice or endeavored to
            corruptly influence, obstruct, or impede the due administration
            of justice.
        The first two elements are straightforward. The third element is
    more complex. In general:
        ``Corruptly'' means to engage in an act voluntarily and
    deliberately for the purpose of improperly influencing, obstructing, or
    interfering with the administration of justice.
        ``Endeavor'' means that the defendant also knowingly and
    deliberately acted or made an effort which had a reasonable tendency to
    bring about the desired result of interfering with the administration
    of justice.
        The defendant must engage in misconduct that has the ``natural and
    probable effect'' of interfering with the due administration of
    justice. He need only ``endeavor'' to obstruct justice; he need not
    succeed.
        B. Elements of the Witness Tampering Statute
        To establish a violation of the witness tampering statute (Sec.
    1512(b)), the government must establish that the defendant:
              (1) knowingly
              (2) corruptly persuaded another person or attempted to do so,
            or engaged in misleading conduct toward another person
              (3) with the intent--
                      to influence, delay, or prevent a witness's testimony
                    from being presented at official federal proceedings,
                      to cause or induce any person to withhold testimony
                    or physical evidence from an official federal
                    proceeding; or
                      to prevent a witness from reporting evidence of a
                    crime to federal authorities.
        Unlike the general obstruction of justice statute, the witness
    tampering statute does not require that the defendant's misconduct be
    committed during the pendency of federal proceedings. Thus, the
    defendant need not be aware of any pending or contemplated federal
    proceedings or investigations at the time he engages in his obstructive
    conduct. Nonetheless, it must be proved that the defendant intended by
    his prohibited conduct to obstruct a federal proceeding or the
    reporting of a federal crime.
        There is no judicial consensus as to the meaning of ``corrupt
    persuasion,'' but several courts have defined the term to mean that the
    defendant's attempts to persuade ``were motivated by an improper
    purpose.''
        The term ``misleading conduct'' is defined in 18 U.S.C. Sec.  1515
    to include (A) knowingly making a false statement; (B) intentionally
    omitting information from a statement and thereby causing a portion of
    such statement to be misleading, or intentionally concealing a material
    fact, and thereby creating a false impression by such statement; (C)
    with intent to mislead, knowingly submitting or inviting reliance on a
    writing or recording that is false, forged, altered, or otherwise
    lacking in authenticity.
        At least one court has held that a defendant violates the witness
    tampering statute when he tells a potential witness a false story as if
    the story were true, intending that the witness believe the story and
    testify to it before the grand jury.--[Memorandum, 1/15/99]
                                    perjury
        Under federal law, a witness commits grand jury perjury if shown,
    when under oath before a federal grand jury, to have made a: knowingly
    false declaration that is of a material matter that the grand jury has
    the power to investigate. Proof only of an intent to mislead is not
    sufficient for a perjury conviction.
        ``Knowingly false declarations'' can be proved by evidence that the
    individual did not believe a declaration to be true at the time it was
    made.
        Only unambiguous questions can form the basis of perjury
    convictions. If a question can reasonably be interpreted in multiple
    ways, perjury cannot be based only on the questioner's intended meaning
    and there must be evidence of what the person answering understood when
    responding.
        Grand jury perjury can not be based on an answer that was literally
    true even if misleading and nonresponsive to the question asked. The
    burden is on the questioner to identify evasive answers and press for
    clarity at the time rather than let it pass and charge perjury later.
        Grand jury perjury convictions can be based on the testimony of a
    single uncorroborated witness. And, even if no single statement can be
    shown to be knowingly false, perjury can be shown if the individual
    knowingly made multiple material declarations under oath that are
    ``inconsistent to the degree that one of them is necessarily false.''
        A ``material matter'' for perjury convictions under federal law
    must have had some bearing on the substantive elements of the issues
    that the grand jury was convened to investigate and would have some
    bearing on influencing or impeding that investigation, regardless of
    whether the statement actually was misleading on a particular point.
        The Minority Views in the House Report argue that because the judge
    in the Jones sexual harassment case ruled in January 1998 that evidence
    relating to Monica Lewinsky was not ``essential to the core issues in
    that case,'' Jones' lawyers could not have introduced evidence about
    her relationship with the President in order to attack his credibility
    in that suit, so that his statements on the subject are not material
    under perjury law.--[Memorandum, 12/30/98]
                            president, indictment of
        The New York Times recently reported that Ken Starr and his staff
    have recently concluded that the Constitution does not prohibit them
    from indicting and prosecuting President Clinton while he is still in
    office. The independent counsel has a legitimate reason for seeking an
    indictment before the end of President Clinton's term. The grand jury
    that is currently impaneled and that has heard all the evidence will
    expire by August. If the Independent Counsel waits until the President
    leaves office, he will have to impanel a new grand jury and present
    evidence all over again.
        This memorandum reviews the constitutional issues that would be
    raised if a prosecutor were to attempt to indict and prosecute a
    sitting President. It concludes that the Constitution permits a
    prosecutor to indict a sitting President, but does not allow the
    prosecutor to proceed to prosecute the indictment until the President's
    term has expired. Although the Constitution does not forbid indictment
    of a sitting President, there are significant prudential arguments
    counseling against such a move. Moreover, there may be a statutory
    impediment to indicting the President.
                                    i. text
        Until recently, numerous commentators interpreted the
    Constitution's text to prohibit criminal prosecution of any officer
    before the officer was impeached and removed. The only provision on
    point states, ``Judgment in cases of impeachment shall not extend
    further than to removal from office and disqualification to hold and
    enjoy any office of honor, trust, or profit under the United States;
    but the party convicted shall nevertheless be liable and subject to
    indictment, trial, judgment and punishment, according to law.'' Article
    I, section 3. This interpretation reads the phrase ``the party
    convicted shall nevertheless . . .'' to mean that only parties who have
    been convicted are subject to judicial process. In other words,
    impeachment and conviction are a prerequisite to judicial process.
        The better reading has always been that the Constitution's text is
    ambiguous. It can just as easily be understood to mean that impeachment
    and conviction, if that should occur first, are not a bar to judicial
    process. This interpretation has been vindicated by recent practice.
    The three judges impeached and convicted in the late 1980s were all
    indicted and prosecuted criminally first. In addition, Vice President
    Spiro Agnew was indicted while in office, as was sitting Vice President
    Aaron Burr in 1804. The provision cited does not distinguish between
    the President and other officers subject to impeachment. Thus, if the
    President is to be treated differently than other impeachable officers,
    it must be on some basis other than the Constitution's text.
                                 ii. structure
        Even the most originalist minded constitutional scholars do not
    limit their arguments to those based on language alone. They also argue
    based on the structure of the document taken as a whole. Shifting the
    focus from text to structure, there is strong reason to conclude that
    the Constitution does not forbid indictment of a sitting President but
    that it does prohibit taking the further step of prosecuting him
    criminally.
        The Constitution structures the federal government by dividing it
    into three branches. In order to safeguard liberty, each of these
    branches must be fully functioning at all times. Anything that
    significantly impairs the President's ability to act as a check on the
    other branches may violate the Constitution's structural safeguards. By
    contrast, there are hundreds of district court judges. A criminal
    proceeding against one of them has only remote ramifications for the
    constitutional role of the judiciary as a collective institution.
        The constitutional status of the President is unique, and
    materially distinguishable from that of other impeachable officers,
    such as district court judges or even the Vice President. First, the
    President, of course, is the head of one of the three constitutional
    branches of government. The other branches have collective heads. The
    legislative branch is headed by the entire Congress, while the
    judiciary is headed by the Supreme Court. To indict and prosecute the
    President is in this sense the constitutional equivalent of indicting
    and prosecuting the entire Congress or the entire Supreme Court.
        Second, the presidency is a uniquely consuming office. Its occupant
    is perpetually on duty. Nearly every President from George Washington
    through George Bush has expressed just how consuming the office is. For
    example, Lyndon Johnson related that ``Of the 1,885 nights I was
    President there were not many when I got to sleep before 1 or 2 a.m.
    and there were few mornings when I didn't wake up by 6 or 6:30.'' The
    Twenty-Fifth Amendment to the Constitution, which provides for
    Presidential succession in the case of disability, recognizes not only
    how consuming the office is, but how critical it is that the office be
    filled at all times.
        Third, the President acts as the embodiment of the Nation on the
    international stage and even in domestic matters. As Justice Robert
    Jackson reminded us, the Presidential office locates the executive
    power ``in a single head in whose choice the whole Nation has a part,
    making him the focus of public hopes and expectations. In drama,
    magnitude and finality his decisions so far overshadow any others that
    almost alone he fills the public eye and ear.''
        Against this structural argument stand rule of law considerations.
    The continuing vitality of the rule of law as a fundamental principle
    requires that the President be subject to law as are all citizens. This
    commitment is voiced in the President's constitutional duty to ``take
    care that the laws be faithfully executed.'' The primary purpose of
    this provision is to make it clear that the President, unlike the King
    of England, has no ``dispensing power,'' that is, no power to declare a
    law inapplicable to himself or anyone else. Similarly, the courts have
    placed great weight on the integrity of the criminal justice system. In
    a variety of executive privilege cases, the courts have placed a great
    premium on according prosecutors access to evidence and on preserving
    evidence.
        Determining whether the Constitution permits either indictment or
    prosecution of a sitting President requires balancing these
    considerations.
          punishments upon conviction of high crimes and misdemeanors
        If the Senate convicts the President of high crimes and
    misdemeanors, the Constitution requires that he be removed from office.
    ``The President--shall be removed from office upon impeachment for and
    conviction of--high crimes and misdemeanors.'' The Constitution allows
    the Senate to impose an additional punishment upon convicting the
    President; it may disqualify the President from holding any office of
    honor, trust or profit. Odd as it sounds, this disqualification
    probably does not apply to membership in the House of Representatives
    or the Senate. This is because the text of the Constitution, in several
    clauses, makes it clear that members of Congress are not ``officers.''
    The very first impeachment trial proceeded against Senator Blount.
    Senator Blount was acquitted and many Senators refused to convict on
    the basis of their constitutional interpretation that a Senator is not
    an officer and so is not subject to impeachment.--[Memorandum, 12/28/
    98]
              * * * * * * *
        Very early in the Senate's history, the Senate did in fact separate
    these two votes, notably in the case of Judge John Pickering. Pickering
    was charged with drunkenness, among other things, but not with any
    crimes. The Senate voted separately on whether he was guilty under the
    articles and then on whether or not he should be removed from office.
    (They voted to convict and to remove.)
        This procedure might signal that the Senate believed that in an
    impeachment trial a person could be found guilty by the Senate of
    offenses that did not rise to the level of ``treason, bribery, or other
    high crimes and misdemeanors.'' Under that interpretation, the second
    vote would be necessary to establish whether or not the offenses
    justified removal from office. However, this possible interpretation of
    the trial procedure was repudiated in the 1936 impeachment trial of
    Judge Halstead Ritter, when the chair ruled that removal followed
    automatically from a finding of guilty, so that a separate vote on
    removal was not in order. The ruling was based on the text of Article
    II, Section 4, of the Constitution which provides that ``The President
    [and other civil officers] shall be removed from Office on Impeachment
    for, and Conviction of, treason, bribery, or other high crimes and
    misdemeanors.''
        The dominant view of constitutional scholars is that the chair's
    ruling in the Ritter case was correct. Notice that there are two
    significant components of the Ritter interpretation: (1) the President,
    vice President or other civil officers can only be impeached for
    ``treason, bribery, or other high crimes and misdemeanors,'' and (2)
    removal then follows by operation of Constitutional law upon
    conviction.--[Memorandum, 2/2/99]
                             role of chief justice
        The Chief Justice of the United States is the Presiding Officer
    over the Senate's deliberations when the President has been impeached.
    His role is loosely analogous to that of a trial judge, but with less
    ultimate authority. He directs preparations for the trial, as well as
    the trial proceedings themselves. Under the precedent of the Johnson
    trial, the Chief Justice can make rulings on all evidentiary and
    procedural motions and objections, although he can also refer them
    directly to the Senate for its determination (this was in fact Chief
    Justice Chase's practice on evidentiary motions made during the Johnson
    trial). His rulings can be overruled by majority vote of the Senators
    present and voting.
        The Constitution dictates that the Chief Justice acts as the
    presiding officer during an impeachment trial of the President. The
    extent and content of his role is subject to determination by the
    Senate. There could be sentiment to expand his powers, such as by
    making him the chair of a Rule XI committee, on the theory that the
    Chief Justice will be non-partisan and impartial. Other powers that
    might be granted to the Chief Justice could include authority to
    conduct pre-trial proceedings or to oversee settlement negotiations. If
    the Chief Justice is perceived as impartial, his rulings on evidence
    and other motions will carry great weight and place a heavy burden on
    anyone seeking to overrule them. On the other hand, a determined
    majority can substantially minimize the effect of the Chief Justice on
    the proceedings by reversing his rulings and refusing to grant him
    powers beyond the inherent powers of the presiding officer.--
    [Memorandum, 12/28/98]
                             role of house managers
        The House of Representatives appoints a delegation of its own
    members to serve as prosecutors of the impeachment. These managers
    exhibit the articles of impeachment and perform all functions normally
    performed by a prosecutor. They make an opening and closing statement
    on the case, decide what evidence to present and what witnesses to
    call, subject to the Senate's decision to issue a subpoena to compel
    attendance of involuntary witnesses. The managers lead examination of
    witnesses they offer and cross-examine witnesses called by the
    President's counsel. They may also make procedural, evidentiary, and
    other motions.--[Memorandum, 12/28/98]
                          role of president's counsel
        The President may choose an attorney or agent to present his
    defense. These attorneys perform the same functions in defense of the
    President as the House Managers perform in behalf of the impeachment.
    Neither the President's Counsel nor the House Managers may appeal a
    ruling of the Chief Justice. Only a member of the Senate may do that.--
    [Memorandum, 12/28/98]
                               role of the senate
        [The constitutional text, the Framers' understanding, and our
    constitutional practices] Provide important anchors for any impeachment
    inquiry, but they do not resolve all questions of scope that may arise.
    Much remains to be worked out--and only to be worked out--in the
    context of particular circumstances and allegations.
        As Hamilton explained in the Federalist No. 65, impeachment ``can
    never be tied down by . . . strict rules, either in the delineation of
    the offence by the prosecutors, or in the construction of it by the
    judges. . . .''
        After all of the legal research, we are still left with the
    realization that the power to convict for impeachment constitutes an
    ``awful discretion.''
        This brings us directly to the Senate's role. To state it bluntly:
    I believe the role of the Senate is to resolve all the remaining
    questions. Let me elaborate.
        The Senate's role as final interpreter of impeachments was
    recognized from the beginning of the republic. For example, to refer
    again to Joseph Story, after he devoted almost fifty sections of his
    commentaries to various disputed questions about the impeachment power,
    he concluded that the final decision on the unresolved issues ``may be
    reasonably left to the high tribunal, constituting the court of
    impeachment.''
        The court of impeachment he refers to is the United States Senate.
    Similarly, the Federalist Papers refer to Senators as the judges of
    impeachment.
        Speaking of the Senate as the jury in impeachment trials is perhaps
    a more common analogy these days, but the judge analogy is more
    accurate.
        In impeachment trials, the Senate certainly does sit as a finder of
    fact, as would a jury. But it also sits as a definer of the applicable
    standards, as would a judge.
        The Senate, in other words, determines not only whether the accused
    has performed the acts that form the basis for the House's Articles of
    Impeachment, but also whether those actions justify removal from
    office.
        Once again we find support for this view from the country's
    history. In 2 of the first 3 impeachments brought forward from the
    House to the Senate, the Senate acquitted the accused.
        In each of the two acquittals, however, the Senate did not disagree
    with the House on the facts. One case involved a Senator, William
    Blount, the other an Associate Justice of the Supreme Court, Samuel
    Chase. In neither one was there any question that the individuals had
    done the deeds that formed the basis of the House's Articles of
    Impeachment.
        In each case, however, the Senate concluded that the deeds were not
    sufficient to constitute valid grounds for impeachment and so they
    acquitted.
        Eventually, then, if the current impeachment proceeds, it will fall
    to the Senate to decide not only the facts, but the law, and to
    evaluate whether or not the specific actions of the President are
    sufficiently serious to warrant impeachment.
        The Framers intended that the Senate have as its objective doing
    that what was best for the country, taking context and circumstance
    fully into account.
        I should try to be as clear as I can be about this point, because
    the media discussion has come close to missing it. It seems to be
    widely assumed that if the President committed perjury, then he must be
    impeached and convicted.
        Conversely, you may think that unless it can be proven that the
    President committed perjury or violated other laws, impeachment cannot
    occur.
        Both statements are wrong. Not all crimes are impeachable, and not
    every impeachable offense is a crime.
        The Senate could decline to convict even if the President has
    committed perjury, if it concluded that under the circumstances, this
    perjury did not constitute a sufficiently serious breach of duty to
    warrant removal of this President. On the other hand, the Senate could
    convict the President of an impeachable offense even if it were not a
    violation of the criminal law. For instance, if the Senate concluded
    that the President had committed abuses of power sufficiently grave, it
    need not find any action to amount to a violation of some criminal
    statute.--[Speech, 10/2/98]
              * * * * * * *
        The Senators have a multifaceted role that defies a simple label.
    They act in part as a jury, which considers evidence and makes the
    ultimate determination of whether to convict or acquit the President.
    This role explains the limitations that the rules impose on the ability
    of Senators to debate or discuss motions and evidence in open session.
        Senators also act as judges, with authority to decide whether a
    ruling by the Chief Justice should stand. This law interpreting role is
    also a component of the ultimate decision on conviction or acquittal.
    Senators must determine not only whether the factual allegations
    against the President are true, they must also determine whether the
    facts alleged, if true, represent a high crime and misdemeanor.
        Senators may also take actions that resemble those typically
    undertaken by counsel for the parties. They may propound questions
    (though only in writing) of witnesses or of counsel; they may make
    objections to questions by counsel or to evidence sought to be
    introduced; and they may make any motion that a party may make.
        The Senate has the power to compel the attendance of witnesses by
    instructing the Chief Justice to issue subpoenas and to enforce
    obedience to its orders. The Senate also has authority to punish
    summarily contempts of and disobedience to its orders, although the
    rules of impeachment do not specify the penalties it may impose. Under
    the Standing Rules of the Senate, the Senate can also refer a contempt
    citation to the United States Attorney for the District of Columbia for
    prosecution pursuant to 2 U.S.C. Sec. Sec.  191-194 for criminal
    prosecution.--[Memorandum, 12/28/98]
                                trial, nature of
        The Constitution assigns the Senate the sole power to try all
    impeachments. This power imposes upon the Senate a duty to adjudicate
    every case in which the House of Representatives impeaches a civil
    officer of the United States. The Framers were deeply concerned that
    impeachment could become a partisan tool used to gain control and
    influence over civil officers, and the President in particular. They
    entrusted to the Senate the role of adjudicating impeachments because
    the Senate's structurally conferred capacity for deliberation,
    independence, and impartiality would allow it to act as a check against
    partisanship. The Constitution fortifies the Senate in this role by
    providing that conviction requires a vote of two-thirds of the members
    present.
        The Constitution, however, does not define the Senate's power to
    ``try'' impeachments and appears to leave broad discretion for the
    Senate to interpret it as allowing whatever method of inquiry and
    examination is best suited to a given case. Justice White declared
    emphatically that ``the Senate has very wide discretion in specifying
    impeachment trial procedures. . . .'' The constitutional power, and
    corresponding duty, to try impeachments does not absolutely require the
    full Senate or a committee to take live witness testimony subject to
    cross-examination. The Senate has routinely entertained and voted on
    motions for summary adjudication. Indeed, it is difficult to imagine
    that the Senate would be constitutionally required to hold live
    evidentiary proceedings in every conceivable impeachment case. If, for
    example, the House were to impeach an official who is not a civil
    officer, it would be absurd to construe the Constitution to require the
    Senate to go forward with an evidentiary proceeding. Similarly, if the
    House were to impeach a civil officer on the grounds of misconduct that
    is not properly considered a high crime or misdemeanor, no
    constitutional purpose is served by an evidentiary hearing.
        Even if an impeachment meets all of the constitutional criteria to
    invoke a Senate trial, evidentiary proceedings may be unnecessary. It
    is well-established that the House Managers charged with prosecuting
    the impeachment may introduce the record of other proceedings as
    substantive evidence in the Senate trial. The House Managers have
    independent discretion over their prosecution of the case, and may
    decide to rest their case on the documentary record. In addition, the
    impeached defendant may choose to present no affirmative evidence in
    his defense. Where the parties have decided that the documentary record
    is sufficiently encompassing to allow adjudication, the Constitution
    does not require the Senate to ferret out additional evidence.
        Strong support for summary adjudication as a faithful discharge of
    the Senate's constitutional duty to try impeachments can also be found
    in the operation of the federal judiciary. The constitution guarantees
    ``the right of trial by jury'' in ``suits at common law.'' There is a
    tension between the right to trial by jury and summary adjudication by
    the court. Where a federal court grants summary judgment or dismisses a
    lawsuit, for example because it fails to state a claim, there is no
    trial at all, let alone a trial by jury. Nevertheless, the Supreme
    Court has upheld the authority of the federal courts to grant motions
    to dismiss and motions for summary judgment. There would seem to be
    even less concern regarding summary adjudication in the context of a
    Senate impeachment trial. This is because the Senate acts as both judge
    (finder of law) and juror (finder of fact) so there is no concern about
    the proper allocation of the adjudicative function between judge and
    jury.
        The Constitution imposes upon the Senate a duty to try impeachments
    so that the Senate can act as a check against partisan abuse of the
    impeachment process. Fidelity to the Constitution requires the Senate
    carefully to interpret the law of impeachment as set forth in the
    Constitution and to apply that law to the facts and circumstances of
    every impeachment approved by the House of Representatives. As with the
    federal judiciary, this adjudicative duty, however, does not require
    the Senate to discover new evidence or to hold evidentiary proceedings
    where the record does not warrant.--[Memorandum, 12/22/98]
              * * * * * * *
               i. the history of presidential impeachment trials
        We have had exactly one impeachment trial of a President, Andrew
    Johnson, in 1868. This resulted in his acquittal by a single vote. In
    1974, the House Judiciary Committee voted to send articles of
    impeachment with respect to President Richard Nixon to the House floor,
    but President Nixon resigned shortly thereafter, and the articles were
    never voted on by the full House.
        However, fourteen other impeachment trials have been held in the
    Senate over the country's history. In preparation for these trials,
    almost all of which involved federal judges, the Senate has developed a
    set of standing Rules of Procedure and Practice for such trials, as
    well as a body of precedent concerning questions of procedure that have
    arisen and been answered in previous trials. These rules and precedent
    provide a good basic outline to how the trial of President Clinton will
    proceed in the Senate, unless they are altered or amended prior to the
    beginning of President Clinton's trial.
               ii. current senate rules of procedure and practice
        Senate procedures while hearing an impeachment are strikingly
    different from those that operate during normal legislative and
    executive business. Senators are combinations of judges and jurors.
    Senators take an oath to do ``impartial justice.'' They cannot debate
    or discuss matters in open session. They are expected to commit
    questions to writing and send them to the Presiding Officer. The Senate
    when sitting to consider impeachment is a very different body than the
    Senate we are used to seeing on C-SPAN.
        Major points to bear in mind:
        The trial and its rules take precedence over normal business. Once
    the trial begins, the rules set forth a schedule for continuing the
    trial until conclusion. The fundamental provisions are Rule III,
    stating that the Senate shall continue in session from day to day
    (Sundays excepted) until the trial is concluded, and Rule XIII, stating
    that the trial proceedings shall begin at 12 noon each day, unless
    otherwise provided by the Senate.
        Majority rules. Motions and objections during the proceedings are
    governed by majority vote.
        There are few opportunities to filibuster. Unlike the normal
    Senate, almost all trial motions, decisions, and orders are resolved
    under strict time limits--although these time limits would not prevent
    a determined effort to prolong the trial through repeated motions,
    whether by counsel or by a group of Senators. In fact, during the trial
    itself, motions, objections or challenges to rulings by the chair
    raised by Senators (which must be submitted in writing to the Presiding
    Officer) are voted on without debate at all, unless the Senate elects
    to go into closed session. In that case, each Senator is entitled to
    speak once for no more than 10 minutes.
        Where the impeachment Rules are silent, the Standing Rules of the
    Senate apply.  Precedents extending back at least to the Johnson
    impeachment support this.
          iii. how might the matter be resolved without a formal trial?
        A. The Senate's duty to try the impeachment. The Constitution
    provides that ``the Senate shall have sole power to try all
    impeachments.'' Some consider this provision to impose a duty upon the
    Senate to try or adjudicate all impeachments. Even if the Constitution
    imposes such a duty, the Senate has not understood this duty to
    adjudicate as necessarily requiring a formal trial. There is precedent
    for the Senate considering dispositive motions that would allow the
    Senate to render a judgment without holding a trial. (In the
    impeachment proceedings against Judges Ritter, Claiborne, and Nixon,
    the Senate entertained motions to strike articles of impeachment or to
    summarily adjudicate the matter.) Although such a motion is not
    specifically discussed in the impeachment rules, the Senate has not
    viewed dispositive motions as seeking to suspend, modify, or amend the
    rules. As a result, dispositive motions are ordinary trial motions
    subject to the limits on debate set forth in the impeachment rules and
    governed by simple majority vote.
        An additional method available to resolve the matter is adjournment
    sine die. In the case of Andrew Johnson, the Senate voted on three
    articles of impeachment, acquitting on each. Rather than vote on the
    remaining eight articles, the Senate simply adjourned the impeachment
    proceedings sine die. The impeachment rules allow for a vote to adjourn
    sine die. Adjournment sine die does not specifically pass judgment on
    the articles of impeachment and so may not be satisfactory to those who
    consider the Senate duty-bound to try the impeachment.
        B. Different motions to adjudicate the matter without an
    evidentiary trial. Several different motions would seem possible, some
    drawing on analogies to judicial proceedings.
        1. A motion to dismiss would assert that the articles of
    impeachment fail as a matter of law to state actions upon which a
    conviction may constitutionally be based. Such an assertion could be
    based upon the claim that the articles do not state ``high crimes and
    misdemeanors.'' Because the articles accuse President Clinton of
    committing perjury before a grand jury and of obstructing justice
    (among other things), a ``motion to dismiss'' would assert that such
    actions can never support conviction for high crimes or misdemeanors.
    Additionally, a ``motion to dismiss'' could be a vehicle for the
    President to raise the contention that the articles of impeachment
    lapsed when the 105th Congress adjourned sine die.
        While there are no Senate rules governing the timing of motions,
    analogy to the Federal Rules of Civil Procedure would require a motion
    to dismiss to be made before the President submits his answer to the
    summons, or along with his answer to the summons.
        2. In contrast to the motion to dismiss, a motion for summary
    judgment asserts (1) that the parties agree on all material facts and
    (2) that those facts compel judgment for the moving party. A party
    submitting a motion for summary judgment is agreeing to have the
    dispute finally adjudicated on the basis of the facts asserted in his
    moving papers. The opposing party has the option of filing a cross
    motion for summary judgment or of objecting that the parties are not in
    agreement as to all material facts and that a trial is required on the
    disputed facts. If the opposing party chooses the first course of
    action (and this could be done by prior agreement between the parties),
    then the Senate could enter judgment in the case without holding any
    evidentiary trial.
        On a motion for summary judgment, the Senate by majority vote could
    issue a judgment for the President if it concluded that the undisputed
    facts fail to establish the existence of a high crime or misdemeanor
    warranting the President's removal from office. Because this motion
    rests on a view of the undisputed facts in the specific case, granting
    the President's motion for summary judgment would mean only that the
    specific perjury and obstructions charged in these articles of
    impeachment do not warrant conviction and removal from office (or that
    the facts failed to establish that these offenses had actually been
    committed). It would not imply that perjury or obstruction of justice
    could never serve as grounds adequate to impeach, convict, and remove a
    President from office.
        3. The trial might also be ended by a motion for a directed
    verdict. Such a motion in civil litigation is brought after the
    plaintiff has concluded his case, and before the defendant mounts a
    defense. The motion asserts that the plaintiff's evidence is
    insufficient to sustain the claim, and that no reasonable fact finder
    would disagree. Were the House Managers to decide to submit the
    impeachment to the Senate based solely on evidence already gathered by
    Starr, the President could bring a ``motion for a directed verdict''
    prior to an evidentiary trial involving any live witness testimony.
        4. Finally, the Senate's own precedents supply the possibility of a
    fourth option, a motion for summary disposition. Such a motion might be
    entertained as an alternative to any of the motions just discussed, in
    order to avoid contending with the technicalities of such motions.
        In the impeachment trial of Judge Harry Claiborne, for example, the
    House Managers introduced a motion for summary disposition. Both sides
    argued this motion without invoking the federal rules of civil
    procedure or judicial opinions relating to summary dispositions. The
    parties disputed only whether the facts warranted further evidentiary
    proceedings in the Senate or if the matter could be decided solely on
    the basis of Judge Claiborne's conviction for tax evasion. The Senate
    considered the motion without reference to judicial standards.
        This approach is consistent with the Senate's position that it is
    not bound by the federal rules of civil procedure. Removing the motion
    from the technical categories and requirements under those rules allows
    each Senator the discretion to consider whether additional evidentiary
    proceedings, including live testimony, will serve the public interest.
        C. Should the Senate appoint a committee? If the matter is not
    resolved on a summary basis, Rule XI provides that the Senate can
    appoint a committee to ``receive evidence and take testimony'' rather
    than having the Senate as a whole do so. This procedure has been
    employed in the case of trials of federal judges, and has been
    sustained by the Supreme Court. Such a committee would not and could
    not decide the case, but it could assemble the evidence submitted,
    prepare a transcript of all testimony and submit it to the Senate. The
    committee meetings could be televised so that noncommittee Senators
    would be able to watch them as they occurred, and videotapes could also
    be prepared for subsequent review. A number of the early proponents of
    what is now Senate Rule XI option are on record stating their view that
    such a committee should not be used for a presidential trial.
        Composition of a Rule XI committee would be very important.
    Traditionally, these committees have been composed of twelve members,
    six from each party with the committee chair chosen from the committee
    members in the majority party. The Chair exercises the same role within
    the committee that the Chief Justice fulfills in the full Senate. This
    is significant because the decisions of the chair may be reversed only
    by a majority vote. If the votes in committee are on straight party
    lines, the ruling of the chair will be upheld in every instance. A
    complicating factor in a presidential impeachment is the requirement
    that the Chief Justice preside. This may require that the Chief Justice
    serve as the chair of a rule XI committee if one is appointed. In this
    event, the rulings of the Chief Justice would be upheld on any party-
    line vote.--[Memorandum, 12/28/98]
              * * * * * * *
        House Managers have asserted repeatedly that live witness testimony
    will resolve discrepancies between the testimony of witnesses, and
    therefore they ought to be called. There are several points to be made
    against this point of view.
        Demeanor evidence is notoriously unreliable. Recall, for example,
    Alger Hiss/Whittaker Chambers. Some people were convinced by one side,
    some people by the other.
        Demeanor evidence is not necessarily dispositive, in any event.
    Both witnesses can come across as reliable, honest and trustworthy.
    Witnesses often give credible performances while dissembling.
        The House Managers are poorly situated to claim the necessity of
    hearing from live witnesses in order to resolve credibility issues. The
    House Judiciary Committee heard from no live witnesses, except Ken
    Starr, and yet the managers have had no difficulty in deciding all
    credibility disputes against the President or anyone giving testimony
    favorable to his story.
        Any gains from live witnesses need to be assessed against the
    costs. The costs will come when the Senate chamber descends into the
    facts of the case with the specificity that will come from live
    testimony.
        For example, one prominent disagreement that the House Managers
    have cited is that between President Clinton and Ms. Lewinsky regarding
    whether the President ever touched Ms. Lewinsky's breasts or genitalia.
    If both witnesses are called and reiterate their prior testimony, the
    Senate will certainly get the opportunity to observe their demeanor.
    This might shed some additional light on the question, but it probably
    won't. The possibility of securing the additional credibility data must
    be weighed against the serious negative ramifications such proceedings
    would likely have.
                                 a. indictment
        The Supreme Court engaged in a similar balancing exercise in
    deciding Clinton v. Jones. In that case, the court held that requiring
    the President to submit to judicial process in a civil case and go
    through an entire civil trial would not so damage the presidency as to
    justify interfering with the ordinary judicial process that vindicates
    the rule of law. Considering only indictment, as distinct from
    prosecution of a criminal trial, seems to impose less of a burden on
    the President. Indictment alone imposes no demands on the President's
    time.
        An attempt to distinguish indictment could proceed on two bases.
    First, the President is apt to be more concerned about being criminally
    convicted than found civilly liable. Thus, an indictment could be a
    greater distraction from the President's duties than is a civil suit.
    Second, criminal indictment, unlike filing a civil complaint,
    stigmatizes the President.
        Each of these distinctions is subject to dispute. As the Paula
    Jones suit itself demonstrates, a civil case can be extremely
    distracting. If a criminal indictment is more distracting, it seems
    doubtful that it is so much more distracting as to be constitutionally
    significant. A distinction based on stigma seems particularly weak in
    this case.
        President Clinton has been impeached. Correctly or not, the House
    of Representatives has construed this impeachment as analogous to a
    grand jury indictment. It is thus not obvious that an actual criminal
    indictment would add materially to the stigma the President has already
    suffered.
        Even accepting these grounds of distinction, the independent
    counsel may seek a sealed indictment. A sealed indictment would not be
    made known either publicly or to the President. If an indictment
    remains sealed until the President leaves office, it is difficult to
    see how it could either distract the President or stigmatize him.
                                 b. prosecution
        Prosecution presents a different matter. Unlike an indictment with
    nothing more, proceeding to an actual prosecution would place
    significant physical and temporal burdens on the President. Preparing
    for trial and then actually presenting a defense would consume the
    President's time and attention over a lengthy period. During the
    pendency of criminal proceedings, the President would repeatedly face a
    choice between spending the time necessary to mount a meaningful
    defense and devoting time to fulfilling his constitutional and
    statutory duties. Even if the President were to choose to spend no time
    on his defense, it is difficult to imagine that his mind could be fully
    focused on his official duties.
        To so stigmatize and distract the President would seriously
    undermine his ability to act as a check on the legislative branch. It
    would also impose significant costs in terms of the nation's standing
    internationally.
        The Supreme Court's decision in Clinton v. Jones could be taken to
    support subjecting the President to criminal prosecution while in
    office. In that case, the President had argued that the civil lawsuit
    should be stayed until the President's term in office expired. He based
    this position on concerns that the demands of defending a civil lawsuit
    would impermissibly interfere with his ability to discharge his
    official duties. Admittedly, it is unlikely that defending against a
    criminal prosecution is any more time consuming than defending a civil
    lawsuit.
        There are, however, several crucial distinctions between a civil
    and a criminal lawsuit. In the Jones case, the Supreme Court emphasized
    that the burden imposed on the President could be minimized through
    proper case management by the trial judge. A court does not have the
    same broad array of options available in a criminal proceedings.
    Perhaps most significantly, the options for settling the suit without a
    trial are quite different. President Clinton settled the Paula Jones
    case by making a cash payment with no admission of wrongdoing. The
    rough equivalent of settlement in a criminal proceeding is a plea
    bargain. Such a ``settlement,'' however, requires the defendant to
    admit to some criminality. As such, there is far greater pressure on
    the president to proceed to trial in a criminal prosecution as opposed
    to a civil prosecution. Moreover, the President's attendance at a civil
    trial is not nearly so crucial as is his attendance at a criminal
    prosecution. The Sixth Amendment expresses the constitutional
    commitment to allowing a criminal defendant's presence at trial.
    Finally, consider what follows a judgment in a criminal trial as
    opposed to a civil trial.
        The Paula Jones suit threatened the President with nothing more
    than an assessment of monetary compensation. An adverse verdict at a
    criminal trial threatens imprisonment. It is clear that the
    Constitution does not allow the judiciary to order the imprisonment of
    the President. Thus, at the very least, sentencing would have to be
    stayed until the President leaves office.
        Extending the holding in Clinton v. Jones to cover criminal
    prosecutions is subject to an additional objection. The course of
    events since the Court rendered that decision casts significant doubt
    upon the conclusions the Court drew in that case. In Clinton v. Jones,
    the Supreme Court doubted that the civil lawsuit would consume much
    time or attention of the President. It could not be plainer that this
    prediction was wrong. While there is no reason to believe that the
    Court is considering overruling Clinton v. Jones, there is very
    powerful reason to apply the practical lessons we have learned since
    that decision to any claim for extending the Clinton v. Jones holding
    to criminal prosecutions. In light of all that has occurred since that
    ruling, it is wildly implausible to contend that a criminal proceeding
    against the President would not significantly disrupt his ability to
    fulfill his constitutional and statutory duties.
        Against this significant disruption is concern for the rule of law.
    As a practical matter, it is critical to recall that sentencing would
    be stayed until the President leaves office. Given this, it is doubtful
    that staying the trial as well would add significant concern from the
    standpoint of the rule of law. It is important to bear in mind what the
    rule of law requires. It demands that similarly situated citizens be
    treated similarly. In light of the President's unique constitutional
    role, it is error to contend that the President must be treated
    identically to a private citizen. The rule of law must encompass the
    fundamental law of the Constitution, and account for the peculiar role
    of the President within the constitutional structure. Accommodating
    that role by staying criminal proceedings until the President is out of
    office respects the rule of law as long as the President is subject to
    criminal prosecution once out of office. Under these circumstances, the
    President is subject to liability in the same way as any citizen.
        The New York Times reports that these conclusions accord with the
    view of most scholars. According to the Times, most scholars accept
    that the President may be indicted while in office, but that he may not
    be prosecuted. This assessment of the state of scholarship is probably
    accurate, but there is significant dissent as to each conclusion. In
    other words, the scholarship does not betray a consensus.
                                 iii. practice
        There is very little practical experience dealing with the question
    of indicting or prosecuting a sitting President. The only precedent is
    the investigation of President Richard Nixon. The biographer to special
    counsel Archibald Cox reports that Cox had concluded that the
    separation of powers forbids indicting a sitting President. Cox'
    successor, Leon Jaworski, decided against seeking to indict President
    Nixon, although his decision was based on prudential considerations and
    he did not reach a certain constitutional interpretation.
        In 1972, Vice President Spiro Agnew argued to the Supreme Court
    that a sitting Vice President could not be indicted. Then-Solicitor
    General Robert Bork submitted an amicus brief on behalf of the United
    States in which he argued that a sitting Vice President could be
    impeached, but a sitting President could not be. Judge Bork repeated
    this position yesterday in an op-ed published in the New York Times.
                                  iv. history
        A number of framers made statements that appear to assume that the
    President may not be indicted while in office. In The Federalist
    Alexander Hamilton claimed that the President would be ``liable to be
    impeached, tried, and removed from office; and would afterwards be
    liable to prosecution and punishment in the ordinary course of law.''
    In two other numbers of The Federalist Hamilton repeated this sequence
    and that criminal process comes ``after'' impeachment and conviction.
    In none of these passages, however, is Hamilton addressing the specific
    question of whether the President could be subject to criminal process
    while in office. It may represent no more than Hamilton's assumption as
    to what the ordinary sequence would in fact be.
        Another framer, Gouverneur Morris, explained that the Constitution
    vests the power to try impeachments in the Senate rather than the
    judiciary because the judiciary would ``try the President after the
    trial of impeachment.'' In the First Congress, Vice President John
    Adams and Senator (later Justice) Oliver Ellsworth expressed the view
    that ``the President personally is not . . . subject to any [judicial]
    process whatever.'' But their view was disputed, for example by Senator
    William Maclay.
        The Supreme Court reviewed this historical record in Clinton v.
    Jones. They concluded that history provides no answer to this question.
    These comments reflect the view of only a few, albeit influential,
    individuals and either were not made in the context of whether a
    sitting President could be indicted or were disputed.
                          v. prudential considerations
        Even if the Constitution does not prohibit indictment, that does
    not mean there are not powerful prudential arguments against
    indictment. Brett Kavanaugh, who was Associate Independent Counsel in
    Ken Starr's office for three years, put this argument most succinctly
    in a recent article he published in the Georgetown Law Journal:
        The President is not simply another individual. He is unique. He is
    the embodiment of the federal government and the head of a political
    party. If he is to be removed, the entire government likely would
    suffer, [and] the military or economic consequences to the nation could
    be severe. . . . Those repercussions, if they are to occur, should not
    result from the judgment of a single prosecutor--whether it be the
    Attorney General or special counsel--and a single jury. Prosecution or
    nonprosecution of a President is, in short, inevitably and unavoidably
    a political act.
        Thus, as the Constitution suggests, the decision about the
    President while he is in office should be made where all great national
    political judgments in our country should be made--in the Congress of
    the United States.
        There is an additional, closely related, consideration--protecting
    Congress' constitutional impeachment power. If an independent counsel
    can indict a sitting President, this act alone tends to force Congress'
    hand with respect to impeachment. The mere fact of an indictment is an
    additional factor that generates some pressure to impeach and convict a
    sitting President. That pressure is even more coercive in the context
    of a prosecution and verdict than of indictment alone.
                        vi. department of justice policy
        Professor David Strauss recently argued that there is no need to
    address the constitutional issues because the independent counsel is
    statutorily barred from indicting a sitting President. The United
    States Code instructs that the independent counsel ``shall except where
    not possible comply with the written or other established policies of
    the Department of Justice respecting enforcement of the criminal
    laws.'' 28 U.S.C. 594(f). Professor Strauss argues Judge Bork's Supreme
    Court brief in the Spiro Agnew case established the Department's policy
    on indicting a sitting President and that this policy is confirmed in
    the practice of special counsels Cox and Jaworski.
        This is a strong argument, but there is a response: the brief in
    the Agnew case represents not a policy but an interpretation of the
    Constitution. That interpretation, the response would continue, has
    been demonstrated to be in error by the subsequent decision in Clinton
    v. Jones. An article published by Ken Starr's advisor on constitutional
    law, Professor Ronald Rotunda, argues that Clinton v. Jones makes clear
    what had previously been obscure--namely that a sitting President may
    be indicted and prosecuted.--[Memorandum, 2/4/99]
                                     ______

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Spencer Abraham

        Mr. ABRAHAM. Mr. Chief Justice, in light of our time
    constraints, I would like to focus my remarks today primarily
    on the one issue--more than any other--that has arisen during
    our deliberations: namely, whether the President should be
    convicted if we find he committed the acts alleged in the
    articles.
        I believe this issue is not only central to the case at
    hand, it is also central to all future evaluations and
    applications of what we do here.
        In arguing for the President, White House lawyers have
    asserted that the threshold for Presidential removal must be
    very high--and I agree. At the same time, however, we must
    remember that there is an inverse relationship between the
    level at which we set the removal bar and the degree of
    Presidential misconduct we will accept.
        So, then, where do we set the bar?
        As we know, the Constitution says: ``The President, Vice
    President, and all civil Officers of the United States, shall
    be removed from Office on Impeachment for, and Conviction of,
    Treason, Bribery, or other high Crimes and Misdemeanors.''
        Now it has been suggested by some that a ``high Crime''
    must be a truly heinous crime. But that interpretation is
    obviously wrong. Treason is certainly among the most heinous
    crimes. But bribery is not.
        Taking a bribe, like treason, is however, a uniquely
    serious act of misconduct by a public official. That suggests a
    different meaning for ``high Crime,'' one that is linked
    somehow to the fact that the person committing it holds public
    office.
        Alexander Hamilton's comment about the impeachment power,
    quoted by so many of us here, provides the clue. In Federalist
    65, Hamilton says: ``The subjects of its jurisdiction are those
    offenses which proceed from the misconduct of public men, or,
    in other words, from the violation of some public trust.''
        The President's lawyers invoked this line, but in my view
    they misread it. They argued that what it means is that a
    President's conduct must involve misuse of official power if he
    is to be removed from office, but that is not what the
    Constitution demands, or what Hamilton's comment, fairly read,
    suggests. Otherwise, as has been noted, we would have to leave
    in office a President or a Federal judge who committed murder,
    so long as they did not use any powers of their office in doing
    so.
        Rather, as Hamilton's language connotes, and our own
    precedents in the judicial impeachment cases confirm, the
    connection the Constitution requires between an official's
    actions and functions is a more practical one: the official's
    conduct must demonstrate that he or she cannot be trusted with
    the powers of the office in question.
        This rule certainly encompasses official acts demonstrating
    unfitness for the office in question--but it also reaches
    beyond such acts.
        In my view, we need not determine the outer limits of this
    principle to decide the question before us today: whether the
    President's actions, as alleged in these articles, constitute a
    violation of a ``public trust'' as Hamilton uses the term.
        The answer to that question is plain when we consider the
    President's conduct in relation to his responsibilities.
        The President's role and status in our system of government
    are unique. The Constitution vests the executive power in the
    President, and in the President alone. That means he is the
    officer chiefly charged with carrying out our laws. Therefore,
    far more than any Federal judge, he holds the scales of justice
    in his own hands.
        In the wrong hands, that power can easily be transformed
    from the power to carry out the laws, into the power to bend
    them to one's own ends.
        The very nature of the Presidency guarantees that its
    occupant will face daily temptations to twist the laws for
    personal gain, for party benefit or for the advantage of
    friends.
        To combat these temptations, the Constitution spells out--
    in no uncertain terms--that the President shall ``take care
    that the laws be faithfully executed,'' and the President's
    oath of office requires him to swear that he will do so.
        If he obstructed justice and tampered with witnesses in the
    Jones case, a Federal civil rights case in which he was the
    defendant, the President violated his oath and failed to
    perform the bedrock duty of his office. He did not faithfully
    execute the laws.
        A President who commits these acts thereby makes clear that
    he cannot be trusted to exercise the executive power lawfully
    in the future, to handle impartially such specific Presidential
    responsibilities as serving as the final arbiter on bringing
    Federal, civil, or criminal cases, or determining the content
    of Federal regulations--especially if, as will often be the
    case, he has a personal or a political interest in the outcome.
        Surely retaining a President in office under these
    circumstances constitutes exactly the type of threat to our
    government and its institutions so many have said must exist
    for conviction.
        That brings the President's alleged conduct squarely within
    the purview of our impeachment power, whose purpose, as
    described by Hamilton, is to deal with ``the violation of some
    public trust.''
        Furthermore, if the articles' allegations are true, how can
    we leave the executive power in the hands of a President who,
    through his false grand jury testimony, even attempted to
    obstruct and subvert the impeachment process itself?
        For this particular grand jury before which the President
    testified was not only conducting a criminal investigation; it
    was also charged, under congressional statute, with advising
    the House of Representatives as to whether it had received any
    substantial and credible information that might constitute
    grounds for impeachment.
        The framers placed the impeachment power in our
    Constitution as the ultimate safeguard to address misuse of the
    executive power.
        A President who commits perjury, intending to thwart an
    investigation that might otherwise lead to his impeachment,
    has, I believe, committed a quintessential ``high Crime.''
        Such conduct of necessity impedes, and could even preclude,
    Congress from fulfilling its constitutional duty to prevent the
    President from usurping power and engaging in unlawful conduct.
        To permit such behavior would set an unacceptable
    precedent, because it could, in the future, allow nullification
    of the impeachment process itself, rendering it meaningless.
        Hence, a President who acts to subvert what the framers
    viewed as the ultimate constitutional check on abuse of
    executive power, most certainly violates the public trust as
    defined by Hamilton.
        Throughout this discussion I have analyzed this case as
    though one or more of the underlying counts in each impeachment
    article were established. I recognize that not everyone has
    reached this conclusion--and I confess that I have spent
    countless hours attempting to make this determination of guilt
    or innocence on each article.
        However, after listening to and studying the evidence, I
    have concluded beyond any reasonable doubt that the President
    committed one or more of the acts alleged under each article.
    Time does not permit me to fully explain the basis for my
    conclusions. But, in my view, that is where the evidence
    inescapably points.
        In my opinion, there is no way that the President could
    have testified as he did in his Jones deposition concerning his
    relationship with Monica Lewinsky, unless he believed Ms.
    Lewinsky would validate his false statements if called as a
    witness.
        The President may not have explicitly told her to lie, but
    when he called her on December 17, he did say, ``You can always
    say you were coming to see Betty or that you were bringing me
    letters.''
        To whom did he intend her to say this? They had already
    agreed on the use of these cover stories in nonlegal contexts.
    The only new audience was, clearly, the Jones court, and the
    President's comments that night were surely aimed at
    influencing Ms. Lewinsky's potential testimony before that
    court, if she were to be subpoenaed.
        That this was the President's intent, is confirmed by his
    own testimony in the Jones case. What did he say when asked if
    Ms. Lewinsky had come to see him? He said that Ms. Lewinsky had
    come to visit Betty Currie and perhaps deliver him papers.
        In my opinion, there is also no way you can refresh your
    memory by making assertions you know to be false to another
    person--as the President twice did to Betty Currie after that
    deposition. No, the purpose of those statements was to cause
    her to validate the false testimony he had just given, if she
    were to be subpoenaed.
        Finally, if you believe that was the President's intention,
    then you must conclude he committed material perjury later in
    his grand jury testimony, when in response to the question:
    ``You are saying that your only interest in speaking with Ms.
    Currie in the days after your deposition was to refresh your
    own recollection?'' he answered with one word: ``Yes.''
        There is more.
        Fellow Senators, none of us asked for this task, but we
    must live with the consequences of our actions, not just on
    this administration but on our Nation for generations to come.
        That responsibility cannot be shirked. It has led me to a
    difficult but inexorable decision.
        I deeply regret that it is necessary for me to conclude
    that President William Jefferson Clinton committed obstruction
    of justice and grand jury perjury as charged in the articles of
    impeachment brought by the House, that these are ``high Crimes
    and Misdemeanors'' under our Constitution, and that therefore I
    must vote to convict him on these charges.
        I ask unanimous consent that a fuller opinion be printed in
    the Record.
        There being no objection, the opinion was ordered to be
    printed in the Record, as follows:

                       Opinion by Senator Spencer Abraham

        The President has been impeached on the grounds that he obstructed
    justice and tampered with witnesses in connection with a Federal civil
    rights suit in which he was the defendant, and that he committed
    perjury before a grand jury charged with investigating whether his
    previous conduct warranted prosecution or possible impeachment. It is
    our duty to determine whether the President did what the articles of
    impeachment charge and, if so, whether his actions were ``high Crimes
    and Misdemeanors'' that under our Constitution should bar him from
    further service in his office.
        In considering these questions, I have done my best to imagine that
    I was deciding them, not about a President of the opposing political
    party, with whom I disagree on many issues, but about a President of my
    own party. I have tried to imagine what I would do if confronted with
    the same evidence concerning a popular Republican President whose
    policies I strongly supported. I have tried to decide the case before
    me just as I would the case of such a President.
        Let me start with the facts.
        After a great deal of listening, research, and contemplation, I am
    compelled by the evidence to conclude that the President did engage in
    the conduct charged in both articles. In reaching this conclusion, I
    rely exclusively on those elements of the case that I believe have been
    proven beyond a reasonable doubt. Because I believe these dictate my
    conclusion, I do not decide whether in an impeachment trial, the
    Constitution requires application of this highest of evidentiary
    standards, which governs in ordinary criminal cases, or whether it
    would also be proper for me to rely on any of the other conduct charged
    by the House, much of which I might well find proven under either of
    the lower civil law standards.
        Let me briefly outline the basis for my conclusions. I will start
    with the second article because the conduct giving rise to it actually
    occurred first.
        In my view, the evidence shows beyond a reasonable doubt that, for
    over 11 months, from December 6, 1997, to November 13, 1998, when the
    President agreed to pay Paula Jones $850,000 to withdraw her sexual
    harassment lawsuit, the President engaged in a systematic course of
    obstructing justice and tampering with witnesses in Ms. Jones' case.
    There is no room for reasonable doubt that as part of this course of
    conduct the President made statements to Ms. Monica Lewinsky and Ms.
    Betty Currie that were intended to cause them to validate, through
    testimony he thought they could well be called upon to give, the false
    story he was planning to tell or had already told in his own
    deposition. These statements to Ms. Lewinsky and Ms. Currie constitute
    the second and sixth Acts of obstruction and witness tampering charged
    by the House. There is also no room for reasonable doubt that the
    President supported efforts to conceal gifts he had given to Ms.
    Lewinsky after those gifts had been subpoenaed as evidence in that
    case. That constitutes the third act of obstruction charged by the
    House.
        As to the first article: I am convinced that the House has shown
    beyond a reasonable doubt that the President perjured himself before
    the grand jury in two instances. First, he stated that his only purpose
    in talking to Ms. Currie in the days following his Jones deposition was
    to refresh his own recollection, thereby falsely claiming to the grand
    jury that he did not intend to tamper with her potential testimony if
    she were called as a witness in the Jones case. Second, he reaffirmed
    the veracity of his Jones deposition denial of ``sexual relations''
    with Ms. Lewinsky, under the definition of that term approved by the
    court in that case. This was not merely a ``lie about sex'' to protect
    his family. By the time of his grand jury appearance, the President had
    already acknowledged to his family his improper relationship with Ms.
    Lewinsky. Before the grand jury, the President falsely asserted the
    truth of his earlier sworn statements for the sole purpose of
    protecting himself from possible prosecution or impeachment.
        In light of these conclusions, the final overriding issue is
    whether the President's actions constitute ``high Crimes and
    Misdemeanors'' requiring his removal from office under article II,
    section 4 of the Constitution. As has been acknowledged on both sides,
    reasonable people can differ on this question. And indeed it is only on
    this issue, whether the President must be removed, that Americans are
    consequentially divided. A decided majority of Americans agree that the
    President committed the crimes alleged in at least one of the articles.
    And in their hearts I believe a significant majority of my colleagues
    do as well.
        The public, like us, is in disagreement over what the consequences
    should be. A clear majority oppose removal, but for a variety of
    reasons--ranging from a feeling that the President does not deserve to
    be removed, to a concern not to endanger current economic conditions,
    to a preference for the President over the Vice President, to the
    belief that, because the President has less than 2 years remaining in
    this term, removing him is not worth the disruption it would cause.
        These considerations would legitimately play a role in our decision
    if we were functioning as a legislative body in a parliamentary system
    deciding whether to retain the current government. But that is not our
    role here. The Constitution requires the Senate to sit not in an
    ordinary legislative capacity on this matter, but as a Court of
    Impeachment. That is why, at the beginning of a trial on articles of
    impeachment, article I, section 3 of the Constitution states that
    Senators must take a special oath to do impartial justice. Accordingly,
    it is my view that our decision cannot be based on other
    considerations, but instead must be based on what the Constitution
    dictates, and taken with a view toward the precedent we will establish
    regarding what is acceptable Presidential behavior.
        In arguing for the President, White House lawyers have asserted
    that the threshold for Presidential removal must be very high--and I
    agree. At the same time, however, we must remember that there is an
    inverse relationship between the level at which we set the removal bar
    and the degree of Presidential misconduct we will accept.
        So, then, where do we set the bar? What does the Constitution
    dictate? What precedent should we set for the ages?
        Let us start with the text of the Constitution, which states
    simply: ``The President, Vice President and all civil Officers of the
    United States shall be removed from Office on Impeachment for, and
    Conviction of, Treason, Bribery, or other high Crimes and
    Misdemeanors.''
        The first interpretation that has been suggested is that a ``high
    Crime'' must be a truly heinous crime. But that is obviously wrong.
    Treason is certainly among the most heinous crimes. But bribery is not.
        Taking a bribe, like treason, is however uniquely serious
    misconduct by a public official. That suggests a different meaning for
    ``high Crime,'' one that is linked somehow to the fact that the person
    committing it holds public office.
        A comment by Alexander Hamilton in Federalist 65 provides the clue.
        In Federalist 65, speaking of impeachment, Hamilton says: ``The
    subjects of its jurisdiction are those offenses which proceed from the
    misconduct of public men, or, in other words, from the violation of
    some public trust.''
        The President's lawyers invoke this line, but they misread it. They
    argue that what it means is that to require removal, a President's
    conduct must involve misuse of official power.
        That is not what the Constitution demands, or what Hamilton's
    comment fairly read suggests. Otherwise we would have to leave in
    office a President or a Federal judge who committed murder, so long as
    they did not use any powers of their office in doing so. Rather, as
    Hamilton's language connotes, and our own precedents confirm, the
    connection the Constitution requires between the official's actions and
    functions is a more practical one: the official's conduct must
    demonstrate that he or she cannot be trusted with the powers of the
    office in question. This rule encompasses official acts demonstrating
    unfitness for the office in question, but it also reaches beyond such
    acts.
        We need not determine the outer limits of its principle to decide
    the question before us today: whether the President's actions here
    constitute a violation of a ``public trust'' as Hamilton uses the term.
    The answer to that question is plain when we consider his conduct in
    relation to his responsibilities.
        The President's role and status in our system of government are
    unique. The Constitution vests the executive power in the President,
    and in the President alone. That means he is the officer chiefly
    charged with carrying out our laws. Therefore, far more than any
    Federal judge, he holds the scales of justice in his own hands.
        In the wrong hands, that power can easily be transformed from the
    power to carry out the laws into the power to bend them to one's own
    ends. The very nature of the Presidency guarantees that its occupant
    will face daily temptations to twist the laws for personal gain, for
    party benefit, or for the advantage of friends in or out of power. To
    combat these temptations, the Constitution spells out in no uncertain
    terms that the President shall ``take care that the laws be faithfully
    executed,'' and his oath of office requires him to swear that he will
    do so.
        By obstructing justice and tampering with witnesses in the Jones
    case, a Federal civil rights case in which he was the defendant, the
    President violated his oath and failed to perform the bedrock duty of
    his office. He did not faithfully execute the laws. He thereby made
    clear that he cannot be trusted to exercise the executive power
    lawfully in the future, to handle impartially such specific
    Presidential responsibilities as serving as the final arbiter on
    bringing Federal civil or criminal cases, or determining the content of
    Federal regulations--especially if, as will often be the case, he has a
    personal or political interest in the outcome.
        Surely retaining a President in office under these circumstances
    constitutes the type of threat to our government and its institutions
    so many have said must exist for conviction. That brings his conduct
    squarely within the purview of our impeachment power, whose purpose, as
    described by Hamilton, is to deal with ``the violation of some public
    trust.''
        Obstruction of justice, witness tampering, and grand jury perjury
    are serious Federal crimes. How do we explain to others who commit
    them, many out of motives surely as understandable as the President's,
    that while the President stays in the White House, his Department of
    Justice is trying to send them to prison? How can we expect ordinary
    citizens to accept that the President can remain in office after lying
    repeatedly under oath in court proceedings, but that it is still their
    duty to tell the truth?
        Finally, how can we leave the executive power in the hands of a
    President who, through his false grand jury testimony, has even
    attempted to obstruct and subvert the impeachment process itself? For
    the particular grand jury before which the President testified falsely
    was not only conducting a criminal investigation; it was also charged,
    under congressional statute, with advising the House of Representatives
    whether it had received any substantial and credible information that
    might constitute grounds for impeachment.
        The framers placed the impeachment power in our Constitution as the
    ultimate safeguard to address misuse of the executive power. A
    President who commits perjury, intending to thwart an investigation
    that might otherwise lead to his impeachment, has committed a
    quintessential ``high Crime.'' This crime impeded, and could have even
    precluded, Congress from fulfilling its duty to prevent the President
    from usurping power and engaging in unlawful conduct. To permit such
    behavior could, in effect, allow nullification of the impeachment
    process itself, rendering it meaningless. Hence, a President who acts
    to subvert what the framers viewed as the ultimate constitutional check
    on abuse of executive power, most certainly violates the public trust
    as defined by Hamilton.
        To allow a President to continue in office after committing these
    acts would place the Presidency above the law and grant the President
    powers close to those of a monarch. This, in turn, presents a clear and
    present danger to the rule of law, the birthright of all Americans.
    Indeed, we Americans take the rule of law so thoroughly for granted
    that while it has been much invoked in these proceedings, there has
    been little discussion of what it means or why it matters. Simply put,
    the rule of law is the guarantee our system makes to all of us that our
    rights and those of our countrymen will be determined according to
    rules established in advance. It is the guarantee that there will be no
    special rules, treatment, and outcomes for some, but that the same
    rules will be applied, in the same way, to everyone.
        If America's most powerful citizen may bend the law in his own
    favor with impunity, we have come dangerously close to trading in the
    rule of law for the rule of men. That in turn jeopardizes the freedoms
    we hold dear, for our equality before the law is central to their
    protection.
        We are a great nation because, in America, no man--no man--is above
    the law. Americans broke from Great Britain because the mother country
    claimed it had a right to rule its colonies without restraint, as it
    saw fit. Our tradition of chartered rights--rights laid down in laws,
    which no King, Parliament or other official could breach--culminated in
    our Constitution. That Constitution, which is itself only a higher law,
    protects us from tyranny. Once the law becomes an object of convenience
    rather than awe, that Constitution becomes a dead letter, and with it
    our freedoms and our way of life.
        Mr. Chief Justice, my grandparents did not come to this country
    seeking merely a more convenient, profitable life. They came here
    seeking the freedoms that were given birth on Bunker Hill and in the
    Convention at Philadelphia.
        I know some people mock as self-righteous or feckless the piety
    many Americans have toward their heritage and toward the Constitution
    that guards their freedom. But I will never forget that it is not the
    powerful or those favored by the powerful who need the law's
    protection.
        If we set a precedent that allows the President--the Chief
    Magistrate and the most powerful man in the world--to render the
    judicial process subordinate to his own interests, we tell ordinary
    citizens, like my grandparents, that Americans are no longer really
    equal in the eyes of the law. We tell them that they may be denied
    justice. And we thereby forfeit our own heritage of constitutional
    freedoms.
        None of us asked for this task, but we must live with the
    consequences of our actions, not just on this administration, but on
    our Nation for generations to come. That responsibility cannot be
    shirked. It has led me to a difficult but inexorable decision. I deeply
    regret that it is necessary for me to conclude that President William
    Jefferson Clinton committed obstruction of justice and grand jury
    perjury as charged in the articles of impeachment brought by the House,
    that these are ``high Crimes and Misdemeanors'' under our Constitution,
    and that therefore I must vote to convict him on these charges.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Barbara A. Mikulski

        Ms. MIKULSKI. Mr. Chief Justice, I will vote against the
    articles of impeachment accusing the President of the United
    States of perjury before a grand jury and obstruction of
    justice.
        The Republican House managers have asked the Senate to
    remove the President from office, overturning a free and fair
    election in which 100 million Americans cast their vote. Short
    of voting on whether or not to send our sons and daughters to
    war, I can envision no more profound decision.
        I have taken this responsibility as seriously as anything I
    have done in my life. A little over a month ago, I escorted the
    Chief Justice into this Chamber and stood with my colleagues
    when we took a collective oath, as an institution, to render
    impartial justice in this trial. Then, we individually signed
    our names and pledged our honor to faithfully fulfill our oath.
    That was an indelible and profound moment.
        I have sought to fulfill both responsibilities--to be
    impartial and to render justice. I have sought to be impartial,
    which I view as a test of character and will. And I have sought
    to pursue justice, which to me includes the responsibility to
    perform the homework--do the reading, review the evidence and
    weigh the facts.
        I have listened carefully, and with an open mind, to the
    presentations of the Republican House managers and the
    President's counsel. I have reviewed the evidence. I have read
    all of the key witnesses' testimony before the grand jury. I
    have intensely studied the law pertaining to perjury and
    obstruction of justice, discussed the issue with respected
    lawyers, developed an appropriate standard of proof, and
    reviewed the House testimony of Republican and Democratic
    former prosecutors for their views on the charges. Finally, I
    have read what our Nation's founders wrote about impeachment
    during those months in 1787 when the Constitution was formed,
    and considered the writings of many of today's finest scholars.
        As I reviewed the historical underpinnings of impeachment,
    I have reflected on the intentions of the Founding Fathers who
    developed our famed system of ``checks and balances''--our
    Constitution. That system, designed with the precision of Swiss
    watchmakers and the concern of loving parents, has served our
    Nation very well over the last 200 years and served as a
    guidepost for nations around the world as they struggled to
    establish democracies.
        I wondered what the framers of the Constitution would think
    of this trial--how they would counsel us. In fact, we can use
    their rationale and their framework to guide us as we reach
    conclusions about the evidence and as we determine whether that
    evidence merits removing a President from office.
        Using all this as my guide, I have concluded that the
    evidence presented by the House managers does not meet a
    sufficient standard of proof that President Clinton engaged in
    the criminal actions charged by the House. I conclude that the
    President should not be removed from office.
        In coming to that conclusion, I have used the highest legal
    standard of proof--``beyond a reasonable doubt,'' which is
    required in Federal and State criminal trials. I believe that
    removing a President is so serious, and such an undeniably
    tumultuous precedent to set in our Nation's history, that we
    should act only when the evidence meets that highest standard.
    The U.S. Senate must not make the decision to remove a
    President based on a hunch that the charges may be true. The
    strength of our Constitution and the strength of our Nation
    dictate that we be sure--beyond a reasonable doubt.
        The House managers' case is thin and circumstantial. It
    doesn't meet the standard of ``beyond a reasonable doubt.''
        The first article of impeachment, charging the President
    perjured himself before the grand jury, has not been proven
    beyond a reasonable doubt.
        For instance, the House managers claim that President
    Clinton committed perjury when he used the term ``on certain
    occasions'' to define the number of times he had inappropriate
    contact with Ms. Lewinsky. The managers believed the term ``on
    certain occasions'' meant fewer than the 11 times that were
    counted by Federal investigators and they labeled it ``a direct
    lie.''
        But there is no clear numeric or legal definition of
    ``certain occasions.'' To disagree about the definition of
    ``certain occasions'' is not perjury. And it is not material
    whether it was 11 times or ``on certain occasions.'' President
    Clinton admitted the relationship, which was the material
    point.
        The Republican House managers also claimed President
    Clinton committed perjury by not recalling the exact date,
    time, or place of events that occurred 2 years before. This was
    because other witnesses recalled things slightly differently. I
    do not believe this is or can be perjury because well-
    established court standards state that ``the mere fact that
    recollections differ does not mean that one party is committing
    perjury.''
        Overall, the House managers' assertions rest on Mr.
    Clinton's vague and unhelpful responses to the independent
    counsel's questions. While those responses may be frustrating
    to the independent counsel, the Republican House managers, and,
    perhaps the American public, they are not perjurious as defined
    by law.
        Similarly, the case presented by the Republican House
    managers has not presented sufficient direct evidence to prove
    beyond a reasonable doubt that the President obstructed
    justice. Instead, the House managers relied on extensive
    conjecture about what the President may have been thinking. In
    fact, there is direct and credible testimony by multiple
    witnesses that is directly contrary to the House managers'
    conjecture, leaving ample room for doubt.
        The Republican House managers also did not prove beyond a
    reasonable doubt that there was a causal connection between Ms.
    Lewinsky's job search and the affidavit she gave in the Jones
    lawsuit. Ms. Lewinsky testified clearly and repeatedly that she
    was never promised a job for her silence. That testimony is not
    challenged by any other witness. In fact, other witnesses
    support that testimony and her most recent deposition by the
    House managers confirms it.
        From the outset of this trial, I established that I would
    use a two-tier analysis for my deliberations. First, I would
    determine whether the evidence proved beyond a reasonable doubt
    that the President was guilty of the charges. Second, I would
    then determine whether or not those charges rose to the level
    of ``high Crimes and Misdemeanors''--the standard required by
    the Constitution for conviction and removal of a president.
        Since my analysis of the charges brought by the Republican
    House managers determined that they had not been proven beyond
    a reasonable doubt, the question of determining high crimes and
    misdemeanors is, I believe, moot. I will say, however, that I
    am again taken by the wisdom and prescience of the Founding
    Fathers in addressing this point. I, like many, have read and
    re-read the work of Alexander Hamilton with particular
    interest. On March 7, 1788, he wrote Federalist 65, outlining
    the reasons for, and consequences of, an impeachment trial in
    the Senate. In that writing, Mr. Hamilton asserted that the
    proper subject of an impeachment trial would be ``the abuse or
    violation of some public trust . . . as they relate to injuries
    done immediately to the society itself.''
        I believe it is clear from those words, and the words of
    others who drafted the Constitution, that impeachment was not
    intended to be used for an act that did not meet that standard.
    It was not meant to be used for punishment of the President. I
    believe that the framers intended the last resort of
    impeachment to be used when a presidential action was a clear
    offense against the institutions of government. I do not
    believe that President Clinton's conduct, as wrong as it was,
    rises to that level.
        I wish to choose my words judiciously for I believe the
    behavior of the President was wrong, reckless and immoral.
    President Clinton has acknowledged that his behavior has harmed
    his family and the Nation, and that his behavior, in the end,
    is what brought us to this day. Mr. Clinton engaged in an
    illicit, inappropriate relationship and tried to hide it out of
    shame and the fear of disgrace. Those actions are clearly
    deplorable and should be condemned in the most unequivocal
    terms. But the evidence simply and profoundly does not prove
    criminal wrongdoing.
        Certainly, the impeachment process has been a difficult
    period in our Nation's history. It has challenged the strength
    of our institutions and the strength of our Nation. But, Mr.
    Chief Justice, I still find reason for tremendous hope.
        First, I find hope in the unflagging commitment of the U.S.
    Senate to do the right thing for the right reason. I am proud
    to be a part of this Senate that was ably led by Mr. Lott and
    Mr. Daschle and conducted this trial in a serious, bipartisan,
    reflective, and cooperative spirit.
        I am reassured that Alexander Hamilton and other
    constitutional framers saw fit to charge the Senate with the
    responsibility to try such a case. I hope and believe that we
    have fulfilled their expectations to be a sufficiently
    dignified and independent tribunal, one that could preserve
    ``unawed and uninfluenced, the necessary impartiality'' between
    the parties in this trial. I would like to thank my colleagues
    on both sides of the aisle for meeting their responsibilities
    with such commitment, honor, professionalism, and concern for
    this body and the judgment of history. I will modestly presume
    that history will say we discharged our duty well.
        I will never forget one of our finest hours--when, early in
    the process, we convened in the old Senate Chamber to
    deliberate. I had the honor to preside, with my Republican
    colleague Mr. Mack, over that colloquy in which we established
    a process that would maintain the dignity of the Senate and
    provide a framework for conducting the trial. That precedent
    set an important tone for the proceedings that followed and I
    believe that the goodwill generated in that historic meeting
    held throughout our deliberations.
        Finally, I also find tremendous hope in the growing
    national consensus that we must move forward together to
    address pressing problems in our neighborhoods, communities,
    and cities. Over the last month, the Nation has cried out for a
    focus on education, preserving Social Security and Medicare,
    investing in our economy, and providing global leadership.
        We should now heed those calls. I will not say that now we
    must ``return to the Nation's business.'' In fact, as difficult
    and time consuming as this process has been, I believe
    fulfilling our duty to ``render impartial justice'' has been
    the Nation's business. I am hopeful that with the conclusion of
    this trial, we may all return to the work of making our Nation
    more prosperous, our families stronger, our children better
    educated, our communities more cohesive, and our world safer at
    home and abroad. I believe we will move on knowing that we have
    fulfilled our constitutional responsibilities with diligence
    and honor.
        Thank you.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                         Statement of Senator Rod Grams

        Mr. GRAMS. Mr. Chief Justice, despite the handicaps placed
    upon the House managers, I feel they did an excellent job in
    presenting their case in support of the articles of impeachment
    and laying out the facts. I listened to them carefully, as I
    listened to the White House counsel and the President's lawyers
    in their vigorous defense of William Jefferson Clinton.
        I have heard some of my colleagues say that it was one
    particular fact or incident that led them to their conclusion.
    That was not the case with me. I needed to listen to all the
    facts throughout the trial, before I truly could decide how I
    would vote.
        But after carefully weighing all the evidence, all of the
    facts, and all the arguments, I have come to the conclusion--
    the same conclusion reached by 84 percent of the American
    public--that President Clinton committed perjury and wove a
    cloth of obstruction of justice.
        Lead Presidential counsel Charles Ruff said in testimony
    before the House Judiciary Committee, and here during the
    Senate trial, that fair-minded people could draw different
    conclusions on the charges.
        I disagree in one aspect, but agree in another. I
    personally feel there is no room to disagree on whether the
    President is guilty of the charges in both article I and
    article II; he committed perjury and he clearly obstructed
    justice. But I agree we will differ on whether these charges
    rise to the level of high crimes which dictate conviction.
    Again, I believe they do and have voted yes, on both articles.
        The President was invited by letter to come and testify
    before the Senate. As the central figure in this trial, he
    alone knows what happened, and if truthful, he could have
    addressed the compelling evidence against him. He refused.
        It has been said that many have risked their political
    futures during this process. Perhaps--yet I will not hesitate
    telling constituents in my State how and why I voted the way I
    did. With a clear conscience, I will stand in their judgment
    and I will live with and respect whatever their decision on my
    political future may be.
        But remember, those who vote to acquit--that is, to not
    remove this President--will have the rest of their political
    lifetimes to explain their votes. They also will be judged.
        Collectively, too, we will have to await what history will
    say about this trial and how it was handled. Will this Senate
    be judged as having followed the rule of law; that is, deciding
    this case on the facts, or will we be remembered as the
    rulemaking body who deferred to public sentiment? The polls say
    this President is too popular to remove. If we base our
    decision on his popularity rather than the rule of law, we
    would be condoning a society where a majority could impose
    injustice on a minority group, only because it has a larger
    voice. A rule of law is followed so that justice is done and
    our Constitution is respected, regardless of popularity polls.
        The foundation of our legal system, I believe, is at risk
    if the Senate ignores these charges. The constitutional
    language of impeachment for judges is the same as for the
    President. Judges are removed from the bench for committing
    perjury, and also face criminal charges, as do ordinary
    citizens. We must not accept double standards.
        The prospect of such a double standard was raised countless
    times by the House managers. Consider the irony created by a
    two-tiered standard for perjury. A President commits perjury,
    yet remains in office. But would a Cabinet member who committed
    perjury be allowed to keep his or her job? Would a military
    officer who committed perjury be allowed to continue to serve?
    Would a judge who committed perjury remain on the bench? They
    would not, and yet our President, the Nation's chief law
    enforcement officer, is allowed to keep his office after having
    committed the same offense.
        Again, in my view, this is a double standard and is
    completely unacceptable for a nation that prides itself on a
    legal system which provides equal justice under the law.
        As to our final duty, the final vote, I believe the so-
    called ``so what'' defense has controlled the outcome. ``He did
    it, but so what.'' We have heard it a thousand times from a
    hundred talking heads. We have heard it from our colleagues,
    too, in both Chambers. Well, for this Senator, ``so what''
    stops at perjury and obstruction of justice. I will cast my
    vote with sorrow for the President, his family, and for the
    toll this trial has taken on the Nation, but with certainty
    that it is the only choice my conscience and the Constitution
    permit me to make.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator John B. Breaux

        Mr. BREAUX. Mr. Chief Justice, thank you very much, as so
    many people have said before, for serving with your patience
    and your fairness. If you care to extend your time with us, I
    would invite you to help preside over my Medicare Commission--
    if you would like to help out in that regard.
        I also want to acknowledge and thank our two leaders for
    the fairness and the patience that they both have exhibited to
    all of us and the good job they have done keeping this body
    together, which I happen to think is extremely important as
    well.
        I think it is always very difficult for us to sit in
    judgment of another human being, and particularly is that very
    difficult when it involves moral behavior, or moral misbehavior
    as this case essentially is all about. I was always taught that
    there was a higher authority that made those types of
    decisions, but here we are, and that is part of our task.
        I think it is also especially difficult to make those kinds
    of decisions when they involve someone you know and someone you
    actually deal with in a relatively close relationship, almost
    on a day-to-day basis. It is difficult when it is someone that
    you can in private kid with or that you in private can joke
    with, as is the case for many of us with this accused whom we
    now sit in judgment of.
        I know this President and he is someone I have admired for
    his political accomplishments and I have admired for what he
    has been able to do for this country, but also quite well
    recognize the human frailties that he has, as all of us have.
    If this were a normal trial, many of us wouldn't even be here;
    we would have been excused a long time ago; we would never have
    been selected to sit in judgment of this President. We would
    have been excused because of friendship, we would have been
    excused because we know him, we would have been excused because
    we campaigned for him and with him, or we would have been
    excused for the opposite reasons--because he is a political
    adversary that we have campaigned against, that we have given
    speeches against, that we disagree with publicly on just about
    everything he stands for. None of us would find ourselves
    sitting in judgment of this individual if it were a normal
    trial. But, then again, it is not a normal trial, and these
    certainly are not normal times.
        For many of us, this is the first time we have ever had a
    President who has sort of been a contemporary--certainly for
    me, and many of my colleagues are in that same category. I was
    here, as were many of you in my generation, when President
    Johnson was here, and served throughout the time of President
    Johnson all the way through President Bush. I have met them all
    and knew them all to various degrees but never in the same way
    that I and many of us know this particular President, because
    he really is in the same generation as we are. I think we have
    that feeling, when we talk with him. I mean, many times I feel
    he knows what I am going to say before I say it and he
    understands what I am trying to convey to him before I even
    said anything about the subject matter.
        I think that many of us have had, with him, the same type
    of life experiences, and that our lives have been shaped by
    similar events because we really are of the same generation. So
    it is very difficult, coming from that position and now sitting
    in judgment of a person for his moral behavior. So I think we
    have to be extremely careful, those of us who come from this
    side with that personal friendship and relationship, as well as
    those who come from the opposite side, as a political
    adversary. It is very difficult to set those emotions aside and
    say I am going to be fair in judging someone I just cannot
    stand politically, that I don't agree with on anything, and I
    wish he wasn't my President; in fact, I supported someone else.
    So it is very difficult for all of us to try to set that aside
    and come to an honest and fair and decent conclusion.
        I think the American people have been able to do that. I
    think they have had a good understanding of what this case is
    about from the very beginning. They understood what it was
    about before the trial ever started. They understood what it
    was about during the trial, and I think they understand what it
    is all about after the trial. I think they understand what
    happened. I think they know when it happened, they know where
    it happened, and they know what was said about it. I think that
    they were correct from the very beginning.
        What we really have is a middle-aged man, who happens to be
    President of the United States, who has a sexual affair with
    someone in his office, and when people started finding out
    about it, he lied about it, tried to cover it up, tried to
    mislead people about what happened. I would daresay that this
    is not the first time in the history of the world that this has
    ever happened. I daresay it probably will not be the last time
    that it will happen. It is probably not the first time it has
    happened in this city.
        All of that does not make it right; it does not make it
    acceptable. It does not make it excusable. It cannot be
    condoned and it cannot be overlooked. Actions that are wrong
    have consequences, and now the consequences must be determined
    by the Senate.
        The question here is not really whether anything wrong was
    done. For heaven's sakes, everybody knows that what was done
    was clearly wrong. It was unacceptable. It was embarrassing. It
    was indefensible and any other adjective you can possibly think
    of to really describe it. But that is not really the question
    before us, and we can all agree on that. I think the question
    is not even whether this was perjury or whether it was
    obstruction of justice under the terms of the Constitution.
        I think the only question before us is whether what
    happened rises to the highest constitutional standards of high
    crimes and misdemeanors under the Constitution, justifying
    automatic removal of this President from the office of
    President.
        I have concluded that the Constitution was designed very
    carefully to remove the President of the United States for
    wrongful actions as President of the United States in his
    capacity as President of the United States and in carrying out
    his duties as President of the United States. For wrongful acts
    that are not connected with the official capacity and duties of
    the President of the United States, there are other ways to
    handle it. There is the judicial system. There is the court
    system. There are the U.S. attorneys out there waiting. There
    may even be the Office of Independent Counsel, which will still
    be there after all of this is finished.
        We here cannot expand the Constitution in this area. I
    think history supports my position. I will cite you just a
    quick two examples. Senator Slade Gorton earlier spoke about
    the situation with the Secretary of the Treasury, Alexander
    Hamilton. As Secretary, he was having an affair with a woman
    here in this city and they found out about it. He was paying
    off the husband of the wife that he was having an affair with.
    He was trying to get her to burn the evidence, which were
    letters that he had sent, to try to cover it up--criminal acts.
    But the Congress that was investigating him, came to the
    conclusion that the behavior was private. It was wrong, it was
    terrible, it was criminal, but it was private behavior and he
    was not impeached. Not because, I think, as Slade tried to say,
    that he wasn't impeached because he admitted it, he only
    admitted it when he got caught. But he was not impeached
    because they decided that it was essentially private behavior.
    That was in 1792, and Adams and the Founding Fathers were here
    at that time and they came to that conclusion.
        More recently, the situation with President Richard Nixon,
    I think, is a clear example of what we are struggling with
    here, to find this connection between official duties and what
    he did. One of the articles that they accused President Nixon
    with was that he had, not once, but four times filed fraudulent
    income tax returns under the criminal penalty of perjury--that
    he deducted things that he should not have deducted and that he
    didn't report income that should have been reported. By a 26-
    to-12 vote, the House Judiciary Committee said, among other
    things, that ``the conduct must be seriously incompatible with
    either the constitutional form and principles of our Government
    or the proper performance of the constitutional duties of the
    President's office.'' They said that it did not demonstrate
    public misconduct, but rather private misconduct that had
    become public. I think the situation today is very similar.
        These are clear examples both in the beginning of our
    country's history and very recently about the need for this
    nexus or connection between the illegal acts and the duties of
    the office of the President.
        Let me conclude by saying I am voting not to convict and
    remove. But that is not a vote on the innocence of this
    President. He is not innocent. And by not voting to convict we
    can't somehow establish his innocence. If the standard of
    removal was bad behavior, he would be gone. I mean there would
    probably be no disagreement about that. But that is not the
    standard.
        I urge a ``no'' vote on conviction and removal and ask our
    colleagues to join in a bipartisan, strong, clear censure
    resolution and spell out what happened and where it happened
    and when it happened and what was said about what happened so
    that history will be able to, forever, look at that censure
    resolution and study it and learn from what we do today. That,
    my colleagues, I think is an appropriate and a proper remedy.
        Thank you.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Pete V. Domenici

        Mr. DOMENICI. Mr. Chief Justice, I have listened carefully
    to the arguments of the House managers and the counterarguments
    by the White House counsel during this impeachment trial. I
    have taken seriously my oath to render impartial justice.
        While the legal nuances offered by both sides were
    interesting and essential, I kept thinking as I sat listening
    that the most obvious and important but unstated question was:
    What standard of conduct should we insist our President live up
    to?
        Only by taking into account this question do I believe that
    we in the Senate can properly interpret our Founding Fathers'
    impeachment criteria comprised of ``Treason, Bribery, or other
    high Crimes and Misdemeanors.'' Clearly, the Constitution
    recognizes that a President may be impeached not only for
    bribery and treason, but also for other actions that destroy
    the underlying integrity of the Presidency or the ``equal
    justice for all'' guarantee of the judiciary.
        All reasonable observers admit that the President lied
    under oath and undertook a substantial and purposeful effort to
    hide his behavior from others in order to obstruct justice in a
    legal proceeding. My good friends and Democratic colleagues,
    Senators Joe Lieberman, Daniel Patrick Moynihan, Bob Kerrey,
    Dianne Feinstein, and Robert Byrd, among others, have bluntly
    acknowledged publically that the President lied, misled,
    obstructed, and attempted in many ways to thwart justice's
    impartial course in a civil rights case. The sticking point has
    been: Does this misbehavior rise to the level of impeachable
    offenses?
        I have concluded that President Clinton's actions do,
    indeed, rise to the level of impeachable offenses that the
    Founding Fathers envisioned.
        I am not a constitutional scholar, as I have told you
    before. But more than 200 years ago, Chief Justice of the
    Supreme Court John Jay summed up my feelings about lying under
    oath and its subversion of the administration of justice and
    honest government:

        Independent of the abominable insult which Perjury offers to the
    divine Being, There is no Crime more pernicious to Society. It
    discolours and poisons the Streams of Justice, and by substituting
    Falsehood for Truth, saps the Foundations of personal and public
    rights. . . . Testimony is given under solemn obligations which an
    appeal to the God of Truth impose; and if oaths should cease to be held
    sacred, our dearest and most valuable Rights would become insecure.

        Lying under oath is an ``insult to the divine Being . . .
    It discolours and poisons the Streams of Justice . . . and . .
    . saps the Foundations of personal and public Rights.''
        How can anyone, after conceding that the President lied
    under oath and obstructed justice, listen to this quotation and
    not conclude that this President has committed acts which are
    clearly serious, which corrupt or subvert the political and
    government process, and which are plainly wrong to any
    honorable person or to a good citizen?
        We must start by saying that this trial has never been
    about the President's private sex acts, as tawdry as they may
    have been.
        This trial has been about his failure to properly discharge
    his public responsibility. The President had a choice to make
    during this entire, lamentable episode. At a number of critical
    junctures, he had a choice either to tell the truth or to lie,
    first in the civil rights case, before the grand jury, and on
    national television. Each time he chose to lie. He made that
    fateful choice.
        Truthfulness is the first pillar of good character in the
    Character Counts program of which I have been part of
    establishing in New Mexico. Many of you in this Chamber have
    joined me in declaring the annual ``Character Counts Weeks.''
    This program teaches grade school youngsters throughout America
    about six pillars of good character. Public and private schools
    in every corner of my State teach children that character
    counts; character makes a difference; indeed, character makes
    all the difference.
        Guess which one of these pillars comes first?
    Trustworthiness. Trustworthiness.
        So what do I say to the children in my State when they ask,
    ``Didn't the President lie? Doesn't that mean he isn't
    trustworthy? Then, Senator, why didn't the Senate punish him?''
        Let me quote one of the most critical passages from Charles
    L. Black, Jr., and his handbook on impeachment, one of the
    seminal works on the impeachment process. He ponders this
    question: what kinds of noncriminal acts by a President are
    clearly impeachable? He concludes that ``high Crimes and
    Misdemeanors'' are those kinds of offenses which fall into
    three categories: ``(1) which are extremely serious, (2) which
    in some way corrupt or subvert the political and governmental
    process, and (3) which are plainly wrong in themselves to a
    person of honor, or to a good citizen, regardless of words on
    the statute books.''
        Well, there you have it in my judgment. The President lied
    under oath in a civil rights case, he lied before a grand jury
    and he lied on national television to the American people.
        Regarding article II, obstruction of justice the House
    managers proved to my satisfaction the following facts:
        (1) The President encouraged Monica Lewinsky to prepare and
    submit a false affidavit; (2) He encouraged her to tell false
    and misleading cover stories if she were called to testify in a
    civil rights lawsuit; (3) He engaged in, encouraged or
    supported a scheme to conceal his gifts to Monica Lewinsky that
    had been subpoenaed in the civil rights lawsuit; (4) He
    intensified and succeeded in an effort to find Monica Lewinsky
    a job so that she would not testify truthfully in the civil
    rights lawsuit; (5) He gave a false account of his relationship
    with Monica Lewinsky to Betty Currie in order to influence Ms.
    Currie's expected testimony in the civil rights lawsuit; (6) At
    his deposition in a Federal civil rights action against him,
    William Jefferson Clinton allowed his attorney to make false
    and misleading statements to a Federal judge characterizing an
    affidavit, in order to prevent questioning deemed relevant by
    the judge. Such false and misleading statements were
    subsequently called to the attention of the judge by his
    attorney; (7) He lied to John Podesta, Sidney Blumenthal,
    Erskine Bowles, and other White House aides regarding his
    relationship with Monica Lewinsky to influence their expected
    testimony before the Federal grand jury.
        In this day and age of public yearning for heroes, we
    criticize basketball, football, and baseball players, and
    actors and singers who commit crimes or otherwise fail to be
    ``good role models.'' One of those celebrities said a few years
    ago that he was only a basketball player, not a role model. He
    said in essence: ``Want a role model, look to the President.''
        Do not underestimate, my friends, the corrupting and
    cynical signal we will send if we fail to enforce the highest
    standards of conduct on the most powerful man in the Nation.
        Finally, I want to address a question that my good friend,
    Senator Byrd, raised over the weekend in a television show.
    After declaring that the President had lied and obstructed
    justice, and after concluding these acts were impeachable
    offenses, Senator Byrd, for whom I have great respect, noted
    that it was very hard, in his judgment, to impeach a President
    who enjoyed the public popularity that this President enjoys.
        Let me respond to that. Popularity is not a defense in an
    impeachment trial. Indeed, one of our Founding Fathers
    addressed this issue of popularity directly in the oft-quoted
    ``Federalist Papers'': ``It takes more than talents of low
    intrigue and the little arts of popularity'' to be President.
    And, popularity isn't a pillar of Character Counts.
        What if a President committed the same acts as those
    alleged in this trial but he was presiding over a weak economy,
    a stock market at a 3-year low, 12-percent unemployment, 16-
    percent inflation and a nation worried about their job security
    and families? I wonder if this would be a straight party line
    vote. I just wonder.
        Conversely, I wonder if you had a President who committed
    one of the impeachable crimes enumerated in the Constitution--
    bribery or treason, and the facts were obvious and clear: he
    gave a job to someone in exchange for a $5,000 bribe and the
    entire episode was on videotape. In this hypothetical, what if
    this bribery-perpetrating President was very popular but the
    House, nonetheless, impeached him. It would be the Senate's
    responsibility to hold a trial. In this example, economy is
    strong, the country is at peace, everyone's stock market
    investments are soaring. Would we then interpret the
    Constitution to provide a popularity defense? Would we create a
    ``booming economy exception'' to the conviction and removal
    clause of the Constitution? I doubt it. I doubt it very much.
    Let me repeat, temporary popularity of a President cannot be a
    legitimate defense against impeachment.
        The President has committed high crimes and misdemeanors,
    in violation of his oath of office. He lied under oath. He
    obstructed justice. His behavior was unworthy of the Presidency
    of the United States.
        Thus, I sadly conclude that the President is guilty of the
    charges made against him by the House of Representatives and I
    will vote to convict him on both counts before the Senate.
        Thank you, Mr. Chief Justice.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Paul S. Sarbanes

        Mr. SARBANES. Mr. Chief Justice and colleagues, in his
    award-winning book ``The Making of the President, 1960,''
    Theodore H. White refers to an American Presidential election
    as ``the most awesome transfer of power in the world.''
        He notes that:

        No people has succeeded at it better or over a longer period of
    time than the Americans. Yet as the transfer of this power takes place,
    there is nothing to be seen except an occasional line outside a church
    or school or file of people fidgeting in the rain, waiting to enter the
    voting booths. No bands play on election day, no troops march, no guns
    are readied, no conspirators gather in secret headquarters.

        Later in that opening chapter White observes:

        Good or bad, whatever the decision, America will accept the
    decision and cut down any man who goes against it, even though for
    millions the decision runs contrary to their own votes. The general
    vote is an expression of national will, the only substitute for
    violence and blood.

        I begin with those quotes to underscore the critical
    significance of a Presidential election in the structure of our
    national politics. Many learned commentators have observed that
    one of the original contributions to the art of government made
    by the Constitutional Convention was to develop a Presidential,
    as opposed to a parliamentary, system of government, wherein
    the Executive is chosen by the electorate and is not dependent
    upon the confidence of the legislature for his office. As
    former Attorney General Katzenbach observed:

        It is a serious matter for the Congress to remove a President who
    has been elected in a democratic process for a term of four years,
    raising fundamental concerns about the separation of powers.

        He goes on to note that if the removal power is not
    limited, as it clearly is, impeachment could be converted into
    a parliamentary vote of no confidence which, whatever its
    merits, is not our constitutional system. The separation of
    powers embraced in our Constitution and the fixed term of the
    President have been credited by many observers with providing
    stability to our political system.
        It is important therefore to recognize that in considering
    the matter before us, we do so in the context of a Presidential
    election, wherein the people have chosen the single leader of
    the executive branch of our government--the President.
        Since the framers put the impeachment remedy in the
    Constitution, it is obvious they recognized that there may be
    circumstances which require the Congress to remove a duly
    elected President. However, in my judgment, as the framers
    indicated, we need to be very careful, very cautious, very
    prudent, in undertaking that remedy lest we introduce a
    dangerous instability in the workings of our political
    institutions.
        Viscount Bryce, whose bust is at the foot of the steps in
    the hallway below, was a distinguished commentator about the
    American political system. He wrote in ``The American
    Commonwealth'' in discussing the impeachment of a President:

        Impeachment is the heaviest piece of artillery in the congressional
    arsenal, but because it is so heavy, it is unfit for ordinary use. It
    is like a 100-ton gun which needs complex machinery to bring it into
    position, an enormous charge of powder to fire it, and a large mark to
    aim at. Or to vary this simile, impeachment is what physicians call a
    heroic medicine, an extreme remedy proper to be applied against an
    official guilty of political crimes.

        Let me turn next to the argument which seeks to draw an
    analogy between the impeachment of a President and the
    impeachment of judges, an argument that cites three recent
    cases in which judges have been removed from office. In my
    view, this analogy misses the mark.
        Two of the judges the Senate convicted and thus removed
    from office had been accused in a criminal case, tried before a
    jury, found guilty beyond a reasonable doubt, and were in jail.
    Until we removed them, they were still drawing their salaries.
    In the third case, the defendant had been acquitted of bribery,
    but a judicial inquiry found that he had perjured himself to
    cover up the bribery misdeeds. Difference No. 1: Judges can be
    criminally prosecuted while in office; the President cannot. At
    least that has been the theory up to this point.
        Secondly, elected versus appointed. Judges are appointed to
    the bench for life. They can only be removed by impeachment.
    The President is elected by the people for a 4-year term and
    can only hold two such terms. As President Ford, when he was a
    Congressman, stated:

        I think it is fair to come to one conclusion, however, from our
    history of impeachments. A higher standard is expected of Federal
    judges than of any other civil officers of the United States. The
    President and the Vice President and all persons holding office at the
    pleasure can be thrown out of office by the voters at least every 4
    years.

        Thirdly, one needs to consider the injury to the branch of
    government which would result from the removal of the officer.
    The removal of one judge out of hundreds and hundreds of judges
    does not significantly affect the operation of the judicial
    branch of our government. The removal of the President, the
    single head of the executive branch, obviously is in an
    entirely different category. The President, under our system,
    holds the executive power. In the end, executive branch
    decisions are his decisions.
        In the minority report in the House Watergate proceedings,
    Republican Members stated:

        The removal of a President from office would obviously have a far
    greater impact upon the equilibrium of our system of Government than
    removal of a single Federal judge.

        The House Judiciary Committee majority report accompanying
    the article of impeachment against Judge Walter Nixon in 1989
    similarly stated as follows:

        Judges must be held to a higher standard of conduct than other
    officials. As noted by the House Judiciary Committee in 1970, Congress
    has recognized that Federal judges must be held to a different standard
    of conduct than other civil officers because of the nature of their
    position and the tenure of their office.

        In putting on their case, the House Republican managers
    sought to portray a simple logical progression--first that the
    material which they brought before the Senate showed violations
    of provisions of the Federal Criminal Code, i.e., perjury and
    obstruction of justice. Then they argued that if you find such
    crimes, you have high crimes and misdemeanors and, ergo,
    removal from office. But let us look at this supposed logical
    progression which I view as flawed at each step.
        First, I do not believe the House managers carried the
    burden of proof with respect to the commission of crimes. Since
    they relied on the Federal Criminal Code--charging crimes--in
    making their case, it is appropriate that they be held to the
    burden of proof of beyond a reasonable doubt--the standard used
    in criminal cases.
        In the House Judiciary Committee a panel of distinguished
    former Federal prosecutors testified that a responsible Federal
    prosecutor would not have brought a criminal prosecution on the
    basis of the case set out in the Starr Report on which the
    House Judiciary Committee relied. One of them, Thomas P.
    Sullivan, a veteran of 40 years of practice in Federal criminal
    cases, and U.S. Attorney for the Northern District of Illinois
    from 1977 to 1981, stated the following:

        If the President were not involved, if an ordinary citizen were the
    subject of the inquiry, no serious consideration would be given to a
    criminal prosecution arising from alleged misconduct in discovery in
    the Jones civil case having to do with an alleged coverup of a private
    sexual affair with another woman or the follow-on testimony before the
    grand jury. The case simply would not be given serious consideration
    for prosecution.

        Now, let me move beyond this question of proving the case
    and address the next step in the managers' ostensible logical
    progression, namely that the crimes that they were trying to
    prove are high crime and misdemeanors and, therefore, a vote
    for conviction and removal must follow.
        Actually, in considering this issue we must bear in mind
    the ultimate question: Does the conduct warrant removal from
    office? The House logic seems to be that any perjury, any
    obstruction of justice, warrants removal. As serious as those
    charges are, not all such conduct in all instances may rise to
    the level of an impeachable offense. In considering this
    matter, it is important to understand that the House articles
    included within them not only the charges but also the penalty.
    In the ordinary criminal case, there is a two-step judgment--
    guilt and then sentence. In an impeachment case, the finding of
    guilty carries with it removal from office--the remedy provided
    by the Constitution.
        There is an important precedent for the view that in
    certain circumstances offenses of the sort alleged here may not
    rise to the level of a high crime and misdemeanor. That
    precedent is found in the tax article of impeachment of Richard
    Nixon which was before the House Judiciary Committee in 1974.
    That article charged President Nixon with knowingly filing tax
    returns which fraudulently claimed that he had donated pre-
    Presidential papers before the date Congress had set for
    eliminating such a charitable tax deduction. It was worth
    $576,000 in deductions. This deduction was claimed in tax
    returns that contained the following assertion just above the
    taxpayer's signature:

        Under penalties of perjury, I declare that I have examined this
    return, including accompanying schedules and statements, and, to the
    best of my knowledge and belief, it is true, correct and complete.

        The House Judiciary Committee voted down that article of
    impeachment by a vote of 12 for, 26 against. As one of nine
    Democrats who joined the Republicans in voting against this
    article of impeachment in the Nixon case, I did not believe
    that in the circumstances of that case it rose to the level of
    a high crime and misdemeanor; I did not believe it was conduct
    against which the Founding Fathers intended the Congress to
    invoke the impeachment remedy.
        Let me turn briefly to the procedure followed in this
    impeachment matter, since good procedure enhances the chances
    of good results while bad procedure does the opposite. I am
    prompted to do so by various comments made by House managers
    criticizing the Senate for the procedure we have followed. I
    think the Senate has handled this matter well under very
    difficult circumstances. Given that the House managers
    questioned our procedure, let us look at the procedure on the
    House side.
        The House, which brought in no ``fact'' witnesses, came to
    the Senate and said to us, ``In order to evaluate testimony
    that is in the record, you must bring witnesses in and look
    them in the eye in order to assess their credibility.''
    Obviously, one must ask, how did the House managers assess the
    credibility of witnesses when they brought none before them and
    yet voted to bring articles of impeachment recommending the
    President's removal to the Senate?
        Secondly, the other day, in response to a reasonable
    request by the President's lawyers on how the House planned to
    proceed in using deposition excerpts, a House manager said, ``I
    believe the appropriate legal response to your request is that
    it is none of your damn business what the other side is going
    to put on.'' This same attitude marked the treatment of
    President Clinton's lawyers before the House Judiciary
    Committee.
        Contrast this with the House Judiciary Committee's conduct
    in the matter of President Nixon's impeachment when the
    President's lawyers sat in with the committee in its closed
    sessions when committee staff presented findings of fact. The
    President's lawyers were able to challenge material, to ask
    questions, to supplement all presentations. Fact witnesses were
    called in and were subjected to questions by all. There was an
    understanding of the gravity of the matter for the Nation and
    the absolute imperative of having a fair process.
        In this matter, the House Judiciary Committee took only a
    few weeks to report impeachment articles. In the Nixon case the
    committee took 6 months. In the Judge Hastings case, the House
    Judiciary Committee received an 841-page report from the
    Judicial Conference as to why Hastings should be removed.
    Nevertheless, the committee undertook its own examination of
    the evidence. It heard 12 fact witnesses, deposed or
    interviewed 60 others, and held 7 days of hearings.
        In closing, it is very important to keep in mind the
    distinction between the person who is President and the office
    of President of the United States provided for in our
    Constitution.
        President Clinton has engaged in disgraceful and
    reprehensible conduct which has severely sullied and demeaned
    his tenure as President. Because of his shameful and reckless
    behavior he has brought dishonor upon himself, deeply hurt his
    family, and grievously diminished his reputation and standing
    now, and in history.
        But the diminishing of Bill Clinton must not lead us to
    diminish the Presidency for his successors as our Nation moves
    into the new millennium. There is a danger to the Nation in
    deposing a political leader chosen directly by the people and
    we must be wary of the instability it would bring to our
    political system.
        In the report of the staff of the impeachment inquiry in
    1974 on the constitutional grounds for Presidential
    impeachment, the conclusion states:

        Not all presidential misconduct is sufficient to constitute grounds
    for impeachment. There is a further requirement--substantiality. In
    deciding whether this further requirement has been met, the facts must
    be considered as a whole in the context of the office, not in terms of
    separate or isolated events. Because impeachment of a President is a
    grave step for the nation, it is to be predicated only upon conduct
    seriously incompatible with either the constitutional form and
    principles of our government or the proper performance of
    constitutional duties of the presidential office.

        I do not believe the conduct examined here meets this test.
        I will vote against removing the President.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                  Statement of Senator Ben Nighthorse Campbell

        Mr. CAMPBELL. Mr. Chief Justice and colleagues, my friends,
    I am not going to try to dazzle you with my knowledge of the
    law, which is minimal, or the 40 hand-written pages I have
    taken during these proceedings. But I signed the same oath you
    did, with a pen that should have had on it ``United States
    Senate,'' but did not. It said, ``Untied States Senate.''
        We were asked to turn the pens back in. I heard they are
    going to be valuable collectors' items, and I am not turning
    mine in. I want to see what it is worth.
        There you have it, an imperfect Senator being asked to
    judge an imperfect President. One of our colleagues noted
    yesterday that we all come from different backgrounds. It is
    true, and perhaps the living proof of that great aspect of this
    Nation is that I could be here at all.
        The same body where someone named Daniel Webster, John F.
    Kennedy, and Harry Truman once served also welcomed a mixed
    blood kid from the wrong side of the tracks. The offspring of
    an alcoholic father and a tubercular mother; in and out of
    orphanages; a lawbreaker and high school dropout who lied,
    cheated, stole, and did many other shameful things make me a
    poor judge, indeed, of someone else who used poor judgment.
        I would rather take a beating than to judge someone else
    for their indiscretions. But as one of our colleagues said
    yesterday, ``We didn't ask for this.''
        Still, with all my own human failings, I, like you, must
    try to separate them from the rule of law. I wish I had the
    historical knowledge of Senator Byrd or the legal knowledge of
    Orrin Hatch or the government experience of John Warner. But I
    don't--I must use common sense.
        I want to tell you an anecdote--about a conversation I had
    with the President right after he made his rather startling
    confession before this Nation and a group of reverends which I
    watched from my Denver office as millions of others were also
    watching at the same time.
        I was so moved by his statement that I wrote him a personal
    note telling him how sorry I was for what his family was going
    through. I told him I would not be one to pile on; that I would
    make no statements to the press; nor would I be a party to the
    impeachment process going on in the other body.
        As I look around this room, I see several others who
    subscribed to that same conduct as this proceeding moved to the
    Senate and took on soap opera proportions, and Members of both
    parties ran pell mell to the cameras at each recess.
        I sit right there in the back row 15 feet from the
    Cloakroom. But, at each recess by the time I walk to the
    Cloakroom and glance at the TV, some of my colleagues are
    already sprinting somewhere else to be in front of the cameras.
    As you know, I used to be on the U.S. Olympic Team, and I tell
    my speedy friends--you could have made the team.
        About 3 days after I wrote to the President, he called me
    to thank me for my note and we spoke for about 15 minutes. I
    asked him how his family was dealing with it and he told me
    they were having good days and bad, but it was hardest on his
    daughter, Chelsea, because she was away at college without the
    family unit to console her. He told me he would keep my note
    always. I felt badly then, and I do now.
        As I look around this room in which so many great people in
    our history have spoken and I read their names written in the
    desk drawers along with those who no one remembers, I tell you
    that I like this President.
        He came through a difficult childhood as I did, and I
    genuinely like him and feel sorry for both him and his family.
    But after agonizing as many of my Senate friends have, I
    remember the first question my then 9-year-old son, Colin,
    asked me 17 years ago when I told him I was going to run for
    public office. He asked, ``Dad, are you going to lie and
    stuff?''
        I told him, ``No.'' I don't have to learn how to lie--I
    still remembered how to lie from my delinquent days. I am still
    trying to forget it.
        I told him, human frailties not withstanding, elected
    officials should not ``lie and stuff.''
        Every one of us knows that when we step into the public
    arena, we are judged by a different standard. Being honest and
    truthful becomes more important because we must set the
    examples.
        As a Senator, if I ever forget it, this body will not have
    to throw me out because I will have brought it on myself, and I
    will save this body the time and expense and resign.
        I would not fear being thrown out. When I was young and not
    yet house-broken, I was thrown out of a lot of places. I swore
    a lot of oaths--not when I went in, but when I came out.
        There is a difference: one is about anger in private--the
    other is about honor in public. If we are not going to honor
    our oath, why don't we get rid of it and have an every-man-for-
    himself kind of elected official?
        Better yet, let's change it. Mr. Chief Justice, you could
    say: ``Senators-elect. Raise your right hand and repeat after
    me: `On my honor, I'll do my best, to help myself and lie like
    the rest.''
        I took a solemn oath--perhaps it is the only thing in
    common I share with John F. Kennedy, Harry Truman and Daniel
    Webster as well as the founders of this Nation--and that is why
    honoring it is all the more important to me.
        Simply speaking, the President did, too. And, so even
    though I like him personally, I find I can only vote one way.
    And that is guilty on both articles.
        Thank you, Mr. Chief Justice. I yield the floor.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator J. Robert Kerrey

        Mr. KERREY. Mr. Chief Justice, in the impeachment case of
    President Clinton I have read the depositions, reviewed the
    massive volume of evidence and carefully followed the detailed
    presentations of both the House managers and the President's
    counsel. The instructions for my decision come from two places:
    the oath I took to do impartial justice and the Constitution of
    the United States.
        Nebraskans, including me, are angry about the President's
    behavior. We find it deplorable on every level. It has
    permanently and deservedly marred his place in history. But
    impeachment is not about punishing an individual; it is about
    protecting the country. We punish a President who behaves
    immorally, lies and otherwise lacks the character we demand in
    public office with our votes. Presidents are also subject to
    criminal prosecution when they leave office.
        Impeachment must be reserved for extreme situations
    involving crimes against the state. Why? Because the founders
    of our country and the framers of our Constitution correctly
    placed stability of the Republic as their paramount concern.
    They did not want Congress to be able to easily remove a
    popularly elected President. They made clear they intended a
    decision to impeach to be used to protect the Nation against
    only the highest of crimes.
        On December 19, 1998, the House of Representatives, on an
    almost straight party line vote, approved and delivered to the
    Senate two articles of impeachment. The Constitution permits me
    to judge and decide upon only these articles, not to wander
    through all of the President's conduct looking for any reason
    for removal.
        Some Nebraskans have told me the President should be
    removed from office by the Congress because he is no longer
    trusted, has lost the respect of many, and has displayed
    reprehensible behavior. As strong as those feelings are, the
    Constitution does not provide for overturning an election even
    if all of these things are true.
        Three recent letters to the editor in the Omaha World-
    Herald help make the point. The first, from a man in Kearney,
    says that by voting to dismiss the trial, I ``voted to support
    sexual harassment,'' among other things. A second, from Honey
    Creek, IA, raises allegations regarding the President and
    China, says he is ``dangerous'' and urges Senator Hagel and I
    to ``oust him now.'' The third, from Omaha, reminds readers of
    an often quoted comment I once made about the President's
    credibility and asks how, in light of that, I could vote to
    leave him in office.
        However, the House did not charge the President with these
    offenses. Impeachment is not a judgment of a President's
    character, all his actions, or even his general fitness for
    office. We make those decisions every 4 years at the ballot
    box. Our job in contemplating the extraordinary step of
    overturning an election is to judge only those charges the
    House actually brought.
        Because the premium on constitutional stability is so high,
    I decided to judge the case against the strictest possible
    standard: proof beyond a reasonable doubt. In other words, the
    President can be convicted only if there is no reasonable
    interpretation of the facts other than an intent to commit
    perjury and obstruction of justice. The following is a summary
    of my analysis of this case:
        Article I accuses the President of perjury in his August
    17, 1998, testimony to a Federal grand jury, during which he
    waived his rights against self-incrimination. Most important in
    determining guilt or innocence is the rule of law governing
    perjury, which makes it clear that a person has not committed
    perjury just because they misled or even lied. Perjury occurs
    when a false statement is made under oath with willful intent
    to mislead in a material matter. Lying is immoral; perjury is
    illegal. I should not accuse the President of ignoring the rule
    of law and then ignore it myself in making a judgment.
        After reading and watching the President's grand jury
    testimony, listening to the arguments of the House managers and
    the President's lawyers, discussing this case with prosecutors
    and reviewing the impeachment trial of U.S. District Judge
    Alcee Hastings, I have concluded the President did not commit
    the crime of perjury beyond a reasonable doubt. I frequently
    found the President's testimony maddening and misleading, but I
    did not find it material to a criminal act.
        Article II accuses the President of obstructing justice in
    seven instances. The House managers relied on circumstantial
    evidence, saying that common sense provides only one conclusion
    about why the President acted the way he did. However, the
    direct evidence, including the testimony of Monica Lewinsky
    herself, rebutted the circumstantial evidence. Second, while
    the House managers were correct in saying that common sense
    could lead to a conclusion that the President intended to
    obstruct justice, common sense could also lead to other
    reasonable conclusions about the reasons for his actions.
    Third, with respect to the allegations of obstructing justice
    in the civil case, Paula Jones' lawsuit was thrown out, then
    eventually settled. In the end, justice was done.
        As reprehensible as I find the President's behavior to be,
    I do not believe that high crimes and misdemeanors as defined
    by the framers have been proved beyond a reasonable doubt.
    Accordingly, I will vote to acquit on both articles. My vote to
    acquit is not a vote to exonerate. While there is plenty of
    blame to go around in this case, the person most responsible
    for it going this far is the President of the United States. He
    behaved immorally, recklessly, and reprehensibly. These were
    his choices. In the final analysis, they do not merit removal,
    but they do merit condemnation.
        While I am confident this vote is the right one--not just
    for this case, but as a precedent for future Congresses and
    Presidents too--I understand that reasonable people could reach
    the opposite conclusion. The bitterness in America on both
    sides of this debate has saddened me. I hope and pray that with
    this vote behind us the people's Congress can return without
    rancor to the important work of our country.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator George V. Voinovich

        Mr. VOINOVICH. Mr. Chief Justice, we are not here today
    because the President had a relationship that he himself has
    described as inappropriate and wrong. As House Manager James
    Rogan appropriately noted, ``Had the President's bad choice
    simply ended with this indiscretion, we would not be here
    today. Adultery may be a lot of things, but it is not an
    impeachable offense. Unfortunately, the President's bad choices
    only grew worse.'' It is not the President's inappropriate
    relationship, but his deliberate and willful attempts to
    conceal and mislead that bring us to this point.
        The very foundation of this Nation is the rule of law, not
    of men. The framers of our Constitution specifically provided
    article II, section 4 of the Constitution which states, ``The
    President, Vice President, and all civil Officers of the United
    States, shall be removed from Office on Impeachment for, and
    Conviction of, Treason, Bribery, or other high Crimes and
    Misdemeanors.''
        On January 7, 1999, as one of my first official duties as a
    U.S. Senator, I took an oath to consider the evidence and
    arguments in the impeachment case against the President. We
    answered in the affirmative when the Chief Justice of the
    Supreme Court administered the following oath:

        Do you solemnly swear that in all things appertaining to the trial
    of the impeachment of William Jefferson Clinton, President of the
    United States, now pending, you will do impartial justice according to
    the Constitution and laws, so help you God?

        I understood that the private inappropriate conduct of the
    President alone did not then and does not now rise to a level
    necessitating his removal from office. My responsibility is to
    fulfill the oath I took to determine impartially based on the
    facts, evidence, and testimony whether the President committed
    high crimes and misdemeanors as outlined in the Constitution.
        During my 33 years in public office, I have had to make
    some very difficult decisions. As Governor, I had to make
    determinations on hundreds of requests for commutations and
    pardons. To my recollection, in no case have I labored more
    than I have over the articles of impeachment of our President.
        After an exhaustive study, which included reading volumes
    of transcripts, watching the taped testimony and listening to
    the able arguments made by the House managers, the White House
    counsel, and my colleagues in the Senate, I have reached the
    conclusion that, beyond a reasonable doubt, the President
    committed both perjury and obstruction of justice as outlined
    in articles I and II in the articles of impeachment.
        I also have concluded that the President's obstruction of
    justice was premeditated and undertaken over a long period of
    time beginning when he learned that Monica Lewinsky was placed
    on the witness list in the Jones case.
        It is particularly disturbing that he used his brilliant
    mind and superb interpersonal skills to sweep other people into
    his scheme, thereby impairing their credibility, all to
    extricate himself from taking responsibility for his conduct.
    But for a conclusive DNA analysis, he may have succeeded in
    that scheme.
        By committing perjury and obstructing justice, the
    President is guilty of high crimes and misdemeanors. As
    constitutional scholar Charles Cooper said, ``The crimes of
    perjury and obstruction of justice, like the crimes of treason
    and bribery, are quintessentially offenses against our system
    of government, visiting injury immediately on society itself.''
        He violated his oath of office and failed to fulfill his
    responsibility under the Constitution, which provides that the
    President ``shall take Care that the Laws be faithfully
    executed.'' Judge Griffin Bell has correctly noted, ``A
    president cannot faithfully execute the laws if he himself is
    breaking them.'' The President has undermined the fundamental
    principle that we are a nation ruled by laws and not by men.
    There is no way in good conscience that we as a nation can have
    a lawbreaker remain as President of the United States when his
    conduct in office has included the very same acts that have
    resulted in the impeachment of Federal judges and have sent
    hundreds of people to prison. Ours is a nation of equal justice
    under the law.
        I believe the framers of the Constitution had a President
    like Bill Clinton in mind when they drafted the impeachment
    provisions in article II, section 4--a very popular, brilliant
    communicator with extraordinary interpersonal skills who abuses
    his power, violates his oath of office, and evades
    responsibility for his actions because he believes he is above
    the law.
        One who has committed high crimes and misdemeanors
    disqualifies himself from serving as President, Commander in
    Chief, and chief law enforcement officer. The President also
    represents much more than these titles and responsibilities. He
    is a symbol of the greatness of the American people.
    Presidential scholar Clinton Rossiter observed that the
    President of the United States is ``the one-man distillation of
    the American people.'' And, President William Howard Taft
    described the President as ``the personal embodiment and
    representative of their dignity and majesty.''
        By virtue of his own conduct, William Jefferson Clinton has
    forfeited his elected right to hold the office of President. I
    sincerely believe that this country can survive the removal of
    a popular President who has forfeited public trust. But, our
    country cannot survive the abandonment of trust itself.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Frank R. Lautenberg

        Mr. LAUTENBERG. Mr. Chief Justice, the Senate must now
    fulfill a weighty and solemn duty. For only the second time in
    the more than 200 years since our Founding Fathers established
    the Constitution, we must vote on articles of impeachment
    against a President.
        When considering this issue, which goes to our core
    constitutional responsibilities as Senators, each of us must
    come to a conclusion based on his or her conscience. Guided by
    the Constitution, we must bring all of our moral beliefs, our
    education, our careers, and our experiences as public servants
    to the question. And we must try to reach a decision that will
    serve the best interests of the Nation for generations to come.
        As I reflect on the impeachment proceedings, I think first
    of the range of emotions I have felt. From the moment I
    realized that the President had engaged in this shameful
    relationship, I have struggled with my thoughts.
        I was angry, of course. I was ashamed for the President, a
    talented man--someone I consider a friend. How could he risk so
    much with his disgraceful behavior?
        I was saddened. I do not know how the President will
    reconcile himself to his family. I could imagine the
    embarrassment and the humiliation of the First Lady and his
    daughter Chelsea. I pitied them as they felt the searing glow
    of the public spotlight.
        I am sure that colleagues, on both sides of the aisle, have
    empathized with similar emotions.
        But now we must put those feelings aside. We have a very
    specific charge under the Constitution. That hallowed document
    delineates our duty. Under article II, section 4, we must
    determine whether the President has committed ``high Crimes or
    Misdemeanors'' requiring his removal from office.
        In my view, our Founding Fathers meant to set a very high
    standard for impeachment. Clearly, the phrase ``high Crimes or
    Misdemeanors'' does not include all crimes. But what are the
    crimes that meet that standard? I find the words of George
    Mason to be compelling. He understood the phrase to mean
    ``great and dangerous offenses'' or ``attempts to subvert the
    Constitution.''
        When applying this standard, we must also consider the
    national interest. The Founding Fathers vested the impeachment
    power in the Senate, and not the judiciary, precisely because
    this body would be accountable to the people.
        In the words of Alexander Hamilton, only the Senate would
    ``possess the degree of credit and authority'' required to act
    on the weighty issue of whether to remove a Federal official.
    In my view, this means that we must look not just at the facts
    and the law, but we must also try to determine what is in the
    best interests of the Nation.
        But we should not read the polls, or some other temporary
    gauge of the public temperament. Instead, we must look back
    through history, and toward the future, to reach a decision
    that will reflect well on the Senate and the Nation for
    generations to come.
        In my view, this case does not involve efforts to subvert
    the Constitution, and the national interest will not be served
    by removing the President from office.
        Before turning to the evidence, I want to express my
    concern with the way in which the articles of impeachment are
    written.
        They do not specify which statements and actions by the
    President are unlawful. Instead, they make general allegations.
    With this approach, we cannot fulfill our duty to the American
    people. The American people must know specifically what
    Presidential conduct justifies overturning an election.
        While the articles could have been more clearly written,
    there is a more fundamental problem. There is simply
    insufficient evidence for a vote to convict. Whether you apply
    the standard of beyond a reasonable doubt, or even the lower
    standard of clear and convincing evidence, the House managers
    have not proved their case.
        With regard to article I, the evidence does not support a
    charge of perjury. The President may have been uncooperative
    and evasive. He certainly was misleading. But he never
    committed perjury as that term is defined in the law.
    Consequently, the President should be acquitted on article I.
        There is also insufficient evidence to convict the
    President on article II, which charges him with obstruction of
    justice. The main problem with this article is that testimony
    from the principal witnesses do not support the allegations.
    Monica Lewinsky, Betty Currie, and Vernon Jordan testified that
    the President did not tamper with witnesses, conceal evidence,
    or take any other actions that would constitute obstruction of
    justice. All of the witnesses support the President's version
    of events.
        I realize that some of you may view the evidence
    differently. But I think we must still consider whether this is
    an appropriate case for the Senate to use the awesome power of
    impeachment to overturn a national election.
        I further ask you to consider the precedent we would set
    with a conviction of this President. We risk making the
    impeachment power another political weapon to be wielded in
    partisan battles.
        Our Founding Fathers warned against this. In ``The
    Federalist Papers'' No. 65, Alexander Hamilton noted that the
    prosecution of impeachable offenses would ``connect itself with
    the pre-existing factions.'' And that this would create ``the
    greatest danger, that the decision will be regulated more by
    the comparative strength of parties than by the real
    demonstrations of innocence or guilt.''
        Prior to the present case, the House of Representatives had
    seriously considered articles of impeachment against only two
    Presidents--Andrew Johnson and Richard Nixon. In the more than
    200 years since the Constitution was established, the House set
    the impeachment machinery in motion in only two occasions.
        Today, no one doubts that the serious abuses of our
    constitutional system by the Nixon administration warranted
    impeachment proceedings. And the bipartisan approach of
    Congress solidified President Nixon's decision to resign.
        But history has not been kind to those who pushed the
    impeachment of President Johnson upon the Nation. Scholars
    agree that the charges were baseless--a purely partisan
    campaign. Indeed, Chief Justice Rehnquist, who has presided so
    effectively in this case, wrote in his book on impeachment that
    if the Senate had convicted President Johnson ``a long shadow
    would have been cast over the independence'' of the Presidency.
        So for most of our history, the fears of our Founding
    Fathers have not been realized. Congress has not resorted to
    impeachment even when previous administrations faced far-
    ranging scandals--the Whiskey Ring scandal during the tenure of
    President Grant; the Teapot Dome scandal in the Harding
    administration, and more recently allegations that Presidents
    Reagan and Bush were not truthful regarding the Iran-Contra
    scandal.
        Historically, Congress has held its hand when circumstances
    might have warranted a pull of the impeachment lever. But
    contrast that history with the circumstances surrounding this
    case.
        President Clinton was a defendant in a civil lawsuit. In
    determining whether that lawsuit should be allowed to go
    forward while the President was in office, the Supreme Court of
    the United States noted that the case involved ``unofficial
    conduct.'' That case was eventually dismissed, and the
    plaintiff reached a settlement with the President.
        But with that lawsuit in place, the plaintiff's attorneys
    had license to probe into the President's personal life. The
    private lives of many people were paraded through the press.
        Then the independent counsel joined the hunt. Although he
    was originally appointed to investigate a real estate
    transaction in Arkansas, and even though he eventually cleared
    the President of any wrongdoing in that matter and other
    reckless accusations, the independent counsel turned his
    attention to a private affair.
        I think this background cautions against the use of the
    awesome and irrevocable power of impeachment. Think for a
    minute about how future partisans might proceed. We have a
    readily accessible legal system. Anyone with the filing fee can
    bring a lawsuit. And our laws provide great leeway in the
    discovery process.
        If we take the wrong path now, we can expect to see future
    Presidents hauled into court. They will be questioned
    repeatedly, and it will not be hard for skilled attorneys to
    hurl charges of perjury and obstruction of justice. We cannot
    allow the Presidency to be weakened in this way.
        Once again, we find the wisdom of our Founding Fathers
    providing guidance.
        James Wilson, who participated in the Philadelphia
    Convention at which the Constitution was drafted, observed that
    the President is ``amenable to [the law] in his private
    character as a citizen, and in his public character by
    impeachment.''
        In other words, the legal system, our civil and criminal
    laws provide the proper venue for a President who has failed in
    his private character, and in this case, the legal system can
    and will continue to address the President's personal
    transgressions.
        The Paula Jones lawsuit has been settled. When he leaves
    office, the President could be subject to further prosecution.
    But there is simply no injury to our constitutional system, no
    aspect of what James Wilson called the President's public
    character, which must be remedied through a Senate conviction
    under the impeachment power. Of course, I understand the great
    pain inflicted by the President's private character. As I said
    earlier, his behavior was reprehensible. He has shamed himself,
    his family, and the Nation.
        I understand the desire to punish the President for his
    conduct. But we must remember the many ways in which the
    President has already been punished. He has suffered enormous
    embarrassment and humiliation. Beyond that personal pain, he
    has also been subject to public condemnation. Every Member of
    Congress is on the record rebuking his behavior.
        Of course, this may not satisfy some. They may want more
    punishment. But please remember--the purpose of the impeachment
    power is not to punish. Instead, impeachment serves to protect
    the Nation from corrupt officials.
        So, to render a proper verdict, we must put aside the
    powerful desire to punish. And I submit that to impeach the
    President in this case would be a terrible use of the
    impeachment power, lacking proportionality and perspective.
        We must step back from the partisan precipice. We must not
    weaken the Presidency for future generations. We must reject
    these articles of impeachment and help restore the balance of
    power between the branches of the government.
        Let us put this matter behind, heal the wounds inflicted by
    partisanship, and rededicate ourselves to the challenges facing
    our Nation.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                   Statement of Senator Christopher S. Bond*
    ---------------------------------------------------------------------------

                                       * * * * *
    * Sen. Bond submitted an additional statement on February 23, see p.
    3058 below.
    ---------------------------------------------------------------------------
        Mr. BOND. Mr. Chief Justice, on Friday, February 12, 1999,
    I voted to convict President William Jefferson Clinton on both
    counts of the impeachment articles brought by the U.S. House of
    Representatives charging that he committed perjury and
    obstruction of justice. My reasons follow.
        On January 16, 1998, at the request of the U.S. Attorney
    General Janet Reno, the three judges of the U.S. Court of
    Appeals for the District of Columbia Circuit expanded the
    previously entered order authorizing the Office of Independent
    Counsel Kenneth W. Starr to look into certain matters relating
    to a lawsuit brought against President William Jefferson
    Clinton by former Arkansas State employee Paula Jones alleging
    sexual harassment. Pursuant to that order, Ms. Jones' attorneys
    issued subpoenas for evidence and deposed Mr. Clinton and
    others seeking information on a pattern of conduct that might
    be relevant to the issues in the Jones case.
        The President denied in a deposition in the Jones case and
    in a forceful statement to the American public that he had
    sexual relations with ``that woman,'' referring to Monica
    Lewinsky. Subsequently, however, Ms. Lewinsky turned over a
    stained blue dress that she had worn in an encounter with the
    President; a scientific examination revealed that the DNA on
    the dress was President Clinton's DNA.
        The Office of Independent Counsel convened a Federal grand
    jury to look into the matter and deposed Mr. Clinton in the
    White House on August 17, 1998, about his participation in the
    Jones lawsuit.
        The Office of Independent Counsel then referred the matters
    developed in the investigation to the U.S. House of
    Representatives, which on December 19, 1998, voted two articles
    of impeachment against Mr. Clinton alleging that he committed
    perjury before the Federal grand jury in four instances and
    that on seven occasions he had obstructed justice by tampering
    with witnesses and evidence in the Jones case proceedings.
        For the sake of brevity, I shall only cover several of the
    allegations and evaluate the evidence supporting them.
        Counsel for the President has admitted that there was an
    inappropriate relationship between the President and Ms.
    Lewinsky and that they had concocted a cover story to conceal
    their relationship and activities. On December 17, 1997, at
    approximately 2 a.m., Mr. Clinton telephoned Ms. Lewinsky after
    he learned that she had been summoned for a deposition in the
    Jones case. According to this testimony he called to tell her
    of the death of the brother of Mr. Clinton's secretary. Ms.
    Lewinsky states that he told her about the death of the
    brother, but that he also reminded her of their cover story and
    notified her that she was included on the witness list in the
    Jones case.
        According to Ms. Lewinsky's testimony, Mr. Clinton further
    stated that they might be able to avoid her testimony if she
    executed an affidavit. Although Mr. Clinton had also reminded
    Ms. Lewinsky of her cover story, the White House counsel made
    much of the fact that Ms. Lewinsky said that the President did
    not tell her to file a false affidavit and did not link the
    cover story to the need to file an affidavit.
        I do not believe it is at all inconsistent with a scheme or
    out of the ordinary to note that the President would not make
    such a connection. As an experienced attorney, the President
    would know he would be in grave danger if he ever explicitly
    asked anyone to file a false affidavit or to lie under oath. To
    paraphrase a statement made during the trial by Vernon Jordan,
    ``He is no fool.'' He would have known that such a statement
    could be revealed by subsequent judicial inquiry.
        Mr. Clinton did not have to tell Ms. Lewinsky expressly to
    execute a false affidavit. She knew that in the absence of
    contrary instructions she was to continue to follow their
    story. She was referred by the President's best friend, Vernon
    Jordan, to an attorney who drafted the affidavit for her. The
    President, through Mr. Jordan, was kept advised of the progress
    of the affidavit.
        During the time that Mr. Jordan was serving as liaison
    between the attorney and the President in the procuring of the
    affidavit, he was also pursuing a job search for Ms. Lewinsky,
    which he admitted was under his control.
        The President's lawyer was presented the affidavit and
    offered it into the evidence when the President was summoned
    before federal judge Susan Webber Wright to participate in the
    deposition on January 17, 1998, by the Jones attorneys. The
    President's attorney, Mr. Bennett, referred to the deposition
    in evidence and stated that it showed that there ``is
    absolutely no sex of any kind in any manner, shape or form''
    with Mr. Clinton. Mr. Bennett further stated, ``In preparation
    of the witness for this deposition, the witness (Mr. Clinton)
    is fully aware of Ms. Lewinsky's affidavit, for I have not told
    him a single thing he doesn't know. . . .'' (Evidentiary
    Record, S. Doc. 106-3, Vol. XIV, p. 23.) Although the videotape
    of the deposition showed the President looking in the direction
    of the attorney when the affidavit was presented, Mr. Clinton
    subsequently stated that he was not paying attention and had no
    knowledge of the representations made by his attorney about the
    affidavit.
        I believe that to be totally incredible.
        The President had known that Ms. Lewinsky would be a prime
    subject of the deposition and he had asked Ms. Lewinsky to file
    an affidavit and took steps to be kept advised of the progress
    of that affidavit. Subsequent events showed that his attorney,
    Mr. Bennett, did not at the time know the falsity of the
    affidavit and that Mr. Clinton was apparently the only one at
    the deposition who was fully aware of the fraud that was being
    perpetrated on the court.
        When Mr. Bennett later learned the falsity of the
    affidavit, he did what any attorney hates to do and that is to
    advise the court that he provided false information. He asked
    that the affidavit and his characterization of it be
    disregarded.
        I believe Mr. Clinton encouraged the execution of a false
    affidavit, secured job assistance to help prevent truthful
    testimony, and allowed his attorney to make false statements as
    alleged in article II, paragraphs 1, 4, and 5.
        When Mr. Clinton testified before the Federal grand jury on
    August 17, 1998, he was asked:

        A. If he misled Judge Wright in some way then you would have
    corrected the record and said, excuse me Mr. Bennett, I think the judge
    is getting a mis-impression by what you are saying?
        A. . . . I wasn't even paying much attention to this conversation.
        Q. Do you believe, Mr. President, that you have an obligation to
    make sure that the presiding federal judge was on board and had the
    correct facts?
        A. I don't believe I ever even focused on what Mr. Bennett said in
    the exact words he did until I started reading this transcript
    carefully for this deposition.--(Deposition of President Clinton, page
    30, lines 2-5.)

        I therefore believe he provided perjurious, false, and
    misleading testimony to the Federal grand jury concerning
    statements he allowed his attorney to make to a Federal judge
    as alleged in article I, paragraph 3.
        On December 28, 1997, the President met in his White House
    office with Ms. Lewinsky and exchanged gifts. During the course
    of the conversation Ms. Lewinsky raised the question of what to
    do with other gifts he had provided her and which had been
    subpoenaed by the attorneys for Paula Jones. According to Ms.
    Lewinsky, he made no definitive statement about the gifts.
        Very shortly thereafter, according to Ms. Lewinsky's
    testimony, Mr. Clinton's personal secretary, Bettie Currie,
    initiated a series of telephone conversations, in which in
    effect Ms. Currie communicated to Ms. Lewinsky that she
    understood from the President that Ms. Lewinsky had something
    for her. Pursuant to those telephone calls Ms. Currie picked up
    gifts from Ms. Lewinsky and took them back to Ms. Currie's
    apartment where she stored them under her bed.
        During the course of proceedings in the Senate, Ms.
    Lewinsky was asked in a deposition about these telephone calls
    and expanded upon her testimony about them. A prior statement
    by Ms. Currie that Ms. Lewinsky had actually initiated the call
    was recanted by Ms. Currie, and I believe the testimony of Ms.
    Lewinsky is credible. By hiding the gifts rather than
    presenting them to the Jones attorneys pursuant to the
    subpoena, Ms. Lewinsky committed a felonious act and, if Ms.
    Currie had knowledge of the subpoena, she also committed a
    felonious act of concealing materials covered by a valid
    subpoena. Mr. Clinton, by orchestrating, facilitating, and
    encouraging the suppression of evidence under subpoena, also
    committed a felonious act. I, therefore, believe that the
    charge in article II, paragraph 3, of the impeachment articles
    is proven.
        During the course of his deposition by the Jones attorneys,
    President Clinton continued to rely on his cover story and on
    the perjurious affidavit submitted by Ms. Lewinsky. During that
    deposition he referred repeatedly to Ms. Currie as one who
    would corroborate the cover story which he and Ms. Lewinsky had
    devised. Immediately after his testimony on Saturday, January
    17, 1998, he called Ms. Currie and summoned her to come into
    his office on a Sunday, January 18, 1998. There he stated five
    rhetorical questions to Ms. Currie: (1) ``I was never really
    alone with her . . . right?''; (2) ``You were always there when
    Monica was there . . . right?''; (3) Monica came to see me and
    I never touched her right . . . right?''; (4) ``She wanted to
    have sex with me and I can't do that . . . ?''; (5) ``You could
    see and hear everything . . . right?''
        Each of these statements supported the position taken by
    the President in the Jones deposition, but each one of these
    statements was false. The President was transmitting to Ms.
    Currie what he wanted her to say should she be called as a
    witness in this case. For good measure, he even went back to
    her a couple of days later and walked her through the
    statements again. It is uncontroverted that he made those
    statements, but he attempted to justify them on the basis that
    he was trying to refresh his memory.
        His statements to Ms. Currie on January 18, 1998, and
    several days later constituted relating a false and misleading
    account of relevant events to influence corruptly the testimony
    of a witness in a Federal civil rights action as alleged in
    article II, paragraph 6, of the impeachment proceedings.
        Subsequently, he also made statements to his subordinates
    including Sidney Blumenthal, John Podesta, and Erskine Bowles.
    The statements he made to them were also known by him to be
    false and were designed to provide misleading information
    through them which could be and subsequently was transmitted
    under oath in the judicial proceedings by the subordinates.
        His statements to his subordinates on January 21, 23, and
    26, 1998, were false and misleading statements to potential
    witnesses in a Federal grand jury proceeding to influence
    corruptly the testimony of those witnesses as alleged in
    article II, section 7, of the articles of impeachment.
        At his Federal grand jury testimony on August 17, 1998, Mr.
    Clinton falsely and corruptly denied he had attempted to
    influence the testimony of witnesses and impede the discovery
    of evidence in civil rights actions as set out in the analysis
    above. Thus, he committed the acts as charged in article I,
    paragraph 4, the count charging perjury. (Evidentiary Record,
    S. Doc. 106-3, Vol. III, pp. 559-60.)
        I believe that the evidence presented on the above charges
    was clear and convincing that the President engaged in a
    continuing scheme to fabricate and establish in Federal court
    proceedings a false story about his relationship with Ms.
    Lewinsky and that through circumstantial evidence, the direct
    testimony of Ms. Lewinsky, Ms. Currie, Mr. Blumenthal, and
    others, plus the corroborating evidence, he was shown to have
    committed the acts charged.
        The totality of his actions can be judged in the success
    with which he maintained his cover story. Had it not been for
    the DNA on the stained dress, there is little likelihood that
    the false cover story would have been exposed for the lie that
    it was. In perpetrating that false and misleading story Mr.
    Clinton tampered with witnesses, obstructing justice in the
    civil rights lawsuit brought against him by Paula Jones. He
    also falsely misrepresented these acts in testimony before the
    grand jury August 17, 1998.
        Having resolved in my mind the question that clear and
    convincing evidence shows that William Jefferson Clinton
    obstructed justice and committed perjury before a grand jury,
    the next issue is whether these activities rise to the level of
    offenses for which removal from office is the appropriate
    remedy. Defenders of the President have said that no one would
    press charges in a case like this, that it was not grave enough
    to merit a criminal proceeding, and that it certainly was not
    sufficient to warrant removing the President from office.
        With respect to the seriousness of the offense, it is
    worthy of note that during the year 1997, 182 people were
    sentenced by Federal judges for perjury and another 144 were
    sentenced for obstruction and witness tampering. These
    prosecutions were brought by Clinton administration appointees
    and in many instances in front of Clinton-appointed judges.
        The case of Dr. Barbara Battaglia is particularly
    compelling. In a lawsuit brought by a patient of a Veterans'
    Administration hospital alleging sexual harassment, Dr.
    Battaglia was asked in a deposition if she had had consensual
    sex with the plaintiff. Her answer to that question was a
    simple, ``No.'' When that denial was shown to be a lie, she was
    convicted of a felony and sentenced to house arrest with an
    electronic monitoring device. She has lost her ability to
    practice medicine and also her ability to utilize her law
    degree to practice law.
        The serious nature of these offenses is particularly clear
    when considered in the context of the proceedings. The U.S.
    Supreme Court had ruled unanimously that Mr. Clinton, as
    President, had to answer the lawsuit filed by Paula Jones. A
    Federal judge was assigned to the suit and presided over the
    deposition in which Mr. Clinton testified and at which time he
    and his lawyer presented the false affidavit.
        It is totally inconsistent within the context of this case
    and the sound functioning of the judicial system to say that
    the Supreme Court meant that Mr. Clinton should respond to
    these charges but he was not bound to respond truthfully. His
    actions in procuring and using false affidavits, causing the
    hiding of subpoenaed evidence, and tampering with a potential
    witness by giving false information to use in any testimony
    effectively denied the plaintiff the civil rights the Supreme
    Court ruled she had. To say that the acts are not grave, not
    high crimes, and not a threat to the judicial system, is
    untenable. No lawyer could make such a statement in open court
    and not be subjected to the loss of a license to practice law.
        Likewise, his lies to a grand jury from his White House
    office were a serious challenge to the administration of
    justice.
        Moreover, the debates of the authors of the Constitution
    showed that they considered obstructing justice would warrant
    the President's impeachment and conviction. George Mason asked
    if the President could advise someone to commit a crime and
    then before an indictment or conviction use the power of a
    pardon to stop inquiry and prevent detection. James Madison
    responded that, ``If the President be connected, in any
    suspicious manner, with any person, and there be grounds to
    believe he will shelter him, the House of Representatives can
    impeach him.'' (Elliott, ``Debates on the Adoption of the
    Federal Constitution,'' Vol. III, p. 498 (1836 ed.).)
        Another argument has also been made by the White House
    counsel and supporters of the President that to remove the
    President from office on impeachment would be to nullify the
    election. This argument suggests that impeachment is never an
    appropriate remedy, provided the President is popular and the
    country is enjoying good times. The office of the Presidency is
    not so brittle that it would be gravely damaged by removing the
    current President or any other President. The Founding Fathers
    certainly did not envision that impeachment could only apply to
    an unpopular President or one who was leading the country in
    hard times.
        At the height of a cold war with United States forces
    engaged in Vietnam, impeachment proceedings against President
    Richard M. Nixon forced him to leave office. The country was
    not wounded, it did not lose its way; Vice President Gerald
    Ford assumed the Presidency and continued the course of
    government. In this case, Vice President Al Gore would assume
    office and would be expected to continue the policies of the
    Clinton administration.
        The U.S. Senate in recent years did not shirk from driving
    from office a colleague accused of obstructing justice in a
    sexual harassment case. No one objected that we had
    ``nullified'' the votes of the citizens of his State.
        Some of my colleagues have argued that the President has
    been so strong and forceful in foreign policy and conducted
    such wise relations with other nations that we could not afford
    to lose him. That argument, too, smacks of a referendum on the
    President's conduct of office, not a judgment on his wrongful
    acts. If we were to judge impeachment on the basis of the
    policies of the President, then impeachment could always be
    expected to be purely a partisan matter turning on the approval
    or disapproval of formulation or implementation of policy by
    the President. The framers rightfully dismissed any option that
    the proper or improper administration of the regular powers of
    the President would be involved in a decision on impeachment,
    either positively or negatively.
        In addition, we have the precedents set by the removal by
    the Senate of judges who have been found to have committed
    perjury. During my tenure in the Senate we have twice removed
    judges for committing perjury because of the serious adverse
    impact perjury has on our judicial system. If a judge is
    removable for committing the significant act of perjury, can
    the one who appoints the judge be held to a lower standard?
        The President not only appoints the judges, he appoints the
    Attorney General, the U.S. attorneys, and the Supreme Court
    Justices. Certainly we should impose no lower standard on the
    person with the ultimate responsibility for the proper
    administration of justice than on those he appoints.
        It is precisely in good times, with the President high in
    the polls, that it is incumbent upon the Senate to exercise
    very thoroughly and carefully the responsibility under the
    Constitution to make the difficult decision on whether the
    President has committed high crimes and misdemeanors warranting
    his removal from office. If we are to have a government of laws
    and not of men and not of public opinion polls, then we must
    judge the President on the evidence presented to us. I believe
    that the acts that he committed constitute high crimes and
    misdemeanors warranting his conviction.
        I should note that the Senate made a serious mistake in
    beginning the proceedings by limiting the ability of the House
    managers to call witnesses. The absence of witnesses to testify
    to the acts alleged as the basis of impeachment charges
    significantly impeded the progress toward resolving the
    allegations against the President. I trust that the Senate will
    not make the same mistake in future impeachment proceedings.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Charles S. Robb

        Mr. ROBB. Mr. Chief Justice, colleagues, sitting in
    judgment of the President of the United States is not easy for
    any of us. It is particularly difficult for me because of the
    personal and political relationship I have had with this
    President over the last 20 years. We served together as
    Governors in the early eighties, as several of you did. We
    traveled together on foreign trade missions. We shared similar
    priorities for our States. At my urging, he joined the
    fledgling Democratic Leadership Council, which would later
    become an intellectual and organizational resource for his
    Presidential campaign.
        From our earliest meetings, I recognized in him, as many of
    you have recognized, gifts of head and heart and a truly
    extraordinary range of political and communication skills that
    marked him with a potential for greatness. It was not as a
    friend, however, but as a U.S. Senator that I took an oath to
    render impartial justice under the Constitution in this
    impeachment trial. I was fully prepared to convict and remove
    the President from office if I concluded that the articles
    charged met the test of high crimes and misdemeanors as
    envisioned by the framers of our Constitution, and if the
    evidence convinced me of his guilt beyond any reasonable doubt.
    That is the standard I would require to remove this President
    or any President from office.
        As we wrestle with the decisions before us today, I believe
    that it is incumbent upon us to reflect on the consequence of
    these decisions tomorrow; for while this trial is about this
    President, it is also about the future of this Republic. We
    simply cannot escape the fact that what we do today will affect
    the strength and stability of our Nation because the actions we
    take, the precedent we set, directly affects the separation of
    powers and the independence of the Presidency as an
    institution.
        The writings of the framers and the overwhelming consensus
    of the scholarship that has followed demonstrate that the
    mechanism for removing a President was central to maintaining
    the delicate balance of power among the three branches of
    government. The Founding Fathers struggled to resolve the
    tension between making it too difficult to remove a President,
    thereby creating a king, and making it too easy, thereby
    creating a weak Chief Executive who would serve at the pleasure
    of the legislature. As more than 400 scholars concluded last
    November, the lower the threshold for impeachment, the weaker
    the President.
        The resolution of this dilemma--where to set the standard
    for removal--occupied the brilliant minds of several Virginians
    who took part in our constitutional debates two centuries ago.
    When George Mason offered specific language to define an
    impeachment standard, James Madison worried about making the
    standard too low. In worrying, he replied that so vague a term
    would be equivalent to a tenure at the pleasure of the Senate.
    After much deliberation, our founders finally agreed that the
    President should be removed only for committing treason,
    bribery, or other high crimes and misdemeanors against the
    United States. Thereafter, as we all know, a Committee on
    Style, which had no authority to make substantive changes,
    dropped the last four words, considering them redundant.
        Alexander Hamilton defined impeachable activities as those
    that relate chiefly to the injuries done immediately to society
    itself. During the debate, Edmund Randolph, a Virginia
    Governor, reflected concerns. He stated that the Executive will
    have great opportunities of abusing his power, particularly in
    time of war when the military force and, in some respects, the
    public's money will be in his hands. Clearly, our founders
    created impeachment not to punish the President, but to protect
    the Republic. They had lived under a king and they didn't want
    another.
        History and common sense tell us, therefore, that the
    threshold for impeachment should be high--very high. It should
    be difficult, not easy, to impeach a President of the United
    States because impeachment is the ultimate sanction for
    protecting the Republic. It is a weapon to be respected and
    feared, but wielded only under the most compelling
    circumstances. Similarly, history and common sense tell us that
    removing a President is not the same as removing a Federal
    judge. In James Madison's records of the debate at the Federal
    Constitutional Convention, he wrote, ``The judiciary hold their
    places not for a limited time, but during good behavior.'' The
    Executive was to hold his place for a limited term, like the
    members of the legislature.
        Like them--particularly the Senate, whose Members would
    continue in appointment in the same term of 6 years--he would
    periodically be tried for his behavior by his electors, who
    would continue or discontinue him in trust, according to the
    manner in which he had discharged it. Likewise, removing a
    President is not the same as removing a member of the Armed
    Forces for violating the military code of conduct. The Uniform
    Code of Military Justice is required to maintain the good order
    and discipline for waging war and securing peace. And all of us
    who have served in the Armed Forces understood that we swore an
    oath to obey a code not required of any civilian, even those
    with the power to send us into harm's way--a civilian Commander
    in Chief, our Secretary of Defense, and Members of Congress.
        Finally, removing a President is not the same as punishing
    a citizen in a court of law. Like any citizen, a President can
    be fully punished in court after he leaves office, and the
    failure to convict him in an impeachment trial in no way
    precludes a subsequent criminal prosecution.
        If a President is subject to the law, then he is clearly
    not above it, as some have claimed.
        Some also argued that since the President's oath requires
    him to faithfully execute the laws, any violation of those laws
    should thereby warrant his removal from office. While that
    argument may be appealing, it simply was not the standard
    adopted by the framers. Their standard was narrowly confined to
    treason, bribery, or other high crimes or misdemeanors. And it
    is against this standard that we are called upon to judge the
    conduct of this President.
        I believe the President lied. When he came before the
    television cameras and addressed the American people, wagging
    his finger and denying that he had sexual relations with a
    subordinate employee, he lied. This offensive public conduct,
    which has caused me the greatest personal anguish, is an act
    that will be forever seared into our Nation's memory. His
    deception was calculated, politically motivated, and directed
    at each and every one of us.
        Though clearly reprehensible, this lie did not violate any
    law and was not the subject of any article of impeachment. So,
    while I am convinced that the President lied to us, I am not
    convinced beyond a reasonable doubt that he lied to the grand
    jury, which is the sole basis for the first of the two
    impeachment articles.
        Despite the apparent strength of the evidence, the House of
    Representatives defeated an article alleging perjury in the
    President's civil deposition. They voted to impeach the
    President for perjury based solely on his testimony before the
    grand jury. Article I alleges that the President willfully
    provided perjurious, false, and misleading testimony to the
    grand jury.
        I listened intently to the arguments presented by both
    sides, and I have read the President's grand jury testimony
    carefully. In my judgment, the President's grand jury testimony
    ultimately boiled down to a few irreconcilable discrepancies,
    and while often slippery, hairsplitting, legalistic, and, in
    the words of the President's counsel, ``maddening,'' was not
    perjurious beyond a reasonable doubt.
        On article I, therefore, I will vote not guilty.
        Article II alleges obstruction of justice, a crime
    difficult to prove because it requires a determination beyond a
    reasonable doubt about what a person intended by his words or
    deeds.
        In this case, it is extremely difficult to determine
    whether the President's intentions were to obstruct justice in
    a civil or a criminal proceeding, or whether his intention was
    to mislead his family and the Nation about an embarrassing
    personal relationship. While his intent is difficult to prove,
    the unconstitutional bundling of charges contained in article
    II is clear to me.
        Article I, section 3, of the Constitution clearly requires
    that in an impeachment trial no person shall be convicted
    without the concurrence of two-thirds of the Members present.
    The rule of law requires concurrence by two-thirds.
        While article I, in my judgment, violates this
    constitutional requirement, at least it focuses on a single
    event. Article II is flagrantly worse. Drafted in the
    disjunctive and containing 7 subparts each alleging a separate
    act of obstruction of justice, the bundling of these
    allegations would allow removal of the President if only 10
    Senators agreed on each of the 7 separate subparts. If, for
    example, 10 Senators voted to convict based solely on subpart 1
    and a different group of 10 Senators voted to convict based on
    subpart 2, and so on, it would be possible to reach a total of
    70 votes for conviction. But that total would not have been
    reached with a two-thirds concurrence on any individual
    subpart.
        Such a pleading is not allowed under the Federal Rules of
    Criminal Procedure and would be thrown out by every Federal
    court in the land. Surely the founders did not envision
    removing a President from office if no more than 10 Senators
    could agree on a given allegation.
        Trying to justify this unconstitutional bundling by citing
    a similar approach in the Richard Nixon case is weak because
    the Nixon charges were not presented to the Senate. Trying to
    justify this unconstitutional bundling by citing the Senate
    impeachment rules is no more compelling since our rules cannot
    conflict with the Constitution. We simply cannot remove a
    President from office with an article of impeachment that so
    clearly violates constitutional standards that we are required
    by law to follow.
        On article II, therefore, I will vote not guilty.
        Thus, I will vote not to convict on both articles because
    the factual, legal, and constitutional standard for removal was
    not met.
        I am not prepared to say, however, that perjury and
    obstruction of justice are not impeachable offenses, because I
    believe it would be a mistake to attempt to do that which the
    founders chose not to do--to define what is impeachable with
    specificity.
        For impeachment to remain what our forefathers intended it
    to be--a deterrent to misconduct and a means to protect the
    Republic--future generations should be free in each case to
    examine the facts, apply the law, and follow the Constitution
    and to render impartial justice. That is the impeachment
    process we have inherited from those who came before us, and
    that is the precedent we bequeath to the ongoing chronicles of
    American history.
        The legacy of this trial, I believe, is not what becomes of
    one man. This trial is larger than one man. The legacy of this
    trial is that the Senate, sitting as a Court of Impeachment,
    proved worthy of the faith of our founders to render justice.
        No matter what judgment is rendered, however, this trial
    cannot exonerate the President. A vote against conviction is
    not a vote to condone his lying to the American people, nor
    does it suggest that any Member of the U.S. Senate believes
    that perjury or obstruction of justice charges are anything but
    serious. They are very serious charges.
        Sadly, the vote we are poised to take on these charges has
    divided our Nation. In the eyes of too many of our citizens,
    this vote will represent either a nonmilitary coup attempt
    against a duly elected President or a victory for those bent on
    accelerating the moral decline of the Nation. In truth, this
    vote represents neither. A vote for acquittal indicates nothing
    more and nothing less than what it says. The case to remove the
    President from office was not proven.
        We sit in judgment today not because we are free from human
    failings--I certainly have my share--but because our
    forefathers bestowed upon the Senate the responsibility of
    protecting the Republic by judging the President when articles
    of impeachment are exhibited by the House of Representatives.
    In doing so, they carefully and deliberately limited the scope
    of our judgment.
        We are judging the President in his capacity as President,
    and we are called upon to decide only one issue--whether he
    should be removed from office. The Senate does not have the
    duty nor the capacity to rule on the broader character of the
    President. In our limited role, we are not called upon to judge
    him as husband and father, for that is the province of his
    family. We are not called upon to judge him as accused citizen,
    for that is the province of the courts. We are not called upon
    to judge him as sinner, for that is the province of God. And we
    are not called upon to judge his legacy, for that is the
    province of history.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Barbara Boxer

        Mrs. BOXER. Mr. Chief Justice, thank you for your dignity.
    And to both our leaders, thank you for your patience.
        Colleagues, I will vote to acquit the President, and it is
    not because his poll numbers are high or because the economy is
    good. And it is not because Bill Clinton is a Democrat.
        When I was in the House of Representatives, an impeachment
    resolution was filed against Republican President Ronald
    Reagan--an impeachment resolution because of Iran-contra, which
    involved selling arms to a terrorist nation with the proceeds
    going to the Nicaraguan contras. This was against the law of
    the United States of America--against the law--against the rule
    of law.
        I voted for that law, but I never went on that impeachment
    resolution against Ronald Reagan because I felt it would have
    hurt the country and because there was no bipartisan support
    for it.
        I think the same should be said of this impeachment. There
    is no bipartisan support for it and the President's removal
    would hurt the country.
        One more preface: It has been said that what the President
    did in this case was worse than what Senator Packwood did.
        In this case, we have a consensual affair, wanted by both
    parties. It was irresponsible and indefensible: a young woman,
    a relationship wrong in every way, a President trying
    desperately to hide the affair.
        The young woman was secretly tape-recorded and forced to
    testify. Her mother was forced to testify.
        The more than 20 women who complained about Senator
    Packwood alleged forced sexual misconduct against them. One
    victim was 17 years old. They wanted to tell their stories.
        So each of us can decide for himself or herself the
    relationship of one case to the other. But surely that is not
    the issue before us.
        Neither is the Paula Jones case, which was thrown out of
    court by a Republican female judge who ruled that there was no
    sexual harassment by the President. Testimony about a
    consensual sexual affair was immaterial.
        Yes, the case was later settled, but that doesn't change
    its history: no sexual harassment, determined by a Republican
    female judge.
        So Senator Packwood is not before us, nor is Paula Jones.
    What is before us is the sanctity of the Constitution.
        Let me now offer an apology to my constituents for voting
    in favor of the independent counsel law in its current form--a
    law that has given one person an unlimited budget, unlimited
    scope, unlimited time and an unlimited ability to hurt people,
    and to hurt them badly.
        The Senate is now sitting as a Court of Impeachment,
    primarily because, for over 4 years, we had an independent
    counsel spending more than $42 million searching for an
    impeachable offense.
        And while I condemn the President's behavior, it was no
    excuse for the Ken Starr witchhunt, which went from a real
    estate deal, to several other fruitless investigations, to a
    sex deal built around illegally recorded phone conversations
    with someone named Linda Tripp. Linda Tripp, who says she's
    like all of us. Heaven help us if all of us act like Linda
    Tripp, secretly recording our dear friends. What a country this
    would be!
        I also want to comment on one other matter which is
    personal to me, and that is my daughter's family connection to
    the First Lady.
        While none of my Senate colleagues questioned the propriety
    of my participation in the impeachment matter--for which I
    thank you all--I was the target of a barrage of questions by
    the media and others outside this body.
        I just want to say that yes, my daughter is married to the
    First Lady's brother, a brother who loves and admires his
    sister and doesn't want to see her hurt. So I am far from being
    a defender of the President's behavior.
        I am a fierce defender of our Constitution. That is why I
    have joined a small number of Senators, led by the
    distinguished senator from West Virginia, in fighting
    amendments to that precious document.
        Believe me, being against the line-item veto and the
    balanced budget amendment were not popular positions in my
    State; my positions made my reelection tougher. But I have
    never doubted that defending the Constitution is worth risking
    my Senate seat, which I cherish so much, and it is because of
    my deep reverence for the Constitution that I believe we must
    reject the articles of impeachment before us today.
        Why? Because the high crimes and misdemeanors
    constitutional requirement for removal has not been met--not
    even close.
        The Constitution does not say remove the President if he
    fails to be a role model for our children. It does not say
    remove the President if he violates the military code of
    conduct, or the Senate Ethics Code. It does not say remove the
    President if he brings pain to his family.
        It says very clearly that the President shall be impeached
    and removed from office only for committing treason, bribery or
    other high crimes and misdemeanors.
        In his ``Commentaries on the Constitution,'' Justice Joseph
    Story endorsed the view that ``those offenses which may be
    committed equally by a private person as a public officer are
    not the subject of impeachment.'' This means that Presidential
    impeachable offenses are, generally, acts which could not be
    done by anyone other than the President.
        Impeachment and removal from office was not meant to be a
    punishment of the President, but rather a protection of the
    country from a tyrant who would use his or her power against
    the people and the Constitution.
        This President is not a tyrant who is threatening our
    democracy and freedom or the delicate balance of powers set up
    by our Constitution. So the ``high crimes and misdemeanors''
    standard established by the Constitution has not been met in my
    view.
        We must also reject these articles because there is every
    reason to doubt the House managers' case on perjury and
    obstruction of justice. They have presented not one shred of
    direct evidence for their claims, and the details of their
    circumstantial case have been decimated in many respects. As
    one manager said on national television, he couldn't win the
    case in a court of law as it was presented in the House.
        I don't see how the case was strengthened in the Senate. In
    fact, I believe that it was weakened in the Senate.
        When you have clear statements by Monica Lewinsky that the
    President never, ever told her to hide gifts and never
    discussed the contents of her affidavit--when you have Betty
    Currie saying she never felt intimidated by the President and
    Vernon Jordan saying the job search was never connected to
    anything else--it seems to me there is substantial doubt on
    both counts.
        That leads to another point. Rejecting these articles of
    impeachment does not place this President above the law. As the
    Constitution clearly says, he remains subject to the laws of
    the land just like any other citizen of the United States.
        As article I, section 3 of the Constitution says, the
    President ``shall . . . be liable and subject to Indictment,
    Trial, Judgment and Punishment, according to Law.'' So it
    should be a comfort to those who believe the President
    committed crimes surrounding his affair that the President,
    indeed, is subject to the rule of law--our founders made that
    certain.
        At this point, I want to thank Senator Tom Harkin for his
    challenge to the House managers that the Senate is not a jury.
    In so ruling, Chief Justice Rehnquist, in my view, gave us the
    charge to look at the big picture, and that is very important.
        Part of that picture is how the House of Representatives
    acted in this matter. I served in the House for 10 years, and I
    never saw the minority party denied a vote on an alternative of
    their choosing in an important matter. Yet Democrats and
    moderate Republicans were denied a vote on censure, and I
    believe this was a disaster for democracy in that body.
        Listen to what a Republican House Member who voted against
    impeachment wrote to a constituent:

        I regret that congressional Republicans were so blinded by their
    opposition to President Clinton that they voted to impeach him rather
    than stand by the traditional principles of their party. I also regret
    that threats were made against me by the Republican leadership in an
    attempt to keep me from voting my conscience.

        Those are the words of one of the five brave Republicans
    who voted against impeachment in the House. To me that speaks
    volumes about the kind of illegitimate process that got us
    here, and I believe in my heart that history will judge the
    House proceedings very harshly.
        I believe the Senate, if it rejects the articles in a
    bipartisan way, will be viewed in a better light, and history
    will say that in 1999 the Senate decided that impeachment
    should not be used by one party to overturn the results of a
    Presidential election that it did not like.
        As Chief Justice Rehnquist wrote of the Senate acquittal of
    President Andrew Johnson in 1868:

        The importance of the acquittal can hardly be overstated. With
    respect to the Chief Executive, it has meant that as to the policies he
    sought to pursue, he would be answerable only to the country as a whole
    in the quadrennial Presidential elections, and not to Congress through
    the process of impeachment.

        If I may, Mr. Chief Justice, I understand from your wise
    words that the President does not and should not serve at the
    pleasure of the House and Senate.
        The Senate did the right thing in 1868--and by its decision
    not to remove the President, it brought stability to our
    Nation. We should do no less now.
        Voting against the articles of impeachment is the right
    thing to do to keep faith with our Constitution and to keep
    faith with our democracy for generations to come.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Connie Mack

        Mr. MACK. Mr. Chief Justice, today the Senate finds itself
    at an unlikely crossroads in American history. We have
    assembled as a Court of Impeachment to sit in judgment of our
    President, William Jefferson Clinton, on the charges of perjury
    and obstruction of justice. We have worked our will in this
    matter according to a process rooted in English common law,
    written by our founders into the Constitution, and exercised
    against the Chief Executive only once before in American
    history.
        This is not a task to be taken lightly, and we have not
    arrived easily at our decision. The Senate today is engaged in
    weighty struggles that go to the very heart of our private and
    public lives. We are at an unlikely juncture between principle
    and public opinion, repentance and the rule of law, perception
    and punishment, forgiveness and findings of fact. These are
    difficult issues, Mr. Chief Justice. We approach our task fully
    aware that our decisions today will reverberate across this
    great land and throughout the length and breadth of history.
        There has been much discussion about how we got here. And
    while the answer to that question may be varied in all its
    permutations, then amplified in the echo chamber that is our
    modern public debate, it can be said with assurance that this
    whole unseemly business began when the President, caught in an
    improper private act, took deliberate steps to conceal it. And
    for all the other parties blamed for our presence here today--
    the media, the independent counsel, the political factions
    opposed to the President, the House of Representatives--it must
    be clearly understood that this process began with the
    deliberate and willful acts of the President of the United
    States to lie in a Supreme Court sanctioned civil rights
    inquiry and obstruct the due course of justice. It all started
    with the high-handed disregard for the law exhibited by the
    Nation's Chief Executive. It ends today.
        Mr. Chief Justice, when the sound and fury of the moment
    has passed, and this episode can be observed with the
    objectivity that comes with the passage of time, I believe it
    will be self-evident that we have followed the Constitution to
    the best of our abilities. In a free, democratic society such
    as ours, the foundation of freedom is an independent judiciary,
    the rule of law, and most importantly the Constitution. Our
    Constitution is the framework for American society, and I have
    been constantly reminded throughout these proceedings of the
    importance of our duty to honor the dignity of this document.
        The magnitude of this undertaking deserves no less than a
    sincerity of purpose and an absolute confidence in the wisdom
    of our founders. The American people should not be swayed by
    those who argue the prominence of this case--in all its tawdry
    and unseemly detail--has made unnecessary a thorough process of
    determining the truth. We stand in judgment of the President.
    Our decisions will be remembered throughout history. Our
    precedent may be followed by future Senates. Yet still we have
    heard throughout this exercise the unfortunate call to end
    these proceedings, save a few weeks, and inject the politics of
    expediency into a monumental Constitutional undertaking. I find
    these arguments display a remarkable lack of confidence in the
    sound and just system outlined by our founders to address very
    serious charges levied against the President of the United
    States.
        I am grateful the Senate rejected those calls and put in
    place a responsible mechanism for the thorough airing of fact
    and argument. I am confident our process during this trial,
    though far from perfect, was appropriate. We allowed time for
    detailed presentations on the part of the House of
    Representatives and the President. We held an extensive
    question-and-answer session to review and clarify matters
    presented by both sides. And we have allowed for the
    appropriate and necessary deposition of key witnesses.
    Unfortunately, the simple fact is that the outcome of this
    matter was, in many minds, predetermined. In spite of this, the
    integrity of the process was, time and again, fought for and
    protected. Now--today--it only remains for us to cast our
    votes.
        I wish to address my remarks not so much to the people
    listening in this room today, but rather to those future
    generations who will look back at the record and transcripts
    for guidance, direction, and a more thorough understanding of
    the process that played out in this Chamber during the first 2
    months of 1999. I mentioned earlier the significance of the
    Constitution. I cannot stress enough the essential role that
    this historical document has played in the trial of William
    Jefferson Clinton. This document laid the framework for what
    has taken place. Be it understood, the Senate tried the
    President because the Constitution requires that we do so.
    There is no exception for popular Presidents, such as William
    Jefferson Clinton. The Constitution provides for this process
    to be applied to everyone evenhandedly.
        Although the trial of this President was not a trial in the
    traditional sense, it is important to note that if the
    impeachment of a President presents itself again, there is
    nothing restricting a more traditional trial from occurring. In
    fact, I would encourage future Senates to utilize a judicial
    proceeding more closely aligned to a typical courtroom trial.
    Every impeachment trial will have its own dynamic environment,
    determined by the political and social context in which it
    occurs. The trial of William Jefferson Clinton occurred in a
    prosperous time. The citizens of this Nation are largely
    satisfied, the President enjoys consistently high approval
    ratings, and the economy is outstanding. Impeaching and then
    trying the President has not engendered popular public support.
    I make these observations for future generations who reflect on
    this process simply to explain the mood of our Nation and the
    political environment in which this proceeding occurred. As a
    result, we should not deceive ourselves into believing that
    public opinion did not impact this process. I would like to
    believe, however, that the competing demands of expediting the
    process versus honoring our constitutional duties created a
    struggle that produced the most fair trial possible under the
    circumstances. Accordingly, the process we followed and the
    rules complied with may not be appropriate for the next trial.
    The decisions made in this environment should not be considered
    to set a precedent that is inflexible. In fact, the precedent
    we set deserves thoughtful consideration and reasoned critique
    when reflected upon in the years and decades to come.
        In that light, our official duties in this matter began on
    December 19, 1998, when the U.S. House of Representatives
    impeached the President, William Jefferson Clinton. After
    listening to the evidence, reading the trial memorandums and
    the record, and carefully considering the arguments presented
    by both the House managers and White House counsel, I believe
    the President is guilty of both articles.
        Before I address the merits of the case against the
    President, I think it is necessary to discuss whether the
    crimes of perjury and obstruction of justice constitute high
    crimes and misdemeanors as contemplated by the framers of our
    Constitution. This topic has been the subject of much
    controversy in the past months.
        It is true that private acts are the genesis of the matter
    before us. Had the acts stayed private, we would not be here
    today. The President, however, brought these private acts under
    our public purview and created a matter of public concern when
    he used his position and his power to deny and obstruct the
    civil rights of Paula Jones.
        Contrary to what has been asserted, this is not just a case
    about a sexual encounter between the President and a young
    White House intern. This instead is a case about depriving
    Paula Jones, an individual who sought and was granted the right
    to file a civil rights action against the President, of her
    constitutional right to a day in court, a right which nine
    Justices of the Supreme Court unanimously decided that she
    deserved. And--almost unbelievably--on the heels of this
    Supreme Court mandate, the President seemed to strengthen his
    efforts to deny Paula Jones' civil rights. Once these acts
    moved into the public arena, forming the basis for charges as
    serious as perjury and obstruction of justice, it is my opinion
    these acts became high crimes and misdemeanors as envisioned by
    our founders. While our only precedent involves the
    impeachments of Federal judges, I am satisfied the standards
    used in these cases also apply to the charges levied against
    the President.
        The President of the United States is the head of the
    executive branch and the chief law enforcement officer of this
    Nation. When the Founding Fathers established our tripartite
    system of government, it was decided that the three branches of
    government would operate as checks and balances on one another.
    As a result, no branch would be more powerful than the other.
    This structure is at the very core of our success as a
    Republic.
        By obstructing justice and lying under oath, William
    Jefferson Clinton violated his duty as chief law enforcement
    officer, disrespected the judicial branch of the government,
    and undermined the foundations of our judicial system's truth-
    seeking process. If I were to determine that the President's
    actions did not constitute high crimes and misdemeanors, I
    would be asserting that the executive branch and the Office of
    the Presidency are more important than the judicial branch, and
    that the President of the United States is not obligated to
    abide by the rule of law. As a citizen and as a Senator, I
    cannot, in good faith, ignore the separation of powers
    argument. In my view, the President's conduct was in violation
    of the rule of law and his actions have betrayed the trust of
    the people of the United States. It is my firm belief that the
    serious offenses committed by William Jefferson Clinton are
    high crimes and misdemeanors and warrant impeachment,
    conviction, and removal from office.
        Amazingly, we continue to hear the argument that although
    the President's actions rise to the level of high crimes and
    misdemeanors, he should not be removed from office. The
    Constitution provides if a President is found guilty of high
    crimes, then he is automatically removed from office. Our
    Constitution does not allow for finding the President guilty of
    high crimes and misdemeanors, and then permitting him to stay
    in office. Only an amendment to the Constitution would make
    such a step permissible.
        There were several points during the trial of the President
    when I had a visceral reaction to certain charges raised by the
    House managers. This reaction occurred, each time, at precisely
    the point when the managers discussed the President's strategy
    to attack the character of Monica Lewinsky, Kathleen Willey and
    others. The callous disregard for the soul of another human
    being and the unsympathetic wounding of the character of
    another carried out by the President using the apparatus of the
    Presidency is chilling and deserves condemnation by those who
    cherish freedom.
        Before I proceed to my view of the specific articles, it
    may help to explain that I approach this process unencumbered
    by a law degree. While that in no way gives me license to
    disregard the legal aspects of the matter before me, it does
    permit me to translate legal concepts into layman's terms. As I
    worked my way through the voluminous record and sat through
    days of the trial, I found it easiest to understand this case
    if I approached it in chronological order. Given that, I will
    discuss the obstruction of justice count first, because in the
    course of this tragic series of events, I believe the President
    started down this slippery slope by the actions he took, as
    opposed to the words he spoke. Sadly, the words, uttered under
    an oath to tell the truth, came later.
        I view obstruction of justice, in its most simple terms, as
    actions that somehow interfere with the fact-finding or truth-
    seeking mission of a lawsuit. The record before us is replete
    with examples which, in my opinion, prove that the President of
    the United States intended to, and did in fact, obstruct
    justice. Specifically, I believe the President obstructed
    justice by corruptly engaging in, encouraging, and supporting a
    scheme to conceal evidence that had been subpoenaed in the
    Jones case; by encouraging Ms. Lewinsky to file a false
    affidavit in the Jones case; by allowing his attorney to make
    false and misleading statements to a Federal court judge; by
    relating false and misleading statements to Ms. Currie and
    Presidential aides in order to influence their testimony; and
    by intensifying and succeeding in an effort to secure job
    assistance for Ms. Lewinsky in order to encourage her to
    testify favorably toward the President in the Jones case.
        I believe the first example of obstruction occurred when
    the President was issued a subpoena in the Paula Jones case.
    This case was a Federal civil rights action in which the
    President was sued for sexual harassment, hostile work
    environment harassment, and intentional infliction of emotional
    distress. As part of the discovery process in the Jones case,
    subpoenas were issued to several former State and Federal
    employees suspected of having sexual relations with the
    President. Included in these was a subpoena which requested the
    President to produce the gifts he had received from Monica
    Lewinsky. This request was denied by the President on five
    different occasions, as ultimately five separate subpoenas were
    issued. As a last resort, Judge Wright granted Paula Jones'
    motion to compel the President to produce gifts. The President,
    however, still did not turn over the gifts and instead replied
    that he had none. The President's unwillingness to comply is
    ironic given that later--in his grand jury testimony--he stated
    that he receives and gives hundreds of gifts a year, and that
    the whole gift-giving concept is inconsequential to him. The
    President's behavior belies his testimony.
        The gift concealment continued beyond the President
    refusing to turn over the presents Ms. Lewinsky gave him. Ms.
    Lewinsky was also subpoenaed in the Jones case and was asked to
    turn over gifts the President had given to her. According to
    Ms. Lewinsky, when she suggested to the President that the
    gifts be hidden, he responded that he would have to ``think
    about it.'' I am aware that the record does not reflect a
    specific directive by the President to Ms. Lewinsky to hide the
    gifts. My reading of the record and my interpretation of the
    evidence, however, leads me to the inescapable conclusion that
    the chief law enforcement officer of the country, and a well-
    educated lawyer to boot, did not fulfill his duty to turn gifts
    over himself and did not abide by his duty again when Ms.
    Lewinsky asked him what she should do with her gifts.
        There is some confusion over exactly how the President's
    secretary, Ms. Currie, came to be in possession of the gifts
    that the President gave Ms. Lewinsky. I find it compelling,
    however, that when the President and Ms. Lewinsky met on the
    morning of December 28, Ms. Lewinsky suggested that the gifts
    the President had given to her should be hidden. A few hours
    later phone calls were made from Ms. Currie to Ms. Lewinsky. On
    that same afternoon, Ms. Currie arrived at Ms. Lewinsky's
    residence to pick up the gifts, and ultimately, the gifts were
    found under Ms. Currie's bed. In my view, this is sufficient
    evidence to connect the President's involvement with the gift
    concealment. I find it hard to believe that Ms. Currie would on
    her own, without influence from the President, decide to hide
    Ms. Lewinsky's gifts.
        As an aside, I feel compelled to point out a pattern that
    seems to have evolved during this administration. The hiding of
    evidence in a personal residence harks back to the mysterious
    reappearance of the Whitewater billing records in the White
    House residence several years ago. There seems, in my mind, a
    proclivity on the part of the President to cause the
    disappearance of key evidence whenever wrongdoing is alleged.
    Hence, gifts under the bed equate to billing records in the
    White House residence.
        In view of the President's actions up to this point, I am
    convinced the President was involved in Ms. Currie's receipt of
    the gifts. The simple truth is that, in spite of repeated
    requests, the gifts the President received were never produced
    and only some of the gifts given to Ms. Lewinsky were produced.
    In my view, it was no accident that gifts which were not handed
    over were instead hidden beneath the President's secretary's
    bed.
        As the Jones case progressed, so did the President's
    determination to obstruct justice. As fate would have it,
    Monica Lewinsky was named as a witness in the civil rights
    action. Upset and scared, the President suggested to Ms.
    Lewinsky that if she were subpoenaed she could file an
    affidavit in an effort to avoid testifying in a deposition. Ms.
    Lewinsky did in fact file an affidavit. The affidavit was
    claimed by the President to be truthful because of what Ms.
    Lewinsky understood ``sexual relations'' to mean at that time.
        While the President maintains the truth of the affidavit
    even until this day, Ms. Lewinsky testified before the grand
    jury that, in fact, it was not a truthful affidavit.
    Specifically, she testified before the grand jury that she was
    willing to submit a false affidavit under the penalty of
    perjury because she did not think that her affair with the
    President was anyone's business. I assume that we would still
    not have Ms. Lewinsky's admission that the affidavit was false,
    but for the fact that she was in fear of being prosecuted for
    perjury herself.
        I think the President's behavior in regard to the affidavit
    of Ms. Lewinsky fits squarely in the definition of obstruction
    of justice. I am not impressed with the President's argument
    that this conduct became ``irrelevant'' when Judge Wright later
    determined that the Lewinsky matter was not essential to the
    Jones lawsuit.
        On the contrary, I am compelled by the fact that when the
    President was weaving this contorted web, it was his clear
    intent to conceal his relationship with Ms. Lewinsky. At the
    time the Lewinsky affidavit was prepared, the President could
    not have known Judge Wright would later determine that the
    Lewinsky matter was unrelated to the Jones lawsuit due to the
    consensual nature of the President and Ms. Lewinsky's
    relationship. Rather, the President was making every effort to
    see that nothing about his relationship with Ms. Lewinsky was
    disclosed.
        The next crucial event arrived on the day of the
    President's deposition in the Jones case. At the deposition,
    the President's attorney, Bob Bennett, stated that Ms.
    Lewinsky's affidavit was true. Specifically, Mr. Bennett stated
    that ``there is no sex of any kind, shape, or form.'' The
    President claims, not surprisingly, that he was not paying
    attention when his attorney made these statements, and in
    addition, that the Lewinsky affidavit was technically true
    because the word ``is'' means ``at this time.''
        My review of the President's videotaped testimony leads me
    to believe the President was paying attention to Mr. Bennett.
    When watching the videotape, it is apparent to me the
    President's attention is riveted on every person who speaks. He
    is attentive and his eyes track the speakers as they engage in
    dialog. I believe the President purposely allowed Mr. Bennett
    to mislead the court. Part of the record before us includes a
    letter from Mr. Bennett asking the trial court not to rely on
    the affidavit or his comments regarding the document. Thus, it
    appears Mr. Bennett also believed that the President allowed
    him to mislead the court.
        Moreover, I am not persuaded by the President's argument
    that the affidavit was technically true because ``is'' means
    ``at this time.'' I am offended by the President's lack of
    respect for the truth-seeking process our justice system is
    designed to foster and protect. Indeed, I am disturbed that the
    President would attempt to manipulate each and every word. To
    take the President's interpretation of ``is'' to its logical
    conclusion that nothing was occurring at that very minute is
    ridiculous.
        Clearly, things did not go well at the Jones deposition. In
    fact, the President admitted later in his grand jury testimony
    that he was surprised by the depth of the inquiry regarding
    Monica Lewinsky. This probing questioning made the President
    increasingly desperate. On Saturday, after the President's
    deposition, he called his secretary, Ms. Currie, and asked her
    to come to the White House the following day. Both the
    President and Ms. Currie testified that such a Sunday meeting
    was out of the ordinary. When Ms. Currie arrived, the President
    called her into the Oval Office and made several statements,
    which he later described as questions, regarding Monica
    Lewinsky. Ms. Currie testified before the grand jury, that the
    President said the following to her:

        I was never really alone with Monica, right?
        You were always there when Monica was there, right?
        Monica came on to me, and I never touched her, right?
        You could see and hear everything, right?
        She wanted to have sex with me, and I cannot do that.

        This conversation was repeated between the President and
    Ms. Currie again 2 days later. Though Ms. Currie testified that
    on both occasions she felt ``no real pressure'' to agree with
    the President, she did nonetheless think he wanted her to agree
    with him. And, agree she did.
        Lawyers for the President have defended his actions by
    stating that the President was refreshing his memory with Betty
    Currie because he was aware that the media frenzy regarding
    Monica Lewinsky was about to break loose. I find this
    explanation unconvincing for numerous reasons. The first, and
    perhaps most obvious reason is that a person does not typically
    refresh his recollection with statements he knows to be false.
    It is beyond belief that the President could assert such a
    defense. He knew he was alone with Ms. Lewinsky, and even he
    testified he would have been an ``exhibitionist'' if he had
    conducted these acts in public view. In fact, when asked during
    the grand jury proceedings if Ms. Currie was nearby when he and
    Ms. Lewinsky had intimate contact, the President responded: ``I
    never--I didn't try to involve Betty in that in any way.''
    Further, the President's statements to Ms. Currie implying that
    she was always present, and that she could see and hear
    everything, defy logic by indicating that Ms. Currie was always
    with the President and Ms. Lewinsky. The President clearly knew
    that was not the case.
        The sum of this evidence convinces me the President was not
    only obstructing justice by tampering with a potential future
    witness, but also violating the gag order that had been put
    into effect by Judge Wright in the Jones case. The irony here
    is that one reason Ms. Currie became a potential witness was
    due to the President's own urging. Throughout the Jones
    deposition the President repeatedly offered ``you should ask
    Betty.'' Then, on the very next day following these remarks, he
    summoned Ms. Currie to the White House and asked and answered
    his own leading questions. Importantly, the following week, Ms.
    Currie was subpoenaed to testify in the Jones matter.
        I have also concluded the President's conversations with
    his aides concerning his relationship with Ms. Lewinsky
    constitute witness tampering. The President told his aides,
    John Podesta, Sidney Blumenthal, and Erskine Bowles, misleading
    and untrue statements about his relationship with Monica
    Lewinsky. In fact, Mr. Podesta testified in the grand jury
    proceedings that the President was extremely explicit in his
    comments about denying any physical relationship and any sexual
    contact with Ms. Lewinsky.
        Although the President's approach to this group of
    potential witnesses differed from his approach to Ms. Currie in
    that he did not ask this group to agree with his statements, I
    find these conversations equally disturbing. To mislead his key
    aides, who he admitted might be called to testify before the
    grand jury, demonstrates that there are no bounds on the
    President's attempts to protect himself. He was willing to
    mislead any person who might have blocked his intricate
    obstruction plan.
        In addition, I believe that the President obstructed
    justice by intensifying and succeeding in an effort to secure
    job assistance for Ms. Lewinsky in order corruptly to prevent
    her from truthfully testifying in the Jones case. Although the
    President promised Ms. Lewinsky assistance with her New York
    job search prior to her name appearing on a witness list in the
    Jones case, it seems odd and much too coincidental that the
    President's assistance intensified after he learned that Ms.
    Lewinsky was on the witness list.
        In October, Ms. Lewinsky expressed her interest to the
    President in moving to New York and finding a job. In early
    November, Ms. Lewinsky had a meeting with Vernon Jordan to
    discuss potential jobs in New York City. Ms. Lewinsky testified
    before the grand jury that this meeting resulted in no activity
    taking place. However, unbeknownst to Ms. Lewinsky, her job
    search would take a 360 degree turn in December. Possibly the
    most important day was December 6, 1997, when the President
    learned that Ms. Lewinsky's name had appeared on a list of
    potential witnesses in the Jones case. A little over a month
    later, Ms. Lewinsky was offered and accepted a job with Revlon
    in New York City.
        Because I believe the sequence of events that took place in
    December is extremely telling, I will lay out these events. On
    December 6, the President learned Ms. Lewinsky was a potential
    witness in the Jones case. On December 7, the President and Mr.
    Jordan met at the White House. According to both parties,
    however, Ms. Lewinsky was never discussed. On December 8, Mr.
    Jordan received Ms. Lewinsky's resume by courier. On December
    11, Mr. Jordan met with Ms. Lewinsky and made phone calls to
    various New York companies on her behalf. On December 17, after
    a job in New York seemed like a much more likely prospect for
    Ms. Lewinsky, the President telephoned Ms. Lewinsky at 2 a.m.
    to inform her that her name was on a witness list in the Jones
    case. On December 19, Ms. Lewinsky was served a subpoena in the
    Jones case. On December 31, Ms. Lewinsky and Mr. Jordan ate
    breakfast together at the Park Hyatt Hotel. On January 7, Ms.
    Lewinsky signed an affidavit to be filed in the Jones case in
    which she denied having sexual relations with the President. On
    January 8, Ms. Lewinsky interviewed in New York with MacAndrews
    & Forbes, a company recommended by Mr. Jordan. On that same
    day, Ms. Lewinsky informed Mr. Jordan that the interview did
    not go well. Mr. Jordan made a call to the chairman of the
    board and chief executive officer at MacAndrews & Forbes. On
    the morning of January 9, Ms. Lewinsky was given a second
    interview. On that same morning, Ms. Lewinsky was given an
    informal job offer, which she accepted. On January 13, 1998,
    Ms. Lewinsky received a formalized job offer.
        It is apparent from the above time line that the
    President's efforts in finding Ms. Lewinsky a job in New York
    intensified at an excessive rate once it was discovered that
    Ms. Lewinsky was going to be a witness in the Jones case. The
    President was well aware of the fact that Ms. Lewinsky's
    testimony could be harmful to him, and thus, it was in his best
    interest to get Ms. Lewinsky a job in New York as soon as
    possible. It seems to be no coincidence that the President did
    not tell Ms. Lewinsky that she was a potential witness until 11
    days after he learned of this news. Rather, it appears the
    President was using these 11 days to ensure that Ms. Lewinsky
    understood the President was her friend and was trying to
    assist her in her New York job hunt. Interestingly, Ms.
    Lewinsky was not informed of her witness status until after
    interviews in New York had been scheduled for her by Vernon
    Jordan.
        The President is also charged with making perjurious,
    false, and misleading testimony to a Federal grand jury
    concerning his corrupt efforts to influence the testimony of
    witnesses and to impede the discovery of evidence in the Jones
    civil rights action. My review of this charge, and the evidence
    offered, leads me to conclude that the President engaged in
    several separate acts of perjury. Specifically, the President
    lied under oath regarding the nature and details of his
    relationship with Ms. Lewinsky; lied regarding his conversation
    with Ms. Currie on the day following his Jones deposition; lied
    regarding his knowledge of Ms. Lewinsky's affidavit in the
    Jones case; lied regarding statements made to aides about his
    relationship with Ms. Lewinsky; lied regarding prior false and
    misleading statements he allowed his attorney Bob Bennett to
    make to a Federal judge in the Jones case; and lied when he
    denied engaging in a plan to hide gifts that had been
    subpoenaed in the Jones case.
        After the Jones deposition, on January 26, 1998, the
    President went on national television and declared: ``I did not
    have sexual relations with that woman, Miss Lewinsky.'' In
    addition, he denied that he urged her to lie about the affair.
    Over the next 7 months, the President continued to deny the
    relationship. In the face of mounting evidence to the contrary,
    the Office of the Independent Counsel sought and received
    permission from the Attorney General to expand its
    investigation to include whether the President lied under oath
    in his Jones deposition.
        Seven months later, on August 17, 1998, the President
    appeared before a grand jury to answer questions regarding his
    Jones deposition and his alleged affair with Ms. Lewinsky.
    Prior to his testimony, the President took a solemn oath to
    tell the truth. Specifically, when asked during the grand jury
    proceedings what this oath meant to him, the President stated:
    ``I have sworn on an oath to tell the grand jury the truth, and
    that's what I intend to do.'' Moreover, the President stated:
    ``I will try to answer, to the best of my ability, other
    questions including questions about my relationship with Ms.
    Lewinsky; questions about my understanding of the term `sexual
    relations,' as I understood it to be defined at my January 17,
    1998 deposition; and questions concerning alleged subornation
    of perjury, obstruction of justice, and intimidation of
    witnesses.''
        In my opinion, however, the President violated his stated
    intention to answer questions honestly and to the best of his
    ability. Perjury is defined by the United States Code as
    ``whoever under oath in any proceeding before or ancillary to
    any court or grand jury of the United States knowingly makes
    any false material declaration or makes or uses any other
    information, including any book, paper, document, record,
    recording, or other material, knowing the same to contain any
    false declaration.'' (18 U.S.C. 1623.) I believe that the
    President's statements fall within the above definition because
    his statements were both false and material to the proper
    inquiry of the grand jury.
        First, the President gave false and misleading testimony
    during the grand jury proceedings concerning the nature and
    details of his relationship with Monica Lewinsky. On August 17,
    1998, the President read a prepared statement to the grand jury
    as a response to the question of whether he was physically
    intimate with Monica Lewinsky. The prepared statement said:

        When I was alone with Ms. Lewinsky on certain occasions in early
    1996 and once in early 1997, I engaged in conduct that was wrong. These
    encounters did not consist of sexual intercourse. They did not
    constitute sexual relations as I understood that term to be defined at
    my January 17, 1998, deposition. But they did involve inappropriate
    intimate contact.
        These inappropriate encounters ended, at my insistence, in early
    1997. I also had occasional telephone conversations with Ms. Lewinsky
    that included inappropriate sexual banter.
        I regret that what began as a friendship came to include this
    conduct, and I will take full responsibility for my actions.

        During Ms. Lewinsky's grand jury testimony, she stated that
    the President had contact with various parts of her body. Even
    under the limited interpretation that the President has given
    the Jones definition of ``sexual relations,'' the contact
    between the President and Ms. Lewinsky, as testified to by Ms.
    Lewinsky, constituted sexual relations on the part of both
    parties.
        Before the grand jury, the President referred to his
    prepared response 19 times in order to avoid providing honest
    and complete answers to the questions posed. By referring to
    his prepared statement, the President asserted that his
    encounters with Ms. Lewinsky did not constitute ``sexual
    relations.'' The fact is that the evidence overwhelmingly
    affirms that the President had sexual contact with Ms. Lewinsky
    and his attempts at legal hairsplitting to maneuver around the
    truth failed.
        To address part of the perjury charge creates the need to
    resolve the credibility conflict between the President and Ms.
    Lewinsky. By finding that the President committed perjury in
    regard to testimony concerning the nature and details of his
    relationship with Ms. Lewinsky, it is clear that I find the
    testimony of Ms. Lewinsky to be more honest and forthright.
    Some may question why I believe the testimony of Ms. Lewinsky
    over the testimony of the President. First and foremost, I
    believe Ms. Lewinsky had no motive to lie, whereas the
    President had every motive to conceal the details of this
    intimate relationship. Not only was his Presidency on the line,
    but his credibility with his staff would be destroyed if the
    truth were exposed. Even more importantly, the President's
    credibility is questionable because he had to fear that
    discovery of the truth would cause his family immense
    devastation.
        Furthermore, I believe Ms. Lewinsky is more credible
    because her statement is corroborated. Ms. Lewinsky told the
    intimate details of her relationship to her therapists, her
    friends, Linda Tripp, her mother, and her aunt. Thus, it is not
    difficult to find that Ms. Lewinsky is a more credible witness
    than the President.
        I further believe the President made perjurious and
    misleading statements before the grand jury when he disclosed
    his version of his conversations with Betty Currie. As stated
    earlier, I believe that the rhetorical questions the President
    asked Ms. Currie on two separate occasions were an effort to
    coach a potential witness in the Jones case. During his grand
    jury testimony, the President testified that he questioned Ms.
    Currie because he thought the story would break in the press,
    he needed to get the facts down, and he was trying to refresh
    his memory. The reality is the President was never trying to
    refresh his memory. Ms. Currie even acknowledged in the grand
    jury proceedings that based on the way the President stated the
    questions and his demeanor, she believed he wished for her to
    agree with his statements.
        In addition, according to the President's own grand jury
    testimony, he told no one of his relationship with Monica
    Lewinsky. Specifically, during grand jury questioning, the
    President was asked with regard to his relationship with Ms.
    Lewinsky: ``Had you told anyone?'' The President answered:
    ``Absolutely not.'' Question: ``Had you tried, in fact, not to
    let anyone else know about this relationship?'' Answer: ``Well,
    of course.'' Question: ``What did you do?'' Answer: ``Well I
    never said anything about it, for one thing. And I did what
    people do when they do the wrong thing. I tried to do it where
    nobody else was looking at it.''
        Thus, if the President was hiding his intimate encounters
    with Ms. Lewinsky, how would Ms. Currie have been capable of
    refreshing his memory on details of his secret relationship?
    The truth is that the President was fully aware of the fact he
    touched Ms. Lewinsky. Likewise, the President was fully aware
    that there had been instances when he was alone with Ms.
    Lewinsky. The only reason the President asked Ms. Currie those
    five infamous rhetorical questions was to provide a false and
    misleading account of the events to Ms. Currie in the hope Ms.
    Currie would substantiate the false testimony he gave in his
    deposition. The President's grand jury testimony that he was
    trying to refresh his memory was simply a story concocted to
    cover up the fact that he obstructed justice. Thus, his grand
    jury testimony was perjurious.
        In addition to making false statements with regard to the
    potential testimony of Betty Currie, the President also made
    false statements with regard to tampering with the potential
    testimony of his aides. The President testified to the grand
    jury that he said to his aides things that were true about his
    relationship with Ms. Lewinsky. ``I said, I have not had sex
    with her as I defined it.'' This statement is, however,
    patently untrue, as White House deputy chief of staff John
    Podesta's testimony indicates. Mr. Podesta testified that the
    President was explicit in stating that no sexual contact of any
    kind occurred between the two parties.
        Furthermore, during the grand jury proceedings, the
    President testified that when he was asking Ms. Currie about
    the times he was alone with Ms. Lewinsky, he was referring to
    1997. The President stated: ``Keep in mind, sir, I just want to
    make it--I was talking about 1997. I was never, ever trying to
    get Betty Currie to claim that on the occasions when Monica
    Lewinsky was there when she wasn't anywhere around, that she
    was. I would never have done that to her, and I don't think she
    thought about that. I don't think she thought I was referring
    to that.'' The President was then asked: ``Did you put a date
    restriction? Did you make it clear to Ms. Currie that you were
    only asking her whether you were never alone with her after
    1997?'' The President responded: ``Well, I don't recall whether
    I did or not, but I assumed--if I didn't, I assumed she knew
    what I was talking about, because it was the point at which Ms.
    Lewinsky was out of the White House and had to have someone
    wave her in, in order to get in the White House.'' In my view,
    this is just one more example of the President creating a false
    story to cover up the fact that his conversation with Betty
    Currie constituted witness tampering.
        The President also provided perjurious, false, and
    misleading testimony to a Federal grand jury regarding his
    knowledge that the contents of an affidavit executed by Ms.
    Lewinsky were untrue. Attorneys for Paula Jones were seeking
    evidence of sexual relationships the President may have had
    with other State or Federal employees. In this process, Ms.
    Lewinsky was subpoenaed as a witness. The President suggested
    that Ms. Lewinsky should file an affidavit to avoid having to
    testify. If the truth had been told in this affidavit, and if
    Ms. Lewinsky had been honest about the nature of her
    relationship with the President, Ms. Lewinsky indisputably
    would have been an important witness.
        The President stated before the grand jury, when asked
    about the Lewinsky affidavit: ``Did I hope [Monica Lewinsky
    would] be able to get out of testifying on an affidavit?
    Absolutely. . . . Did I want her to execute a false affidavit?
    No, I did not.'' The President's testimony is not credible and
    is misleading in light of the fact that it was virtually
    impossible for Ms. Lewinsky to file a truthful affidavit that
    would have permitted the President to achieve his objective of
    not having Ms. Lewinsky testify. This is just one more instance
    were the President lied, misled, and violated his solemn oath
    to tell the truth.
        In addition, the President gave perjurious testimony in
    regard to false and misleading statements he allowed his
    attorney Bob Bennett to make to a Federal judge in the Jones
    case. When asked during his grand jury testimony how he could
    have lawfully sat silent while his attorney made a false
    statement, the President explained that he was not paying ``a
    great deal of attention.'' As I stated earlier, from reviewing
    the President's videotaped deposition numerous times, I believe
    that it is apparent that the President was indeed paying
    attention when his attorney made these false statements.
        Finally, in his grand jury testimony, the President stated
    he told Ms. Lewinsky that if the attorneys for Paula Jones
    asked for the gifts, she had to provide them. In light of the
    fact that all of the gifts the President gave Ms. Lewinsky were
    never produced and some of the gifts were found under Ms.
    Currie's bed, I do not believe that the President's grand jury
    testimony regarding his conversation with Ms. Lewinsky was
    truthful.
        Accordingly, after considering all of the evidence, I
    believe that the President is guilty on both article I and
    article II.
        Mr. Chief Justice, the President of the United States has
    put the Senate in a difficult position. His actions have caused
    all of us to examine the uncomfortable details surrounding his
    reckless affair with a young White House intern. But it was not
    his unfortunate actions with the White House intern that
    brought us to this moment. Rather, it was his willful and
    deliberate attempt to cover it up in a judicial proceeding and
    then lie under oath to a Federal grand jury. We are not here
    because we disagree with the President's politics. In fact, I
    happen to consider the President a very capable man, who has,
    by his own actions, destroyed his place in history. For me to
    watch someone strategically dismantle all they have worked for
    is disturbing, to say the least. However, in spite of the human
    side of this tragedy, there is no escaping that we are here
    simply because of the President's intentionally deceptive
    behavior and his unwillingness to abide by the law.
        We were handed very serious charges against the President
    by the House of Representatives. In disposing of this matter,
    we have followed the only template we have: the Constitution
    and the precedent of previous Senates. We have followed the
    founders to the best of our abilities. Despite cries all around
    to end the trial and ignore our constitutional mandate, the
    Senate allowed for a process rooted in the search for truth.
    All sides had an opportunity to make their case, question
    witnesses, and answer inquiries posed by individual Senators.
        Although this journey was less than perfect, we did not
    fail in this endeavor. We did not fail our founders, we did not
    fail the House of Representatives or the President, and we did
    not fail the American people. I attended the meetings of the
    Senate, reviewed the material in the record, asked questions of
    the House managers and White House counsel, and reviewed the
    depositions of witnesses. I am satisfied that our proceedings
    over the past month allowed me sufficient information to arrive
    at my decision.
        I am convinced beyond a reasonable doubt that William
    Jefferson Clinton is guilty of the charges levied by the House
    of Representatives and should be removed from office. By
    employing that standard I do not wish to influence others who
    find a different standard to be more appropriate.
        I am proud of the U.S. Senate and how it conducted itself
    during this process. Despite extraordinary difficulty, we did
    our job according to the Constitution and to the best of our
    ability. I am hopeful that through this process we have
    provided future generations with enough information to make an
    informed judgment of this President's actions. In the end,
    however, history will be the final arbiter.
        Thank you, Mr. Chief Justice. I yield the floor.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Peter G. Fitzgerald

        Mr. FITZGERALD. Mr. Chief Justice, as a freshman Senator, I
    am saddened that the first issue I confront in my service to
    the people of Illinois is the impeachment of a President of the
    United States. It is difficult to imagine a task less welcome
    and more awesome to me. As a newly elected Senator, I have
    barely begun to know the Senate, my colleagues, our rules and
    procedures, our precedents, or, finally, even our duty. I have
    watched you all so carefully--looking for examples, and
    guidance--and wondering at the gravity of these days.
        On a personal note, before I begin, I want to thank those
    on both sides of the aisle--Senators who, in difficult days,
    have been so gracious to a newcomer. Thank you for taking the
    time, and making the effort, to welcome the newest among you.
    Through these hours, I have developed a deep respect for my new
    colleagues, for the Senate as an institution, and for the
    Constitution that has anchored our Republic for over 200 years.
    I thank God for the wisdom of the framers and their ability to
    construct enduring institutions that allow us to confront,
    peacefully, the question of whether our President should be
    removed from office. We now come to the conclusion of this
    constitutional process, itself an extraordinary example of the
    rule of law that makes our Nation the envy of the world.
        The people of Illinois have entrusted me with the duty to
    uphold the Constitution, a duty I share with all of you. In
    addition, we share the responsibility of abiding by the
    separate oath which we took in this proceeding to ``do
    impartial justice according to the Constitution and the laws.''
        As a trier of fact and law, I find that the President has
    committed perjury and obstruction of justice as charged in the
    two articles of impeachment, and that those offenses constitute
    ``high crimes and misdemeanors.'' I will vote for conviction on
    both counts.
        I reach this decision after detailed examination of the
    evidence presented, the arguments of counsel, Senate
    precedents, and the impeachment clause of the Constitution.
        The initial decision I made was to determine the
    appropriate burden of proof. Failure to impose a burden of
    proof on the House managers would severely weaken the
    Presidency, a result the founders feared and sought to avoid.
    The precedents of the Senate make it clear that there is no
    single standard that each of us must apply.
        The President has argued that we should apply the criminal
    standard of ``proof beyond a reasonable doubt.'' In recent
    impeachment trials of Federal judges, a number of Senators also
    argued that conviction was only appropriate if the proof met
    this standard. Some commentators have suggested that Senators
    could use the preponderance-of-the-evidence standard typically
    applied in civil cases, or some standard in between.
        I have concluded that, to support a conviction, allegations
    must be proven by ``clear and convincing'' evidence. The
    criminal standard is not warranted, because the relief in this
    instance, i.e., the removal of the President, is not punitive,
    but remedial. In contrast, the civil standard would place the
    Presidency at too great a risk. The ``clear and convincing''
    evidence standard strikes a prudent balance, providing
    sufficient protection for the authority of the Presidency and
    the expression of popular will represented by the President's
    election, while avoiding the risk of a President remaining in
    office despite clear and convincing evidence of impeachable
    offenses.
        On Article I, the House has presented clear and convincing
    evidence that the President committed perjury when he testified
    before a Federal grand jury on August 17, 1998.
        On January 17, 1998, President Clinton testified in a civil
    deposition in the Jones v. Clinton lawsuit, after the Supreme
    Court had ruled unanimously that a civil suit against a sitting
    President could proceed. After the deposition, the independent
    counsel secured the approval of the Attorney General, and the
    three-judge Federal court which superintends the independent
    counsel law, to expand his jurisdiction to inquire into whether
    the President testified truthfully in his deposition. On August
    17, 1998, the President, as the target of the investigation
    testified by video to a Federal grand jury in Washington, DC.
        The President's deposition testimony in the Jones case was
    false in numerous respects, and his grand jury statements that
    he had sought to be completely truthful in his deposition
    testimony cannot be accurate. (Grand Jury Testimony of
    President Clinton, 8/17/98, H. Doc. 105-311, pp. 458-59.) The
    falsehoods are of such a quantity and kind that a reasonable
    reading of the evidence suggests the President had to know at
    the time he gave his deposition in the Jones case that he was
    not being truthful. His testimony to the grand jury that he
    intended to be truthful at his deposition is false.
        Example: the President had testified in his deposition that
    he believed that, in the preceding 2 weeks, no one had reported
    to him any conversations with Ms. Lewinsky about the Jones
    suit. (Jones Deposition of President Clinton, 1/17/98,
    Evidentiary Record, S. Doc. 106-3, Vol. XXII, p. 22.) In
    testifying to the grand jury that he was truthful in his
    deposition, the President reaffirmed this portion of his
    deposition testimony. (Grand Jury Testimony of President
    Clinton, 8/17/98, H. Doc. 105-311, p. 458.) We know, however,
    that Vernon Jordan had, within the 2 weeks prior to the
    President's deposition, told the President that Ms. Lewinsky
    had signed her affidavit. (Deposition Testimony of Vernon
    Jordan, 2/2/99, 145 Cong. Rec. S1241 (daily ed. Feb. 4, 1999).)
    The President's grand jury testimony was material to the issue
    of whether the President had sought to influence the content of
    Ms. Lewinsky's affidavit and thereby obstruct justice.
        The President again committed perjury before the Federal
    grand jury when he tried to explain why he made a series of
    false statements to his secretary, Betty Currie, on two
    separate occasions. At his deposition, the President was
    questioned about Ms. Lewinsky. The President attempted to
    employ Ms. Currie as an alibi witness. In the wake of the
    deposition, the President asked Ms. Currie to come to the
    office on a Sunday. Once there, the President asked Ms. Currie
    a series of leading questions concerning her recollection of
    events regarding Ms. Lewinsky. (Grand Jury Testimony of Betty
    Currie, 1/7/98, H. Doc. 105-316, pp. 559-60.) A few days later,
    the President again queried Ms. Currie with leading questions.
    (Id. at p. 561.)
        When questioned during his grand jury testimony about the
    series of leading questions he had directed to Ms. Currie, the
    President responded: ``I was trying to figure out what the
    facts were. I was trying to remember.'' (Grand Jury Testimony
    of President Clinton, 8/17/98, H. Doc. 105-311, p. 591.) He
    also claimed that he was only trying to ``ascertain what the
    facts were, trying to ascertain what Betty's perception was.''
    (Id. at p. 593.)
        While Ms. Currie would not say she felt pressured by the
    President, she did testify that she believed that the President
    was seeking her agreement with those statements. (Grand Jury
    Testimony of Betty Currie, 1/7/98, H. Doc. 105-316, p. 559.) It
    is unreasonable to conclude that the President was trying to
    refresh his recollection by making patently false statements to
    Ms. Currie, in the days immediately following his deposition
    for the Jones case. Ms. Curry could not possibly have known the
    answers to some of the President's ``questions,'' and the
    President clearly already knew the answers to others.
        We took an oath to do impartial justice. We did not take an
    oath to check our common sense at the door of this Chamber. The
    President's proffered explanation of the questions he directed
    to Ms. Currie defies common sense. I believe he sought,
    instead, to influence Ms. Currie's anticipated testimony by
    imparting to Ms. Currie his preferred version of the events.
    His false explanation was material to the grand jury's inquiry
    and constitutes perjury.
        The President also committed perjury when he testified and
    then reiterated before the Federal grand jury, in answer to a
    question about false accounts he gave to his aides regarding
    Ms. Lewinsky, that ``I said to them things that were true.''
    (Grand Jury Testimony of President Clinton, 8/17/98, p. 106, H.
    Doc. 105-311, pp. 557-58.)
        In fact, the President said to his aides things that were
    false. Presidential aide Sidney Blumenthal testified in his
    Senate deposition that the President had told him that Ms.
    Lewinsky had threatened him, and that she was called ``the
    stalker.'' (Deposition Testimony of Sidney Blumenthal, 2/3/99,
    145 Cong. Rec. S1301 (daily ed. Feb. 6, 1999).) Mr. Blumenthal
    testified he now knows that the President lied to him. (Id. at
    S1302.) The President knew what he said to Mr. Blumenthal was
    false because the President knew the facts. The one fact the
    President did not know was that Ms. Lewinsky would produce DNA
    evidence that would provide incontrovertible physical evidence
    to contradict him.
        The President's statements before a Federal grand jury
    regarding accounts he gave to his aides of Ms. Lewinsky were
    false, and the falsehoods were material to the grand jury's
    investigation into whether the President had testified falsely
    in the Jones deposition.
        On Article II, the House has presented clear and convincing
    evidence that President Clinton obstructed justice by engaging
    in a course of conduct designed to impede, cover up, and
    conceal evidence and testimony related to the Federal civil
    rights action brought against him.
        The evidence shows that the President improperly influenced
    Ms. Lewinsky to file a false affidavit in the Jones suit. I
    believe that the only version of the evidence that makes sense
    is that offered by the House. Thus, I conclude that the
    President influenced the entire process that led to the filing
    of the false affidavit, from its inception to its conclusion.
    He did so through direct conversations with Ms. Lewinsky, and
    through his close friend, Mr. Jordan, who was able to monitor
    the process through an attorney that he, Mr. Jordan, procured
    for Ms. Lewinsky.
        Ms. Lewinsky admitted that on December 17, 1997, the
    President informed her by telephone at 2 a.m. that she was on
    the witness list in the Jones case, and suggested that she
    might avoid testifying by filing an affidavit. (Deposition
    Testimony of Monica Lewinsky, 2/1/99, 145 Cong. Rec. S1218
    (daily ed. Feb. 4, 1999).) And the President told Ms. Lewinsky
    to call Betty Currie if she was subpoenaed. (Id.)
        The President's assertion that he thought Ms. Lewinsky
    could have avoided testifying by filing a truthful affidavit is
    unbelievable. I believe that the President knew that a truthful
    affidavit by Ms. Lewinsky would have ensured that she would
    have been called as a deposition witness, and that her
    subsequent truthful testimony would have been legally damaging
    to the President. In fact, in the very conversation in which
    the President suggested that Ms. Lewinsky file an affidavit,
    they discussed the cover stories they could use to avoid public
    knowledge of the truth. (Id. at S1219.)
        Vernon Jordan testified in his Senate deposition that he
    ``was acting on behalf of the President to get Ms. Lewinsky a
    job.'' (Deposition Testimony of Vernon Jordan, 2/2/99, 145
    Cong. Rec. S1293 (daily ed. Feb. 6, 1999).) Mr. Jordan
    confirmed in the deposition that ``[t]he President was
    obviously interested in her job search.'' (Id. at S1314.) It
    was Mr. Jordan--one of the President's closest friends--whom
    Ms. Lewinsky called when she was subpoenaed. Mr. Jordan met
    with Ms. Lewinsky and arranged a lawyer for her. (Deposition
    Testimony of Vernon Jordan, 2/2/99, 145 Cong. Rec. S1234-36
    (daily ed. Feb. 4, 1999).) Mr. Jordan delivered Ms. Lewinsky to
    her lawyer's office. (Id. at S1238.) Mr. Jordan monitored the
    drafting and content of Ms. Lewinsky's affidavit. (Grand Jury
    Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-311, p. 920.)
    Ms. Lewinsky herself delivered a copy of her first signed
    affidavit to Mr. Jordan's office. Ms. Lewinsky testified that
    she and Mr. Jordan conferred about the contents of the
    affidavit and agreed to delete one portion inserted by her
    lawyer and make other changes. (Id. at pp. 921-22, 1229-30
    (Exhibit 3).)
        Mr. Jordan kept the President informed throughout the
    affidavit-drafting process. He personally notified the
    President that Ms. Lewinsky had signed the false affidavit.
    (Deposition Testimony of Vernon Jordan, 2/2/99, 145 Cong. Rec.
    S1241 (daily ed. Feb. 4, 1999).)
        The evidence also clearly and convincingly demonstrates
    that after Ms. Lewinsky's name appeared on the witness list in
    the Jones case, the President, through Mr. Jordan, provided
    intensified assistance to Ms. Lewinsky in finding a job in
    order to encourage her to file the false affidavit. Mr. Jordan
    accepted responsibility for the job search and has admitted
    that he and Ms. Lewinsky discussed both the job search and her
    affidavit in most conversations. (Id.) Mr. Jordan attempted to
    separate each aspect of his work with Ms. Lewinsky. He
    testified that ``[t]he affidavit was over here. The job was
    over here.'' (Id.) Whatever Mr. Jordan's belief, it cannot have
    been lost on Ms. Lewinsky that she had a very prominent and
    powerful lawyer soliciting job offers for her at the same time
    she was being asked to help that lawyer's friend, the
    President, who had first suggested that she file an affidavit.
        On the day after Ms. Lewinsky signed the false affidavit,
    Mr. Jordan personally called the CEO of a Fortune 500 company
    to secure a job for her, a job she was offered on the
    subsequent day. (Id. at S1241-42.) On the day that Ms. Lewinsky
    received the job offer, Mr. Jordan called the President,
    through Ms. Currie, and left the message ``mission
    accomplished.'' (Grand Jury Testimony of Vernon Jordan, 5/28/
    98, Evidentiary Record, S. Doc. 106-3, Vol. IV, p. 1898.) The
    President's own testimony in his deposition for the Jones case
    followed exactly the false claims of Ms. Lewinsky's false
    affidavit. While the President's lawyers encouraged the
    perception that this convergence was a coincidence, I do not
    buy it.
        The evidence is clear and convincing that the President
    continued to involve Ms. Currie in his lies and obfuscation.
    Ms. Lewinsky testified that on December 28, 1997, she met with
    President Clinton and informed him that she had been
    subpoenaed, and that the subpoena required her to produce all
    gifts she had received from the President. She testified that
    the subpoena specifically requested a hat pin, which alarmed
    her. (Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc.
    105-311, p. 852.) The President responded that the subpoena
    ``concerned'' him. (Id. at p. 872.) When Ms. Lewinsky asked him
    what she should do in response to the subpoena for the gifts,
    the President answered, ``I don't know,'' or ``Let me think
    about that.'' (Id.) He never gave the only appropriate answer,
    which was to comply.
        Ms. Lewinsky testified that later that same day, Ms. Currie
    telephoned her, saying, ``I understand that you have something
    for me,'' or ``the President said that you have something to
    give me.'' (Id. at pp. 874-75.) Ms. Currie had an unclear
    memory about this incident, but said that ``the best [she]
    remembered,'' Ms. Lewinsky called her. (Grand Jury Testimony of
    Betty Currie, 5/6/98, H. Doc. 105-316, p. 581.)
        Ms. Lewinsky's testimony that Ms. Currie instigated the
    retrieval of the gifts is credible and convincing. In contrast,
    Ms. Currie's testimony that Ms. Lewinsky instigated the
    retrieval is not persuasive. I do not believe that the
    President's personal secretary would have acted upon a request
    from Ms. Lewinsky to retrieve the gifts without asking the
    reason for such an exchange or informing the President of the
    request. It is too bizarre that she would simply pick up a box
    of gifts and deposit them under her bed. It defies a
    commonsense reading of the evidence and the evidentiary
    narrative.
        The evidence is also clear and convincing that the
    President obstructed justice by coaching Ms. Currie, a
    potential witness in the Jones case, to provide false testimony
    in the Jones case, and by arranging for the concealment of
    gifts subpoenaed by the Jones lawyers.
        On Saturday, January 17, 1998, a few hours after completing
    his own deposition in the Jones case, the President called Ms.
    Currie and asked her to come to the White House on Sunday,
    January 18, 1998. (Id. at p. 558.) The President's assertions
    and leading questions to Ms. Currie on January 18 and January
    20 or 21, 1998, were indisputably false. The President knew
    that Ms. Currie was a potential witness when he made these
    false statements to her. In his deposition in the Jones case,
    the President brought Ms. Currie's name up, without prompting,
    in at least 16 different answers to questions, clearly
    anticipating and inviting the Jones attorneys to subpoena her
    to back up his account.
        I am unable to conclude that the President was attempting
    to ``refresh his recollections'' by calling Ms. Currie and
    requesting her to come to the White House on a weekend and
    making false statements to her. Simple common sense tells us
    that he was letting her know what he had said in his deposition
    and that he was hoping that she would later corroborate his
    false account.
        Although I have determined that the House has proven the
    acts alleged in both articles of impeachment by clear and
    convincing evidence, the inquiry does not end here. I must also
    consider whether the acts constitute ``high crimes and
    misdemeanors,'' as required by the Constitution. This has been
    a singularly difficult question for this body, but I conclude
    that the President's offenses rise to the level of ``high
    crimes and misdemeanors'' within the meaning of the
    Constitution.
        The framers of our Constitution provide that the Senate can
    only convict a President for ``treason, bribery, or other high
    crimes and misdemeanors.'' The framers relied, in part, on
    William Blackstone for their understanding of the common law
    they inherited from England. In the fourth book of his
    ``Commentaries on the Laws of England,'' Blackstone addressed
    the criminal law. He distinguished between crimes that ``more
    directly infringe the rights of the public or commonwealth,
    taken in its collective capacity,'' and ``those which in a more
    peculiar manner injure individuals or private subjects.''
    (William Blackstone, ``Commentaries on the Laws of England,''
    Book IV, pp. 74, 176 (special ed., 1983).)
        Within the latter category, Blackstone included crimes such
    as murder, burglary, and arson. The former category of
    ``public'' crimes included offenses that were counted as
    ``offenses against the public justice.'' Blackstone included
    within this category the crimes of perjury and bribery side by
    side. (Id. at pp. 127, 136-39.) Blackstone's formulation
    equating perjury and bribery as ``public'' offenses suggests
    that, within the definition of the Constitution, perjury may
    also be a high crime and misdemeanor.
        Because perjury, at its core, involves an effort to
    obstruct justice, other acts that obstruct justice may very
    well be considered ``public'' offenses as the framers would
    have understood them. Indeed, Blackstone writes that
    ``impediments of justice'' are ``high misprisions'' and
    ``contempts'' of the King's courts. (Id. at pp. 126-28.)
        The intent of the framers and subsequent interpretation of
    this clause show that impeachment and conviction of the
    President is a constitutional remedy for serious offenses
    against our system of government. Alexander Hamilton, in
    Federalist No. 65, explained that impeachable offenses ``relate
    chiefly to injuries done immediately to the society itself''
    and arise ``from the abuse or violation of some public trust.''
        Certainly, perjury before a grand jury and obstruction of
    justice are offenses against the American system of government,
    as they strike at the rule of law itself. These acts subvert
    the truth-seeking process that is the very essence and
    foundation of the judicial branch. These acts, when committed
    by a President, are a repudiation of our judicial system by the
    Chief Executive of the country, undermining the checks and
    balances and disturbing the delicate balance between the
    branches of the Federal Government that is at the heart of our
    constitutional form of government.
        The President's counsel attempted to diminish the severity
    of the crimes of perjury before a Federal grand jury and
    obstruction of justice. But the Founding Fathers understood
    that these crimes are offenses against the public trust.
    Perjury was among the few offenses outlawed by statute by the
    First Congress, in 1790. And today, perjury is punishable by up
    to 5 years imprisonment in a Federal penitentiary. (18 U.S.C.
    1621-23.) The Supreme Court, in a 1976 plurality opinion,
    wrote, ``[p]erjured testimony is an obvious and flagrant
    affront to the basic concepts of judicial proceedings.''
    (United States v. Mandujano, 425 U.S. 564, 576.)
        We do not need to decide whether the President's perjury
    before the grand jury would have risen to the level of a ``high
    crime and misdemeanor'' had the target of the grand jury been
    someone other than the President, nor do we need to decide
    whether a President's perjury in a civil trial in and of itself
    rises to the level of an impeachable offense. I have
    reservations about considering such acts ``high crimes'' or
    ``high misdemeanors.'' But where, as here, the President
    committed perjury in a Federal grand jury investigation of
    which he was the target, I am convinced that his acts fall into
    the category that warrants removal from office.
        Further support for this conclusion comes from Senate
    precedent in the impeachment, conviction, and removal from
    office of two Federal judges in the 1980s--Walter Nixon and
    Alcee Hastings. Judge Nixon was impeached and convicted for
    lying to a grand jury that was investigating him, and Judge
    Hastings was impeached and convicted for making numerous false
    statements under oath in testimony in his own criminal trial.
        Obstruction of justice is particularly serious. Two Federal
    criminal statutes, sections 1503 and 1512 of title 18 of the
    United States Code, specifically prohibit corruptly influencing
    or obstructing the due administration of justice or the
    testimony of a person in an official proceeding.
        Federal appellate courts have applied these statutes to
    individuals who provide misleading stories to a potential
    witness without explicitly asking the witness to lie. For
    example, in 1988, a Federal appellate court upheld the
    conviction of an individual for attempting to influence a
    witness even though that witness was not scheduled to testify
    before the grand jury nor ever appeared before a grand jury.
    The court held that a conviction under section 1503 is
    appropriate so long as there is a possibility that the target
    of the defendant's activities will be called upon to testify in
    an official proceeding. (United States v. Shannon, 836 F. 2d
    1125, 1127 (8th Cir. 1988).)
        The Supreme Court has called the President's responsibility
    to enforce the laws ``the Chief Executive's most important
    Constitutional duty.'' (Lujan v. Defenders of Wildlife, 504
    U.S. 555, 577 (1992).) A President who obstructs the very laws
    he is called upon to enforce has committed high crimes and
    misdemeanors as set out in the impeachment clause of the U.S.
    Constitution.
        Some argue that the Senate, sitting as a Court of
    Impeachment, should allow public opinion polls to influence its
    judgment, claiming that these proceedings are not judicial, but
    political in nature. I believe the Constitution, the intent of
    the framers, and the Senate's own impeachment procedures show
    that when the Senate convenes to fulfill its obligation to
    ``try all impeachments,'' as article I of the Constitution
    prescribes, it takes on a judicial role quite distinct from its
    normal legislative proceedings. The Constitution also states,
    in article III, that ``the trial of all Crimes, except in Cases
    of Impeachment, shall be by Jury. . .,'' implying that an
    impeachment trial is a trial similar to all others. When a
    President stands accused, the Constitution requires the Chief
    Justice of the Supreme Court to preside, explicitly introducing
    the judicial branch into the trial by the Senate. And Alexander
    Hamilton, in Federalist No. 65, discusses ``the judicial
    character of the Senate'' when it meets as ``a court for the
    trial of impeachments.''
        We are required to take a special oath for impeachments,
    above and beyond our oath of office, to ``do impartial justice
    according to the Constitution and the laws.'' What can this
    oath mean if it does not place on us a special, judicial
    burden, unique among our senatorial duties, to apply rules of
    impartiality and independence in pursuit of a verdict that is
    just? If an innocent President can be convicted, or a guilty
    President can be acquitted, even in part because of the polls
    that purport to reflect the will of the moment, then we violate
    our constitutional duty and assault the very foundations of our
    system of justice.
        Carved into the West Pediment of the U.S. Supreme Court
    Building in Washington are four simple words: ``Equal Justice
    Under Law.'' Standing watch in front of that building is a
    statue of Justice, blindfolded because justice must be blind.
    Even the President must respect the laws of the land. To the
    extent that we allow the popularity or unpopularity of a
    particular President to inform our votes for either conviction
    or acquittal, we undermine the principle of ``Equal Justice
    Under Law,'' and we chip away at the blindfold that covers the
    eyes of Justice.
        As a trier of fact and law, I find that the President has
    committed perjury and obstructed justice as charged in the two
    articles of impeachment, and that those offenses constitute
    ``high crimes and misdemeanors.'' I will vote to convict on
    both counts.
        For me, this is not an easy verdict to reach, and comes
    after great deliberation. I am 38 years old. Today is my 38th
    day as a Senator. Those 38 days feel like they have lasted my
    entire life. As a freshman, I have had to confront, very
    suddenly, difficult truths that at the very least have
    challenged the idealism that propelled me here in the first
    place. But through the din of argument and counterargument, it
    has occurred to me that the President's acts, however serious,
    are not nearly as consequential as our response. I have
    listened to those who assert that perjury before a grand jury
    and obstruction of justice are not removable offenses--or that
    if they are, removal of a President, in this time, is too
    disruptive to contemplate.
        And truly, the call to do nothing is seductive. I hear it,
    too. We are so comfortable--so prosperous--that it is difficult
    to be bothered with unpleasantness. But as the youngest Member
    of this body, I believe we must hold firm to the oldest truths.
    The material blessings of peace and prosperity are but the
    fruit of liberty that does not come without a price--a liberty
    sustained, only and finally, by the rule of law, and those
    willing to defend it. Our commitment to impartial justice, now
    and forever, is an abstraction more profound and precious than
    a soaring Dow and a plummeting deficit. I vote as I do because
    I will not stand for the proposition that a President can, with
    premeditation and deliberation, obstruct justice and commit
    perjury before a grand jury. It cannot be.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                   Statement of Senator William V. Roth, Jr.

        Mr. ROTH. Mr. Chief Justice, the House of Representatives
    presented to the Senate two articles of impeachment alleging
    that the President of the United States committed ``high crimes
    and misdemeanors'' in the form of perjury and obstruction of
    justice. These are serious offenses, not unlike those which in
    the past have been sufficient to remove other Federal officials
    from office.
        In deciding how to vote on the articles of impeachment,
    each Senator had to undertake a two-step analysis: first, to
    determine the facts--the conduct in which the accused engaged;
    and second, to determine whether that conduct constituted
    ``treason, bribery, or other high crimes and misdemeanors,''
    which, under the Constitution, require removal from office.
    This second step calls for the Senate to determine the facts
    and evaluate the effect of the conduct on the office and on the
    operations of government.
        Having listened to the presentations made to the Senate by
    the House managers and by counsel for the President, it is my
    opinion that the President committed perjury and obstructed
    justice, and that this misconduct--based on constitutional
    definitions and historical precedents--meets the standard for
    convicting an official of an impeachable offense.
        As the impeachment process is not a criminal proceeding, it
    is not necessary that the evidence shows that the accused is
    guilty of a criminal offense under the United States Code. The
    framers wrote the Constitution before Congress wrote, and then
    amended, the criminal code. Nor is it required that relevant
    facts be established to the same standard as in a criminal
    trial, as Congress cannot punish the President, other than to
    remove him from office. Simply put, the framers' objective was
    to provide a remedy to protect the American people and their
    institutions of government from an unfit officeholder. In view
    of this, I believe that such remedy is to be available if there
    is clear and convincing evidence to establish the underlying
    facts which demonstrate that an officeholder is unfit to serve.
        In determining whether alleged conduct is a ``high crime
    and misdemeanor,'' Senators must examine each case
    individually. They must consider the officeholder's position in
    government and look at the effect of the officeholder's conduct
    in light of the particular position he or she holds. The fact
    that the Senate has convicted and removed Federal judges for
    committing perjury does not necessarily mean that it should
    automatically remove a President who commits perjury. The
    precedents regarding Federal judges are instructive, but they
    are not conclusive.
        The 1974 House Judiciary Committee Staff Report during the
    Nixon Impeachment Inquiry, drawing on two centuries of
    precedents, explains this concept in connection with a
    Presidential impeachment. The report states that the
    impeachment of the President should be ``predicated only upon
    conduct seriously incompatible with either the constitutional
    form and principles of our government or the proper performance
    of constitutional duties of the presidential office.'' In other
    words, Congress must determine whether the particular
    misconduct in which President Clinton engaged is serious enough
    to warrant removal from that particular office. This is what I
    call the ``incompatibility'' test.
        The ``incompatibility'' test requires Senators to exercise
    their expertise in, and knowledge of, government and to use
    their best judgment, focusing on the offenses committed and the
    effect of those offenses on the office and on the operation of
    government. It is this kind of threat to the Republic which we
    must evaluate in applying the ``incompatibility'' test.
    Accordingly, under this test we should focus on the unique
    nature of the Presidency and the offenses the President
    committed.
        The Constitution created three separate branches of
    government in order to limit the powers of government and to
    enhance the liberty of the American people. Each branch is
    supreme in its own area but must respect and defer to the
    others, when they are operating in their assigned areas.
    Reduced to the simplest characterization, the legislature makes
    the laws, the executive executes the laws, and the judiciary
    interprets the laws and dispenses justice. As the head of the
    executive branch, the President stands alone as the official
    responsible for executing the laws of our country.
        The duty of a branch to respect the other branches is a
    duty that can only be carried out by Federal officeholders. It
    cannot be borne by private citizens. And it is fundamental to
    the operations of the Federal Government. Our government could
    not function if the branches did not respect one another. I
    believe President Clinton violated this fundamental duty to
    respect the judicial branch by subverting its function.
        When a private citizen sued President Clinton under our
    civil rights statutes, the President took the position that he
    was unique in our system of law and could not be sued while
    President. When the Supreme Court ruled 9-0 that the President
    could be sued, the President decided to frustrate the judicial
    process while appearing outwardly to comply with the
    requirement of our constitutional plan. As a practical matter,
    he sought to veto this Supreme Court decision.
        The evidence shows that he undertook a deliberate and
    multifaceted plan to thwart the Supreme Court ruling. That plan
    included the commission of perjury and obstruction of justice,
    which are very serious and fundamental wrongs. Even worse is
    that his conduct was conscious and calculated. It was not a
    mistake of the moment. Rather he deliberated and chose to
    commit perjury. He deliberated and chose to obstruct justice.
    In making these conscious and calculated choices, he placed his
    personal and political interests above his Presidential duty to
    respect the judicial branch.
        This is what concerns me greatly. If the President is
    willing to place his personal and political interests above his
    duties as President, he is not fit for the office he holds.
        The President has, as one branch of the Federal Government,
    a duty to respect the requirements of the judicial branch and
    its proceedings. The President has, as the Chief Executive, an
    express duty to take care that the laws be faithfully executed.
    In committing perjury and in obstructing justice, he exhibited
    an attitude dangerous to the operation of government--an
    attitude where he viewed himself as more important than the
    rule of law, where his personal and political interests took
    precedence over the public interest in administering equal
    justice under law.
        Ours is a nation ruled by law, not by men, and not by
    personalities. The judgment that we render here will set a
    precedent for the ages. If Congress concludes that the Office
    of the Presidency should remain occupied by one who has sullied
    it with premeditated criminal conduct in violation of
    constitutional and legal duty, then it will have diminished
    America's right of self-defense against unfit officeholders,
    something that the framers specifically provided for in the
    Constitution.
        A President who commits perjury before a Federal grand jury
    and obstructs justice poisons the well from which justice is
    administered. As far as I know, this President has the dubious
    distinction of being the first and only President in the
    history of the United States to lie directly to a Federal grand
    jury. After taking an oath to tell the truth, the whole truth,
    and nothing but the truth, he deliberately violated that oath.
    The first Chief Justice of the United States, John Jay,
    accurately stated that there is no crime more extensively
    pernicious to society than perjury. If the President commits
    perjury and we conclude that nevertheless he may remain in
    office, by what authority does any judge ask any litigant to
    swear under oath?
        As far as I am concerned, this is not just an empty
    question that has no relevance in today's society. Every day,
    in courtrooms and grand jury rooms across the country,
    witnesses are asked to hold up their right hand and take an
    oath to tell the truth. The judicial process in the United
    States depends on the sanctity of that oath. The prosecutorial
    function of the United States depends on the sanctity of that
    oath. It is the cornerstone of our system of justice. We simply
    cannot allow people across the country to look at the conduct
    of our President and raise legitimate questions about whether
    they need to comply with their solemn oaths.
        Moreover, how can judges refer violations of perjury or
    obstruction of justice to the executive branch for prosecution,
    when the Chief Executive himself has committed these offenses?
    On prior occasions, the Senate has removed judges for perjury
    because it was ``incompatible'' to ask litigants not to commit
    perjury in a courtroom presided over by someone who had himself
    committed perjury. A similar ``incompatibility'' exists where
    the sanction for perjury or obstruction of justice must be
    applied by the executive branch presided over by someone who
    has likewise committed these violations.
        The President must be removed before the corrosive effect
    of his conduct eats away at the rule of law and undermines the
    legal system. To imagine this President remaining in office
    brings to mind Alexander Pope's troubling question: ``If gold
    should rust, what will iron do?'' If our President commits
    perjury and obstruction of justice, what can we expect of our
    citizens?
        The Senate should seek to protect the legal system from
    that threat. And that is why I voted to convict and remove
    William Jefferson Clinton from office.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Conrad Burns

        Mr. BURNS. Mr. Chief Justice and my Senate colleagues, we
    now close one of the most serious chapters in the history of
    this Senate. While some may not agree with the outcome, and
    others may not like the way I voted, I'm satisfied the
    Constitution has been followed. We must now accept this verdict
    and try to work together without talk of revenge or gloating.
        In reaching my conclusions, I asked myself two questions:
    Were the articles of impeachment proven, and if so, should the
    President be removed from office?
        I believe the President perjured himself before a grand
    jury. He put the protection of his Presidency ahead of the
    protection of the institution of the Presidency. He gave false
    testimony about his efforts to keep other witnesses from
    telling the truth. We have already learned in our history that
    lies lead to more lies, and the pattern in this case led to
    perjury.
        I also feel strongly that a case for obstruction of justice
    was proven conclusively. The Senate heard the many actions and
    motives of the President, and it was easy to connect the dots.
    Those dots reveal a clear and convincing case against the
    President.
        I believe the President tampered with the testimony of
    witnesses against him; that he allowed his lawyers to present
    false evidence on his behalf; that he directed a job search for
    a witness in exchange for false testimony; and that he directed
    the recovery and hiding of evidence under subpoena.
        Does this warrant the President's removal from office? I
    agree with my respected colleague, Senator Byrd, that this
    reaches the level of high crimes and misdemeanors, for a number
    of reasons: The President's actions crossed the line between
    private and public behavior when those actions legally became
    the subject of a civil rights lawsuit against him, and when he
    tried to undermine that lawsuit. His actions were an attack on
    the separation of powers between the executive and judicial
    branches when he abused his power in an effort to obstruct
    justice. Remember, he impeded a lawsuit the highest court in
    our land allowed to proceed on a 9-0 vote.
        It's clear even to some of the President's supporters that
    he committed many of the offenses he has been charged with. But
    given this outcome, I hope for our system of justice and for
    our character as a nation that these votes are never seen as
    treating actions such as perjury and obstruction of justice
    lightly, whether by a President or by any citizen.
        Our new world of communications has made more information
    available to us than ever before. But it also contributed to
    the media overkill that jaded the American people to this
    process long ago. When the Lewinsky story became public, the
    President conducted a poll in which he learned that Americans
    would tolerate a private affair, but not perjury or obstruction
    of justice. His goal from that point on to was to poison the
    well of public opinion. Once the focus shifted away from the
    facts and toward opinion, once the clatter and clutter echoed
    on 24-hour talk television, the President's goal was reached.
    But the facts remain, and they are not in dispute.
        Montanans didn't send me to the Senate to be a weathervane,
    shifting in the wind, but to be a compass. It may be common to
    say the President's offenses don't ``rise to the level of high
    crimes and misdemeanors,'' but I believe that would ignore our
    history and what we stand for as a nation.
        That's why I also oppose censuring the President. The
    Constitution gives us one way to deal with impeachable
    offenses: a yes or no vote on guilt. Anything else would be
    like amending the Constitution on the fly and infringing on the
    separation of powers between the branches of government.
        As we accept this outcome and move forward, we have plenty
    of time left ahead to help out Montana's farm and ranch
    communities, which is my top priority. We have time to save
    Social Security in a way that fixes the program without raising
    taxes. We have time to give control of education back to
    parents and teachers, and to give Federal funds to classrooms,
    not bureaucrats. We have time to cut the record burden of
    taxation on Montanans, many of whom are forced to take more
    than one job to make ends meet.
        We should all roll up our sleeves and get to work.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator James M. Inhofe*

        Mr. INHOFE. Mr. Chief Justice, in the absence of hearing
    something that I haven't heard or seeing something that is
    unforeseen up to now, it is my plan to vote for conviction on
    the two articles of impeachment.
    ---------------------------------------------------------------------------
                                       * * * * *
    * Sen. Inhofe submitted an additional statement on February 12, see p.
    2987 below.
    ---------------------------------------------------------------------------
        I think this is probably the most important vote I will
    cast during the course of my lifetime. I say it very sincerely.
    I believe we are going to rise to the occasion.
        I had an experience back in 1975, 24 years ago. I was a
    member of the State senate in Oklahoma. I can remember being
    called for jury duty, and I was very happy to find myself
    assigned to a murder case about which I had already expressed a
    definite opinion. I said I believed this defendant was surely
    guilty, and besides, I was the author of the capital punishment
    bill in the State legislature. So I thought for sure I wasn't
    going to be qualified as a juror.
        Well, I went through the qualification procedure and
    somehow they qualified me. Five days later, I was the foreman
    of the jury that acquitted that accused murderer. This can
    happen. It is an experience that taught me a lot about our
    judicial system.
        I sometimes say one of the few qualifications I have for
    the U.S. Senate is I am not a lawyer. So that when I read the
    Constitution, I know what it says; when I read the oath of
    office, I know what it says; when I read the law, I know what
    it says. I don't have to clutter up my mind with what the
    definition of ``is'' is. So it makes it a little easier for me.
        From a nonlawyer perspective, let me share a couple of
    observations.
        First, insofar as perjury is concerned--lying under oath--I
    might be wrong, but I don't think there is a Senator in this
    Chamber who doesn't believe the President lied under oath.
        I quote from the White House counsel, Charles Ruff, himself
    who said: ``Reasonable people can believe the President lied
    under oath.''
        I quote from Senator Chuck Schumer who said: ``He lied
    under oath both in the Paula Jones deposition and what he said
    in the grand jury.''
        I quote from Representative Robert Wexler, a strong
    supporter of the President, who serves on the House Judiciary
    Committee, who said: ``The President did not tell the truth. He
    lied under oath.''
        I quote from former U.S. Senator Paul Simon, one of my
    favorite Democrat colleagues, who appeared with me on a
    television program before the trial, who said: ``You have to be
    an extreme Clinton zealot to believe perjury was not
    committed.''
        Second, as a nonattorney, I have a hard time reconciling
    the idea that there might be certain permissible exceptions to
    telling the truth under oath. Maybe you who are attorneys, and
    have a different background than mine, see it differently. But
    how can you reconcile this idea that under some conditions--if
    the subject matter is sex or something else--you can lie under
    oath? I really have a hard time with this.
        I know that morality is not supposed to be the issue here.
    We are supposed to concentrate on the two specific articles of
    impeachment. However, I don't think anyone can completely
    compartmentalize himself and totally disregard other things
    going on.
        All of us get many, many letters from young children,
    parents, teachers, and others who are deeply distressed about
    the President's behavior and its impact on the moral health of
    the Nation. I think I am very fortunate because my kids are all
    in their upper thirties and my eight grandchildren, make that
    nine--I count them when they are conceived--are all under six,
    so I don't get those embarrassing questions. But I know many
    parents are struggling with this.
        The other thing that concerns me is the reprehensible,
    consistent attitude this President has displayed over the years
    against women. Take Paula Jones as just one example. She may
    not win a popularity poll, but her civil rights have just as
    much standing as anyone else's, do they not? Is not our country
    based on the principle that even the least among us is entitled
    to equal treatment under the law?
        It amazes me how these feminist organizations continue to
    hold this President in such high regard--groups such as the
    National Organization for Women. I went back and read their
    bylaws. They claim to want to protect women with regard to
    ``equal rights and responsibilities in all aspects of
    citizenship, public service, employment . . . including freedom
    from discrimination.''
        And here we have a President who not only misused his power
    to seduce a college-age intern, but who has also engaged in
    extensive similar misconduct outside of his marriage. It is not
    just Monica Lewinsky. There is Gennifer Flowers, Elizabeth Ward
    Gracen, Paula Jones, Kathleen Willey, Dolly Kyle Browning, Beth
    Coulson, Susan McDougal, Cristy Zercher--the list goes on and
    on.
        This President has a consistent pattern of using and
    abusing women. You know that. I imagine most of you watched the
    Monica Lewinsky tapes as I did. I don't know why the House
    managers didn't pick this up--somehow they let it slip
    through--about when she told this story concerning the two
    security badges. She came here to Washington, this wide-eyed
    kid, and there is a blue badge that lets you get into the White
    House proper and a pink badge that lets you only into the Old
    Executive Office Building. And she wanted to be in there--in
    the West Wing--where she could see what was going on.
        She had the pink badge so she had to be escorted to the
    West Wing by someone else. So the very first day she meets and
    talks to the President in person, he begins the relationship
    we're talking about. He didn't even know her name. And then he
    reached across and grabbed her pink badge, yanked it down, and
    said, ``This is going to be a problem.'' I don't think there is
    anyone in the room who doesn't know what he was referring to.
    He was preparing to use this girl and abuse her and discard her
    like an old shirt. But I know that these are not things the
    lawyers expect us to consider.
        I do want to give another observation, though. I thought
    the playing field would be very uneven when this trial started.
    The members of the Judiciary Committee who are the House
    managers are all lawyers. But mostly, they are Congressmen
    first. Many of these Congressmen-lawyers had not been in a
    courtroom for literally years. And here they were taking on the
    most prestigious, the most prominent, the most skilled, the
    most experienced, the highest priced lawyers anywhere in
    America. And yet when they finished with their opening
    statements, there was no doubt the House managers had risen
    superbly to the occasion, and I believe they have done a great
    job throughout.
        The White House lawyers are very skilled, very persuasive
    people. I would make this observation--again, a nonlawyer
    observation: I felt that three or four of them should have quit
    their opening remarks about 5 minutes sooner than they did.
    They had a tendency to close their presentations with arguments
    that undermined their credibility.
        Cheryl Mills, for example, was really doing well, and she
    was very persuasive until she started at the very last talking
    about the President's record on civil rights, as if the civil
    rights of a person his associates had dubbed as ``trailer park
    trash'' were not significant, or the dignity of the intern he
    had branded ``a stalker'' was not significant. I really think
    she destroyed her otherwise very persuasive presentation.
        I think the same thing was true with Gregory Craig. He
    ended by talking about how conviction in this case would
    somehow ``destroy a fundamental underpinning of democracy'' by
    overturning the results of an election, as if Bob Dole would
    come in if that were to happen.
        Even our good friend, Dale Bumpers--I knew Dale Bumpers
    long before I came here to the U.S. Senate--did a great job.
    But I think he should have quit early, too, because at the very
    last it sounded like he was predicating the innocence of this
    President on his foreign policy. And as I just look at Iraq and
    what is going on over there, I think if that had been the test
    for this, I could have made up my mind a lot earlier.
        Another perspective I bring to this is as chairman of the
    Armed Services Subcommittee on Readiness. Having been in the
    service myself, and knowing how important discipline is, I am
    very disturbed that we have so many cases where severe
    punishment is dealt to individuals who have engaged in conduct
    far less serious than that of the President. Consider:
        Capt. Derrick Robinson, an Army officer, was caught up in
    the Aberdeen sex misconduct case and is serving time in
    Leavenworth for admitting to consensual sex with an enlisted
    person who was not his wife.
        Delmar Simpson is serving 25 years in a military prison
    because a court-martial found that, even though his
    relationship with a female recruit was consensual, the power
    granted him by his rank made such consensual sex with a
    subordinate unacceptable. Think of the power granted this
    President by his rank.
        Remember Kelly Flinn. She is not flying B-52s anymore. She
    was forced out the Air Force for lying about an adulterous
    affair.
        Sgt. Maj. Gene McKinney, the Army's top enlisted man, was
    tried for perjury, adultery, and obstruction of justice--all
    concerning sexual misconduct. He was convicted of obstruction,
    but not before his attorney asserted at the trial how people in
    uniform rightly ask: ``How can you hold an enlisted man to a
    higher standard than the President of the United States, the
    Commander in Chief?''
        So I have looked at this and studied it. I think anyone who
    votes to acquit has to say that we are going to hold this
    President to a lower standard of conduct and behavior than we
    hold other people. I do not understand how they can come to any
    other conclusion.
        My wife and I have been married 40 years. I have a thing
    called the wife test. You go home and when you want to get an
    opinion that is totally apolitical, you ask your wife. So I
    went home and I presented the case--as explained so eloquently
    by the White House lawyers and others--on why we could have a
    lower standard of conduct for a President than we have for a
    judge. And I know the argument. And I expressed the argument to
    my wife in the kitchen. I said, there are a thousand judges,
    only one President. I went through the whole thing. Then she
    looked up and said, ``I thought the President appointed the
    judges.'' You know, my wife is so dumb, she is always asking me
    questions I can't answer.
        I really believe that in this case we are getting at the
    truth. I really believe that the President of the United States
    should be held to the very highest of standards.
        Winston Churchill said: ``Truth is incontrovertible.
    Ignorance may deride it, panic may resent it, malice may
    destroy it, but there it is.''
        I think we have seen the truth. And I think the final truth
    is that this President should be held to the very highest of
    standards.
        Sometimes when I am not really sure I am right, I consult
    my best friend. His name is Jesus. And I asked that question.
    Now I will quote to you the response that is found in Luke:
    ``From one who has been entrusted with more, much more will be
    asked.''
        Mr. Chief Justice, I think Jesus is right.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Max Cleland

        Mr. CLELAND. Mr. Chief Justice, inasmuch as the impeachment
    trial of the President has focused on the importance of oaths,
    I have begun to reflect on the oaths I have taken in my life.
    In terms of affirming my allegiance to this nation and the U.S.
    Constitution, I have taken an oath four times. I have followed
    up each oath with my signature.
        The first such oath I took was when I was 21 years old. I
    was sworn in to the U.S. Army as a young Second Lieutenant.
    Later I followed my flag and my Commander in Chief in being a
    part of the armed military forces in the Vietnam war.
        After the war, I took another oath. This time I was sworn
    in as head of the Veterans' Administration under President
    Carter. I still remember that turbulent time after the Vietnam
    war when so many of my fellow veterans were returning from that
    conflict. The words from Abraham Lincoln's second inaugural
    address seemed to constantly echo in my mind: ``. . . to care
    for him who has borne the battle and for his widow and his
    orphan.'' Having been wounded in Vietnam myself, I felt a grave
    responsibility to carry out my oath on behalf of my fellow
    veterans.
        The next time I took an oath it was January 1997. It was on
    the occasion of being sworn into the U.S. Senate. As Vice
    President Al Gore swore the new Senators in, I placed my right
    elbow on my Bible and raised my left hand in an oath to defend
    the Constitution against ``all enemies, foreign and domestic.''
    Once in the Senate, I was fortunate to have been selected to
    follow distinguished former Georgia Senators Richard B. Russell
    and Sam Nunn in service on the Senate Armed Services Committee.
    I fully expected that any threat to our Constitution, our
    electoral process, or our delicately-honed system of checks and
    balances would come from outside our country, not from within.
        I was wrong.
        This leads me to my most recent oath to do ``impartial
    justice'' in the Senate in the impeachment trial of the
    President of the United States. In my personal view, this final
    oath, sealed with my signature in a book which will become part
    of the archives of American history, is a culmination of the
    other three oaths I have taken.
        I have sworn to defend this country.
        I have sworn to take care of its defenders.
        I have sworn to uphold the Constitution for which my fellow
    defenders have suffered and died.
        How can I now turn my back and ignore the challenge to that
    Constitution posed by this precedent-setting, first-time ever
    impeachment of an elected President of the United States?
        I cannot.
        When my name is called in regular order for my vote on the
    articles of impeachment, I will vote not guilty.
        I have reached my decision after much effort. I have tried
    to keep an open mind and an open heart. I have attempted to
    search the depths of American history and the lore of our
    English forebearers for insight and guidance. I have counseled
    privately with experts on American history and constitutional
    law. I have met with knowledgeable sources inside and outside
    the government. I have personally listened to constituents in
    my State and throughout the Nation. I have talked to them on
    the phone, read their letters and scanned their e-mail. I have
    tried to weave an appropriate course through the barrage of
    media talk and the system of political reporters doing their
    duty.
        I have given it my best shot.
        I understand now what Alexander Hamilton meant when he
    predicted 212 years ago that individual Senators faced with an
    impeachment trial had the ``awful discretion'' of removing a
    President. Yet I believe Hamilton was correct when long ago he
    advocated placing his faith in the Senators, where he hoped to
    find ``dignity and independence.'' I believe that under the
    circumstances the Senate has conducted itself appropriately,
    and has complied with Hamilton's standards of conducting an
    impeachment trial with ``dignity and independence.'' I also
    believe the Senate should continue to follow the standards set
    by our Founding Fathers regarding the use of impeachment power.
    According to the founders as articulated in the Constitution,
    the impeachment clearly should be reserved for ``bribery,
    treason or other high crimes and misdemeanors.'' This language
    did not just turn up in the Constitution overnight. The
    language grew and evolved over a period of months in
    Philadelphia in 1787.
        One of the Founding Fathers who especially impressed me is
    George Mason. Mason had an interesting background. Like many of
    our country's early statesmen, he was from Virginia. For me,
    Mason is a bridge of insight into what the impeachment clause
    in the Constitution is all about.
        Mason was a soldier. Indeed, he was an officer, a colonel.
    He, too, understood the grave responsibility of military
    leadership, of leading men in combat and in caring for them
    afterwards. He certainly knew about the gravity of his own
    personal oath. It was Mason, then, who articulated during the
    Constitutional Convention that the phrase in the Constitution
    regarding impeachment must be more fully fleshed out and should
    more appropriately read ``. . . and other high Crimes and
    Misdemeanors against the state.''
        Here was a soldier of the American Revolution. Here was an
    officer in that Revolution working with his fellow statesmen
    charting out a course for the Nation's future. Here was a
    brother of the bond from Northern Virginia who wanted to make
    sure the actual constitutional language was clear that any
    impeachment must rise to a high level. According to the thrust
    of Mason's argument, for an impeachment of the President to be
    legitimate, the impeachable offenses must pose a threat to the
    Nation itself. The committee which reviewed the language
    believed that the phrase ``against the state'' was redundant,
    and, in effect, assumed.
        President Clinton has committed serious offenses. His
    personal conduct in this matter was, as I have said before,
    wrongful, reprehensible and indefensible. He has admitted to
    personal offenses, and will be appropriately judged for his
    misconduct elsewhere. In my judgement, under all the others I
    have taken under the U.S. Constitution, his offenses do not
    rise to the required level for impeachable offenses under the
    U.S. Constitution.
        I will be voting against conviction and removal from office
    of the President on both articles because I do not believe that
    these particular charges reach the high standard for
    impeachment which I believe George Mason and the other founders
    intended: that such an offense must be conduct which threatens
    grievous harm to our entire system.
        As the Senate concludes this trial, I am reminded of other
    words from Abraham Lincoln's second inaugural address: ``with
    malice toward none, with clarity for all, let us bind up the
    Nation's wounds . . .'' If Lincoln can say that as the Nation
    was concluding the most divisive time in our history, which
    ultimately resulted in the first impeachment trial of an
    American President, surely we can say that to each other and to
    our nation as we conclude this historical second impeachment
    trial.
        It is time to end this trial.
        It is time to let the President conclude the term he was
    elected to by the American people.
        It is time to put an end to partisan bickering about the
    motives and conduct of all of those who have become involved in
    this sad episode.
        It is time for us all to bind up the Nation's wounds.
        It is time to get on with the business of the American
    people we were elected to conduct.
        I ask that a supplement of my statement be printed in the
    Record.
        Thank you.
        There being no objection, the statement was ordered to be
    printed in the Record, as follows:

     The Impeachment of President William Jefferson Clinton By Senator Max
                                    Cleland
        Mr. Chief Justice, let me begin by saying that the reason we are
    here today, the reason the U.S. Senate is being asked to exercise what
    Alexander Hamilton termed the ``awful discretion'' of impeachment, is
    because of the wrongful, reprehensible, indefensible conduct of one
    person, the President of the United States, William Jefferson Clinton.
    Indeed, I believe it is conduct deserving of the censure of the Senate,
    and I will support such a resolution when it comes before us.
        The question before the Senate, however, is not whether the
    President's conduct was wrong, or immoral, or even censurable. We must
    decide solely as to whether or not he should be convicted of the
    allegations contained in the articles of impeachment and thus removed
    from office. In my opinion, the case for removal, presented in great
    detail in the massive 60,000-page report submitted by the House, in
    many hours of very capable but often repetitive presentations to the
    Senate by the House managers and the President's defense team, and in
    many additional hours of Senators' questioning of the two sides, fails
    to meet the very high standards which we must demand with respect to
    Presidential impeachments. Therefore, I will vote to dismiss the
    impeachment case against William Jefferson Clinton, and to vote for the
    Senate resuming other necessary work for the American people.
        To this very point, I have reserved my judgment on this question
    because of my constitutional responsibility and oath to ``render
    impartial justice'' in this case. Most of the same record presented in
    great detail to Senators in the course of the last several weeks has
    long been before the public, and indeed most of that public, including
    editorial boards, talk show hosts, and so forth, long ago reached their
    own conclusions as to the impeachment of President Clinton. But I have
    now heard enough to make my decision. With respect to the witnesses the
    House managers apparently now wish to depose and call before the
    Senate, the existing record represents multiple interrogations by the
    Office of the Independent Counsel and its grand jury, with not only no
    cross-examinations by the President's counsel but, with the exception
    of the President's testimony, without even the presence of the
    witnesses' own counsel. It is difficult for me to see how that record
    would possibly be improved from the prosecution's standpoint. Thus, I
    will not support motions to depose or call witnesses.
        In reaching my decision on impeachment, there are a number of
    factors which have been discussed or speculated about in the news media
    which were not a part of my calculations.
        First of all, while as political creatures neither the Senate nor
    the House can or should be immune from public opinion, we have a very
    precise constitutionally prescribed responsibility in this matter, and
    popular opinion must not be controlling consideration. I believe
    Republican Senator William Pitt Fessenden of Maine said it best during
    the only previous Presidential impeachment trial in 1868:
        ``To the suggestion that popular opinion demands the conviction of
    the President on these charges, I reply that he is not now on trial
    before the people, but before the Senate. . . . The people have not
    heard the evidence as we have heard it. The responsibility is not on
    them, but upon us. They have not taken an oath to `do impartial justice
    according to the Constitution and the laws.' I have taken that oath. I
    cannot render judgment upon their convictions, nor can they transfer to
    themselves my punishment if I violate my own. And I should consider
    myself undeserving of the confidence of that just and intelligent
    people who imposed upon me this great responsibility, and unworthy of a
    place among honorable men, if for any fear of public reprobation, and
    for the sake of securing popular favor, I should disregard the
    convictions of my judgment and my conscience.''
        Nor was my decision premised on the notion, suggested by some, that
    the stability of our Government would be severely jeopardized by the
    impeachment of President Clinton. I have full faith in the strength of
    our Government and its leaders and, more importantly, faith in the
    American people to cope successfully with whatever the Senate decides.
    There can be no doubt that the impeachment of a President would not be
    easy for the country but just in this century, about to end, we have
    endured great depressions and world wars. Today, the U.S. economy is
    strong, the will of the people to move beyond this national nightmare
    is great, and we have an experienced and able Vice President who is
    more than capable of stepping up and assuming the role of the
    President.
        Third, although we have heard much argument that the precedents of
    judicial impeachments should be controlling in this case, I have not
    been convinced and did not rely on such testimony in making my
    decision. After review of the record, historical precedents, and
    consideration of the different roles of Presidents and Federal judges,
    I have concluded that there is indeed a different legal standard for
    impeachment of Presidents and Federal judges. Article II, section 4 of
    the Constitution provides that ``the President, Vice President, and all
    civil officers of the United States, shall be removed from Office on
    Impeachment for, and Conviction of, Treason, Bribery, or other high
    Crimes and Misdemeanors.'' Article III, section I of the Constitution
    indicates that judges ``shall hold their Offices during good
    Behavior.'' Presidents are elected by the people and serve for a fixed
    term of years, while Federal judges are appointed without public
    approval to serve a life tenure without any accountability to the
    public. Therefore, under our system, impeachment is the only way to
    remove a Federal judge from office while Presidents serve for a
    specified term and face accountability to the pubic through elections.
    With respect to the differing impeachment standards themselves, Chief
    Justice Rehnquist once wrote, ``the terms `treason, bribery and other
    high crimes and misdemeanors' are narrower than the malfeasance in
    office and failure to perform the duties of the office, which may be
    grounds for forfeiture of office held during good behavior.''
        And my conclusions with respect to impeachment were not based upon
    consideration of the proper punishment of President Clinton for his
    misdeeds. During the impeachment of President Nixon, the report by the
    staff of the impeachment inquiry concluded that ``impeachment is the
    first step in a remedial process--removal from office and possible
    disqualification from holding future office. The purpose of impeachment
    is not personal punishment; its function is primarily to maintain
    constitutional government.'' Regardless of the outcome of the Senate
    impeachment trial, President Clinton remains subject to censure by the
    House and Senate, and criminal prosecution for any crimes he may have
    committed. Whatever punishment President Clinton deserves for his
    misdeeds will be provided elsewhere.
        Finally, I do not believe that perjury or obstruction of justice
    could never rise to the level of threatening grievous harm to the
    Republic, and thus represent adequate grounds for removal of a
    President. However, we must approach such a determination with the
    greatest of care. Impeachment of a President is, perhaps with the power
    to declare war, the gravest of constitutional responsibilities bestowed
    upon the Congress. During the history of the United States, the Senate
    has only held impeachment trials for two Presidents, the 1868 trial of
    President Johnson, who had not been elected to that office, and now
    President Clinton. Although the Senate can look to impeachment trials
    of other public officials, primarily judicial, as I have already said,
    I do not believe that those precedents are or should be controlling in
    impeachment trials of Presidents, or indeed of other elected officials.
        My decision was based on one overriding concern: the impact of this
    precedent-setting case on the future of the Presidency, and indeed of
    the Congress itself. It is not Bill Clinton who should occupy our only
    attention. He already stands rebuked by the House impeachment votes,
    and by the words of virtually every Member of Congress of both
    political parties. And even if we do not remove him from office, he
    still stands liable to future criminal prosecution for his actions, as
    well as to the verdict of history. No, it is Mr. Clinton's successors,
    Republican, Democrat or any other party, who should be our concern.
        The Republican Senator, Edmund G. Ross of Kansas, who ``looked down
    into my open grave'' of political oblivion when he cast one of the
    decisive votes in acquitting Andrew Johnson in spite of his personal
    dislike of the President, explained his motivation this way:
        ``In a large sense, the independence of the executive office as a
    coordinate branch of the government was on trial. . . . If . . . the
    President must step down . . . upon insufficient proofs and from
    partisan considerations, the office of President would be degraded,
    cease to be a coordinate branch of government, and ever after
    subordinated to the legislative will. It would practically have
    revolutionized our splendid political fabric into a partisan
    Congressional autocracy.''
        While our government is certainly on a stronger foundation now than
    in the aftermath of the Civil War, the basic point remains valid. If
    anything, in today's world of rapidly emerging events and threats, we
    need an effective, independent Presidency even more than did mid-19th
    century Americans.
        While in the history of the United States the U.S. Senate has never
    before considered impeachment articles against a sitting elected
    official, we do have numerous cases of each House exercising its
    constitutional right to ``punish its Members for disorderly behavior,
    and, with the concurrence of two-thirds expel a Member.'' However,
    since the Civil War, while a variety of cases involving personal and
    private misconduct have been considered, the Senate has never voted to
    expel a Member, choosing to censure instead on seven occasions, and the
    House has rarely chosen the ultimate sanction. Should the removal of a
    President be subject to greater punishment with lesser standards of
    evidence than the Congress has applied to itself when the Constitution
    appears to call for the reverse in limiting impeachment to cases of
    ``treason, bribery and other high crimes or misdemeanors?'' In my view,
    the answer must be no.
        Thus, for me, as one U.S. Senator, the bar for impeachment and
    removal from office of a President must be a high one, and I want the
    record to reflect that my vote to dismiss is based upon a standard of
    evidence equivalent to that used in criminal proceedings--that is, that
    guilt must be proven ``beyond a reasonable doubt''--and a standard of
    impeachable offense which, in my view, conforms to the founders'
    intentions that such an offense must be one which represents official
    misconduct threatening grievous harm to our whole system of government.
    To quote Federalist No. 65, Hamilton defined as impeachable ``those
    offenses which proceed from the misconduct of public men, or, in other
    words, from the abuse or violation of some public trust. They are of a
    nature which may with peculiar propriety be denominated political, as
    they relate chiefly to injuries done immediately to the society
    itself.'' As I have said before, I can conceive of instances in which
    both perjury and obstruction of justice would meet this test, and I
    certainly believe that most, if not all, capital crimes, including
    murder, would qualify for impeachment and removal from office. However,
    in my judgment, the current case does not reach the necessary high
    standard.
        In the words of John F. Kennedy, ``with a good conscience our only
    sure reward, with history the final judge of our deeds,'' I believe
    that dismissal of the impeachment case against William Jefferson
    Clinton is the appropriate action for the U.S. Senate. It is the action
    which will best preserve the system of government which has served us
    so well for over 200 years, a system of checks and balances, with a
    strong and independent Chief Executive.
        In closing, I wish to address those in the Senate and House, and
    among the American public, who have reached a different conclusion than
    have I in this case. I do not question the sincerity or legitimacy of
    your viewpoint. The process itself pushes us to make absolute
    judgments--yes or no to conviction and removal from office--and the
    nature of debate yields portraits of complex issues in stark black-and-
    white terms, but I believe it is possible for reasonable people to
    reach different conclusions on this matter. Indeed, I recognize that,
    while my decision seeks to avoid the dangers of setting the impeachment
    bar too low, setting that bar too high is not without risks. I believe
    the House managers spoke eloquently about the need to preserve respect
    for the rule of law, including the critical principle that no one, not
    even the President of the United States, is above that rule. However, I
    have concluded that the threat to our system of a weakened Presidency,
    made in some ways subordinate to the will of the legislative branch,
    outweighs the potential harm to the rule of law, because that latter
    risk is mitigated by: an intact, independent criminal justice system,
    which indeed will retain the ability to render final, legal judgment on
    the President's conduct; a vigorous, independent press corps which
    remains perfectly capable of exposing such conduct, and of extracting a
    personal, professional and political price; and an independent Congress
    which will presumably continue to have the will and means to oppose
    Presidents who threaten our system of government.
        By the very nature of this situation, where I sit in judgment of a
    Democratic President as a Democratic Senator, I realize that my
    decision cannot convey the nonpartisanship which is essential to
    achieve closure on this matter, one way or the other. Indeed, in words
    which could have been written today, the chief proponent among the
    Founding Fathers of a vigorous Chief Executive, Alexander Hamilton,
    wrote in 1788, in No. 65 of The Federalist Papers, that impeachments
    ``will seldom fail to agitate the passions of the whole community, and
    to divide them into parties, more or less friendly or inimical, to the
    accused. In many cases, it will connect itself with the pre-existing
    factions, and will enlist all their animosities, partialities,
    influence and interest on one side, or on the other; and in such cases
    there will always be the greatest danger, that the decision will be
    regulated more by the comparative strength of the parties than by real
    demonstration of guilt or innocence.''
        I have, however, in making my decision laid out for you the
    standards which I believe to be appropriate whenever the Congress
    considers the removal from office of an elected official, whether
    executive branch or legislative branch. I will do my best to stand by
    those standards in all such cases to come before me while I have the
    privilege of representing the people of Georgia in the U.S. Senate,
    regardless of the party affiliation of the accused. I only hope and
    pray that no future President, of either party, will ever again engage
    in conduct which provides any basis, including the basis of the current
    case, for the Congress to consider the grave question of impeachment.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Bill Frist

        Mr. FRIST. Mr. Chief Justice, I rise to explain my decision
    to convict President William Jefferson Clinton on two articles
    of impeachment charging him with high crimes and misdemeanors.
    I have heard from thousands of fellow Tennesseans during this
    trial, and their opinions were deeply split. While I looked to
    the people of Tennessee for guidance, responsibility for my
    final vote ultimately turned on my own conscience. I am sure
    that this will be one of the most important votes I cast as a
    U.S. Senator, and I am honored to explain fully my vote.
        I sought throughout President Clinton's trial to be true to
    my oath to do ``impartial justice according to the Constitution
    and laws of the United States.'' When I raised my right hand
    and swore that oath on January 7, I accepted a solemn
    responsibility. I did not approach this trial with some
    preordained outcome in mind; I carefully listened during the 5
    weeks of this trial to the evidence and the arguments, and
    sought to do justice.
        In considering the allegations against President Clinton, I
    believed that I should apply a ``beyond a reasonable doubt''
    burden of proof--even though the Constitution does not specify
    a particular burden of proof in impeachment trials. The
    Constitution entrusts the decision to convict an impeached
    officer to the individual judgment of each Senator; however, I
    wanted to give the President the benefit of the same high
    standard of proof applied in criminal trials. I would remove a
    President from office only if the House managers met this
    rigorous burden of proof.
        The jury instructions used in Federal courts explain what
    must be established to meet this burden of proof:

        Proof beyond a reasonable doubt does not mean proof beyond all
    possible doubt. Possible doubts or doubts based purely on speculation
    are not reasonable doubts. A reasonable doubt is based on reason and
    common sense. It may arise from evidence, the lack of evidence, or the
    nature of the evidence.
        Proof beyond a reasonable doubt means proof which is so convincing
    that you would not hesitate to rely and act on it in making the most
    important decisions in your own lives.

        In the end, I concluded beyond a reasonable doubt that
    President Clinton repeatedly lied under oath before a Federal
    grand jury. I also concluded beyond a reasonable doubt that he
    engaged in a calculated, premeditated campaign to obstruct
    justice. I now wish to address each of those articles of
    impeachment in turn.
        The circumstantial and direct evidence demonstrates beyond
    a reasonable doubt that President Clinton committed perjury
    during his grand jury appearance. The criminal law of the
    United States forbids perjury before a grand jury. To prove a
    case of grand jury perjury, a prosecutor must demonstrate: (1)
    that the defendant testified under oath before a grand jury;
    (2) that the testimony so given was false in one or more
    respects; (3) the false testimony concerned material matters;
    and (4) the false testimony was knowingly given. There are
    three instances during the President's August 17, 1998, grand
    jury testimony in which these four elements were established.
        First, he lied when he denied that he had ``sexual
    relations'' with Ms. Lewinsky, even under his own
    interpretation of the definition of that term. Quite simply,
    Ms. Lewinsky offered a detailed account of numerous times when
    they did engage in such relations, even under President
    Clinton's interpretation of that term. Her testimony is
    corroborated by contemporaneous accounts she offered to a
    number of friends and professional counselors. President
    Clinton conjured up a tortured definition of the term ``sexual
    relations'' to explain the blue dress, and its physical
    evidence corroborating sexual relations, to the grand jury--
    while still asserting the truthfulness of his earlier denial of
    ``sexual relations'' in his deposition in the Paula Jones
    sexual harassment suit. This attempt to have it both ways, in
    turn, forced him to lie before the grand jury about the details
    and nature of his relationship with Ms. Lewinsky. There is no
    doubt in my mind that President Clinton lied about this matter.
    Moreover, this lie was material; that is, it had the tendency
    to affect the grand jury's investigation. That investigation
    focused on President Clinton's possible perjury and obstruction
    of justice in the Jones case. Lying to the grand jury to
    attempt to deny the earlier perjury in the Jones deposition was
    clearly material to that investigation.
        Second, President Clinton lied to the grand jury about his
    attempt to coach Ms. Currie immediately following the
    deposition. This coaching, which I will discuss in more detail
    later, was explicitly denied by the President before the grand
    jury. His testimony that he made a series of false statements
    to Ms. Currie and sought her agreement with them merely in an
    attempt ``to refresh [his] memory about what the facts were''
    and that he was ``trying to get as much information as quickly
    as [he] could'' is false. He did not ask her what she recalled;
    he made false declarations and sought her agreement with them.
    One cannot refresh one's recollection by making knowingly false
    statements to another. This is a classic example of why courts
    instruct juries to use their common sense in resolving factual
    disputes. Moreover, President Clinton coached her twice in the
    exact same manner: Once on January 18, 1998, and again on
    January 20 or January 21. He had just finished lying in his
    civil deposition on January 17, and he wanted to enlist her
    support for his lies if she was called by Paula Jones'
    lawyers--as she was on January 22. Again, this issue was
    plainly material to an investigation into President Clinton's
    possible obstruction of justice.
        Third, President Clinton lied to the grand jury about
    attempting to influence the testimony of his aides whom he knew
    would be called before the grand jury. These allegations are
    discussed later. For now, it is only important to note that he
    testified that he ``said to them things that were true about
    this relationship. . . . So, I said things that were true. They
    may have been misleading. . . .'' In fact, he lied to his
    aides, as even Sidney Blumenthal stated in his videotaped
    deposition testimony. It is understandable that President
    Clinton would not admit to the grand jury that he lied to these
    aides, because to do so would admit that he obstructed justice.
    He could have asserted his fifth amendment right against self-
    incrimination; however, he chose to lie. He denied that he had
    lied to these aides. The Supreme Court has addressed just this
    sort of a lie, stating: ``A citizen may decline to answer the
    question, or answer it honestly, but he cannot with impunity
    knowingly and willfully answer with a falsehood.''
        The evidence establishes beyond a reasonable doubt that
    President Clinton obstructed justice. He suggested that Ms.
    Lewinsky submit a false affidavit in a civil case. He coached a
    potential witness, Ms. Currie, in the civil case and the grand
    jury investigation by repeating a series of assertions to her
    that he knew to be false in the hope that she would adopt those
    assertions as her own. Last, he made false statements to his
    top advisors, knowing that they would then repeat those
    statements to a Federal grand jury.
        The United States Criminal Code makes it illegal for one to
    obstruct justice. The precise wording of the general
    obstruction of justice statute--title 18, section 1503 of the
    United States Code--provides: ``Whoever . . . corruptly . . .
    influences, obstructs, or impedes, or endeavors to influence,
    obstruct, or impede, the due administration of justice, shall
    be punished. . . .'' Courts have interpreted the word
    ``corruptly'' to mean that the defendant had an intent to
    obstruct, impair, or impede the due administration of justice.
    In other words, one need not use threats of force or
    intimidation to obstruct justice. Thus, one who merely proposes
    to a potential witness that the witness lie in a judicial
    proceeding is guilty of obstructing justice.
        Also, an additional Federal statute, section 1512 of title
    18, deals specifically with witness tampering. It provides:
    ``Whoever . . . corruptly persuades another person, or attempts
    to do so, or engages in misleading conduct toward another
    person with intent to . . . influence, delay, or prevent the
    testimony of any person in an official proceeding . . . shall
    be fined under this title or imprisoned. . . .'' Unlike section
    1503, section 1512 has been interpreted as applying to more
    than just ``pending'' judicial proceedings; courts have found
    it adequate that a defendant ``feared'' that such a proceeding
    might begin and sought to influence the testimony of those who
    may be witnesses in such a proceeding.
        With this statutory backdrop in mind, I turn first to the
    allegation that President Clinton urged Ms. Lewinsky to submit
    a false affidavit and deny their sexual relationship. The
    evidence establishes that he telephoned her between 2 and 2:30
    a.m. on December 17, 1997. According to Ms. Lewinsky, President
    Clinton informed her that she was on the witness list in the
    Paula Jones sexual harassment lawsuit. He then suggested that,
    if she were subpoenaed to give a deposition, ``she could sign
    an affidavit to try to satisfy [Ms. Jones's] inquiry and not be
    deposed.'' As has been pointed out, a truthful affidavit about
    their relationship would not have prevented her deposition; in
    fact, a truthful affidavit would have encouraged the
    deposition. Notwithstanding this obvious fact, President
    Clinton's lawyers vigorously asserted at trial that a ``limited
    but truthful'' affidavit could have misled the Jones lawyers
    sufficiently to avoid her being deposed.
        The problem with this defense is that President Clinton on
    December 17, in the very same telephone conversation in which
    he suggested the affidavit, also encouraged Ms. Lewinsky to
    continue with the ``cover stories'' they had used to hide their
    relationship. According to Ms. Lewinsky, he told her that she
    ``should say she visited [the White House] to see Ms. Currie
    and, on occasion when working at [the White House] she brought
    him letters when no one else was around.'' Of course, Ms.
    Lewinsky was going to the White House to see President Clinton,
    and the only time she ``brought him letters'' was to cover
    their illicit rendezvous. These cover stories, hatched as
    explanations to prevent coworkers from discovering their sexual
    relationship, amounted to obstruction of justice when the
    President suggested their use in judicial proceedings. These
    cover stories ultimately found their way into drafts of Ms.
    Lewinsky's affidavit. The evidence establishes beyond a
    reasonable doubt that President Clinton was urging Ms. Lewinsky
    to file a false and misleading affidavit in the Jones case.
        As one court has observed, conduct amounting to less than
    an explicit command to lie can nonetheless form the basis for
    an obstruction conviction: ``The statute prohibits elliptical
    suggestions as much as it does direct commands.'' There is no
    reasonable doubt that President Clinton was suggesting that Ms.
    Lewinsky file an affidavit consistent with their previously-
    agreed upon cover stories. Ms. Lewinsky testified that she
    understood after that conversation that she would deny their
    relationship to Paula Jones' lawyers.
        The evidence also establishes beyond a reasonable doubt
    that President Clinton sought to tamper with the testimony of
    his secretary, Ms. Currie. Within a few hours of completing his
    deposition in the Jones case on Saturday, January 17, 1998,
    President Clinton called Betty Currie and made an unusual
    request: She should come to work to meet with him the following
    day, Sunday. Sunday afternoon, she met with him at her desk
    outside the Oval Office. Ms. Currie testified that he seemed
    ``concerned.'' He told her that he had been asked questions the
    previous day about Ms. Lewinsky. According to Ms. Currie, he
    then said, `` `There are several things you may want to know.'
    '' After that, he made a series of statements: You were always
    there when she was there, right? We were never really alone.
    Monica came on to me, and I never touched her, right? You can
    see and hear everything, right? Monica wanted to have sex with
    me, but I told her I couldn't do that.
        Ms. Currie further testified that, although President
    Clinton did not ``pressure'' her, she observed from his
    demeanor and the way he said these statements that he wanted
    her to agree with those statements. She did agree with each
    statement, though she knew them to be false or beyond her
    knowledge.
        There is no reasonable doubt that this meeting was an
    attempt by President Clinton to coach Ms. Currie's probable
    testimony. In fact, during the previous day's deposition,
    President Clinton invoked Ms. Currie's name in relation to Ms.
    Lewinsky on at least six different occasions, even going so far
    as to tell Ms. Jones' lawyers that they would have to ``ask
    Betty'' whether he was ever alone with Ms. Lewinsky between
    midnight and 6 a.m. Simply put, he made her a potential witness
    in the Jones case. One who attempts to corruptly influence the
    testimony of a prospective witness has obstructed justice. In
    fact, the Jones lawyers issued a subpoena for Ms. Currie a few
    days after President Clinton's deposition.
        President Clinton's assertion that he posed these
    statements to Ms. Currie merely to refresh his recollection and
    test her own memory of the events is undercut by his repetition
    of the coaching exercise a few days later. According to Ms.
    Currie, either 2 or 3 days later he called her in again,
    presented the same statements, with which she again agreed, and
    had the same ``tone and demeanor'' as he had during the Sunday
    coaching session. This amounted to egregious witness tampering.
        Last, the unrefuted evidence establishes beyond a
    reasonable doubt that President Clinton obstructed justice by
    giving a false account of his relationship with Ms. Lewinsky to
    aides that, by his own admission, he knew might be called by
    the grand jury. John Podesta, then-deputy chief of staff to
    President Clinton, testified before the grand jury about a
    conversation with President Clinton on January 23, 1998:

        [H]e said to me he had never had sex with her [Ms. Lewinsky], and
    that--and that he never asked--you know, he repeated the denial, but he
    was extremely explicit in saying he never had sex with her. . . .
        Well, I think he said--he said that--there was some spate of, you
    know, what sex acts were counted, and he said that he had never had sex
    with her in any way whatsoever--that they had not had oral sex.

        This, as we now know, was false. Yet, according to Mr.
    Podesta, President Clinton ``was very forceful. I believed what
    he was saying.''
        More important, on January 21, 1998, President Clinton told
    aide Sidney Blumenthal the following utterly false story:

        He said, ``Monica Lewinsky came at me and made a sexual demand on
    me.'' He rebuffed her. He said, ``I've gone down that road before, I've
    caused pain for a lot of people and I'm not going to do that again.''
        She threatened him. She said that she would tell people they'd had
    an affair, that she was known as the stalker among her peers, and that
    she hated it and if she had an affair or said she had an affair then
    she wouldn't be a stalker anymore.

        This story is eerily reminiscent of President Clinton's
    coaching of Betty Currie. ``Monica wanted to have sex with me,
    but I told her I couldn't do that.'' President Clinton sought
    to portray himself as a victim of Ms. Lewinsky. At the time,
    Mr. Blumenthal ``certainly believed his story. It was a very
    heartfelt story, he was pouring out his heart, and I believed
    him.'' Mr. Blumenthal admitted to the Senate that he now knows
    the President's story was a lie.
        President Clinton does not deny the testimony of either Mr.
    Podesta or Mr. Blumenthal. Their testimony establishes a clear-
    cut case of obstruction. The President admitted knowing that
    both were likely to be called to testify before the grand jury.
    According to their testimony, he provided them with a false
    account of his relationship with Ms. Lewinsky--and President
    Clinton does not deny their version of events. The unrefuted
    evidence establishes obstruction of justice. As the Second
    Circuit Court of Appeals has stated: ``The most obvious example
    of a section 1512 [witness tampering] violation may be the
    situation where a defendant tells a potential witness a false
    story as if the story were true, intending that the witness
    believe the story and testify to it before the grand jury.''
        I did not vote to convict President Clinton on every ground
    presented by the House managers. For example, though I was
    concerned that the intensification of efforts to secure Ms.
    Lewinsky a private sector job were undertaken to influence her
    testimony, and secure a false affidavit from her, I had
    reasonable doubt that there was a sufficiently direct nexus
    between the two to justify finding against President Clinton on
    that basis. The videotaped testimony of Vernon Jordan nearly
    made the case, but fell just short. Accordingly, I did not
    consider that element of the obstruction of justice case to be
    grounds for removing President Clinton.
        Another serious allegation of obstruction of justice
    concerned the mysterious fact that subpoenaed gifts from
    President Clinton to Ms. Lewinsky were found underneath Ms.
    Currie's bed. The evidence tends to establish that President
    Clinton directed Ms. Currie to get gifts from Ms. Lewinsky;
    however, I cannot say that the proof establishes beyond a
    reasonable doubt that this occurred. In the absence of hearing
    directly from Ms. Currie as a witness on this issue and having
    the chance to look her in the eye and gauge her credibility, I
    cannot resolve beyond a reasonable doubt the testimonial
    conflict between Ms. Lewinsky and Ms. Currie on who initiated
    the return of the gifts. The weight of the evidence suggests
    that Ms. Currie initiated the return on instructions from
    President Clinton; however, without Ms. Currie's testimony, I
    cannot say that case has been proven ``beyond a reasonable
    doubt.''
        For this reason, I am disappointed that the Senate chose to
    cut itself off from hearing from whatever fact witnesses either
    side wished to call. I voted to allow live testimony, but the
    motion was unsuccessful. Although there was ample evidence upon
    which to convict for many allegations, some allegations remain
    in doubt. Rather than have a traditional trial, we listened to
    lawyers argue, then argue some more, and then a bit more. The
    only time we actually had a chance to see witnesses was when we
    were allowed to see the videotapes of Ms. Lewinsky, Mr. Jordan,
    and Mr. Blumenthal. I learned from those tapes. The presence of
    live witnesses in accord with Senate precedent would have been
    helpful. I regret that the Senate chose not to allow live
    witnesses and that we did not see their cross-examination. We
    did not use the most powerful weapons in our truth-seeking
    arsenal. This truncated ``trial'' may have been politically
    expedient, but I doubt history will judge it kindly.
        Having found that President Clinton committed the crimes of
    perjury and obstruction of justice, my duty to uphold the
    Constitution of the United States made it clear that these
    offenses were high crimes and misdemeanors requiring his
    removal from office. There is no serious question that perjury
    and obstruction of justice are high crimes and misdemeanors.
    Blackstone's famous Commentaries--widely read by the framers of
    the Constitution--put perjury on equal footing with bribery as
    a crime against the state. Perjury was understood to be as
    serious as bribery, which is specifically mentioned in the
    Constitution as a ground for impeachment. Today, we punish
    perjury and obstruction of justice at least as severely as we
    punish bribery. Apparently, the seriousness of perjury and
    obstruction of justice has not diminished over time.
        Indeed, our own Senate precedent establishes that perjury
    is a high crime and misdemeanor. The Senate has removed seven
    Federal judges from office. During the 1980s, three judges were
    convicted for the high crime and misdemeanor of perjury.
    Federal judges are removed under the exact same constitutional
    provision--article II, section 4--upon which we remove
    Presidents. To not remove President Clinton for grand jury
    perjury lowers uniquely the Constitution's removal standard,
    and thus requires less of the man who appoints all federal
    judges than we require of those judges themselves.
        I will have no part in the creation of a constitutional
    double-standard to benefit the President. He is not above the
    law. If an ordinary citizen committed these crimes, he would go
    to jail. Many Senators have voted to remove Federal judges
    guilty of perjury, and I have no doubt that the Senate would do
    so again. Those who by their votes today confer immunity on the
    President for the same crimes do violence to the core principle
    that we are all entitled to equal justice under law.
        Moreover, I agree with the view of Judge Griffin Bell,
    President Jimmy Carter's Attorney General and a former judge of
    the United States Court of Appeals, Fifth Circuit. Judge Bell
    has stated: ``A President cannot faithfully execute the laws if
    he himself is breaking them.'' These offenses--perjury and
    obstruction of justice--are not trivial; they represent an
    assault on the judicial process. Again, Judge Bell's words are
    instructive:

        Truth and fairness are the two essential elements in a judicial
    system, and all of these statutes I mentioned, perjury, tampering with
    a witness, obstruction of justice, all [are] in the interest of truth.
    If we don't have truth in the judicial process and in the court system
    in our country, we don't have anything. So, this is serious business.

        I agree. The crimes of perjury and obstruction of justice
    are public crimes threatening the administration of justice.
    They therefore fit Alexander Hamilton's famous description of
    impeachable offenses in Federalist No. 65: ``[O]ffences which
    proceed from the misconduct of public men, or, in other words,
    from the abuse or violation of some public trust.'' The
    electorate entrusted President Clinton to enforce the laws, yet
    he chose to engage in a pattern of public crime against our
    system of justice. We must not countenance the commission of
    such serious crimes by the Chief Executive of our Nation.
        The President broke his oath to tell the truth, the whole
    truth, and nothing but the truth, so help him God. He likewise
    broke his oaths to take care that the laws be faithfully
    executed.
        Just how important are oaths? We take oaths to substantiate
    the sanctity of some of our highest callings. Years ago, I took
    the Hippocratic Oath to become a physician. In January 1995, I
    took an oath of office as a U.S. Senator to preserve, protect,
    and defend the Constitution of the United States. Then, just
    last month, I had to take a special oath of impartial justice
    for this impeachment trial. Raising your right hand and
    swearing before God is meant to be serious business. Swearing
    falsely is equally serious. I recall the conclusion of the
    Hippocratic Oath:

        If I fulfill this oath and do not violate it, may it be granted to
    me to enjoy life and art, being honored with fame among all men for all
    time to come; if I transgress it and swear falsely, may the opposite of
    all this be my lot.

        President Clinton broke his oaths; the opposite of honor
    and fame should be his lot.
        Many of my colleagues have publicly expressed their belief
    that President Clinton broke his oaths and committed the crimes
    of perjury and obstruction of justice. Some have gone further
    and said that these are high crimes and misdemeanors. Yet they
    flinched from removing President Clinton from office, hoping
    that we could just move on, put this behind us, and ``heal''
    the Nation.
        Although our acquittal of President Clinton may bring
    initial relief at the end of this ordeal, it will also leave
    unfortunate, lasting lessons for the American people: Integrity
    is a second-class value; the hard job of being truthful is to
    be left to others; and virtue is for the credulous. Though we
    do not know how these lessons will manifest themselves over
    time in our society, they will not be lost. Thus, I do not
    believe the acquittal of President Clinton will heal the wounds
    of this ordeal; rather, acquittal regrettably will inject a
    slow-acting moral poison into the American consciousness.
        There is one aspect of the case that made me uncomfortable:
    The perjury and obstruction of justice arose out of an illicit
    sexual relationship between President Clinton and a young White
    House intern. President Clinton no doubt sought to shield the
    knowledge of that relationship from his family and staff, and
    that impulse is understandable. However reprehensible his
    affair might be, both it and his efforts to hide it were
    originally of no concern to the public or the Senate. None of
    us can claim to be free from sin.
        What began as an attempt to keep an affair secret from
    family and coworkers, however, escalated into illegal activity
    when keeping that affair secret trumped the civil rights of
    Paula Jones to seek redress in court, and, in turn, thwarted
    the investigation of a Federal grand jury. President Clinton
    chose to cheat. Cheating the judicial process, whether to keep
    an ordinary citizen from having her day in court or to avoid
    criminal indictment, is wrong.
        Dr. William Osler was a late 19th century physician and is
    regarded as the father of modern surgery. In a lecture to his
    medical students about the pursuit of truth, he said:

        Start with the conviction that absolute truth is hard to reach in
    matters relating to our fellow creatures, healthy or diseased, that
    slips in observation are inevitable even with the best trained
    faculties, that errors in judgment must occur in the practice of an art
    which consists largely in balancing probabilities.
        Start, I say, with this attitude of mind, and mistakes will be
    acknowledged and regretted; but instead of a slow process of self-
    deception, with ever-increasing inability to recognize truth, you will
    draw from your errors the very lessons which may enable you to avoid
    their repetition.

        President Clinton's repetition of wrong, often illegal
    choices most disturbs me. He faced a series of choices about
    his affair once our system of justice became concerned with it.
    He could have come clean in the civil deposition and urged Ms.
    Lewinsky to do the same. He did not. When the story became
    public, he could have then come clean to the American public
    and revised his deposition testimony. Instead, he took a poll.
    Having learned that the American people would forgive him for
    adultery, but not for perjury or obstruction of justice, he
    declared that he would just have to ``win.'' He then wagged his
    finger at us on national TV and chided us for believing what
    has since proven true. He embarked on a quiet smear campaign
    against Ms. Lewinsky, calling her a ``stalker'' and sending
    aides into the grand jury to repeat that mean-spirited
    falsehood. Above all else, he could have come clean when he
    went before the grand jury. Indeed, the discovery of the
    infamous blue dress served as a powerful reminder to tell the
    truth. But he continued to lie.
        The pattern of behavior is disturbing. That pattern is
    driven by President Clinton's choice, on every occasion in this
    saga, to put his self-interest above the the public interest.
    Indeed, President Clinton is well down the dangerous road Dr.
    Osler described to his students: ``A slow process of self-
    deception.''
        To me, his perjury before the grand jury was defining. Some
    of my fellow Senators urged him not to lie in that grand jury,
    lest he be impeached. He had a chance to try to set matters
    right by the American people and by our system of justice.
    Instead, he lied. It has been said, ``Character is what we know
    about ourselves. Reputation is what others know about us.''
    What we now know about President Clinton's conduct before the
    bar of justice illuminates his integrity: We learned that he
    always cheated and put himself above the law. We can pray that
    God will forgive President Clinton for his sins, but we cannot
    ignore the consequences of his behavior to our society.
        We in the Senate faced the difficult choice of deciding
    whether to remove President Clinton. To find him not guilty of
    perjury and obstruction of justice and leave him in office
    would corrode the respect we all have for the office of
    President. More troubling, the example to our youth would be
    destructive. I have three sons, 15, 13, and 11 years old. As
    anyone with children knows, President Clinton's conduct has
    undermined all our efforts to instill in our children two
    essential virtues: truthfulness and responsibility. If we allow
    a known perjurer and obstructor of justice to continue in the
    office of President and lead us into the 21st century, we set a
    sad example for future generations.
        In a recent sermon on the topic, ``What Do I Tell My
    Children about the Crisis in Washington?'' a minister quoted
    from Michael Novak's book ``The Experience of Nothingness'':

        The young have a right to learn a way of discriminating right from
    wrong, the posed from the authentic, the excellent from the mediocre,
    the brilliant from the philistine, the shoddy from the workmanlike.
    When no one with experience bothers to insist--to insist--on such
    discrimination, they rightly get the idea that discernment is not
    important, that no one cares either about such things--or about them.

        President Clinton committed perjury and obstructed justice.
    In so doing, he broke his oath of office and his oath to tell
    the truth. He broke the public trust. I took an oath to do
    impartial justice by the Constitution and laws of our country.
    I had a duty to the Constitution and laws of this Nation to
    convict President Clinton, so I voted to remove him from office
    and restore the trust of the American people in the high office
    of President. Prosperity is never an excuse to keep a President
    who has committed high crimes and misdemeanors.
        Though many of my colleagues agreed with these conclusions,
    two-thirds of the Senate did not. I am concerned about the
    message this acquittal will send to our youth. So I am
    convinced that you and I now have a shared duty: Rather than
    give in to easy cynicism, we should work toward integrity and
    responsibility in all that we do. We must remind our children
    that telling the truth and accepting responsibility for
    wrongdoing are virtues with currency. Our Nation's future
    depends on how earnestly we fulfill that shared duty.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Jim Bunning

        Mr. BUNNING. Mr. Chief Justice, this is my first speech on
    the floor of the U.S. Senate. I had hoped my opening speech
    would be about Social Security. This year, in my opinion, we
    have a golden window of opportunity to reform and strengthen
    this vital program and I had hoped to use my first comments on
    the Senate floor to help open the debate on real Social
    Security reform.
        Unfortunately, it didn't turn out that way. Of necessity,
    my opening speech in this body is about the articles of
    impeachment against President Clinton. It was not my choice!
        In fact, none of us have much choice in this matter. Here
    in the U.S. Senate, we have been charged with the
    responsibility of looking at the facts as presented by the
    managers from the House of Representatives. Each of us took an
    oath to do impartial justice.
        And the Constitution doesn't give us much wiggle room when
    it comes to choices. The framers were pretty explicit about our
    options. If we determine that the President is guilty of the
    charges as outlined in the two articles of impeachment, the
    penalty is removal from office. We have no other choice.
        Because we are all political animals, I think it is natural
    that the legitimacy of this process and the outcome of this
    debate will be clouded to some degree by the perception that it
    is a partisan exercise.
        Many of the President's defenders and many of our friends
    in the media, in fact, have insisted all along that the whole
    process has been driven by partisan Republicans who are intent
    to removing a Democratic President they do not like from
    office.
        The difficulty you run into when you start throwing around
    the term ``partisan'' politics is that it is seldom a one-way
    street.
        Is it any more ``partisan'' to blindly support the
    impeachment of a President of the other party than it is to
    blindly support a President of your own regardless of the
    facts? Of course not. Just as each of us, in keeping with our
    oath to do impartial justice, must strive to avoid a partisan,
    knee-jerk solution to the process, we must also not let
    ourselves be deterred from doing what we feel is right simply
    to avoid charges of partisanship.
        So, hiding behind the charge that the process has been
    tainted by political partisanship gives us no relief from our
    responsibility to look at the facts nor does it expand our
    choices.
        So, it is the facts that matter. And each of us must weigh
    them individually. We are not talking about public opinion
    polls. They should have no bearing on the case at this point.
    It is a question of facts pure and simple.
        Each of us must weigh those facts individually. We might
    reach different conclusions. But if I determine that the
    President is guilty, and if you determine that the President is
    guilty, based on those facts we don't have any options. We must
    vote to convict and to remove the President from office.
        I am personally convinced that the President is guilty
    under both of the articles of impeachment presented to us by
    the House managers.
        The managers from the House have presented a strong case
    that President Clinton committed perjury. The circumstantial
    and supporting evidence is overwhelming that Bill Clinton did
    lie under oath to the grand jury when he testified about his
    attorney's use of a false affidavit at his deposition. He lied
    under oath to the grand jury when he testified about the nature
    of his relationship with Ms. Lewinsky. He lied under oath about
    what he told his aides about his relationship with Ms.
    Lewinsky. He lied under oath to the grand jury about his
    conversations with Betty Currie.
        That is perjury. That is a felony. We cannot uphold our
    reverence for the rule of law and ignore it.
        The circumstantial and supporting evidence is also
    overwhelming that the President did willfully obstruct justice
    when he encouraged Ms. Lewinsky to file an affidavit in the
    Jones case; when he coached Betty Currie on how to respond to
    questions about his relationship with Ms. Lewinsky.
        When he lied to aides whom he knew would be called as grand
    jury witnesses, when he promoted a job search for Ms. Lewinsky,
    and when he encouraged Ms. Lewinsky to return the gifts he had
    given her, he was attempting to obstruct justice.
        After listening to the facts and the evidence, and after
    listening to the President's defense team try to refute the
    charges, I have determined that he is guilty as charged.
        I have tried to the best of my ability to reach this
    determination impartially without being biased by my political
    affiliation. Have I been successful? I believe so.
        I am encouraged in the belief that I have reached the
    proper conclusion for the proper reasons by the harsh wording
    of the resolution being circulated by some of the defenders of
    the President, Senators who oppose impeachment but support a
    censure resolution.
        The most recent version of a censure resolution that I have
    seen admits that the President engaged in shameless, reckless
    and indefensible conduct. It goes on to say that the President
    of the United States deliberately misled and deceived the
    American people and officials of the U.S. Government.
        It also says that the President gave false or misleading
    testimony, and impeded discovery of evidence in judicial
    proceedings and that, as a result, he deserves censure.
        These are the people who are opposed to the articles of
    impeachment.
        The Constitution doesn't really give us that kind of
    choice. If the President is guilty of these charges, he must be
    convicted and he must be removed from office. Censure is not an
    option.
        I would rather be speaking about Social Security but I
    wasn't given a choice in the matter.
        I would prefer not to vote to convict any President of
    articles of impeachment. But I don't have a choice in that
    matter either.
        If he is guilty, he must be convicted. And I believe he is
    guilty as charged.
        There is one central, elemental ingredient that is
    necessary to the success of our ability, as a nation, to govern
    ourselves. That is trust.
        Before a President takes office, he swears a solemn oath to
    ``preserve, protect, and defend the Constitution of the United
    States.''
        We accept his word on that.
        When the Vice President, U.S. Senators and Members of the
    House of Representatives take office, they are required to take
    an oath ``to support and defend the Constitution of the United
    States against all enemies, foreign and domestic.''
        We trust that they will live up to that oath.
        We administer these oaths and we accept them as binding
    because government, at least in this Nation, is, above all
    else, a matter of trust. Trust is the glue that holds it all
    together. If that trust is destroyed or tarnished, it seriously
    undermines the basic foundations of our government.
        The President's defenders try to excuse him by saying that
    if he did lie under oath and obstructed justice, he did it to
    protect himself and his family from personal embarrassment
    about sexual indiscretions, and somehow this makes the lies all
    right.
        It doesn't. When he lied and when he tried to hide his lies
    from the grand jury, he broke trust with the Nation's justice
    system. He broke faith with the American people.
        Not only did he break the law, he also violated the sacred
    trust of the office of the President, and in so doing, he
    violated his oath of office. And that raises the two articles
    of impeachment to a level that definitely justifies his removal
    from office.
        It is a matter of trust. It leaves us no choice but to vote
    for conviction.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Richard J. Durbin

        Mr. DURBIN. Mr. Chief Justice, from the opening statement
    to the closing argument, Chairman Henry Hyde and the House
    managers stated repeatedly that what is at stake in this trial
    is the rule of law.
        In a compelling reference to the life of Sir Thomas More,
    Mr. Hyde quoted from ``A Man for All Seasons'' by Robert Bolt
    to remind us that More was prepared to die rather than swear a
    false oath of loyalty to the King and his church. But Mr. Hyde
    did not read my favorite passage from that work. Let me share
    it with you and tell you why I think it is important to us in
    this deliberation.

        MORE. The law, Roper, the law. I know what's legal not what's
    right. And I'll stick to what's legal.
        ROPER. Then you set Man's law above God's!
        MORE. No far below; but let me draw your attention to a fact--I'm
    not God. The currents and eddies of right and wrong, which you find
    such plain-sailing, I can't navigate, I'm no voyager. But in the
    thickets of the law, oh there I'm a forester. I doubt if there's a man
    alive who could follow me there, thank God.
        ALICE. While you talk, he's gone!
        MORE. And go he should if he was the devil himself until he broke
    the law!
        ROPER. So now you'd give the Devil benefit of law!
        MORE. Yes. What would you do? Cut a great road through the law to
    get after the Devil?
        ROPER. I'd cut down every law in England to do that!
        MORE. Oh? And when the last law was down, and the Devil turned
    round on you--where would you hide, Roper, the laws all being flat?
    This country's planted thick with laws from coast to coast--Man's laws,
    not God's--and if you cut them down--and you're just the man to do it--
    d'you really think you could stand upright in the winds that would blow
    then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

        Sir Thomas More's words remind us the law must be followed
    not only by the accused but also by the accusers.
        Every day in America many who are accused of crimes are
    released because this government has violated their
    constitutional rights--denied them due process--forsaken the
    rule of law.
        How American of us. We are prepared to release an accused
    because the accuser has not played by the rules, the rules of
    law.
        The House managers built their case on one key question:
    Did the President respect the rule of law?
        But the same managers who exalted the rule of law from
    their opening words would have us ignore the process which
    brought us to this moment:
        An independent counsel in name only whose conduct before
    the House Judiciary Committee led Sam Dash, former Watergate
    counsel and Mr. Starr's ethics advisor, to resign in protest.
        Listen to Dash's words to Kenneth Starr in his letter of
    resignation concerning Starr's appearance and testimony:

        In doing this you have violated your obligation under the
    Independent Counsel Statute and have unlawfully intruded on the power
    of impeachment, which the Constitution gives solely to the House. . . .
    By your willingness to serve in this improper role (advocating for
    impeachment) you have seriously harmed the public confidence in the
    independence and objectivity of your office.

        Much has been made about the so-called pep rally which some
    House Democrats held for President Clinton at the White House
    after the impeachment vote. If you wonder how those Members
    could act in such an apparently partisan manner after the
    historic vote on December 19, 1998, I hope you will recall that
    the Republican Members of the House Judiciary Committee gave
    Mr. Starr nothing less than a standing ovation when he
    completed testimony which Mr. Dash characterized as
    ``unlawful'' and ``improper.''
        Is it any wonder why the American people think this whole
    impeachment process reeks of partisanship and the excesses of
    the independent counsel have created a bipartisan sentiment to
    amend if not abolish that statute?
        Did Mr. Starr respect the rule of law?
        And the House Judiciary Committee--so anxious to complete
    its work in a lame-duck session that it would vote for
    impeachment without calling a single material witness. Then
    those same managers came to the Senate and argued justice
    cannot be served without live witnesses on the Senate floor.
        When I listen to Paul Sarbanes recount the painstaking
    efforts to avoid partisanship during the impeachment hearing on
    President Nixon, it is a stark contrast to the committee
    process which voted these articles of impeachment against
    President Clinton.
        Did the House Judiciary Committee respect the rule of law?
        And the House of Representatives, an institution which I
    was proud to serve in for 14 years, was so hellbent on
    impeachment that it bent the rules, denied the regular order of
    business and refused the House a vote to censure this President
    so the majority would have a better chance to visit the
    disgrace of impeachment on his record.
        Did the House of Representatives respect the rule of law?
        But it would be too facile to dismiss this case simply
    because the process which brought us to this point is so
    suspect--too easy to discard the fruit of this poisoned tree.
        Justice and history will not give us this easy exit. We
    must ignore the birthing of this impeachment and judge it on
    its merits.
        First, let me stipulate the obvious. The personal conduct
    of this President has been disgraceful and dishonorable. He has
    brought shame on himself and his Presidency. No one--not any
    Senator in this Chamber nor any person in this country--will
    look at this President in the same way again.
        I have known Bill Clinton for 35 years. I remember him as a
    popular student when we both attended Georgetown. And I know
    despite all of the talk about ``compartmentalization'' that
    this man has suffered the greatest humiliation of any President
    in our history. I hope his marriage and his family can survive
    it.
        But our job is not to judge Bill Clinton as a person, a
    husband, a father. Our responsibility under the Constitution is
    to judge Bill Clinton as a President, not whether he should be
    an object of scorn but whether he should be removed from
    office.
        Did William Jefferson Clinton commit perjury or obstruct
    justice, and for these acts should he be removed from office?
        When this trial began I believed that President Clinton's
    only refuge was in a strict reading of ``high crimes and
    misdemeanors''--that James Madison, George Mason and Alexander
    Hamilton would have to serve as his defense team and save this
    President from removal.
        The managers' case was compelling, but as the defense team
    rebutted their evidence I saw the charges of perjury crack,
    obstruction of justice crumble and impeachment collapse.
        The managers failed in article I on perjury to meet the
    most basic requirement of the law: specificity. In the Andrew
    Johnson impeachment trial, Senator William Fessenden of Maine
    pointed out the unfairness of failing to name specific charges:

        It would be contrary to every principle of justice to the clearest
    dictates of right, to try and condemn any man, however guilty he may be
    thought, for an offense not charged, of which no notice has been given
    to him, and against which he has had no opportunity to defend himself.

        Senator Fessenden understood the rule of law.
        And by what standard should the President be judged?
        When the House managers discussed the gravity of the case
    for impeachment, they said repeatedly: ``These are crimes.''
    But when asked why they failed to meet the most basic criminal
    procedural requirements of pleading and proof, Mr. Canady said:
    ``This proceeding is not a criminal trial.''
        What is the difference between charging a crime and proving
    something less than a crime? The difference is known as the
    rule of law--a rule which requires fair notice and due process
    whether the accused is President or penniless.
        How many times have we seen the House managers run into the
    brick wall of sworn testimony contradicting their charges? On
    gifts--Monica Lewinsky said hiding them was Betty Currie's
    idea--Betty Currie claimed it was Lewinsky's idea--neither of
    them claimed it was the President's idea. On the affidavit
    issue--the House managers could not produce one witness--not
    Lewinsky, not Jordan and not the President to support their
    charge of obstruction.
        Time and again the House managers failed to prove their
    case--failed to produce testimony or evidence and at best
    played to a draw. I don't need to remind my colleagues in the
    Senate that playing to a draw on this field comes down in favor
    of the President.
        The House managers failed to meet their burden of proof.
        Let me say a word about witnesses. We have spent a lot of
    time on this issue. I do not know who came up with the
    limitation of three witnesses for the managers. But is there
    anyone in this Chamber who believes that Sidney Blumenthal was
    a more valuable witness to this case than Betty Currie?
        Surely my colleagues in the Senate remember that the House
    managers spent 3 solid days building their obstruction of
    justice case on concealing gifts and tampering with witnesses.
    And Betty Currie was critical to the most credible charges
    against the President.
        Then when the House managers were given a chance to call
    this key witness, they refused.
        What can we conclude from this tactical decision? Let me
    read rule 14.15 from Instructions for Federal Criminal Cases.

        If it is peculiarly within the power of either the government or
    the defense to produce a witness who could give relevant testimony on
    an issue in the case, failure to call that witness may give rise to an
    inference that this testimony would have been unfavorable to that
    party. No such conclusion should be drawn by you, however, with regard
    to a witness who is equally available to both parties or where the
    testimony of that witness would be merely cumulative.
        The jury must always bear in mind that the law never imposes on a
    defendant in a criminal case the burden or duty of calling any
    witnesses or producing any evidence.

        Betty Currie was no help to the House managers in her
    deposition and they clearly concluded she was more likely to
    hurt than help their case if called as a witness. The key
    witness in the obstruction of justice charge never materialized
    and neither did the proof the House managers needed.
        How will history judge this chapter in our history?
        The House managers and many of my colleagues believe an
    acquittal will violate the basic American principle of equal
    justice under the law--they argue that acquitting the President
    will cheapen the Presidency--and imperil our Nation and its
    values.
        I have heard my colleagues stand in disbelief that the
    American people could still want a man they find so lacking in
    character to continue as their President. William Bennett and
    his pharisaical followers have profited from books and lectures
    decrying the lack of moral outrage in our Nation against Bill
    Clinton.
        I hope my colleagues will pause and reflect on this
    conclusion that the American people have somehow lost their
    moral compass--that the polls demonstrate our people have lost
    their soul--and that we, their elected leaders, have to impeach
    this President to remind the American people of the values--the
    integrity--the honor which is so important to our Nation.
        May I respectfully suggest that those who appoint
    themselves as the guardians of moral order in America risk the
    vices of pride and arrogance themselves. Before we don the
    armor and choose our side in what Manager Hyde calls a
    ``cultural war,'' let us not give up on the wisdom and judgment
    of the people we represent.
        Like Abraham Lincoln, I am a firm believer in the American
    people. If given the truth they can be depended upon to meet
    any national crisis.
        And the American people have this right. The President's
    personal conduct was clearly wrong. He has endured
    embarrassment and will spend the rest of his natural life and
    forever in the annals of history branded by this experience.
    The American people clearly believe that the process which
    brings him before us in this trial was too partisan, too
    unfair, too suspect.
        What has occurred here is a personal and family tragedy--it
    is not a national tragedy which should result in the removal of
    this President from office.
        In 1798, Thomas Jefferson wrote to James Madison: ``History
    shows that in England, impeachment has been an engine more of
    passion than justice.''
        Jefferson feared that even our process for impeachment
    could be a formidable partisan weapon. He feared that a
    determined faction in Congress would use it ``. . . for getting
    rid of any man whom they consider as dangerous to their views,
    and I do not know that we could count on one-third in an
    emergency.''
        In 1868, with the suffering and death of our Civil War
    still fresh in everyone's mind, this Senate came within one
    vote of impeaching a President who was viewed as too
    sympathetic to the vanquished South.
        In 1999, after 6 years and millions of tax dollars spent in
    investigation of this President, I believe the Senate will once
    again cool the political passions, preserve the Presidency,
    protect the Constitution, and prove to Thomas Jefferson that
    his trust in this body and that great document was not
    misplaced.
        I will vote to acquit William Jefferson Clinton on both
    articles of impeachment and support a strong resolution of
    censure to bring this sad chapter in American politics to a
    close.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                          Statement of Senator Jon Kyl

        Mr. KYL. Mr. Chief Justice, this case is about the rule of
    law--specifically, whether actions and statements of President
    Clinton in Federal court proceedings have done such harm to the
    rule of law that he should be removed from office. I conclude
    in the affirmative, and reluctantly vote to convict on both
    articles of impeachment.
        Chairman Henry Hyde observed that the House of
    Representatives had come to the Senate ``as advocates for the
    rule of law, for equal justice under law, and for the sanctity
    of the oath.'' (145 Cong. Rec. S221 (January 14, 1999).)
        These are not just grand words.
        The rule of law refers to our judicial process, which is
    governed by uniform standards and procedures that we say will
    always be guaranteed and applied fairly and equally. We are
    willing to submit ourselves to this process because we have
    worked hard for 210 years to ensure that it produces impartial
    justice for all.
        Equal justice means that each of us, including the least
    among us, has rights that the state is bound to protect; and it
    surely includes the requirement that those who make the laws,
    including the President, must live under them like anybody
    else.
        Oaths are essential to the rule of law because the judicial
    process is about seeking the truth; and that requires that we
    be able to trust what is said. The oath formalizes the
    commitment to tell the truth, and the whole truth--a commitment
    so important that its violation is itself a crime.
        I believe there are two questions to be answered.
        The first is whether the President impermissibly took the
    law into his own hands in a Federal civil rights case and 7
    months later before a Federal grand jury in order to suppress
    the truth. The second question is whether, if the President did
    engage in the impeachable conduct, it is a breach serious
    enough to warrant removal from office.
        The Constitution permits only one vote: to acquit or
    convict. This leaves some in the anomalous position of
    determining guilt on an impeachable offense, but having to vote
    to acquit because they deem the offense insufficiently serious
    to warrant removal. While the fact that the offense is
    impeachable should itself resolve the issue of
    ``proportionality,'' I would not consider it impermissible to
    reach a contrary conclusion, as some will do in this case.
        For my part, I answer both questions in the affirmative.
    The President ``willfully provided perjurious, false, and
    misleading testimony'' under oath to a grand jury and he
    ``prevented, obstructed, and impeded the administration of
    justice.'' (H. Res. 611.)
        While the House of Representatives asserted that the
    President's actions were criminal, violations of specific
    criminal statutes are not essential for wrongful conduct to
    constitute the ``high crimes and misdemeanors'' that
    demonstrate unfitness to continue as Chief Executive. Most
    authorities agree a President cannot be prosecuted while in
    office for crimes allegedly committed during his term. So, for
    example, whether a lie under oath would necessarily later
    result in a criminal perjury conviction cannot be known with
    certainty, and an impeachment trial is not an effective forum
    for establishing criminal guilt. It is conduct, not a proven
    crime, that is the basis for impeachment.
        This is one of the reasons why it is clear that each
    Senator may apply his or her standard of proof--it need not be
    the criminal standard ``beyond a reasonable doubt.'' (Senate
    Proceedings in the Impeachment Trial of Judge Claiborne, S.
    Doc. 99-48, p. 150.) Moreover, because the Senate constrained
    the House of Representatives as it did--by limiting the number
    of witnesses that could be deposed, by effectively foreclosing
    other discovery, and by precluding ``live'' testimony--it would
    be unfair to impose a ``beyond reasonable doubt'' standard.
        The President's counsel argued that the Senate should not
    consider article I because the House of Representatives
    defeated a perjury count relating to the Jones civil action.
    But article I also included allegations of ``perjurious, false,
    and misleading'' statements in the Jones case; so the argument
    is meritless. Moreover, the President's falsehoods in the Jones
    civil suit also formed part of his strategy to obstruct
    justice.
        What is striking about this case is the President's
    persistent, sustained, carefully calculated, deliberate, and
    callous manipulation of the judicial process for over a year.
        Without attempting to summarize all of the evidence, I
    conclude that the President lied before the Federal grand jury
    about: (1) the nature of details of his relationship with Ms.
    Lewinsky; (2) his assertion that he told the truth in the Jones
    deposition; (3) the false and misleading statements that he
    allowed his lawyer to make to a Federal judge in the Paula
    Jones civil case; and (4) his corrupt efforts to influence the
    testimony of his aides who were potential grand jury witnesses.
        It seems clear to me that the President obstructed
    justice--that he corruptly: (1) encouraged Ms. Lewinsky to
    execute a false affidavit; (2) encouraged Ms. Lewinsky to lie
    if called as a witness; (3) encouraged Ms. Lewinsky to conceal
    gifts; (4) encouraged cooperation of Ms. Lewinsky through job
    assistance; (5) allowed his attorney to make false and
    misleading statements about the affidavit; (6) attempted to
    influence the testimony of his secretary, Ms. Currie; and (7)
    attempted to influence the testimony of other aides.
        The final question is whether the President should be
    removed for his actions.
        As a preliminary matter, there can be no doubt that
    perjurious, false, and misleading statements made under oath in
    Federal court proceedings are indeed impeachable offenses. The
    fact that the House of Representatives reached this conclusion,
    of course, establishes the precedent as to the kind of conduct
    in this case. But, it is also confirmed by the impeachment and
    conviction of Federal judges--of Judge Harry Claiborne, removed
    in 1986 for filing a false income tax return under penalty of
    perjury, of Judge Walter Nixon, removed in 1989 for perjury
    before a grand jury, and of Judge Alcee Hastings, removed in
    1989 for perjury related to financial misconduct. I cannot
    agree with those colleagues who assert that there is a
    different standard for a President--that it would require a
    more egregious kind of perjury to remove a President than a
    judge. Nothing in the Constitution suggests such a double
    standard.
        John Jay, the first Chief Justice of the United States,
    said ``there is no crime more extensively pernicious to
    society'' than perjury, precisely because it ``discolors and
    poisons the streams of justice.'' (John Jay's charge to the
    Grand Jury of the Circuit Court for the District of New York,
    Apr. 5, 1792, in Marcus, ed., ``The Documentary History of the
    Supreme Court of the United States, 1789-1800,'' Vol. 2, pp.
    253, 255 (1988).)
        As to obstruction of justice, on which there is no other
    direct precedent, Chief Justice Rehnquist, our Presiding
    Officer, in his history of impeachment, ``Grand Inquests,''
    wrote that ``the counts relating to the obstruction of justice
    and to the unlawful use of executive power [by President Nixon]
    were of the kind that would surely have justified removal from
    office.''
        The House managers pointed out, accurately, that even
    though perjury and obstruction of justice are not specifically
    listed as impeachable offenses in the Constitution, the Federal
    Sentencing Guidelines treat these offenses more seriously than
    they do the crime of bribery--one of two specifically
    enumerated impeachable offenses. Significantly, where bribery
    is committed in connection with a judicial proceeding, such as
    bribing a witness in a case, its seriousness under the
    guidelines rises to that of perjury and obstruction. When
    misdeeds, in other words, take place in connection with a
    judicial process, to try to affect or control that process,
    they get extra attention in our legal system. They are not
    simply brushed aside. Far from it. Perjury and obstruction are
    like bribery; they are ``other high crimes'' by any reasonable
    construction.
        The President's counsel argued that the President's conduct
    could not be impeachable because he did not abuse the power of
    his office in conducting ``matters of state,'' and did not
    violate the public trust. But impeachable offenses are not
    limited to the President's conduct of ``matters of state.'' If
    this were so, Richard Nixon could never have been impeached. If
    this were so, a twenty dollar bribe for a Senator to vote for a
    bill would be impeachable, while a million dollar bribe to
    cover up political dirty tricks would not be.
        It simply cannot be, as some have argued, that the only
    impeachable offenses are those that can only be committed by
    the President. If a President commits murder, can he not be
    removed? Must we wait until his term is over to deal with his
    crime? It is clear that seriously wrongful official conduct is
    impeachable. But it is just as clear that impeachment cannot be
    limited to that.
        It is not only the exercise of Presidential power but also
    the violation of a public duty that can constitute impeachable
    conduct. As the head of the executive branch, the President has
    the duty under article II of the Constitution to ``take Care
    that the Laws be faithfully executed.'' The 1974 House
    Judiciary report on the ``Constitutional Grounds for
    Presidential Impeachment'' summarized that impeachment of a
    President can ``be predicated only upon conduct seriously
    incompatible with either the constitutional form and principles
    of our government or the proper performance of constitutional
    duties of the presidential office.'' (Staff of House Comm. on
    the Judiciary, 93d Cong., 2d Sess. (Comm. Print 1974),
    Constitutional Grounds for Presidential Impeachment, p. 27.)
    Surely the violation of constitutional obligations can
    constitute high crimes or misdemeanors for which the President
    may be impeached. And surely, such violation would constitute
    an abuse of trust by the Chief Executive.
        By his oath of office and article II responsibilities,
    President Clinton is supposed to see that the sexual
    discrimination laws are faithfully executed. But he thought the
    Jones case was illegitimate, so he took the law into his own
    hands. His conduct in this case clearly violated his public
    duties, his oath, and the public trust. And it interfered with
    the proper functioning of another branch of the government.
        The same is true for his deliberate efforts to impede
    legitimate discovery efforts in Federal court proceedings. Such
    action ``is incompatible with . . . the constitutional form and
    principles of our government,'' as the 1974 House Judiciary
    report said. It simply cannot be that a President who
    wrongfully interferes with the proper functioning of another
    branch of our government by attempting to subvert justice in
    Federal court proceedings cannot be impeached because he did
    not do it as President, but, rather, as a citizen.
        That the underlying conduct covered up is sexual, is, if
    anything, an aggravating not a mitigating factor. In sex-
    discrimination litigation, where there is frequently no
    corroboration for the plaintiff, a defendant who lies can
    easily subvert justice. Had the blue dress not been found, with
    its incontrovertible tangible evidence, I doubt Paula Jones
    would have gotten a dime in settlement.
        Judgements about the severity of the impeachable conduct in
    this case will lead different Senators to reach different
    conclusions. That is why some of us are willing to say
    reasonable people can differ. For those who fear the long-term
    consequences to the rule of law, however, I believe there can
    be only one result. Anyone who so willfully, callously, and
    persistently connived to deny the Federal court and grand jury
    the truth, and who used and abused the highest office in the
    land to advance his personal coverup is not only no longer
    worthy of trust--which all agree is essential to the conduct of
    his office--but also must be removed to avoid the perpetuation
    of a legal double standard. If Federal judges, such as Judges
    Claiborne, Nixon, and Hastings, are removed for similar
    conduct; if average Americans are imprisoned for it, can the
    rule of law long survive ``special exceptions'' for powerful
    people we like, or who are doing a good job, or who hold
    elective office? None of these rationalizations are defenses to
    illegal or impeachable conduct.
        As I said, sexual harassment cases are precisely the kind
    of judicial proceedings that demand the maximum cooperation of
    and truth-telling by the defendant because of the lack of
    third-party witnesses or corroborating evidence. In these
    cases, justice is denied if obstruction, witness tampering, or
    perjury prevent the truth from coming out. Can anyone say this
    is not serious? To what standard of seriousness does it not
    rise? How many plaintiffs will have to lose their sexual
    harassment, domestic violence, or sexual assault cases because
    defendants lie and obstruct justice, and there is no blue dress
    to keep them honest, before it becomes serious?
        An acquittal in this case will make it harder to deal
    properly with similar conduct in the future. We will be hard
    pressed to perpetuate a double standard, so the lowest common
    denominator of conduct will be established as the permissible
    norm. And this cannot help but weaken the ability of courts to
    enforce truth-telling and prevent obstruction of justice.
        The precedent set by this case may not change the law
    overnight, but this unforgettable episode is now part of the
    institutional life of our country. The chief magistrate
    perverted justice and remained in power. The lesson is
    corrosive. Like water dripping on a rock, it eventually makes a
    deep hollow in the American justice system.
        It is true the President could be sent to jail later. How
    does that validate his right to appoint judges and be head of
    U.S. law enforcement now? How does that square with his
    leadership of the armed forces right now, as our Commander in
    Chief? Should the standard for the President not be at least as
    high as for those he appoints and leads?
        In the end, my colleagues who would censure rather than
    convict the President are right about one thing: the
    President's conduct is ``unacceptable.'' But, if conduct is
    unacceptable, we cannot accept it--meaning, we have to do
    something about it that does not leave it stand. And under our
    Constitution that means removal of the President through
    conviction on the articles of impeachment.
        Henry Hyde closed the House case by warning that public
    cynicism is the greatest threat we face. Our failure to remove
    the President will only fuel the cynicism of Americans such as
    Louie Valenzuela of Glendale, AZ. He was quoted recently in a
    man-on-the-street interview about this case. ``They talk about
    justice,'' he told the Arizona Republic. ``They talk about
    doing the right thing,'' said Mr. Valenzuela. ``But they always
    look the other way when someone rich, famous or powerful does
    something wrong. Look at O.J. Simpson. Clinton will be next.
    Asi es. (That's just the way it is.)''
        That is not the way it has to be. But how it is is up to
    us.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Arlen Specter

        Mr. SPECTER. Mr. Chief Justice, colleagues, a great deal
    has been spoken in the Chamber about separation of powers and
    tomes have been written on it. And in reading the Constitution,
    article I, creating the Congress; and article II, the executive
    branch; and article III, the judiciary, we have seen the wisdom
    of limiting power through the separation of powers among the
    three branches of the Federal Government.
        The one provision of the Constitution--the impeachment
    provision--reaches across that divide. It is my thinking that
    before the Congress can exercise the power of removal,
    especially of an American President, there has to be a very,
    very heavy burden of proof.
        I had occasion, fairly recently, to go very deeply into the
    issue of separation of powers when I argued the Base Closing
    Commission case regarding the Philadelphia Navy Yard, which was
    unfairly closed--a subject that I will not amplify on--and I
    had an opportunity to appear before the Supreme Court.
        In my two earlier speeches during the closed session on the
    motion to dismiss and the issue of depositions, I did end
    within the allotted time. But I will say that the Chief Justice
    is a good deal more tolerant here than in the Supreme Court. In
    the Supreme Court, when I argued the base closing case, I was
    cut off in mid-syllable. I didn't know that was possible. But
    with the forcefulness of the Presiding Officer, he was able to
    limit the speakers to the precise time allotted. I did not do
    well in the outcome of that case in the Supreme Court. I had
    done better on my previous appearances in the Supreme Court
    when I was representing the district attorney's office on law
    and order.
        That sojourn into that case brought me into 200 years of
    reflection and analysis on case law on separation of powers,
    something that is not often done by practicing lawyers, and
    certainly not Senators. It instilled in me a very, very deep
    appreciation of separation of power.
        So when I approached this case--and it has been the
    toughest case I have ever seen, and I think it has been a very,
    very intense drain on this body and all of us individually--the
    focus I had was: what is the burden that you ought to have to
    show if the Senate is going to remove a President? As I
    reviewed the evidence, I am not satisfied at all that that
    burden was met.
        Perjury is a very tough offense to prove under the
    standards established by the Supreme Court of the United States
    in the famous Bronston case. Bronston was giving testimony in a
    bankruptcy proceeding in New York and was asked about bank
    accounts in Zurich, and said, ``My company had a bank account
    for about 6 months,'' leading to the implication that he did
    not have a personal bank account when in fact he did. His
    conviction in the district court was upheld by the Second
    Circuit, but reversed by a unanimous Supreme Court because the
    interrogator, the prosecutor, has to go further. You have to
    ask the last questions to prove perjury.
        The President was very artful, very careful and full of
    guile as he wound his way through the grand jury proceedings.
    We heard the testimony again and again. The President said he
    told his aides, things that were true. Well, he didn't comment
    about the things that he told them that were false. But nobody
    said, ``Did you tell them things that were false as well?'' to
    set the stage for a perjury prosecution.
        When asked about Monica Lewinsky--was he alone with her?--
    on a series of rambling answers he said he wasn't alone with
    her in the hallway. But that is not the end of the question. He
    wasn't alone with her in the hallway. But nobody followed up,
    and said, ``Were you alone with her somewhere else?'' which he
    was not asked. Had he been asked whether he was alone with her
    somewhere else and denied that, there may have been a record to
    establish perjury. On this record, he did not commit perjury
    under the Bronston case.
        The testimony of Betty Currie we heard again and again and
    again. In late January 1998, Betty Currie testified that when
    the President gave her that series of questions, she thought
    the President was trying to lead her, to mold her testimony.
    Then when she came back to testify in July, she said, well, it
    was different on that occasion. She testified that the
    President gave her the option of either agreeing or
    disagreeing.
        Betty Currie was not a witness in this proceeding. Her
    deposition was not even taken because of very, very restrictive
    rules which the U.S. Senate established for what the House
    managers could do. The House managers were on very, very sharp
    notice that if they asked for too many depositions, they might
    get none at all. They made their selection of witnesses and
    they left off Betty Currie.
        Had House managers been able to present their case in the
    normal course of events, I daresay the proceeding would have
    been even faster. We heard some 12 days of speeches, 6 days of
    opening speeches; 3 and 3 on each side. We could have done that
    in 2 hours. We then spent 2 days propounding questions through
    the Chief Justice where we learned very, very little. We heard
    arguments on the motion to dismiss, and on depositions, and
    arguments on what to do about the witnesses on those
    videotapes. Again and again, we heard legal arguments, but we
    did not hear from witnesses.
        We are bound by this record. It is my view that, on this
    record, the burden of proof has not been met, the kind of a
    burden that would have to be sustained, in my judgment, for the
    Senate to remove an American President.
        One comment about mindset. The Senate really approached
    this matter as if it were a waste of time from the outset.
    There was an early effort to structure a vote to show that more
    than one-third of the Senators would not be for conviction and,
    therefore, to end it. Then when we had the vote on the motion
    to dismiss and 44 Senators voted to dismiss. It confirmed what
    we all knew; and that is that there would not be a two-thirds
    vote. I think that put a mindset in this body really not to
    conduct a trial.
        The Constitution calls for a trial. The proceeding we had
    does not measure up in any way, shape or form to a trial. It is
    true that there are some few cases submitted on a record where
    judges are going to decide it. But a trial customarily requires
    witnesses. Had witnesses appeared on the floor of the U.S.
    Senate with examination and cross-examination, you would have
    gotten a feel for what happened here. If Betty Currie had
    appeared on the floor of the U.S. Senate, or even if her
    deposition had been taken, there could have been a
    clarification of inconsistencies in her two lines of
    questioning.
        A word for the future: It would be my hope that if, as, and
    when the Senate has to revisit impeachment that it would be
    done differently. Senator Lieberman made a suggestion on a
    December 20 television show that there ought not to be party
    caucuses, that there only ought to be joint caucuses. I have
    passed that recommendation on. I realized that given the
    history of the Senate and our party caucuses, that would be a
    very, very abrupt change.
        But I came out of some of our party caucuses and walked
    over and talked to my friends on the other side of the aisle,
    the people who I had agreed with on many, many, many issues. We
    were just irreconcilably opposed, just totally opposed. My only
    conclusion was that it was the kind of argument and the kind of
    discussion on what happened in the caucuses--really choosing
    sides and having teams--as opposed to trying to make an
    analytical, judicial decision as to what was involved here.
        So it is my hope that if we ever have to undertake this
    again we will do it differently.
        My position in the matter is that the case has not been
    proved. I have gone back to Scottish law where there are three
    verdicts: guilty, not guilty, and not proved. I am not prepared
    to say on this record that President Clinton is not guilty. But
    I am certainly not prepared to say that he is guilty. There are
    precedents for a Senator voting present. I hope that I will be
    accorded the opportunity to vote ``not proved'' in this case.
        We really end up, colleagues, very much, in my judgment,
    where at least I started on the matter. I had thought at the
    outset that this was not an appropriate case for impeachment
    because the requisite two-thirds would not be present, and had
    hoped that impeachment would be bypassed, but instead we would
    allow the President to finish his term of office, which I
    thought an inevitability, just as it has worked out that way,
    and that the criminal process would do whatever was appropriate
    after his term was finished; if indicted, if convicted,
    whatever a judge would have to say as to sentencing. I am still
    hopeful that the rule of law will be vindicated in that
    process.
        We obviously have learned much from this proceeding. It is
    my hope that we will leave a mark to guide future Senates if we
    ever have to repeat this very, very trying sort of an
    experience.
        The removal of an American President through impeachment
    carries a high burden of proof and persuasion. For conviction
    in the criminal courts on charges of perjury and obstruction of
    justice, the proof must be beyond a reasonable doubt. An extra
    measure of certainty is necessary to persuade the Senate that
    the national interest mandates invoking the extraordinary
    remedy of removing the President.
        The starting point is article II, section 4 of the
    Constitution:

        The President . . . shall be removed from Office on Impeachment
    for, and Conviction of, Treason, Bribery, or other High Crimes and
    Misdemeanors.

        From that language, there is reason to interpret ``other
    High Crimes and Misdemeanors'' as relating back to specific
    categories of offenses earlier enumerated, such as ``Treason
    and Bribery''; but I think that is too limited. Nor do I agree
    with the simplistic definition that perjury and obstruction of
    justice, being felonies and therefore more serious than
    misdemeanors in the criminal law, are automatically impeachable
    offenses.
        The framers did not foresee the circumstances before us.
    The omission of ``perjury'' and ``obstruction of justice'' from
    the enumerated offenses probably reflected the framers' thought
    that it would be unlikely that a President would be testifying
    under oath or be a participant in a judicial proceeding. Yet it
    is equally clear that perjury and obstruction of justice are
    serious crimes. For the President to commit either, he would be
    placing his own interest above his public duty and the people's
    interest in due process.
        In 1970, then-Congressman Gerald R. Ford offered this
    definition:

        . . . an impeachable offense is whatever a majority of the House of
    Representatives considers to be at a given moment in history . . .

        While that may state the raw power of Congress, it is too
    subjective to provide any real guidance. Instead, I look to the
    framers at the Constitutional Convention, ``The Federalist
    Papers,'' and the English and U.S. impeachment cases.
        Commenting on impeachment at the Constitutional Convention,
    James Wilson said:

        . . . far from being above the laws, he (the President) is amenable
    to them in his private character as a citizen, and in his public
    character by impeachment.

        The President's attorneys have argued that the charges
    arise from private conduct unrelated to his official duties.
    The issue then arises whether his conduct is ``in his public
    character'' by virtue of his constitutional duty:

        . . . he (the President) shall take care that the Laws be
    faithfully executed . . . Article II, Section 3--

        Such a public duty may be insufficient for impeachment
    under Alexander Hamilton's definition of impeachment in
    Federalist No. 65:

        . . . those offences (sic) which proceed from the misconduct of
    public men, or, in other words, from the abuse or violation of some
    public trust. They are of a nature which may with peculiar propriety be
    denominated POLITICAL, as they relate chiefly to injuries done
    immediately to the society itself.

        From Hamilton's statement, the conventional wisdom has
    evolved that impeachment is essentially a political question.
    The framers, cases and commentaries have not articulated a
    handy definition of ``high crimes and misdemeanors.''
        Whether to impeach and convict transcends the facts and law
    to what is in the national interest at a specific time in the
    Nation's history on the totality of the circumstances.
        Consideration of the national interest may include whether
    there is a clear and present danger to the integrity or
    stability of the national government; or whether the conduct is
    so vile or reprehensible as to establish unfitness for office;
    or whether the electorate has lost confidence in the President
    to the extent that he cannot govern.
        The precedents and commentaries leave substantial latitude
    for Senators to establish their own standards. The ultimate
    definition may be analogous to Supreme Court Justice Potter
    Stewart's struggle to define obscenity when he concluded: ``. .
    . perhaps I could never succeed in intelligibly doing so. But I
    know it when I see it.''
        The extreme partisanship of the impeachment proceeding in
    the House prejudiced the matter before it came to the Senate.
    While it takes two to tango or be partisan, somehow the House
    Republicans bore the brunt of the public disdain on the
    partisan charge. It was more than the party-line votes. The
    whole process was filled with rancor, acrimony and bitterness
    which contributed significantly to the public view that it was
    all politics without real substances.
        It has been widely noted that there must be significant
    bipartisan support to remove a President. President Nixon's
    forced resignation occurred only when Republican elders like
    Senators Goldwater and Scott joined Democrats in urging his
    resignation.
        In an early Sunday TV talk show on December 20, 1998, the
    day after the House sent the articles to the Senate, Senator
    Joseph Lieberman and I appeared together on ``Face the Nation''
    where he urged that there be no party caucuses but only joint
    caucuses. I recommended that to Senator Lott in my memorandum
    of December 29 and urged that policy to colleagues on both
    sides of the aisle. Perhaps, it was too much to expect or even
    hope that would be done given the Senate's history and practice
    of party caucuses.
        As noted in this floor statement, the Senate struggled to
    achieve bipartisanship, mostly without success, but we did
    avoid the rancor and bitterness which prevailed on the House
    side.
        From the outset, the conventional wisdom was there would
    not be two-thirds of the Senate in favor of conviction. That
    pervasive view has cast a long shadow over the impeachment
    proceedings. When the Senate convened on January 6, there was
    immediate informal consideration on taking a test vote to
    determine if there were 34 Senators opposed to conviction which
    would end the matter. There appeared to be even more than that
    number so opposed who based their judgments on news media
    accounts. That trial balloon was abandoned when many Senators
    objected on the ground that the Constitution called for a trial
    and the Senate owed the House the constitutional deference to
    give the House managers a chance to prove their case.
        In mid-November, I wrote in a New York Times op-ed article
    that impeachment should be bypassed and the President should be
    held accountable through the criminal process after his term
    ended. When the House of Representatives returned articles of
    impeachment in mid-December, I felt at that stage the Senate
    had a constitutional duty to proceed to a trial.
        The Constitution explicitly provides for a trial: ``The
    Senate shall have the sole Power to try all Impeachments,''
    article I, section 3, clause 6.
        The same clause refers to being convicted and the next
    clause refers to judgment, so the constitutional mandate for a
    trial is plain. Senate impeachment rules VI and XVII deal with
    witnesses.
        The Senate was schizophrenic in wanting to avoid what many
    considered to be a pointless trial. Others considered it to be
    our constitutional duty to hold a trial and give appropriate
    deference to the House's action on the articles. In a series of
    halting half-steps, the Senate stumbled through a
    ``pseudotrial,'' a ``sham trial''--really no trial at all. In
    the end, it would have taken less time to let the House
    managers put on their case with a full White House defense than
    the helter-skelter procedures adopted by the Senate.
        From the time the Senate reconvened on January 6, 1999, the
    public pressure to conclude the trial promptly was palpable.
    The improbability of a two-thirds vote for conviction was only
    one factor although the totality of the other factors
    contributed to that improbability.
        The adverse public reaction was reflected in consistent
    polling data and the feel on the streets in our various States.
    Notwithstanding the serious charges of perjury and obstruction
    of justice, Democratic Senators argued and many people agreed
    that a private sexual liaison should not have caused a
    multiyear, multimillion-dollar investigation. If the
    independent counsel, they argued, could establish no wrongdoing
    in Whitewater, Travelgate and Filegate, why elevate a charge
    based on sex to an impeachable offense?
        I think it is a significant distinction that President
    Clinton, unlike President Nixon, was not charged with covering
    up an underlying crime. President Clinton had the option of not
    answering deposition questions and/or simply not defending the
    Paula Jones lawsuit. At worst that would have resulted in a
    default judgment being entered against him with an assessment
    of damages. As it worked out, a nondefense might still have led
    to dismissal of the case as a matter of law and on the eventual
    settlement. In any event, the President would have avoided his
    present predicament by not responding.
        Once the President undertook his course of action, then he
    must answer to the serious charges of perjury and obstruction
    of justice even though he was not covering up criminal
    activity.
        Attorney General Reno made a major mistake in acting to
    expand Judge Kenneth Starr's jurisdiction to include the
    Lewinsky matter. In mid-January 1998, contemporaneously with
    the Attorney General's action, I commented that the public
    would suspect a vendetta on the part of Judge Starr because
    there had been so many apparently unproductive investigations
    going on for so long. This was not a criticism of Judge Starr,
    but an inevitable public reaction. The public's suspicion of
    Judge Starr carried over to impeachment.
        When I challenged Attorney General Reno in the Judiciary
    Committee oversight hearing on July 15, 1998, about why she
    acted to expand Judge Starr's authority, she refused to answer
    the question, saying only: ``The application speaks for itself,
    Senator.''
        The failure of the House to call witnesses during their
    hearings injected a Trojan horse into the articles. The House
    had good reason not to call witnesses because of its concern to
    finish its work before the 106th Congress convened to take up
    the Nation's important pending business. But, that set the
    stage for the witness issue to haunt the Senate from the
    outset.
        Early in January, there was a strenuous effort for
    bipartisanship on witnesses and procedures. At a joint caucus
    on January 8, by almost spontaneous combustion, agreement was
    reached 100-0 on preliminary procedures, leaving depositions
    and witnesses until later.
        Immediately thereafter, bipartisanship broke down. While
    this may seem self-serving from the Republican point of view,
    Republicans had more to gain from bipartisanship than Democrats
    to avoid the rancor of the House proceedings and give
    legitimacy to impeachment. Many Democrats openly said the
    President would be helped by party-line votes making the Senate
    look like the House.
        The Democrats then lined up solidly behind the President
    with a number of Republicans, sometimes more than six,
    teetering on joining the Democrats. There are obviously limits
    to what elected officials will do to vote a straight party line
    if it puts their seats in jeopardy. The Senate Democrats had
    the effective cover of a popular President and their party-line
    votes followed while a significant number of Republicans faced
    constituents opposed to impeachment in their election cycles.
        The sequence of partisan maneuvering on witnesses is
    important to understanding how the House managers were
    precluded from presenting their case in a fair way. Appendix A
    describes those events in some detail. The ultimate result was
    a sharply limited number of deposition witnesses, three, with
    videotaped depositions only and no live witnesses at trial.
        In my Senate tenure, I have not seen a more contentious
    issue than the calling of witnesses, either live or videotaped.
    It goes beyond the public pressure to terminate or at least
    abbreviate the Senate proceeding. The argument that the well of
    the Senate should not be the stage for lewd and lascivious
    testimony was answered by the commitment of the House managers
    to avoid such testimony. The argument that Monica Lewinsky
    should not appear on the Senate floor once occupied by Daniel
    Webster and John F. Kennedy has to give way to the Senate's
    duty to try this President. The Senate did not choose the
    President's consorts and potential witnesses, but the Senate is
    duty bound to ``try'' the case as mandated by the Constitution
    and do ``impartial justice'' as the Senators' oath specified.
        I was one of three Senator presiders/observers designated
    by Senator Lott, the majority leader, for the depositions of
    Monica Lewinsky, Vernon Jordan and Sidney Blumenthal. Observing
    these live witnesses confirmed my thinking that the full Senate
    should have seen and heard their testimony in the tradition of
    trial practice. While a videotape is very informative, there is
    no substitute for the more precise evaluation of demeanor and
    its many nuances which comes across fully only through live
    testimony.
        When the videotapes were played in the Senate Chamber, the
    contrast was stark with the same live testimony I saw and
    heard. On a number of occasions, the sound was inaudible and
    the tape could not be rewound. There was a far superior
    opportunity in person to observe the witnesses' facial
    responses, their reactions and their general demeanor. In
    addition, only a portion of their videos was played. Although
    Senators had a chance for full private viewings, it is
    inevitable that many Senator-jurors did not utilize that
    opportunity to observe all the videos.
        Ms. Monica Lewinsky was a very impressive witness: poised,
    articulate, well-prepared. Seeing her testify in person, I
    understand why the President's counsel had fought so
    strenuously to keep her away from the well of the Senate. Had
    she told her whole story in the well of the Senate, a rapt
    national TV audience would have been watching and the dynamics
    of the proceeding might have been dramatically changed.
        Instead of hearing testimony from live witnesses, the
    Senate listened to 12 days of lawyer's arguments. Six days were
    consumed with opening statements which should have taken a few
    hours. For 2 days, Senators submitted questions through the
    Chief Justice for responses from attorneys which added little
    illumination to what was already on the record. Two more days
    were spent arguing the motion to dismiss and the resolution on
    depositions where the lawyers essentially repeated earlier
    arguments with an additional day for votes on those issues.
        Finally, limited evidence was presented with three
    videotaped depositions--Monica Lewinsky, Vernon Jordan and
    Sidney Blumenthal. Another day was consumed on votes rejecting
    live witnesses and permitting use of the videotapes. On the day
    designated for presentation of those depositions, only snippets
    were shown with most of the time consumed by lawyers'
    arguments. A final day for closing arguments was held with
    lawyers again presenting arguments which had been repeated on
    11 prior days.
        So in place of a traditional trial with live witnesses such
    as Monica Lewinsky, Betty Currie, Vernon Jordan, Erskine
    Bowles, John Podesta, Sidney Blumenthal, possibly Kathleen
    Willey or whomever the House managers chose to call, the Senate
    heard days of repetitious lawyers' argument from a grand jury
    record.
        The President's version was limited to his deposition in
    the Paula Jones case on January 17, 1998 and his grand jury
    testimony on August 17, 1998. In their totality, those two
    cameo appearances raised more questions by far than they
    answered. As expected, the President was exceptionally well
    prepared on the law and exceptionally adroit and manipulative
    on the facts or, more accurately, on evading the facts.
        The law on perjury is set forth in the case of Bronston v.
    United States, 409 U.S. 342 (1973), where the Supreme Court of
    the United States established a rigorous standard for proving
    perjury. Bronston, under oath in a 1966 bankruptcy hearing, was
    asked whether he ever had bank accounts in Swiss banks and he
    replied: ``the company had an account there for about 6 months,
    in Zurich.''
        His answer that the company had an account there for about
    6 months was accurate. It was not accurate that it was the only
    account the company had. The Supreme Court exonerated Bronston
    on the charge of perjury because the questioner did not press
    further to get a specific answer on whether the company had an
    account in addition to the one responded to by Bronston.
        Utilizing the holding in Bronston to the utmost, the
    President couched his answers with great care relying on the
    questioner not to pursue the unanswered issues. For example,
    the President did not deny lying to his aides, but rather
    evaded the question and there was no followup. John Podesta,
    President Clinton's deputy chief of staff at the time,
    testified that on January 23, 1998:

        He [President Clinton] said to me he had never had sex with her
    [Monica Lewinsky], and that--and that he never asked--you know, he
    repeated that denial, but he was extremely explicit in saying he never
    had sex with her--[H]e [President Clinton] said that he never had sex
    with her [Monica Lewinsky] in any way whatsoever--that they had not had
    oral sex.

        In a Senate deposition, Sidney Blumenthal, an assistant to
    the President, testified that the President lied to him. In
    testimony before the grand jury, Mr. Blumenthal testified that
    the President told him that he had ``rebuffed'' Ms. Lewinsky's
    advances. Mr. Blumenthal further testified that the President
    told him the following:

        She [Monica Lewinsky] threatened him. She said that she would tell
    people they'd had an affair, that she was known as the stalker among
    her peers, and that she hated it and if she had an affair or said she
    had an affair then she wouldn't be the stalker any more.
        He [President Clinton] told me that she [Monica Lewinsky] came on
    to him and that he had told her he couldn't have sexual relations with
    her and that she threatened him. That is what he told me.

        In his testimony before the grand jury, President Clinton
    stated,

        I told them [his aides] things that were true about this
    relationship. They [things the President said to his aides] may have
    been misleading, and if they were I have to take responsibility for it,
    and I'm sorry.

        Note that the President does not deny lying but only that:

        I told them things that were true about this relationship.

        The President did say some things which were true. The
    questioner did not then pursue the line of interrogation by
    asking if, in addition to saying some things which were true,
    the President told his aides other things which were lies. On
    that clever, ambiguous record, the President escapes the
    perjury net.
        Similarly, President Clinton dodged the perjury charges on
    his testimony on being alone with Monica Lewinsky. She
    testified they were alone when they had 11 sexual encounters
    either in the President's personal office or the adjacent
    hallway. In his January 17 deposition, the President was asked
    if he was ever alone with Monica Lewinsky in any room of the
    White House. The President responded,

        I have no specific recollection, but it seems to me that she was on
    duty on a couple of occasions working for the legislative affairs
    office and brought me some things to sign, something on the weekend.

        Further, when the President was asked if he was ever alone
    with Ms. Lewinsky in the hallway between the Oval Office and
    the kitchen area, the President responded,

        I don't believe so, unless we were walking back to the back dining
    room with the pizza. I just, I don't remember. I don't believe we were
    alone in the hallway, no.

        The President again gets away with vague, unresponsive
    replies. When the President says, ``I don't believe we were
    alone in the hallway, no'', there is then no pursuit as to
    whether they were alone in other places. He succeeds in
    avoiding and misleading, but does not make the unequivocal
    false statement required by Bronston to constitute perjury.
        The President was treated differently than other witnesses
    before a grand jury when he was permitted to read from a
    prepared statement:

        I engaged in conduct that was wrong. These encounters did not
    consist of sexual intercourse. They did not constitute sexual relations
    as I understood that term to be defined at my January 17th, 1998
    deposition. But they did involve inappropriate intimate contact.

        The President then declined to respond to Monica Lewinsky's
    specific charges and was not pressed for answers. He made a
    blanket denial of having sex with Monica Lewinsky relying on a
    tortured interpretation of Judge Wright's definition of sexual
    relations:

        I thought the definition included any activity by the person being
    deposed, where the person was the actor and came in contact with those
    parts of the bodies with the purpose or intent of gratification, and
    excluded any other activity. For example, kissing is not covered by
    that, I don't think.

        He further stated that:

        My understanding was, what I was giving to you, was that what was
    covered in those first two lines was any direct contact by the person
    being deposed with those body parts of another person's body, if the
    contact was done with an intent to arouse or gratify. That's what I
    believe it means today.

        The question was not pursued whether there was a sexual
    relationship where Ms. Lewinsky was the actor who made contact
    with the President's body with an intent to arouse or gratify.
    When asked specifically about oral sex, the President
    responded,

        . . . [Y]ou asked me did I believe that oral sex performed on the
    person being deposed was covered by that definition, and I said no. I
    don't believe it's covered by the definition.

        And there is the curious contention by the President on
    what the meaning of the word ``is'' is. A videotape of his
    deposition shows the President sitting quietly and listening to
    his attorney Robert Bennett's arguments to Judge Wright based
    on Ms. Lewinsky's affidavit which the President knew to be
    perjurious.
        In his grand jury testimony, the President defended his
    silence during this statement:

        I was not paying a great deal of attention to this exchange. I was
    focusing on my own testimony.

        The President also told the grand jury that Mr. Bennett's
    statement that there ``is'' no sex of any kind was not
    necessarily false, but rather:

        It depends on what the meaning of the word ``is'' is. If the--if
    he--if ``is'' means is and never has been, that is not--that is one
    thing. If it means there is none, that was a completely true statement.

        On this state of the record, the Senate should have pressed
    the President for responses to so many important unanswered
    questions. Since the President was, in effect, asking the
    Senate to leave him in office, why was the Senate not justified
    in, at least, insisting on answers to key questions. When
    Senators submitted interrogatories to the Chief Justice for
    responses from the attorneys, I submitted the following
    question:

        Would the President honor a request by the Senate to testify? If
    not, why not? If he declined to testify either on his own initiative or
    a Senate invitation, would the Senate be justified in drawing an
    adverse inference from his failure to testify?

        With so many other questions submitted, this one was not
    asked. During the trial, White House counsel said the President
    would respond to written questions, but that offer was
    rescinded. On January 25, the President refused to answer 10
    written questions submitted by Republican Senators.
        On February 3, 26 Republican Senators sent the President a
    letter requesting a deposition. As expected, he declined. In a
    context where the Senate voted against live witnesses and
    permitted only three deposition witnesses, it was not
    surprising that there was no political will to press the
    President for his testimony. I believe that was a serious
    mistake. In the context where the Senate could not even
    consider exercising the political will to ask, let alone
    compel, the President to leave the Oval Office for a day or a
    few days to testify at his impeachment trial or even to give a
    deposition, how could the Senate be expected to exercise the
    much greater political will to remove the President from
    office?
        In her civil lawsuit, Paula Jones had been able to compel
    the President to give a deposition. In the grand jury
    proceeding, the independent counsel, in effect, compelled the
    President to testify. Why, then, shouldn't the Senate exercise
    the commensurate power in an impeachment proceeding to obtain
    the President's testimony when there were so many open
    questions?
        In my legal judgment, the Senate has the power to subpoena
    the President. My memorandum to Senator Lott dated December 10,
    1998, attached as appendix B, discusses the Senate's legal
    authority to subpoena the President. My memorandum to Senator
    Lott dated December 29, 1998, attached as appendix C, discusses
    possible testimony by the President. Senate Impeachment Rule VI
    gives the Senate the subpoena power. The Supreme Court of the
    United States held President Nixon was subject to subpoena to
    turn over the famous tapes under the established principle
    ``That the public . . . has a right to every man's evidence.''
    President Nixon's case, although not dealing with impeachment,
    is further instructive in the Supreme Court's sweeping language
    on the need for all the facts even where the President is
    subject to subpoena:

        The need to develop all relevant facts in the adversary system is
    both fundamental and comprehensive. The ends of criminal justice would
    be defeated if judgments were to be founded on a partial or speculative
    presentation of the facts. The very integrity of the judicial system
    and public confidence in the system depend on full disclosure of all
    the facts, within the framework of the rule of evidence. To ensure that
    justice is done, it is imperative to the function of the courts that
    compulsory process be available for the production of evidence needed
    either by the prosecution or the defense.

        Following President Clinton's deposition in the Paula Jones
    case on January 17, 1998, the President called his personal
    secretary, Betty Currie, at home and asked her to come into the
    office on the following day. On Sunday, January 18, President
    Clinton met with Ms. Currie and, according to Ms. Currie, made
    the following statements to her, one right after the other:

        You were always there when she was, right?
        We were never really alone.
        Monica came on to me, and I never touched her, right?
        You can see and hear everything, right?

        Ms. Currie testified at first, on January 27, 1998, that,
    based on his demeanor and the way he made the statements, the
    President wanted her to agree with them.
        Six months later, on July 22, 1998, when she testified for
    the second time, Ms. Currie said that although the President
    stated ``right?'' at the end of the statements, she understood
    that she could agree or disagree with them.
        I find the testimony of Betty Currie on January 27, 1998,
    most troubling. Why would the President ask a series of
    questions when he knew the answers unless he sought to
    influence her testimony? But then, Ms. Currie undercut her
    January 27 testimony when she testified on July 22, 1998, that
    she understood from the President that she could disagree with
    him on those questions.
        In order to make a finding on an important issue like this
    which could lead to the removal of the President, the Senate
    should have heard Ms. Currie in person to clarify her
    testimony. In the absence of such clarification on this state
    of the record, there is at least a reasonable doubt on this
    issue.
        Monica Lewinsky testified that she met with the President
    in the Oval Office on December 28, 1997, and that the President
    gave her several Christmas presents at this meeting. Ms.
    Lewinsky further testified that at some point in the
    conversation she said to the President, ``Maybe I should put
    the gifts away outside my house somewhere or give them to
    someone, maybe Betty.'' Ms. Lewinsky recalled that the
    President responded either ``I don't know'' or ``Let me think
    about that.''
        The President testified that he has no distinct
    recollection of discussing the gifts with Ms. Lewinsky on
    December 28. He told the grand jury that:

        My memory is that on some day in December, and I'm sorry I don't
    remember when it was, she said, well, what if they ask me about the
    gifts you have given me. And I said, well, if you get a request to
    produce them, you have to give them whatever you have.

        In the afternoon of December 28, 1997, Betty Currie drove
    to Ms. Lewinsky's Watergate apartment and collected a box
    containing most of the President's gifts. Ms. Currie then drove
    home and placed this box under her bed. According to Ms.
    Lewinsky, the transfer originated in a phone call from Ms.
    Currie in which Ms. Currie stated, ``I understand you have
    something to give me,'' or, ``The President said you have
    something to give me.''
        Betty Currie testified that it was Ms. Lewinsky who first
    raised the idea of the gift transfer, either in person or over
    the telephone. Ms. Currie testified that she did not remember
    the President ever telling her to call Ms. Lewinsky or to pick
    something up from Ms. Lewinsky.
        Monica Lewinsky testified that Ms. Currie came over to pick
    up the gifts at ``around 2 p.m. or so.'' Cellular phone records
    reveal that Ms. Currie phoned Monica Lewinsky's home at 3:32 on
    December 28, and had a conversation of 1 minute or less.
        The evidence against the President on the gifts issue is
    equivocal where the idea returning the gifts in the
    conversation between the President and Monica Lewinsky
    originates with Ms. Lewinsky; Ms. Currie says she does not
    remember the President telling her to call or pick up something
    from Ms. Lewinsky; the time of the call as shown on the cell
    phone records, 3:32 p.m., conflicts with Ms. Lewinsky's version
    of the sequence of events and the President gave Monica
    Lewinsky more gifts on December 28, 1997, the same day that
    efforts were made for the return of some of the gifts.
        In December 1997 and January 1998, the President's close
    friend, Washington attorney Vernon Jordan, helped find Monica
    Lewinsky a job in New York City. On Friday, December 5, 1997,
    the President's attorneys received a witness list for the Paula
    Jones case. Monica Lewinsky was included on this list.
        On December 11, 1997, Judge Susan Webber Wright issued an
    order which stated that Paula Jones was entitled to
    ``information regarding any individuals with whom the President
    had sexual relations or proposed or sought to have sexual
    relations and who were during the relevant time frame State or
    Federal employees.'' This order made it clear that Ms. Jones
    would be able to subpoena Monica Lewinsky.
        On December 11, 1997, Mr. Jordan and Ms. Lewinsky met and
    Mr. Jordan took concrete actions to help Ms. Lewinsky find a
    job. Mr. Jordan placed calls on her behalf to three business
    contacts. Mr. Jordan also told her to send letters to three
    additional business contacts that he provided to her. This
    meeting and the phone calls took place prior to the issuance of
    Judge Wright's order of the same day.
        On January 7, Ms. Lewinsky signed an affidavit denying a
    sexual relationship with the President. On January 8, Ms.
    Lewinsky had an interview with MacAndrews & Forbes in New York.
    Afterwards, she phoned Vernon Jordan to report that the
    interview had gone poorly. Vernon Jordan immediately phoned Mr.
    Ron Perelman, the CEO of MacAndrews & Forbes, and asked for his
    help. The next day, Ms. Lewinsky was given another interview
    and was extended an offer to work for Revlon, a subsidiary of
    MacAndrews & Forbes.
        Vernon Jordan defended his efforts to help Monica Lewinsky
    get a job as a payback for help he secured as a young lawyer in
    getting a job when he was a victim of racial discrimination.
    Jordan testified that he told no one at Revlon that Monica
    Lewinsky was a witness in a case involving the President and
    that Revlon offered Monica Lewinsky a job because she was
    qualified.
        If the Revlon job offer was part of a plan or conspiracy to
    obstruct justice, then Vernon Jordan would have had to be part
    of that. The House managers raise no such contention.
        An important piece of evidence on this issue was the
    uncontradicted testimony of Monica Lewinsky that she intended
    to deny her relationship with the President from the outset
    before she was subpoenaed or the President coached her or
    Vernon Jordan helped her get a job.
        The signals to the House managers from the Senate were
    unmistakable that the Senate was unlikely to approve
    depositions if the list was too long. Responding to that
    advance notice, the House managers submitted only three names
    for depositions necessarily leaving off potentially important
    witnesses like Ms. Currie. Given the absence of live witnesses
    and limitations on depositions, the House managers have been
    compelled to rely on transcripts from questioning by the
    independent counsel in grand jury proceedings. Those
    transcripts have left many key issues unresolved.
        The Senate proceeding posed a curious dichotomy with 100
    sitting silent Senators in the Chamber and nonstop Senators'
    interviews in the corridors and media galleries. The case was
    really not being tried in the Senate Chamber, but in a sense
    was being tried in the Senate corridors, on the evening TV
    interview shows and on the Sunday talk shows.
        I declined TV interviews after the day the trial began on
    the ground that my oath to do ``impartial justice'' was in
    jeopardy by interviews on the day's proceedings which might
    conflict with my juror's functions. Again, oddly, on the
    occasions when Senators were permitted to speak on the Senate
    floor on the motion to dismiss and the resolution on
    depositions, the sessions were closed so the public could not
    hear our debate.
        Efforts to open the Senate proceeding during final
    deliberations also failed to get the two-thirds vote to
    overturn the Senate rule closing the Chamber. I thought the
    public and posterity should know the reasons for our votes as a
    guide for today and the future. The informal, seat-of-the
    pants, corridor comments may be found in the CNN or MSNBC
    files, but there will be no Senate videotape to record what
    could be important Senators' views.
        Each Senator individually and the Senate collectively took
    an oath to do ``impartial justice.''
        The Senate has done only ``partial justice,'' a double
    entendre, both: (1) in the sense of not doing ``impartial
    justice'' to the House managers by unduly restricting them in
    the presentation of their case; and, (2) ``partial justice'' in
    the sense of hearing only part of the evidence.
        When the Senate prohibited live witnesses and permitted
    only three videotaped depositions, the House managers had one
    hand tied behind their back. There has been no ``trial'' but
    only a ``pseudotrial'' or a ``sham trial.'' The best the House
    managers could do was to cut, paste and glue together
    transcripts from the independent counsel's grand jury
    proceedings. Ms. Lewinsky testified briefly on videotape and
    the President gave two vague, evasive depositions.
        The House managers could not meet the heavy burden of proof
    beyond a reasonable doubt. That is the only appropriate
    statement where the underlying charges are the crimes of
    perjury and obstruction of justice.
        Had the House managers sustained that burden under these
    articles, there was a further burden of persuasion, as I see
    it, to establish that the national interest warranted removal
    from office.
        Perjury and obstruction of justice are serious offenses
    which must not be tolerated by anyone in our society. However,
    I remain unconvinced that impeachment is the best course to
    vindicate the rule of law on this offensive conduct. President
    Clinton may still be prosecuted in the Federal criminal courts
    when his term ends. His lawyers have, in effect, invited that
    prosecution by citing it as the preferable remedy to
    impeachment.
        A criminal trial for the President after his term ends may
    yet be the best vindicator for the rule of law.
        If the full weight of the evidence with live witnesses had
    been presented to the Senate instead of bits and pieces of cold
    transcript, it is possible that the Senate and the American
    people would have demanded the President's appearance in the
    well of the Senate. Under firm examination, the President might
    have displayed the egregious character described harshly by his
    defenders in their proposed censure petitions. That sequence
    might have led to his removal.
        On this record, the proofs are not present. Juries in
    criminal cases under the laws of Scotland have three possible
    verdicts: guilty, not guilty, not proven. Given the option in
    this trial, I suspect that many Senators would choose ``not
    proven'' instead of ``not guilty.''
        That is my verdict: not proven. The President has dodged
    perjury by calculated evasion and poor interrogation.
    Obstruction of justice fails by gaps in the proofs.
        Many Senators have sought to express their gross
    displeasure by findings of fact or censure. I reject both. The
    Constitution says judgment in cases of impeachment shall not
    extend beyond removal and disqualification from future office.
    Under the crucial doctrine of separation of powers, the
    Congress is not and should not be in the business of censuring
    any President. We are properly in the business of examining our
    own conduct as Senators. On that score, on the record of this
    ``pseudotrial,'' it is my view that the Senate failed to
    fulfill the constitutional mandate to ``try'' this case.
        I ask unanimous consent that Appendices A, B and C be
    printed in the Record.
        There being no objection, the appendices were ordered to be
    printed in the Record, as follows:

                                   Appendix A

        When the Republican and Democratic caucuses could not agree on the
    preliminary procedures and witness issue, including depositions, a vote
    was set for late afternoon on January 7th. That vote was canceled in an
    effort to achieve a bi-partisan compromise. A joint caucus was then
    held in the Old Senate chamber at 9:30 am on January 8th where the
    outline of a procedural agreement was reached for the first stage
    without resolving the witness or deposition issues, but deferring them
    until we knew more about the opposing parties' cases.
        While a resolution of agreement was being drafted in the early
    afternoon fleshing out the compromise, Senator Lott asked Senator Kyl,
    Senator Sessions and me to explore the case to determine what
    witnesses, if any, the Senate should hear to make its decision. In mid
    afternoon, Senators Kyl and Sessions and I met with Chairman Henry Hyde
    and some of the House Managers to inform them of the joint discussions,
    to get a preliminary idea of their thinking on witnesses and to set up
    a meeting for the afternoon of January 11 to get their specification on
    what witnesses they believed necessary for the Senate trial. Later on
    the afternoon of January 8th, Resolution 16 was agreed to 100 to 0.
        In an effort to carry out a bi-partisan approach, I called Senator
    Lieberman on the morning of January 11th to invite him and/or other
    Senate Democrats to an afternoon meeting with House Managers. He said
    he would check with Senator Daschle and then called back to decline.
    Senators Kyl, Sessions and I met with the House Managers that afternoon
    to review their witness list. We advised them that the Democrats were
    opposed to witnesses and there was opposition among Republican Senators
    to a lengthy trial with many witnesses. We said their best opportunity
    for witnesses would be to show conflicts in the record testimony which
    could establish the need for seeing and hearing the witnesses to
    evaluate their demeanor. They responded they needed witnesses beyond
    conflicts to show the tone and tenor of their case. We said they might
    consider using their 24 hours of opening statements to develop the
    need, as they saw it, for specific witnesses.
        I called White House Counsel Charles Ruff on January 12th advising
    him of the meeting with House Managers stating that Senators Kyl,
    Sessions and I were interested in meeting with the President's
    attorneys. Mr. Ruff called back on January 13th declining the
    invitation.
        On January 25th, in advance of consideration of Senator Byrd's
    motion to dismiss and Senator Lott's resolution on taking depositions,
    Senator Lott requested Senator Kyl and me to talk again to House
    Managers to determine how many witnesses they would need and for what
    purpose. Senator Lott had extended an invitation to join in those
    discussions to Senator Daschle who declined. Before that meeting was
    held on January 25th, I advised Senator Lieberman of the scheduled
    meeting and told him Senator Daschle declined Senator Lott's
    invitation.
        Between our January 11 and January 25th meetings with House
    Managers, there had been numerous public comment by Republican Senators
    opposing many witnesses even for depositions with some expressing
    possible opposition to any deposition witnesses. When Senator Kyl and I
    met with House Managers on January 25th, we said it was problematic
    whether there would be 51 or more votes for a lengthy witness list.
        In arguments before the full Senate, House Managers complained
    about the limitations on deposition witnesses and expressed their
    interest in calling live witnesses with latitude to develop their cases
    as they saw fit in accordance with regular trial practice.
        Late in the evening on January 26th after closed door Senate debate
    on calling witnesses for depositions, Senator Carl Levin and I
    discussed a bi-partisan compromise. We continued that discussion early
    the next morning and presented our views to our respective caucuses on
    January 27th. While Senator Levin and I did not agree on all points, we
    were closer together than our caucuses. At mid-day on January 27th on
    an almost straight party line vote, the Senate decided to take
    depositions of only three witnesses.
        For the balance of the afternoon of January 27th and all day on the
    28th, there were strenuous efforts to agree on deposition procedures.
    Democrats were adamant that the depositions should not be videotaped;
    or, if videotaped, on the commitment that they could be viewed only by
    Senators and limited staff. Republicans insisted that the depositions
    should be videotaped deferring the decision on whether they would be
    used as a substitute for live witnesses. Late in the afternoon Senator
    Lott's resolution was adopted to videotape the depositions without
    specifying their use after defeating Senator Daschle's amendment to
    limit the depositions to a typed transcript without videotapes.
        After those depositions were taken, on February 4, 1999, the Senate
    voted to exclude live witnesses and to see the videotapes of the three
    deposed witnesses after the defeat of Senator Daschle's amendment to
    limit the depositions to the typed transcript only without videotapes.
                                     ______

                                   Appendix B

                                                     December 10, 1998.
    To: Senator Trent Lott, Majority Leader.
    From: Senator Arlen Specter.
        As a follow up to our recent meeting, this memorandum sets forth my
    thinking on how to handle the impeachment proceeding if it reaches the
    Senate and my analysis on some of the legal issues as follows:
        1. May the Senate consider in the next Congress articles of
    impeachment passed by the House in this Congress?
        2. Must the Senate trial begin the day following the House
    presentment?
        3. Is censure authorized in an impeachment proceeding?
        4. Must/should the Senate hear testimony from live witnesses?
        5. How long will the Senate impeachment trial take?
        6. Possibility of conviction
        7. Concluding observations
     may the senate in the 106th congress consider articles of impeachment
         passed by the house of representatives in the 105th congress?
        Yes. Precedents hold that the Senate may carry an impeachment over
    into a subsequent Congress. As noted in the addenda to the Rules on
    Senate Impeachment Proceedings:
        ``Articles of impeachment against Harold Louderback, a United
    States district judge for the northern district of California were
    exhibited on March 3, 1933, at the end of the second session of the 72d
    Congress, and the trial occurred during the first session of the 73d
    Congress, . . .
        ``At the end of the 100th Congress, the Senate adopted a resolution
    to continue into the 101st Congress the proceedings in the impeachment
    of Alcee L. Hastings, a United State judge for the southern district of
    Florida''.
        Notwithstanding a contrary opinion given at the House proceeding,
    it is my judgment that these practical precedents would virtually
    certainly be upheld if any judicial challenge was attempted because of
    the decision of the United States Supreme Court in the case involving
    Judge Nixon where the Court held the Senate had the authority to
    establish procedures under the impeachment clause.
      must rule iii on senate impeachment procedure be read literally to
    require continuous consideration by the senate the day following house
                    presentation of articles of impeachment?
        No. While Rule III appears to impose such a rigid requirement on
    its face, the Rules taken on the whole and prior practice show the
    Senate may establish a more flexible schedule.
        The specific language of Rule III provides: ``Upon such articles of
    impeachment being presented to the Senate, the Senate shall, at 1
    o'clock afternoon of the day (Sunday excepted) following such
    presentation, or sooner if ordered by the Senate, proceed to the
    consideration of such articles, and shall continue in session from day
    to day (Sundays excepted) after the trial shall commence (unless
    otherwise ordered by the Senate) until final judgment shall be
    rendered.''
        Other Rules provide for intervening action between the time the
    articles are presented by the House to the Senate and subsequent
    proceedings before the Senate. For example, Rule 8 provides for a writ
    of summons to be issued to the person impeached with a date to appear
    before the Senate.
        The impeached party is given a date to answer the Articles and the
    House is then given a date to reply.
        For example, in the trial of President Andrew Johnson, the
    President was given 17 days to prepare his answer (his counsel had
    requested 47 days to prepare). The House managers took one day to file
    their brief reply to the President's answer. In the 1989 trial of Judge
    Walter Nixon, the Judge was given 29 days to prepare his answer, and
    the House was given 12 days to file its response.
        These rules and that prior practice demonstrate that there is a
    necessary time lapse between the presentation of the Articles to the
    Senate and the commencement of further Senate hearings or proceedings.
       is censure an authorized consequence or remedy in an impeachment
                                  proceeding?
        No. The specific language in the Constitution Article 1, Section 3,
    Clause 7 contains the clear implication that judgment in an impeachment
    proceeding shall not include censure or any consequence or remedy other
    than that specified in the Constitution: ``Judgment in Cases of
    Impeachment shall not extend further than to removal from Office, and
    disqualification to hold and enjoy any Office of Honor, Trust or Profit
    under the United States.'' The language ``shall not extend further''
    than the enumerated consequences or remedies precludes any judgment
    beyond ``removal from office'' and ``disqualification to hold and enjoy
    any Office of Honor, Trust or Profit under the United States''.
        Further support for the conclusion that impeachment does not
    contemplate penalties like censure is contained in the historical
    references. Of the fifteen individuals impeached by the House of
    Representatives, all seven convicted by trial in the Senate were
    removed from office.
        Contrasted to censure, impeachment and removal from office are not
    intended to be a punishment. In his ``Commentaries on the Constitution
    of the United States,'' Justice Joseph Story notes that impeachment
    ``is not so much designed to punish an offender as to secure the state
    against gross political misdemeanors. It touches neither his person nor
    property but simply divests him of his political capacity.''
        Consequently, the impeachment process does not contemplate Congress
    imposing any penalty, including censure, as part of an impeachment
    proceeding. Once the impeachment proceeding is concluded, it is a
    different issue as to whether Congress can pass a resolution of censure
    in the same manner Congress enacts resolutions generally.
        would the constitutional requirements of the senate impeachment
    proceeding be satisfied by the factual recitations in the starr report
       or is the senate obligated to hear testimony from live witnesses?
        While the Constitution provides no explicit answer, inferences from
    the Constitution, the Senate Rules on Impeachment and the prior
    practice strongly suggest that live witnesses were contemplated by the
    framers instead of merely a hearsay report.
        The Constitution explicitly provides for a trial in the provision
    of Article 1, Section 3, Clause 6: ``The Senate shall have the sole
    Power to try all impeachments'' (Emphasis added). The seriousness and
    magnitude of removal of a Federal official, especially the President,
    suggests that the jury (senators) should have the best evidence and
    that would require something more than a hearsay document no matter how
    extensive and explicit the Starr Report may be.
        That clause further provides: ``and no person shall be convicted
    without the concurrence of two-thirds of the Members present''
    (Emphasis added). The use of the word ``convicted'' again refers to a
    phase or the consequence of trial and the analogy to a criminal
    proceeding. While the Senate is not bound by traditional rules of
    evidence so that we might consider matters not admissible in a court of
    law, it would seem questionable or appear unseemly to base our judgment
    exclusively on hearsay in such an important proceeding.
        The provisions of Article 1, Section 3, Clause 7 carry forward the
    analogy of trial referring to the ultimate ``judgment'': ``Judgment in
    cases of impeachment shall not extend further . . .'' (Emphasis added).
        The Senate Rules on Impeachment further contemplate, although do
    not necessarily mandate, a proceeding with live witnesses and
    opportunities for the examination and cross-examination of such
    witnesses. For instance, Rule 6 provides that: ``The Senate shall have
    power to compel the attendance of witnesses. . . .'' Rule 17 provides
    that: ``Witnesses shall be examined by one person on behalf of the
    party producing them, and then cross-examined by one person on the
    other side.''
        Although the Rules never explicitly give the parties the right to
    call witnesses, the language ``on behalf of the party producing them''
    in Rule 17 implies that the parties do have such a right. The practice
    of the Senate confirms this implication that the parties have the right
    to call witnesses. For example, in the trial of Andrew Johnson,
    witnesses for the President were called and heard over a period of one
    week. In the trial of Alcee Hastings, both sides were allowed to call a
    total of 55 witnesses.
        The foregoing analysis does not conclusively rule out the propriety
    of proceeding on the Starr Report.
        The House of Representatives relied upon the Starr Report for the
    facts even though the practice of the House in prior impeachment
    hearings has been to take testimony from witnesses. ``Hinds' Precedents
    of the House of Representatives'' notes that witnesses were called
    during the House impeachment hearings on Senator Blount and Judge
    Perry. More recently, during the House deliberations on the
    impeachments of President Nixon, Judge Claiborne, Judge Hastings and
    Judge Nixon, numerous witnesses were called to lay a factual basis for
    the impeachment charges. In the case of Judge Nixon alone, witnesses
    provided testimony to the House committee for over a month.
        As a practical matter, it is obvious the House did not take the
    time to hear witnesses because the House proceedings were structured to
    finish in the abbreviated time frame between the election of November
    3rd and the end of the year. Starting in mid-November and seeking to
    finish shortly after mid-December, that time frame was even further
    constricted.
                how long will the senate impeachment trial take?
        It depends entirely on what the Senate seeks to do and what
    parameters are established.
        If the Senate peremptorily chooses to dismiss the House articles
    without consideration, there is authority that could be accomplished at
    the outset by a majority vote on a motion to adjourn. Since there is no
    specific Rule relating to the adjournment of an impeachment trial, the
    general rules of the Senate would apply. A motion to adjourn the Senate
    requires only a majority vote and is not subject to debate. The Senate
    impeachment proceeding could be concluded by adjournment with, in
    effect, a dismissal which would be the equivalent of a nol pros in a
    criminal case. That is the equivalent of a judgment of acquittal. The
    Senate would then resume its normal business.
        There is historical precedent to concluding the Senate impeachment
    proceeding by passing a motion to adjourn. In the impeachment trial of
    Andrew Johnson, the Senate voted on three of the eleven articles of
    impeachment. After failing to secure a conviction on these three
    articles, Senator Williams moved that the Senate sitting as a court of
    implement adjourn sine die. The motion carried and the trial of Andrew
    Johnson ended prior to a vote on the remaining eight articles.
        If the Senate chose to accept the facts of the Starr Report, the
    entire trial could be relatively brief if the President did not put on
    a factual defense.
        An adequate Senate trial need not necessarily be long. The key
    witnesses would be Monica Lewinsky, Betty Currie and Vernon Jordan and
    possibly Kathleen Willey. There may be a few other peripheral witnesses
    such as Judge Susan Webber Wright. It is hard to calculate but it will
    probably be a matter of weeks, not months. That estimate would be
    expanded if President Clinton testifies and/or if he puts on a factual
    defense.
                           possibility of conviction
        This matter has had unprecedented and unpredictable turns of
    events. The President's August 17th short speech was a bomb. The
    House's release of the President's grand jury deposition reversed the
    tide. The President's answers to the House questions reversed the
    reversal.
        It is entirely conceivable that a Senate trial could defy
    conventional wisdom and find the two-third votes for conviction if the
    evidence is properly presented focusing on abuse of power and
    obstruction of justice instead of lying about sex. While impossible to
    quantify with precision, it may be that there are now about fifty votes
    for conviction, perhaps a half dozen open minds and maybe another dozen
    senators might be persuadable if they think there is insufficient
    political cover to acquit.
        Monica Lewinsky has the potential to be a strong witness because
    her recollection is so extraordinary. She was able to pinpoint with
    precision the two dates when, as she put it, the President received
    telephone calls from a congressman with a nickname and a sugar grower
    in Florida with a name something like ``Fanuli''. It was later
    confirmed that the President had talked on those two dates to
    Congressman Sonny Montgomery and a Florida sugar grower named Alfonso
    Fanjul.
        Although Betty Currie's testimony was watered down as the
    investigation proceeded, questioning her from her first statement might
    provide highly incriminating testimony on the obstruction charge.
    Vernon Jordan's testimony has substantial potential on the abuse of
    power issue. Jordan testified he reported to the President ``mission
    accomplished'' after Monica Lewinsky's perjurious affidavit was
    obtained and Jordan secured a job for Ms. Lewinsky with Revlon. When
    her initial interview went badly, Jordan called Ronald Perelman, head
    of Revlon's holding company, and Ms. Lewinsky was recalled the next day
    for another interview and given a job on the spot.
        The case is also reportedly strong on the perjury charge against
    the President on the incident involving Kathleen Willey. Judge Susan
    Webber Wright's testimony, in observing the President's attentiveness
    at this deposition in the Jones' case, could undercut the President's
    contention that he wasn't paying attention when his lawyer strenuously
    argued for the President's innocence at his deposition based on the
    Lewinsky affidavit. At that time, the President conclusively knew it
    was perjurious.
                            concluding observations
        As you know, my own initial preference was for both Houses to
    abandon impeachment proceedings and to then hold the President
    accountable through the judicial criminal process once his term was
    over leaving the Congress free to attend to the nation's other
    business: social security, health, education, etc.
        My view on waiting to hold the President accountable after he
    leaves office was based on the blunt proposition that it was more
    trouble to get rid of him than to keep him. It may well be that the
    public opposition to impeachment had the same basis. Once we get to the
    Senate trial, my view may change if it is no more trouble to get rid of
    him than to keep him. Perhaps the public will have a similar change of
    heart.
        If the House returns Articles of Impeachment, the Senate should
    proceed with a dignified trial with the calling of witnesses because
    the seriousness of the issue and the historical impact call for an
    unhurried, deliberative trial. To the maximum extent possible, we
    should make the proceeding non-partisan. Concessions to the minority on
    some procedural matter would be worthwhile. As the majority party in
    charge, we should take the lead on non-partisanship. We should avoid
    the House bickering at all reasonable costs.
        The Senate prides itself on being the world's greatest deliberative
    body. This trial will be by far the highest visibility for the Senate
    in its history to date and for the foreseeable future. While the
    President will be on trial, the Senate will also be on trial.
                                     ______

                                   Appendix C

                                                     December 29, 1998.
    To: Senator Trent Lott, Majority Leader.
    From: Senator Arlen Specter.
        Supplementing my memorandum of December 10 and our telephone
    conversation of December 22, this memo suggests procedures to deal with
    the Senate trial in light of the public dissatisfaction with the House
    proceedings, public impatience with impeachment generally and ways to
    achieve a judicious, non-partisan Senate trial. Since this memorandum
    was written while I have been traveling, the rules and case citations
    could be checked only by long-distance telephone.
        can procedures be structured to shorten the length of the trial?
        Yes. While it is impossible to say with certainty the duration of
    any trial, procedures can be put into place to abbreviate the trial
    with a reasonable likelihood of reaching a verdict within a few weeks
    (perhaps even three weeks as earlier predicted by you--Senator Lott) as
    contrasted with some assessments that the trial would take months or
    the better part of a year.
        The Senate already is under pressure and will probably be under
    greater pressure to finish at an early date which accounts for the call
    for short-circuiting the trial through a plea-bargained censure. It is
    obviously in the national interest to end the trial as soon as possible
    without rushing to judgment and it would doubtless meet with public
    approval to announce at the outset a plan to accomplish that.
        Several steps could be taken to abbreviate the trial time:
        (1) Require submission of pre-trial memoranda by the parties
    followed by a pre-trial conference with the Chief Justice to establish
    the parameters of the trial;
        (2) Organize the House Managers' case, with input from the Senate,
    to focus on only the key witnesses and indispensable lines of
    questions; and
        (3) Establish long trial days and Saturday sessions.
        Without management and limitations, the lawyers could take a long,
    indeterminate time. By analogy to Federal court litigation, this trial
    could be managed by having the parties submit pre-trial memoranda which
    would identify any pre-trial motions, list prospective witnesses and
    lines of questions, etc., and approximate the time involved at each
    stage.
        The Chief Justice would then meet with the parties and issue a pre-
    trial order establishing the trial parameters just as the presiding
    judge does in Federal court trials.
                         an activist, bipartisan senate
        In an impeachment trial, Senators function in a very unusual way in
    that we are both jurors and judges. A majority of Senators may overrule
    the Chief Justice's rulings. We decide individually for ourselves what
    is the burden of proof and what evidence on what conduct is sufficient
    for a guilty verdict.
        The Senate will be proceeding without precedent on most issues. The
    Senate has broad latitude as noted by the Supreme Court of the United
    States in the case of Judge Nixon where the Court held the Senate had
    authority to establish its procedures under the Impeachment Clause.
        This case and these times call for a more activist approach by the
    Senate than prior impeachment trials. While it was not inconvenient or
    problemsome to allow the House managers to set the pace for the
    Hastings, Nixon or Claiborne trials, this is obviously a very different
    matter. The impeachment trials of President Johnson and those which
    occurred earlier offer little guidance on how the Senate should proceed
    today.
        The existing Senate rules on impeachment are a starting point. They
    can be changed by a majority vote unless there is disagreement in which
    case proposed changes are debatable and subject to a two-thirds vote.
        It is only through bipartisanship that the Senate can succeed in
    having a judicious, non-partisan trial which can gain public
    acceptance. So, all significant procedures must have the concurrence of
    most Senators from both parties.
        In my judgment, it would be appropriate and practical to structure
    the presentation of the evidence by having a small bipartisan Senate
    committee work with the House managers and President's lawyers on what
    the Senate wants presented in a tightly focused case, taking into
    consideration any differences with the House managers which could then
    be worked out.
        Arguments in appellate courts customarily take the form of the
    appeals judges focusing on the questions they want addressed by counsel
    as opposed to having the lawyers decide how to use their allotted time.
    It would be analogous to such appellate proceedings to have the Senate
    direct, or work out collaboratively with the House the evidence the
    Senate wants to hear.
        I suggest that a small committee, perhaps five Senators with three
    Republicans and two Democrats, work up a trial format and trial brief.
    It will be helpful for the Senators to have prosecution or criminal
    defense experience. This Senate committee, or perhaps one Republican
    and one Democrat, should participate in preparation of the pre-trial
    memorandum and pre-trial conference.
                              long trial sessions
        Substantial evidence could be presented with trial days from 9:30
    am to 5 pm or even 9 am to 6 pm with Saturday sessions. The
    Philadelphia criminal courts had the minimum trial day established from
    9:30 am to 5 pm. Senate Impeachment Rule 3 provides for Saturday
    sessions in impeachment trials.
        I recommend against the so-called double track with the Senate
    sitting half days on the trial and half on other Senate business. There
    is too much legitimate public concern to have the trial proceed
    expeditiously and end as soon as possible. Even with the trial ending
    at 5 pm or 6 pm, some Senate business could be conducted in the
    evenings on confirmations or other business which can be handled by
    unanimous consent.
        We might consider canceling our February and March recesses for the
    trial, which would likely produce significant public approval.
                        the importance of live witnesses
        I strongly recommend live witnesses on the key issues although
    there is no prohibition against use of hearsay such as the Starr
    Report. Prior impeachment cases establish the precedent for live
    witnesses and the Senate rules provide procedures for live witnesses.
    Live witnesses have customarily testified in House impeachment
    proceedings. In the Senate, for example, live witnesses testified in
    cases involving President Johnson and in the most recent impeachment
    case on Judge Alcee Hastings. Senate Rules 6 and 17 establish
    procedures for dealing with witnesses.
        The dignity, tenor and stature of the Senate Trial call for live
    witnesses on an impeachment of this magnitude. Everything the Senate
    does will be subjected to a microscope both contemporaneously and
    historically. While it is a sweeping generalization, I think it is fair
    and accurate to say that no trial in history to date has been or will
    be so closely watched.
        We have some gauge as to how closely this trial will be scrutinized
    from the work of the Warren Commission which has been the most closely
    dissected investigation in history. Notwithstanding constant pressure
    from Chief Justice Warren, who wanted the inquiry concluded at an early
    date, the staff lawyers insisted on extended tests and extensive
    interrogation knowing the record would be closely examined. At that
    time, we couldn't conceive of the extent of the scrutiny, but we had
    some inkling of what was coming. At this time, the Senate should be on
    notice to cross every ``t'' and dot every ``i'' twice.
        It may be sufficient to use the Starr Report to establish some of
    the lesser proofs for the record.
        Without attempting to be dispositive on who are all the key
    witnesses and what are all the indispensable lines of questioning, a
    suggested focused strategy would be to call:
        (1) Monica Lewinsky to testify on the perjury issue by covering the
    numerous times she and the President were alone (he claimed they were
    never alone) and the specifics of their conduct on the issue as to
    whether they had sex.
        It may be wise to have her testify in a closed session on the
    details of their sexual relationship. In retrospect, the Judiciary
    Committee might have been wise to hear some of the testimony by
    Professor Hill and Justice Thomas in a closed session. In the
    confirmation hearing of Justice Breyer, testimony was taken in a closed
    session on his finances.
        Even though most, if not all, of Ms. Lewinsky's testimony has
    already been made public, it would be less offensive to public taste
    and arguably less prejudicial or more considerate of the President to
    avoid the spectacle of television on the specifics of their sex. Any
    objection to the closed or secret hearing could be largely answered by
    releasing a transcript to the public at the end of each daily session.
        If the President testifies, consideration should also be given to a
    closed session on the specifics of their sexual activities. It is
    arguably, and perhaps realistically, different to have a closed session
    with the President, but these questions will have to be thrashed out at
    the time depending on the feel of the case if, as and when they arise.
        In order to have a closed session, there would have to be a
    modification of Rule 20 which requires the Senate doors to be open
    except during deliberation.
        (2) Vernon Jordan to testify about contacts with the President
    including his telephone call where he reported ``mission accomplished''
    after arranging with another lawyer to get Ms. Lewinsky's perjurious
    affidavit and getting her a job with Revlon.
        (3) Betty Currie to testify on the President's efforts to alter and
    mold her version of what happened. Even though Ms. Currie gave several
    statements, the essential elements of her testimony could be put on the
    record at trial by going through her first statement to the FBI.
        The President's possible testimony is considered later in this
    memorandum.
     should the senate trial be terminated by an arranged disposition for
                                    censure?
        No, for several reasons:
        (1) The Constitution specifies the two remedies or consequences in
    cases of impeachment which necessarily excludes censure: ``Judgment in
    Cases of Impeachment shall not extend further than to removal from
    Office, and disqualification to hold and enjoy any Office of honor,
    Trust or Profit under the United States''--Article 1, Section 3, Clause
    7. The language ``shall not extend further'' specifically precludes
    censure or any other remedy not enumerated in the Constitution.
        The argument is now being strenuously advanced by many, including
    some Senators, that the impeachment trial should be ended at an early
    stage by a motion to adjourn the Senate and then, by pre-arrangement,
    taking up a Resolution of Censure to be approved by the Senate and
    House. In my judgment, that would be a perversion of and at variance
    with the Constitution or, simply stated, unconstitutional.
        (2) Censure would be meaningless for this President--not worth a
    ``tinker's dam.''
        (3) Censure would be a bad precedent which could be used whenever
    the Congress of one party wanted to express displeasure or embarrass
    the President of the other party. Simply stated, the Congress is not in
    the business of censuring the President under our Constitutional
    separation of powers.
        (4) Censure would prejudice a possible later criminal prosecution
    of the President after he leaves office. There will be an inevitable
    sense that censure will constitute a form of punishment or final
    judgment, although not technically double jeopardy, which would
    preclude a later prosecution, as a practical matter.
        The prospects for censure have been dampened by Vice President
    Gore's statement that the President would not accept censure
    conditioned on the President's admitting to lying under oath even if
    that admission could not to be used against him in any criminal
    proceeding. Even if the President would admit to lying under oath, he
    would most certainly object to the procedures necessary to rule out use
    of that admission in a criminal prosecution.
        Only a court, not the Senate or Congress, can grant immunity from
    future criminal prosecution. The Senate can take steps to have immunity
    granted by the Court. But that action can be taken only after the
    President or any witness asserts the privilege against self-
    incrimination under the Fifth Amendment. The Court then grants immunity
    and the testimony cannot be later used against that person in a
    criminal prosecution.
        Since the President has announced his unwillingness to admit to
    lying under oath, it is fruitless to suggest the Fifth Amendment
    course.
                     president clinton's possible testimony
        For the Senate to have all the facts--or all versions of the facts
    from which Senator-jurors must determine what the facts are, the Senate
    should hear from the President. It may be that the President will
    choose to testify; and as a matter of comity, the Senate should await
    the President's decision.
        If the President elects not to testify, the Senate will be faced
    with a difficult legal question and perhaps an even more difficult
    political question. On its face, Impeachment Rule 6 gives the Senate
    the authority to compel the President to testify:
        ``The Senate shall have the power to compel the attendance of
    witnesses'' and ``to enforce obedience to its orders, mandates, writs,
    precepts and judgments.''
        Notwithstanding that express language, some doubt has arisen as to
    whether the President is subject to compulsory process (subpoena)
    because of Rule 8 which provides:
        ``A writ of summons shall issue to the person impeached reciting
    said articles and notifying him to appear before the Senate upon a day
    and at a place to be fixed by the Senate . . . and file his answer to
    said articles of impeachment . . .
        ``If the person impeached, after service, shall fail to appear,
    either in person or by attorney, on the day so fixed therefore as
    aforesaid, or appearing, shall fail to file his answer to such articles
    of impeachment, the trial shall proceed, nevertheless, as upon a plea
    of not guilty.''
        Some have cited President Johnson's refusal to appear at the Senate
    trial as authority for the proposition that the President cannot be
    compelled to attend and testify. That inference is unsound because Rule
    8 refers to responding to the summons and filing an answer ``either in
    person or by attorney.'' So the attorney's action satisfies the rule
    without the appearance or other action by the President. Accordingly,
    the impeached party complied with the Senate rules in President
    Johnson's case which did not raise the issue of the Senate's power to
    compel the President to testify.
        There is no precedent for a case where the impeached official
    declined to testify and the Senate attempted to compel his testimony.
    The other impeachment cases offer no close analogy where, as here,
    critical facts are known to only two people, one of whom is the
    impeached official.
        Analogies from other, although dissimilar, trials suggest the
    President would be subject to being subpoenaed. The Supreme Court of
    the United States held President Nixon was subject to compulsory
    process to turn over the famous tapes under the established principle:
    ``That the public . . . has a right to every man's evidence.''
        President Nixon's case, although not dealing with impeachment, is
    further instructive in the Supreme Court's sweeping language on the
    need for all the facts:
        ``The need to develop all relevant facts in the adversary system is
    both fundamental and comprehensive. The ends of criminal justice would
    be defeated if judgments were to be founded on a partial or speculative
    presentation of the facts. The very integrity of the judicial system
    and public confidence in the system depend on full disclosure of all
    the facts, within the framework of the rules of evidence. To ensure
    that justice is done, it is imperative to the function of the courts
    that compulsory process be available for the production of evidence
    needed either by the prosecutions or the defense.''
        Since this is not a criminal trial, there would be no rule that a
    defendant has the right not to testify. Although not a controlling
    analogy, a party in a civil case may be called involuntarily to the
    witness stand by his/her opponent ``as on cross'' which means he/she
    may be cross-examined.
        In my legal judgment, President Clinton could be compelled to
    testify based on Senate Rule 6, analogies to compulsory process in
    President Nixon's case and civil litigation and the fact that President
    Clinton was subject to compulsory process in the Paula Jones case and
    Starr grand jury. Consideration of enforcing such a subpoena can be
    left to a later day if, as and when the issue arises.
        If the President did testify, it could have a profound effect on
    the public's view of the case and on the Senator-jurors. The
    President's lawyers could not shield him from cross-examination and he
    could not avoid the specifics on his contacts with Ms. Lewinsky as he
    did in his abbreviated grand jury testimony.
        If the President sticks to his story that he did not have sex with
    Ms. Lewinsky and did not lie under oath at his deposition in the Paula
    Jones case, his credibility could be severely impugned by pointed
    cross-examination and he could be viewed very negatively by the public
    and the Senator-jurors. Or, it may be that the public and many Senator-
    jurors would not be any more adversely affected by his Senate trial
    testimony than they were by the videotapes of his grand jury testimony.
        At this moment, it is impossible to judge what the feel or tenor of
    the trial would be on subpoenaing the President if, as and when he
    declined to testify after serious incriminating evidence was presented
    against him. If subpoena sentiments formed along party lines, it would
    be the most severe test of acting only with a bipartisan consensus.
        Over several centuries, litigation experience has demonstrated the
    unpredictability of trials. That is why they are called trials. A two-
    thirds majority may not appear out of thin air, as noted by Congressman
    DeLay, but it could appear from forceful presentation of the key
    evidence including cross-examination of the President. If the trial
    turned heavily against the President, it is conceivable, although
    highly unlikely at this point, that a plea bargain could be structured
    with the Independent Counsel's concurrence that the President would
    resign with his pension, his law license and immunity from prosecution.
        Once a trial starts, the genie is out of the bottle and anything
    can happen. Emotions in all directions are at an all-time high with
    Republicans, the President, Democrats or anybody else in the line of
    fire at risk for the ultimate public scorn. And the public's other
    business would not be attended to forever how long the trial took.
        That is why I continue personally to favor putting off holding the
    President accountable until after his term ends through the criminal
    process. That accommodates the public's short-term desires for the
    Congress, the President and the Supreme Court to focus on the nation's
    business and the long-term national interest to later hold the
    President accountable for the serious charges through indictment if the
    grand jury so decides, and to sentencing by a judge if a jury convicts.
                              the public reaction
        Prospects are reasonably good that the public would not react
    unfavorably to a non-partisan, judicious, focused, relatively brief
    Senate trial. In addition, the public would likely understand the
    Senate has an explicit Constitutional duty to hold a trial after
    Articles of Impeachment are passed by the House. There has already been
    a bipartisan recognition of this duty by Senators who are Democrats.
        Public reaction, as gauged by the polls, was adverse to the House
    proceedings, at least in part, because of their highly partisan,
    strident tenor; and because the House never zeroed in or highlighted
    the highly incriminating evidence. There may even be some grudging
    public approval that Congress is willing to take action on a
    significant matter contrary to the polls.
        A favorable public reaction will depend largely if not exclusively
    on the public's feeling that the proceedings are bipartisan, so the
    Senate must take extreme care to make the trial bipartisan. As the
    majority party, we Republicans should bend over backwards to avoid even
    the appearance of seeking partisan advantage which marred the House
    proceedings.
        I strongly support the suggestion that there should be no separate
    party caucuses on impeachment issues. It would be useful to convene all
    Senators at an early date, such as January 8, 1999, when we will all be
    in town, to discuss ideas on how to proceed. I recollect one such
    meeting of all Senators from both parties a couple of years ago on
    appropriations or budget issues near the end of the session.
                                   conclusion
        History will cast a long shadow on what the Senate does in this
    impeachment proceeding.
        The Senate should not, in effect, sweep the matter under the rug by
    relying on the hearsay Starr Report for the key facts. Some say the
    Starr Report is a sufficient factual basis for Senate action because
    the facts are not in dispute. That is not true. A close reading of the
    President's grand jury testimony and his famous 82 answers to
    interrogatories demonstrate that he has not conceded the accuracy of
    the key incriminating evidence.
        As detailed above, the Senate can leave it to the criminal courts
    to put the facts on the historical record and have the indicting grand
    jury, trial jury and presiding judge hold the President accountable to
    whatever extent warranted after his term ends.
        A rush-to-judgment censure plea bargain would complete the trifecta
    of inappropriate action by the Senate as well as the House and
    President.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Carl Levin

        Mr. LEVIN. Mr. Chief Justice, colleagues, first a personal
    note to our leaders: How proud I am of them, and we all are of
    you, for holding us together during this very, very difficult
    time. We will all be closer for having come through this,
    regardless of what this vote is or how we individually vote.
        The burden of proof on the House that the President has
    committed high crimes and misdemeanors and should be removed
    from office is a heavy burden, because the effect is so dire in
    a democracy that depends upon the election of the President. In
    my judgment, the House of Representatives has not carried that
    burden of proof as to the specific allegations against the
    President. The House repeatedly relies on inferences while
    ignoring direct testimony to the contrary. There is nothing
    unusual about the reliance on inferences. It happens in trials
    all the time. What is unusual here is that the House's case
    relies on inferences from the testimony of people whose direct
    testimony contradicts the inference. Let me just cite some
    examples in the obstruction of justice article.
        First, the House managers in their report, in their brief,
    made the following statements: ``As evidenced by the testimony
    of Monica Lewinsky, the President encouraged her to lie.'' That
    is the words of the House brief. Second, ``The testimony of
    Monica Lewinsky leads to the conclusion that it was the
    President who initiated the retrieval of the gifts and the
    concealment of the evidence.'' Third, ``The President needed
    the signature of Monica Lewinsky on the false affidavit and
    that was assured by the efforts to secure her a job.''
        Those are all direct quotes. Each one of those relies on
    inferences. Each one of them is contradicted by the explicit
    testimony of people from whom those inferences are drawn.
        Let's just take them one by one. The House managers'
    inference that the President ``encouraged''--that is their
    word--Monica Lewinsky to lie was contradicted by Monica
    Lewinsky's proffer, which was then incorporated into her grand
    jury testimony, that the President ``never'' encouraged her to
    lie. That is her word. They say by inference the President
    encouraged her to lie. She says, ``The President never
    encouraged me to lie.''
        The House managers' inference that it was, ``President
    Clinton who initiated the retrieval of the gifts and the
    concealment of the evidence on December the 28th,'' was
    contradicted by Monica Lewinsky's direct testimony that she
    initiated the concealment of the gifts. It is uncontested that
    on December 22 she took some of the gifts and concealed the
    rest--some of the gifts to her lawyer's office. She decided on
    her own that she would not turn over the gifts in response to
    that subpoena because they would embarrass her, or they would,
    in her words, disclose that there was a special relationship.
    So on the 22nd she decided on her own to withhold some of the
    gifts. And yet we are told by the managers by inference that
    somehow or other it is the President who initiated the
    withholding and the concealment of the gifts.
        And then on the 28th, when they met at the White House, it
    was Monica Lewinsky who said, ``Maybe I should get some of the
    gifts to Betty.'' She initiated the issue. And then the
    President said either nothing or, ``Let me think about it.''
    And then the question came up: Well, who then made the phone
    call relative to the pickup of the gifts? Was it Monica
    Lewinsky calling Betty Currie or was it Betty Currie calling
    Monica Lewinsky?
        Here is where another inference is drawn, that if in fact
    it was Betty Currie who initiated the call, then the inference
    is that the President told Betty Currie to call Monica
    Lewinsky. There is a conflict there between Betty Currie and
    Monica Lewinsky.
        One of the most intriguing issues in this whole matter, one
    that I have really given a lot of thought to, is the question:
    Why would the President give Monica Lewinsky gifts on December
    28 if he was concerned about it and wanted to withhold and hide
    the gifts? It is one of the questions that didn't get a lot of
    focus up here, by the way.
        The President gave Monica Lewinsky at least three things
    that day: a bear carving that Dale Bumpers referred to that
    came from Vancouver, a small blanket, and a stuffed animal.
        Here is the way the House addressed that issue. They asked
    themselves in their brief the question: Why would the President
    give Ms. Lewinsky gifts at the same time he was asking her to
    conceal others that he had already given her? Answer from the
    House in their brief: The only logical inference--only logical
    inference--is that the gifts, including the bear, symbolizing
    strength, were a tacit reminder to Ms. Lewinsky that they would
    deny the relationship even in the face of a Federal subpoena.
    That is the inference that they say is the only logical
    inference from giving three gifts to Monica Lewinsky, including
    a bear.
        There is a real problem with that. First of all, that bear
    was obtained by the President in Vancouver weeks before there
    was a witness list. We are not even offered speculation as to
    how the President could foresee that Monica Lewinsky would be
    on a witness list and pick up a symbol of strength while in
    Vancouver so that he could give it to her as a reminder to deny
    their relationship in the face of some future, unforeseen
    Federal subpoena.
        Even more to the point, Monica Lewinsky was asked directly
    at the grand jury--directly--this question as to whether or not
    she interpreted the gift of that bear as a signal to her to
    ``be strong in your decision to conceal the relationship.'' Her
    direct, one-word answer was ``no.'' And yet the managers come
    here saying the only logical inference that can be drawn from
    three gifts being given from the President on the 28th is that
    the President was signaling to her to be strong in the face of
    a Federal subpoena. That is the kind of inference we are asked
    to draw.
        I was raised on the burden of proof, both as a prosecutor
    in civil rights cases and as a defense lawyer. The House cannot
    carry the burden of proof on the critical allegations of
    criminal misconduct that they have made when they depend on
    those kinds of inferences, a pile of inferences that run
    directly contrary to direct testimony on critical points.
    Impeachment and removal should be based on sturdier foundations
    than that kind of a heap of inferences. They would have us
    overlook the forest of direct testimony while getting lost in
    the trees of their multiple inferences.
        The December 11 issue has been discussed here. It was
    extraordinary to me, listening here as both factfinder and
    judge, that it could be represented to us that on December 11,
    the first activity calculated to actually help Monica Lewinsky
    get a job occurred. That is what they alleged on the floor of
    the Senate. The first activity--these are their words--
    calculated to help Ms. Lewinsky actually get a job took place
    on December 11, and that something happened on that day to
    trigger Vernon Jordan's meeting and real activity. Something
    happened that day. What was it? Judge Wright's order.
        In their House brief, it is said that that order came in
    the morning, which was wrong, and in the presentation here in
    the opening arguments Manager Hutchinson said the following:
    ``The witness list came in, the judge's order came in. That
    triggered the President to action. And the President triggered
    Vernon Jordan into action. That chain reaction here is what
    moved the job search along.''
        Wrong. It disintegrated here. Vernon Jordan's meeting was
    before the judge's order. And yet that is what we are asked to
    base the removal of a President on. And then the thinking
    shifts to another theory. Removal of an elected President from
    office has got to be made of sturdier stuff than those kinds of
    inferences.
        Finally, on the double standard issue--and I think we all
    must be concerned about that--a former prosecutor who appeared
    in front of the House said the following. And Senator Sarbanes
    quoted one line of this, and I want to repeat that, because it
    is so important, and then add one other thing that they said.
    ``In conversations with many current and former Federal
    prosecutors in whose judgment I have great faith, virtually all
    concur that if the President were not involved, if an ordinary
    citizen were the subject of the inquiry, no serious
    consideration would be given to a criminal prosecution arising
    from alleged misconduct in discovery in the Jones civil case
    having to do with an alleged coverup of a private sexual affair
    with another woman or the follow-on testimony before the grand
    jury. I believe the President should be treated in the criminal
    justice system in the same way as any other U.S. citizen.
        ``If that were the case here,'' these former prosecutors
    said, ``it is my view that the alleged obstruction of justice
    and perjury would not be prosecuted by a responsible U.S.
    attorney.''
        I know this is not a criminal case, this is an impeachment
    trial, but I would think that our standards should be at least
    as high as they would be in a criminal case, and that if this
    President would not be prosecuted, much less convicted for
    these specific charges--and these were criminal charges that
    were very specifically made by the managers against the
    President--if that prosecution and conviction would not take
    place in a criminal case, we should be loathe, I believe, and
    very, very cautious and careful before we remove an elected
    President from office.
        I learned about the burden of proof and presumption of
    innocence as a young boy, long before law school, when my
    father, who was a lawyer, taught me that American justice is
    dependent on these principles. As I grew up and became a lawyer
    myself, I experienced firsthand the significance of these
    bedrock principles and learned that it applies to all Americans
    accused of crimes, including the President. These principles of
    the burden of proof and the presumption of innocence help guide
    me now as we exercise our constitutional duty to judge the
    specific accusations of criminal behavior lodged against the
    President of the United States.
        The burden of proof on the House of Representatives that
    the President has committed serious crimes and should be
    removed from office is a heavy one, because overturning an
    election in a democracy is a drastic and dire action. The House
    has not carried that burden of proof as to the specific
    accusations against the President.
        The arguments of the House managers in support of the
    articles suffer from fundamental weaknesses. They repeatedly
    rely on inferences while ignoring direct testimony to the
    contrary; they omit key materials which contradict their
    charges; and they contain serious misstatements of key facts.
    In a matter of such consequence as the removal of an elected
    President from office, such a case should not lead to
    conviction.
        Let me cite some key examples from article II, the
    allegation of obstruction of justice. First, the House managers
    in their report, brief, and arguments to the Senate repeatedly
    rely on inferences to prove key points and ignore direct
    testimony to the contrary. In opening arguments, House Manager
    Hutchinson made the following claims:

        As evidenced by the testimony of Monica Lewinsky, [the President]
    encouraged her to lie.
        . . . [T]he testimony of Monica Lewinsky . . . leads to the
    conclusion that it was the President who initiated the retrieval of the
    gifts and the concealment of the evidence.
        . . . The President needed the signature of Monica Lewinsky on the
    false affidavit, and that was assured by the efforts to secure her a
    job.

        Mr. Hutchinson's arguments rely on inferences. Relying on
    inferences is not unique to proving a case. What is unique is
    that in this case, the House managers use inferences primarily
    from bits and pieces of testimony of people who explicitly deny
    those inferences in their direct testimony. The House managers'
    inference that the President encouraged Monica Lewinsky to lie
    was contradicted by Monica Lewinsky's direct testimony that the
    President never ``encouraged'' her to lie.
        The House managers' inference that ``it was President
    Clinton who initiated the retrieval of the gifts and the
    concealment of the evidence on December 28, 1997,'' was
    contradicted by Monica Lewinsky's direct testimony that she
    initiated the concealment of gifts. Not only is it an
    uncontested fact based on direct testimony that it was Monica
    Lewinsky who on December 22, 1997, following the receipt of a
    subpoena for gifts and having decided on her own to withhold
    gifts which would ``give away any kind of special
    relationship,'' brought to her attorney only those gifts that
    were ``innocuous'' and typical of the kind of gifts an intern
    might receive. It is also an uncontested fact based on direct
    testimony that it was Monica Lewinsky who, on December 28,
    1997, expressed her interest in wanting to hide the gifts when
    she said to the President that maybe she should transfer the
    gifts to Betty Currie. Ms. Lewinsky testified that the
    President either didn't respond to her comment or said he'd
    think about it.
        But what makes the managers' inference even more
    speculative is the fact that at the December 28 visit, the
    President gave Ms. Lewinsky even more gifts, including a bear
    carving from Vancouver, a small blanket and a stuffed animal.
    Why would the President give Ms. Lewinsky gifts at the same
    time he is asking her to conceal others he had already given
    her? I was struck by the House's answer. ``The only logical
    inference,'' according to the House managers, ``is that the
    gifts--including the bear symbolizing strength--were a tacit
    reminder to Ms. Lewinsky that they would deny the
    relationship--even in the face of a federal subpoena.''
        That inference, called ``the only logical inference,'' is
    not only the rankest form of speculation, it is also contrary
    to the direct evidence.
        The undisputed grand jury testimony was that the bear
    carving was brought back by the President from Vancouver, a
    trip which occurred weeks before Monica Lewinsky's name
    appeared on any witness list. We're not even offered
    speculation as to how the President could foresee that Monica
    Lewinsky would be on a witness list, and pick up a symbol of
    strength while in Vancouver so that he could give it to her as
    a reminder to deny their relationship in the face of some
    future, unforseen federal subpoena. But even more to the point,
    when Ms. Lewinsky was asked the direct question at the grand
    jury whether she interpreted the gift of the Vancouver bear
    carving as a signal to her to ``be strong in your decision to
    continue to conceal the relationship,'' her direct, one-word
    answer was ``no.''
        The managers' reliance on inferences from testimony of
    persons whose direct testimony contradicts the inferences was a
    recurring pattern during this trial. The managers alleged that
    the signing of the affidavit and the obtaining of the job for
    Ms. Lewinsky were linked, based on inference from bits and
    pieces of testimony of Monica Lewinsky and Vernon Jordan. But
    Vernon Jordan and Monica Lewinsky explicitly denied any such
    linkage. Ms. Lewinsky said, ``There was no agreement with the
    President, Jordan, or anyone else that [I] had to sign the
    Jones affidavit before getting a job in New York.'' Mr. Jordan
    told the grand jury in answer to the question whether the job
    search and affidavit signing were linked, ``unequivocally,
    indubitably, no.''
        Impeachment and removal should be based on sturdier
    foundations than the heap of inferences that have been placed
    before us, when those inferences are pieced together from bits
    of testimony of witnesses whose direct, explicit testimony
    contradicts the inferences. The House managers would have us
    overlook the forest of direct testimony while getting lost in
    the trees of their multiple inferences.
        The House managers' case also omitted directly relevant,
    contradictory material and misstated key facts. For instance,
    the House managers argued in their brief that relative to the
    job search assistance for Ms. Lewinsky, ``nothing happened in
    November of 1997.'' But, in fact, our Ambassador to the United
    Nations, at the request of the Deputy Chief of Staff of the
    White House, offered Ms. Lewinsky a U.N. job on November 3.
        The House managers' report explicitly represented that
    ``[t]he first activity calculated to help Ms. Lewinsky actually
    get a job took place on December 11,'' and that ``[s]omething
    happened that changed the priority assigned to the job
    search.'' What happened, the managers argued, was a court order
    ``on the morning of December 11'' by Judge Wright requiring
    President Clinton to provide information about prior
    relationships involving state and federal employees. The Senate
    was told by the House managers that ``[s]uddenly, Mr. Jordan
    and President Clinton were now very interested in helping Ms.
    Lewinsky find a good job in New York'' and that Vernon Jordan
    got active on the afternoon of December 11 when he and Ms.
    Lewinsky met.
        Manager Hutchinson said in his argument to the Senate:

        The witness list came in. The judge's order came in. That triggered
    the President to action. And the President triggered Vernon Jordan into
    action. That chain reaction here is what moved the job search along.

        But that key argument disintegrated before our eyes when it
    turned out that Judge Wright's December 11 order came late in
    the day, well after the meeting between Vernon Jordan and
    Monica Lewinsky, and in addition, the meeting had been
    scheduled many days before.
        With respect to the perjury article, the House managers
    failed to meet their burden as well. The President admitted to
    the grand jury that he did have ``inappropriate intimate
    contact'' with Monica Lewinsky when he was alone with her, and
    the House managers failed to identify specific statements that
    would meet the requirements of a perjury charge.
        The lack of substantive evidence supporting the charges
    explains why a panel of five highly regarded former Democratic
    and Republican federal prosecutors, who appeared before the
    House Judiciary Committee, testified that this case against the
    President would not have been pursued by a responsible federal
    prosecutor. Thomas Sullivan, who served for 4 years as U.S.
    Attorney for the Northern District of Illinois, and whom
    Chairman Hyde described as having ``extraordinarily high''
    qualifications had this to say:

        . . . [I]n conversations with many current and former Federal
    prosecutors in whose judgment I have great faith, virtually all concur
    that if the President were not involved--if an ordinary citizen were
    the subject of the inquiry--no serious consideration would be given to
    a criminal prosecution arising from alleged misconduct in discovery in
    the Jones civil case, having to do with an alleged coverup of a private
    sexual affair with another woman or the follow-on testimony before the
    grand jury . . . I believe the President should be treated in the
    criminal justice system in the same way as any other United States
    citizen. If that were the case here, it is my view that the alleged
    obstruction of justice and perjury would not be prosecuted by a
    responsible United States Attorney.

        Finally, I have had a deep concern about the impeachment
    process which formed the basis of this trial. While my decision
    to reject the articles is based on the inadequate proof of the
    crimes alleged, the process which brought this matter to trial
    was deeply flawed.
        The articles of impeachment before us are based on
    materials, the so-called Starr Report, compiled by an outside
    prosecutor, not by the legislative branch itself, which has
    under the Constitution the ``sole'' responsibility for
    impeachment. Instead of doing an independent investigation, the
    House of Representatives unwisely delegated, in my judgment,
    the critically important investigative function to an outside
    prosecutorial foe of the President and an actual advocate of
    his impeachment. The House took that prosecutor's record and
    his testimony and made them the basis of articles of
    impeachment presented to us.
        The contrast to the Watergate investigation and the
    impeachment of President Nixon is stark. In the Watergate
    investigation, the Senate convened a select committee in
    February 1973 to investigate the Watergate break-in and other
    campaign irregularities in the 1972 election. That committee
    took testimony for a year. In February 1974, the House voted to
    direct the House Judiciary Committee to conduct an inquiry into
    impeachment. The committee conducted its own investigation,
    including subpoenaing the White House tapes and calling
    numerous fact witnesses. The committee also obtained the report
    of the grand jury meeting under the authority of Leon Jaworski,
    the Watergate prosecutor. In deciding to allow the grand jury
    report to be forwarded to the House Judiciary Committee, Judge
    Sirica found that the report:

        ``draws no accusatory conclusions . . . contains no
    recommendations, advice or statements that infringe on the prerogatives
    of other branches of government . . . (and) renders no moral or social
    judgments. The Report is a simple and straightforward compilation of
    information gathered by the Grand Jury, and no more . . .'' (In re
    Report and Recommendation of June 5, 1972, Grand Jury Concerning
    Transmission of Evidence to the House of Representatives, U.S. District
    Court, District of Columbia, March 18, 1974.)

        The report sent to the House of Representatives in the
    matter before us violated almost every standard followed by
    Judge Sirica. The Starr Report didn't present the evidence in
    an impartial manner as contemplated in the independent counsel
    law. It drew a host of ``accusatory conclusions'' and rendered
    judgments. The report contained a large volume of needlessly
    salacious detail and omitted or dismissed important exculpatory
    evidence. The impeachment process has suffered as a result.
        Moreover, the House made a significant and irreparable
    mistake in the actual drafting of the articles. Each article
    alleges multiple acts of wrongdoing. Thus, it would be
    impossible to determine after a vote on the articles whether a
    two-thirds majority of the Senate actually agreed on a
    particular allegation. Article I, for example, charges that
    President Clinton committed one or more of the four possible
    acts of perjury; article II charges that President Clinton
    committed one or more of seven possible acts of obstruction.
    Without separate votes on each of the alleged acts, it would be
    impossible to determine whether two-thirds of the Senate agreed
    that the President had committed any of the actions alleged.
    Since the Constitution requires conviction upon a vote of two-
    thirds of the Senate, the articles as drafted do not allow us
    to guarantee to the American people that we are complying with
    the requirements of the U.S. Constitution. This is a flaw that
    cannot be fixed, because the Senate does not have authority to
    amend the articles.
        Alexander Hamilton, in ``The Federalist Papers,'' asked
    this question: ``Where else than in the Senate could have been
    found a tribunal . . . [which] . . . would be likely to feel
    confidence enough in its own situation to preserve, unawed and
    uninfluenced, the necessary impartiality between an individual
    accused and . . . his accusers?''
        Each of us, however we vote, will soon answer that
    question, as we stand between the accuser and the accused,
    weighing the evidence. The issue before us is not whether the
    President's conduct was reprehensible; that is clear beyond any
    reasonable doubt. The issue is whether the President committed
    the alleged crimes for which he should be removed from office,
    a proposition which places on his accusers a heavy burden of
    proof. It is a burden the House managers have not met, and I
    will, therefore, vote against the articles of impeachment.
        I would like to add my thoughts on censure as well, since
    this may be the only appropriate opportunity to do so. I
    support the censure resolution authored by Senator Feinstein,
    and I commend her for her openness, diligence and hard work in
    bringing to fruitition a bipartisan product. The President
    should know, the American people should know, and history
    should know that by voting to acquit on impeachment, we did not
    vote to acquit the President for his egregious conduct. I know
    of no Senator who is not deeply troubled by the President's
    conduct. While I do not believe the President's conduct in his
    private, consensual sexual relationship should have become the
    business of the American public, it did in fact become so, and
    when it did the President had the duty to tell the truth. And
    no matter how wrong or improper that disclosure of the
    President's private life was, it does not justify the lies the
    President told to the American people, his family and his
    staff.
        I hope that our votes today on impeachment will conclude
    this unfortunate chapter in our political history and that the
    President, through a forthright acknowledgment of the
    wrongfulness of his behavior, will lead the nation toward
    healing the wounds these events have opened. I believe the
    American people want an end to this matter more than anything,
    and that any further criminal investigation of the President
    with respect to the matters under Mr. Starr's jurisdiction
    should be immediately concluded. While Senator Feinstein's
    censure resolution states that President Clinton remains
    subject to criminal indictment, that is in the resolution as a
    statement of fact and not as a statement of encouragement.
    Indictment after this impeachment trial would not be
    appropriate nor would it be in the public interest. Today's
    votes should bring this tragic episode to an end.
        Mr. Chief Justice, as we close this chapter in the Senate's
    life and prepare our records for the annals of history, there
    are several points which I wish to highlight in a series of
    appendices.
        I ask unanimous consent that the appendices be printed in
    the Record.
        There being no objection, the appendices were ordered to be
    printed in the Record, as follows:

                                   Appendix A

        The indisputable, underlying reality of the impeachment case was
    that Monica Lewinsky's denial of a sexual relationship with the
    President was part of a long-term understanding and pattern, long
    before the subpoena in the Paula Jones case.
        ``Q. Had you talked with him earlier about these false explanations
    about what you were doing visiting him on several occasions?
        ``A. Several occasions throughout the relationship. Yes. It was a
    pattern of the relationship to sort of conceal it.''--Grand Jury
    Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices,
    Page 844.
        ``A Juror: Did you ever discuss with the President whether you
    should deny the relationship if you were asked about it?
        ``A. I think I always offered that.''--Grand Jury Testimony of
    Monica Lewinsky, Part One; Independent Counsel Appendices, Page 1077.
        ``A. And she [Linda Tripp] told me that I should put it in a safe
    deposit box because it could be evidence one day. And I said that was
    ludicrous because I would never--I would never disclose that I had a
    relationship with the President. I would never need it.''--Grand Jury
    Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices,
    Page 1107.
        ``A Juror: And what about the next sentence also? Something to the
    effect that if two people who are involved say it didn't happen, it
    didn't happen. Do you recall him saying that to you?
        ``A. Sitting here today, very vaguely . . . And this was--I mean,
    this was early--obviously not something we discussed too often, I
    think, because it was--it's a somewhat unpleasant thought of having to
    deny it, having it even come to that point.
        ``A Juror: Is it possible that you also had these discussions after
    you learned that you were a witness in the Paula Jones case?
        ``A. I don't believe so. No.
        ``A Juror: Can you exclude the possibility?
        ``A. I pretty much can.''--Grand Jury Testimony of Monica Lewinsky,
    Part One; Independent Counsel Appendices, Page 1119.
                                     ______

                                   Appendix B

        Did Ms. Lewinsky think her affidavit in the Paula Jones case was
    false when she signed it?
        ``Ms. L had a physically intimate relationship with the President.
    Neither the Pres. nor Mr. Jordan (or anyone on their behalf) asked or
    encouraged Ms. L to lie. Ms. L was comfortable signing the affidavit
    with regard to the `sexual relationship' because she could justify to
    herself that she and the Pres. did not have sexual intercourse.''--
    Proffer of Monica Lewinsky to the Independent Counsel.
        ``Q. When he said that you might sign an affidavit, what did you
    understand it to mean at that time?
        ``A. I thought that signing an affidavit could range from anywhere
    between maybe just somehow mentioning, you know, innocuous things or
    going as far as maybe having to deny any kind of relationship.''--Grand
    Jury Testimony of Monica Lewinsky, Part One; Independent Counsel
    Appendices, Page 844.
        ``Q. You were trying to be truthful throughout [the proffer]?
        ``A. Exactly.''--Grand Jury Testimony of Monica Lewinsky, Part One;
    Independent Counsel Appendices, Page 1142.
        ``A. But I did some justifying in signing the affidavit, so--
        ``Q. Justifying--does the word `rationalizing' apply as well?
        ``A. Rationalize, yes.''--Grand Jury Testimony of Monica Lewinsky,
    Part One; Independent Counsel Appendices, Page 925.
                                     ______

                                   Appendix C

        House Managers implied that when the President allegedly told John
    Podesta Ms. Lewinsky threatened him, the President was lying. But
    Monica Lewinsky did write a threatening letter to President Clinton.
        ``If you believe the aides testified truthfully to the grand jury
    about what the President told them about his relationship, the
    President told them many falsehoods, absolute falsehoods. So when the
    President described them under oath to the grand jury as truths, he
    lied and committed the crime of perjury. One example of this comes from
    Deputy Chief John Podesta . . . [a]nother is Sidney Blumenthal. His
    testimony was that on January 23 the President told him that . . .
    Lewinsky threatened him and said that she would tell people that they
    had had an affair . . .''--House Manager McCollum, Congressional
    Record, January 15, 1999, Page S266.
        ``Q. You mentioned that in that July 3rd letter that you sent to
    the President through Betty you made a reference to the fact that you
    might have to explain things to your parents. What did you mean by
    that? . . . Were you meaning to threaten the President that you were
    going to tell, for example, your father about the sexual relationship
    with the President?
        ``A. Yes and no.''--Grand Jury Testimony of Monica Lewinsky, Part
    One; Independent Counsel Appendices, Page 807.
                                     ______

                                   Appendix D

        There was much debate about the consequences of calling live
    witnesses. The President's lawyers argued that calling witnesses would
    require them to engage in extensive discovery and would significantly
    stretch out the trial. It is relevant in evaluating that claim to look
    at the impeachments of Judge Nixon and Judge Alcee Hastings. In both of
    those cases, the Judges' attorneys were given extensive discovery,
    including Justice Department files, to prepare their defense. See
    letter of Senator Wyche Fowler, Chairman of the Senate Impeachment
    Trial Committee, and letter of Professor Terence Anderson, University
    of Miami School of Law, below:

                                                   U.S. Senate,
                                         Washington, DC, July 18, 1989.
    John C. Keeney,
    Deputy Assistant Attorney General, Criminal Division, Department of
            Justice, Washington, DC.
        Dear Mr. Keeney: As Chairman of the Senate Impeachment Trial
    Committee on the Articles of Impeachment against Judge Nixon, I write
    to request the Department's assistance in the Committee's efforts to
    assure that Judge Nixon receives a fair trial in the Senate. The
    Committee has determined that it would make a useful contribution to
    the trial process if the Department were willing to permit the
    Committee, through its staff, to review the documents (excluding grand
    jury materials governed by Rule 6(e)) in the possession of the
    Department, including those possessed by the Federal Bureau of
    Investigation, that were requested by Judge Nixon in his June 1, 1989
    letter to the Attorney General, which was the subject of your response
    on June 21, 1989.
        The review would be consistent with that conducted in the case of
    the Hastings impeachment matter. That is, the focus of the review would
    be to determine if there is evidence that the investigations were
    conducted in a manner intended to mislead a court or trier of fact as
    to Judge Nixon's guilt or innocence. In the event that it is determined
    that particular documents should properly be made part of the pending
    impeachment proceedings, and accordingly made available to the parties
    for use at trial, the committee would hear from the Department prior to
    disclosing any documents that you believe contain particularly
    sensitive matters, so that we may address any continuing concerns that
    you have. No documents or portions of documents would be made available
    to the parties without the consent of the Department.
        Your expeditious response to this request would be most helpful to
    the committee in attempting to complete discovery by July 31st.
                Sincerely,
                                                      Wyche Fowler, Jr.
                                     ______

                         The University of Miami School of Law,
                                    Coral Gables, FL, January 28, 1999.
    Hon. Carl Levin,
    U.S. Senate.

                       Discovery Precedents From Hastings

        Dear Senator Levin: Ms. Linda Gustitus asked that I describe the
    process by which and the materials to which I was given access as
    counsel for then Judge Hastings during the impeachment trial
    proceedings before the United States Senate. After the matter was
    referred to an Impeachment Trial Committee, I submitted requests for
    production of documents to the House, to the Investigating Committee of
    the Judicial Council of the Eleventh Circuit, to the Federal Bureau of
    Investigation, and the Justice Department. Over the initial objections
    of the House Managers, at the ``request'' of the Impeachment Trial
    Committee I received documents from all but the Justice Department. In
    lieu of direct production, the Impeachment Trial Committee examined the
    sensitive Justice Department materials to determine what should be
    supplied. I was also permitted to take at least three discovery
    depositions. The proceedings that resulted in this production are
    reported in Report of the Senate Impeachment Trial Committee on the
    Articles of Impeachment Against Judge Alcee L. Hastings, S. Hrg. 101-
    194, Pt. I (Pretrial Matters).
        By way of illustrations I enclose an appendix to a memorandum that
    I submitted to the Impeachment Trial Committee. That appendix describes
    in some detail the materials that I received from the FBI and my
    estimate that in the aggregate the production amounted to about 16,000.
    The enclosed copy was reproduced from S. Hrg. 101-194, Pt. I at 433-
    436. Please let me know if I can be of further assistance.
                Sincerely,
                                           Terence J. Anderson.
                                                      Professor of Law.
                                     ______

                                   Appendix E

        Many of us in the Senate thought the House of Representatives
    failed to meet its responsibilities by not calling witnesses before the
    House Judiciary Committee. A review of impeachments shows that in every
    impeachment but the one (where the subject of the impeachment was
    mentally incompetent and the House relied on the record of his
    decisions as a judge), the House called fact witnesses. According to
    information obtained by my staff from the Congressional Research
    Service, there have been 16 impeachments by the House. Fourteen of
    those impeachments have resulted in trials in the Senate; two did not
    because the impeached officials resigned.
        Fifteen of those impeachments had fact witnesses in the House; one
    didn't. That was the case of Judge Pickering. He was impeached for
    being mentally incapacitated. There were charges of drunkenness and
    ``ungentlemanly language'' in the courtroom. The articles against him,
    however, all dealt with his rulings and decisions that ``proved'' he
    was mentally incompetent. During the House inquiry, a number of
    affidavits were presented.
                                     ______

                                   Appendix F

        Independent counsel Kenneth Starr intervened in the Senate
    impeachment trial by obtaining a court order addressed to Monica
    Lewinsky requiring her to meet privately with House Managers, based on
    a motion and ex parte hearing with no notice to the Senate counsel or
    White House counsel. The independent counsel then mischaracterized his
    own action in seeking that order, describing it as seeking an
    ``interpretation'' rather than an ``order''.
        See the letters to Kenneth Starr, Robert Bittman, Jacob Stein, &
    Robert Bittman; the Emergency Motion on Immunity Agreement; the letter
    to Congressman Henry Hyde; the letter to Sen. Daschle; Congressman
    Hyde's press release; the order of Judge Norma Holloway Johnson and the
    transcript of Mr. Starr's remarks as follow:
                                                Washington, DC,
                                                      January 21, 1999.
    Hon. Kenneth W. Starr,
    Office of Independent Counsel,
    Washington, DC.

    Re Interview of Monica Lewinsky
        Dear Independent Counsel Starr: I am writing to you as the Lead
    Manager of the Managers of the Impeachment Trial of William Jefferson
    Clinton, currently underway in the United States Senate. We are in the
    process of selecting witnesses for testimony in these proceedings. The
    attorneys for Monica Lewinsky have declined to make her available for
    an interview.
        We have reviewed a copy of Ms. Lewinsky's Immunity Agreement.
    Pursuant to paragraph 1(c) of that Agreement, it would appear that she
    is required to submit to interviews and debriefings if so requested by
    the Office of Independent Counsel.
        We would like to arrange an interview with Ms. Lewinsky prior to
    any such testimony. We would be happy to accommodate her wishes as to
    the precise time and location of that interview. However, it is
    important that this interview be scheduled to take place on the
    earliest possible date, specifically Friday, Saturday, or Sunday. Your
    assistance with this interview will be appreciated.
        Thank you for your prompt attention.
                Sincerely,
                                         Henry H. Hyde,
                                      On Behalf of the Managers
                                              on the Part of the House.
                                     ______

                                 Law Offices of Plato Cacheris,
                                      Washington, DC, January 21, 1999.
    Robert J. Bittman, Esquire,
    Deputy Independent Counsel, Office of the Independent Counsel,
            Washington, DC.
        Dear Bob: In your call today you mentioned that the managers
    requested Ms. Lewinsky's cooperation by way of an interview. As I told
    you, we believe it is inappropriate for Ms. Lewinsky to be placed in
    the position of a partisan--meeting with one side and not the other--in
    this unique proceeding. Therefore, we have recommended against
    interviews with either side.
                Sincerely,
                                       Jacob A. Stein.
                                       Plato Cacheris.
                                     ______

                                           Independent Counsel,
                                      Washington, DC, January 21, 1999.
    Jacob A. Stein, Esq.,
    Stein, Mitchell & Mezines,
     Washington, DC.
    Plato Cacheris, Esq.,
    Law Offices of Plato Cacheris,
    Washington, DC.
        Dear Jake and Plato: Pursuant to her Immunity Agreement with this
    Office, we hereby request that Monica Lewinsky meet for an interview
    with the House of Representatives' Impeachment Managers this Friday,
    Saturday, or Sunday, January 22, 23, or 24, 1999.
        As you will recall, both parties contemplated congressional
    proceedings at the time we entered into the Immunity Agreement. The
    Agreement specifically requires Ms. Lewinsky to ``testify truthfully .
    . . in any . . . congressional proceedings.'' It further requires Ms.
    Lewinsky to ``make herself available for any interviews upon reasonable
    request,'' and stipulates that these interviews may include
    ``representatives of any other institutions as the OIC may require.''
        While I understand Ms. Lewinsky's misgivings, I must disagree with
    one statement in your letter to me today: your assertion that
    submitting to an interview would make Ms. Lewinsky into a partisan. The
    Managers are acting on behalf of the House of Representatives as a
    whole, not on behalf of a political party. Their task is constitutional
    in nature.
        Please feel free to call me if you have any questions.
                Sincerely,
                                             Robert J. Bittman,
                                            Deputy Independent Counsel.
                                     ______

                                     Stein, Mitchell & Mezines,
                                      Washington, DC, January 22, 1999.
    Robert J. Bittman, Esquire,
    Office of the Independent Counsel,
    Washington, DC.
        Dear Bob:
        1. We have your January 21, 1999 letter.
        2. The Agreement does not require Ms. Lewinsky to be interviewed by
    the House Managers or any Congressional body.
        3. Paragraph 1.C. of the Agreement states: ``Ms. Lewinsky will be
    fully debriefed concerning her knowledge of and participation in any
    activities within the OIC's jurisdiction. This debriefing will be
    conducted by the OIC, including attorneys, law enforcement agents, and
    representatives of any other institutions as the OIC may require. Ms.
    Lewinsky will make herself available for any interviews upon reasonable
    requests.''
        4. This paragraph deals with OIC debriefings, not OIC's acting as
    an agent for others.
        5. The Senate itself has provided its own rules for witness
    interviews. As we understand them, there first must be a deposition
    with equal access. As of now the Senate has not voted for depositions.
        6. Ms. Lewinsky will, of course, respond to a subpoena to appear
    and testify before the Senate. Yesterday, we raised with you the issue
    of immunity for any proposed congressional testimony. You opined that
    your office could grant such immunity in conformance with Title 18
    U.S.C. Sec. Sec. 6002, 6005. It is our understanding that only the
    Senate by majority vote can do that. We would appreciate your supplying
    your legal authority for your position.
                Sincerely,
                                       Jabob A. Stein.
                                       Plato Cacheris.
                                     ______

      [In the United States District Court for the District of Columbia,
                             Misc. No. 99-  (NHJ)]

                          In Re Grand Jury Proceedings

      emergency motion of the united states of america for enforcement of
                               immunity agreement
        The United States of America, by Kenneth W. Starr, Independent
    Counsel, respectfully submits this motion for an order requiring Ms.
    Lewinsky to comply with the terms of her Immunity Agreement (the
    ``Agreement'') with the Office of the Independent Counsel (``OIC'').
    Ms. Lewinsky has refused an OIC request that she be debriefed by the
    House of Representatives, as required by the Agreement. The United
    States respectfully requests that this Court orders Ms. Lewinsky to
    comply with the Agreement by allowing herself to be debriefed.
    I. Factual background
        As this Court is no doubt aware, the United States Senate is
    currently conducting an Impeachment Trial of the President of the
    United States. According to public reports, it is expected that the
    House will be required to submit to the Senate its motion to call
    witnesses as early as Monday, January 25. Again according to public
    reports, some potential witnesses have spoken with the House Managers
    as the Managers attempt to determine which witnesses should be
    mentioned in their motion to the Senate.
        On January 21, 1999, House Judiciary Committee Chairman Henry J.
    Hyde, on behalf of the House of Representatives, as represented by its
    duly-appointed Managers, asked for the OIC's assistance in having Ms.
    Lewinsky debriefed by the House. See letter from Henry J. Hyde to
    Kenneth W. Starr (Jan. 21, 1999) (Attachment A). The House stressed
    that it needs this debriefing to occur no later than Sunday, January
    24.
        That same day, the OIC sent a letter to Ms. Lewinsky's counsel
    requesting that Ms. Lewinsky allow herself to be debriefed by the House
    Managers. See letter from Robert J. Bittman, Deputy Independent
    Counsel, to Jacob A. Stein, Esq. and Plato Cacheris, Esq. (Jan. 21,
    1999) (Attachment C). At approximately 1:20 p.m. this afternoon, Ms.
    Lewinsky informed the OIC that she does not intend to comply with this
    request. See letter from Jacob A. Stein and Plato Cacheris to Robert J.
    Bittman (Jan. 22, 1999) (Attachment D).
    II. The immunity agreement plainly requires Ms. Lewinsky to be
            debriefed by any institution that the OIC specifies
        Ordinary contract law principles govern immunity agreements. See In
    re Federal Grand Jury Proceedings, Misc. No. 98-59 (NHJ), slip op. at
    12 (D.D.C. May 1, 1998) (under seal) (``Courts generally interpret
    immunity and proffer agreements, like plea agreements, under principles
    of contract law.''), appeal dismissed sub nom. In re Sealed Case, 144
    F.3d 74 (D.C. Cir. 1998) (per curiam); accord United States v. Black,
    776 F.2d 1321, 1326 (6th Cir. 1985) (``Like a plea agreement, an
    immunity agreement is contractual in nature and may be interpreted
    according to contract law principles.''); United States v. Irvine, 756
    F.2d 708, 710 (9th Cir. 1985) (per curiam) (``Generally speaking, a
    cooperation-immunity agreement is contractual) in nature and subject to
    contract law standards.''); United States v. Hembree, 754 F.2d 314, 317
    (10th Cir. 1985) (characterizing an immunity agreement as ``simply a
    contract'').
        Under contract law, an agreement is interpreted according to its
    plain terms. See Nicholson v. United States, 29 Fed. Cl. 180, 191
    (1993). The operative portion of the Immunity Agreement states: ``C.
    Ms. Lewinsky will be fully debriefed concerning her knowledge of and
    participation in any activities within the OIC's jurisdiction. This
    debriefing will be conducted by the OIC, including attorneys, law
    enforcement agents, and representatives of any other institutions as
    the OIC may require. Ms. Lewinsky will make herself available for any
    interviews upon reasonable request.'' Immunity Agreement para. 1.C
    (emphasis added) (Attachment E). This provision follows paragraph 1.B,
    which expressly requires Ms. Lewinsky to ``testify truthfully . . . in
    . . . congressional proceedings.''
        By the plain terms of the Agreement, Ms. Lewinsky has agreed to be
    debriefed by representatives of any institution, when so required by
    the OIC. She is also required to ``make herself available for any
    interviews upon reasonable request.'' The duly-appointed House Managers
    represent the House of Representatives, which plainly is an
    institution. The OIC has unambiguously requested that Ms. Lewinsky
    submit to each debriefing. Accordingly, Ms. Lewinsky must allow herself
    to be debriefed by the House Managers or she will have violated the
    Agreement.
        To be sure, Ms. Lewinsky has the right to have her ``debriefing . .
    . conducted by the OIC.'' The OIC, of course, is fully willing to
    conduct these debriefings, if Ms. Lewinsky so desires. The suggestion
    in her counsel's letter that this provision is void if the OIC is
    ``acting as an agent for other,'' Attachment D at para. 4, is contrary
    to the Agreement, as there is no such limitation on Ms. Lewinsky's
    duties. A party to an agreement may not invent clauses to a contract
    that are not contained therein.
        In any event, the OIC is not acting as an agent for the House
    Managers. The OIC has its own continuing duty to provide the House with
    information relating to impeachment. See 28 U.S.C. Sec. 595(c).
        Ms. Lewinsky's counsel's other suggestion--that a debriefing would
    be contrary to Senate Rules, see Attachment D at para. 5--is equally
    without merit. Senate Resolution 16 (106th Cong.) states, in relevant
    part: ``If the Senate agrees to allow either the House or the President
    to call witnesses, the witnesses shall first be deposed and the Senate
    shall decide after deposition which witnesses shall testify, pursuant
    to the impeachment rules.'' Although it is plain that depositions may
    not be conducted absent a vote of the Senate, nothing in this
    resolution restricts the ability of the House to debrief witnesses in a
    nondeposition setting. Indeed, it would be strange for the Senate to
    prohibit the House and the President from doing the investigation
    necessary to determine whether they wish to call witnesses and which
    witnesses to list in their motions.
    III. This court should grant an order requiring Ms. Lewinsky to comply
            with the immunity agreement or forfeit its protection
        Under the Agreement, this Court has the authority to determine
    whether Ms. Lewinsky has ``violated any provision of this Agreement.''
    Immunity Agreement para. 30. ``[A] declaratory judgment will ordinarily
    be granted only when it will either serve a useful purpose in
    clarifying the legal relations in issue or terminate and afford relief
    from the uncertainty, insecurity, and controversy giving right to the
    proceeding.'' Tierney v. Schweiker, 718 F.2d 456 (D.C. Cir. 1983)
    (internal quotation marks omitted). In this case, a declaratory
    judgment will resolve the uncertainty arising from this controversy
    between the OIC and Ms. Lewinsky by settling whether she has the right
    to refuse to be debriefed without forfeiting the protections of the
    Agreement.
        Indeed, declaratory judgment is a common remedy when a party to a
    contract intends conduct that may be a breach: `` `(A) party to a
    contract is not compelled to wait until he has committed an act which
    the other party asserts will constitute a breach, but may seek relief
    by declaratory judgment and have the controversy adjudicated in order
    that he may avoid the risk of damages or other untoward consequence.'
    '' (Application of President & Directors of Georgetown College, Inc.)
    331 F.2d 1000, 1002 n.6 (D.C. Cir. 1964) (quoting Keener Oil & Gas v.
    Consolidated Gas Utilities Corp., 190 F.2d 985, 989 (10th Cir. 1951));
    see Gilbert, Segall & Young v. Bank of Montreal, 785 F. Supp. 453. 462
    (S.D.N.Y. 1992); Fine v. Property Damage Appraisers, Inc., 393 F. Supp.
    1304, 1309-10 (E.D. La. 1975). Accordingly, this Court has the power to
    issue a declaratory judgment before Ms. Lewinsky's actions become
    irreversible.
    IV. Conclusion
        The Immunity Agreement plainly requires that Ms. Lewinsky allow
    herself to be debriefed by any institution at the request of the OIC.
    Ms. Lewinsky has the right to insist that the OIC conduct the
    debriefing, but she must comply with the plain terms of the Immunity
    Agreement. Accordingly, the United States respectfully requests that
    this Court enter an order requiring Ms. Lewinsky to submit to
    debriefing by the House.
        The Senate's schedule requires the House to submit its motion to
    call witnesses as early as Monday, and the House has stressed its need
    to debrief Ms. Lewinsky this weekend. Accordingly, the United States
    respectfully requests that this Court act on this motion as an
    emergency matter. Specifically, we request a hearing on this matter
    today.
        Respectfully submitted,
                                       Kenneth W. Starr,
                                               Independent Counsel.
                                       Robert J. Bittman,
                                               Deputy Independent Counsel.
                                       Joseph M. Ditkoff,
                                               Associate Independent
                                                   Counsel.
                                       Richard C. Killough,
                                               Assistant Independent
                                                   Counsel.
                                     ______

                                                Washington, DC,
                                                      January 23, 1999.
    Hon. Henry J. Hyde,
    Chairman, Committee on the Judiciary,
    Washington, DC.
        Dear Mr. Manager Hyde: We understand that the Office of Independent
    Counsel, on behalf of the House Managers, sought a court order to
    compel Ms. Lewinsky to submit to an interview with the Managers in
    preparation for her possible testimony. We further understand that
    Chief Judge Norma Holloway Johnson has granted the order sought by the
    Independent Counsel.
        As you know, Senate Resolution 16, which was passed by a 100-0 vote
    just over two weeks ago, expressly deferred any consideration or action
    related to additional witness testimony until after opening
    presentations, a question-and-answer period and an affirmative vote to
    compel such testimony. These actions by the Managers, undertaken
    without notice to the Senate or the President's Counsel, raise profound
    questions of fundamental fairness and undermine the ability of this
    body to control the discovery procedures that will take place under the
    imprimatur of its authority.
        In light of these concerns, we ask that you withdraw any and all
    requests to Mr. Starr that he assist your efforts to interview Ms.
    Lewinsky. The Senate, in a matter of days, will have an opportunity to
    formally address this issue pursuant to the procedures established by
    Senate Resolution 16. Moreover, we insist that you take no action
    related to the proposed interview of any witness until such time as the
    Senate has given you the authority to do so.
                Sincerely,
                                                            Harry Reid.
        [Also signed by 43 Senators.]
                                     ______

                                                Washington, DC,
                                                      January 23, 1999.
    Hon. Tom Daschle,
    Democratic Leader, U.S. Senate,
    Washington, DC.
        Dear Mr. Democratic Leader: I am in receipt of your letter of today
    expressing your concern with the House of Representatives' request to
    interview Monica Lewinsky.
        It has always been the position of the House Managers that a full
    trial with the benefit of relevant witnesses is in the best interest of
    the Senate and the American people. Representatives of President
    Clinton and many Senators have publicly stated that they want the
    Senate to preclude the testimony of witnesses. Many other Senators have
    made it clear that they prefer the witness lists for both sides to be
    sharply focused and limited to only the most relevant witnesses. The
    Managers have been mindful of these Senators' concerns.
        It is clear that the two most important witnesses in this trial are
    President Clinton and Ms. Lewinsky. Yesterday, I wrote to Majority
    Leader Lott and you to express the Managers' willingness to participate
    in the fair examination of the President if the Senate chooses to
    invite him to testify. The presentation of the President's counsel
    ended just two days ago. We are in the process of evaluating that
    presentation and determining what witnesses we will request the Senate
    to call. We believe that interviewing Ms. Lewinsky will help us make
    this determination. Counsel for the President may have already
    interviewed witnesses or may wish to interview witnesses they will
    propose to the Senate. That is their prerogative. The Senate has
    required us to submit a proffer of anticipated testimony of any
    proposed witnesses. Interviews of potential witnesses will assist the
    parties in providing the Senate with informative proffers.
        The House of Representatives has not violated S. Res. 16. When the
    House passed H. Res. 10 appointing the Mangers, it authorized that the
    Managers may ``in connection with the preparation and the conduct of
    the trial, exhibit the articles of impeachment to the Senate and take
    all other actions necessary, which may include . . . sending for
    persons and papers . . .'' Implicit in this authority is the ability to
    conduct interviews and gather additional information relevant to the
    articles of impeachment.
        The Managers, who represent the House of Representatives, retain
    powers separate and apart from the Senate. The Managers are not, just
    as the President's Counsel are not, an office or subset of the Senate.
    The Managers, like the President's Counsel, may conduct activities,
    such as further investigation and legal research, that are not
    specifically authorized by the Senate.
        Senate Resolution 16 does not prohibit the Managers from conducting
    further investigation or interviews of witnesses. If the resolution was
    intended to restrict the Managers in this way, we believe that it would
    violate principles of bicameralism, the ability of each House to
    establish its own rules of procedure, and would therefore be an
    unconstitutional infringement on the prerogatives of the House.
        Implicit in the right of the Managers to report to the House
    amendments to articles of impeachment, is the right of the Managers to
    receive and evaluate additional information. For example, if the
    Managers received additional exculpatory or inculpatory information,
    they could file amendments to the articles of impeachment in the House.
        Senate Resolution 16 set a schedule for deciding whether to depose
    witnesses. The decision to depose witnesses is subject to a request
    from the House Managers. The House Managers have decided that they need
    to talk with Ms. Lewinsky before making a recommendation to the Senate
    to depose her. The action of the House Managers is not unusual. It is
    not unfair, and it is not contrary to the rules of the Senate.
        With all due respect to the Senate, the rules and the
    constitutional principles of bicameralism do not require that the House
    obtain the permission of the Senate merely to conduct an interview of a
    potential witness. A decision to merely interview a witness as opposed
    to conducting a deposition, does not interfere with the Senate's
    ability to control the procedures set forth under S. Res. 16.
                Sincerely,
                                         Henry J. Hyde,
                               On behalf of the Managers on the
                                  Part of the House of Representatives.
                                     ______

     [From the U.S. House of Representatives, Committee on the Judiciary,
                            Henry J. Hyde, Chairman]

                      Managers' Response to Judge's Ruling

        (Washington, D.C.)--Paul McNulty, chief spokesman for the House
    Managers, made the following statement today following Judge Johnson's
    ruling that Monica Lewinsky must cooperate with the managers' request
    for an interview, in keeping with her immunity agreement:
        ``Monica Lewinsky received extraordinary protection in exchange for
    her truthful testimony. Judge Johnson ruled that she has an obligation
    to cooperate in the search for truth.
        ``Ms. Lewinsky's testimony has never been more important than it is
    now. In the last four days, the White House has challenged the
    reliability of her testimony in a number of key instances relating to
    her conversations with the President and Ms. Currie.
        ``Ms. Lewinsky can resolve some of these crucial conflicts, and
    House Managers have a responsibility to interview her before deciding
    to call her as a witness. This is Lawyering 101--any good lawyer would
    talk to a witness before deciding to put her on the witness stand. When
    the House of Representatives appointed the Managers, it also granted
    them the investigative authority necessary to find the truth.
        ``The White House's protests are psuedo-objections designed to
    divert attention from the President's behavior.''
                                     ______

      [In the United States District Court for the District of Columbia,
                             Misc. No. 99-32 (NHJ)]

                          In re Grand Jury Proceedings

                                     order
        Upon consideration of the Emergency Motion of the United States of
    America for Enforcement of Immunity Agreement, it is hereby ordered
    that the Motion is granted. It is further ordered that Monica S.
    Lewinsky allow herself to be debriefed by the House Managers, to be
    conducted by the Office of the Independent Counsel if she so requests,
    or forfeit her protections under the Immunity Agreement between Ms.
    Lewinsky and the OIC.

    January 23, 1999.
                                        Norma Holloway Johnson,
                                                           Chief Judge.
                                     ______

              Excerpt from CBS Radio Transcript, January 24, 1999

     kenneth starr delivers remarks concerning the upcoming interview with
                       monica lewinsky; washington, d.c.
        QUESTION: Sir, people are saying on Capitol Hill that you're trying
    to influence the trial by bringing back Monica, before they had a
    chance to vote.
        What do you say about that?
        STARR: Well, as I indicated, we had a request from the Lead
    Manager, Chairman Hyde, it was a formal request. And we responded as I
    felt that we were obligated to do to that request. And we then took
    what I felt was the appropriate action and we went to court.
        I want to make it very clear that Chief Judge Johnson has only
    interpreted the agreement between Ms. Lewinsky, who's advised by her
    very able lawyers, and our office. She did not direct an order in any
    sense other than to interpret the meaning of the agreement, which we
    asked her to interpret. So, I want it to be very, very clear that the
    judge was simply acting at our request to interpret the terms of the
    agreement, which we believe are quite clear.
        QUESTION: Senator Harkin said yesterday that Judge Johnson may not
    have acted, you know, constitutionally. Do you have any comment on
    that?
        STARR: Well we think that we have taken the appropriate action in
    going to the court and the court acted appropriately in interpreting
    the agreement, which is all that she did. So if there is an issue, the
    issue has to be one that's entrusted to the wisdom of the Senate. And
    their relationship with the House managers.
        But from our standpoint, the agreement we felt was clear, we asked
    the judge to determine whether our interpretation of the agreement was
    clear. And she has issued her ruling.
                                     ______

                                   Appendix G

        Although the House Managers argued strenuously about the need to
    call witnesses in the Senate trial, their position in the House of
    Representatives on the same subject was the opposite.
        ``Well, they've already testified . . . I don't think we need to
    reinvent the wheel. To keep calling people to reiterate what they've
    already said under oath.''--Rep. Henry Hyde, CNN, October 10, 1998.
        ``I don't really believe that we need more live testimony from
    those type of witnesses. We have sworn testimony from Monica Lewinsky,
    from Betty Currie, from all the principal players. We also have sworn
    testimony from corroborating witnesses to their testimony . . . And--
    and . . . I don't think we need any former witnesses. I don't think we
    need to bring any in.''--Rep. Bill McCollum, NBC ``Saturday Today'',
    November 28, 1998.
        ``Bringing in witnesses to rehash testimony that's already
    concretely in the record would be a waste of time and serve no purpose
    at all.''--Rep. George Gekas, New York Times, November 6, 1998.
                                     ______

                                   Appendix H

        Although the House Managers argued strenuously about the need to
    call witnesses in the Senate trial, they also claimed that the record
    conclusively proved the President's guilt.
        ``A reasonable and impartial review of the record as it presently
    exists demands nothing less than a guilty verdict.''--House Manager
    Bryant, Congressional Record, January 14, 1999, Page S232.
        ``Finally, before turning to that merger of the law and the facts,
    which I believe will illustrate conclusively that this President has
    committed and ought to be convicted on perjury and obstruction of
    justice . . .''--House Manager Barr, Congressional Record, January 15,
    1999, Page S274.
        ``[L]adies and gentlemen of the Senate, there are conclusive facts
    here that support a conviction.''--House Manager Bryant, Congressional
    Record, February 8, 1999, Page S1358.
                                     ______

                                   Appendix I

        At times, the House Managers took different and oft-time
    conflicting positions on the need to call witnesses in the Senate
    trial.
        ``I submit that the state of the evidence is such that unless and
    until the President has the opportunity to confront and cross-examine
    witnesses like Ms. Lewinsky, and himself, to testify if he desires,
    there could not be any doubt of his guilt on the facts.''--House
    Manager Bryant, Congressional Record, January 14, 1999, Page S232.
        ``[I]f we had Mr. Jordan on the witness stand--which I hope to be
    able to call Mr. Jordan--you would need to probe where his loyalties
    lie, listen to the tone of his voice, look into his eyes and determine
    the truthfulness of his statements. You must decide whether he is
    telling the truth or withholding information.''--House Manager
    Hutchinson, Congressional Record, January 14, 1999, Page S234.
        ``The case against the President rests to a great extent on whether
    or not you believe Monica Lewinsky. But it is also based on the sworn
    testimony of Vernon Jordan, Betty Currie, Sidney Blumenthal, John
    Podesta and corroborating witnesses. Time and again, the President says
    one thing and they say something entirely different. . . . But if you
    have serious doubts about the truthfulness of any of these witnesses,
    I, again, as all my colleagues do, encourage you to bring them in
    here.''--House Manager McCollum, Congressional Record, January 15,
    1999, Page S266.
        ``[O]n the record, the weight of the evidence, taken from what we
    have given you today, what you can read in all these books back here .
    . . I don't know what the witnesses will say, but, I assume if they are
    consistent, they'll say the same that's in here.''--House Manager
    McCollum, Congressional Record, January 15, 1999, Page S266-S267.
        ``[N]o one in this Chamber at this juncture does not know all the
    facts that are pertinent to this case. That is a magnificent
    accomplishment on the part of the managers.''--House Manager Gekas,
    Congressional Record, January 15, 1999, Page S267.
                                     ______

                                   Appendix J

        The House of Representatives articles were intended to charge
    President Clinton with specific crimes.
        ``[T]his honorable Senate must do the right thing. It must listen
    to the evidence; it must determine whether William Jefferson Clinton
    repeatedly broke our criminal laws and thus broke his trust with the
    people.''--House Manager Sensenbrenner, Congressional Record, January
    14, 1999, Page S227.
        ``Moreover, in engaging in this course of conduct, referring here
    to the words of the obstruction statute found at section 1503 of the
    Criminal Code, the President's actions constituted an endeavor to
    influence or impede the due administration of justice in that he was
    attempting to prevent the plaintiff in the Jones case from having a
    `free and fair opportunity to learn what she may learn concerning the
    material facts surrounding her claim'. These acts by the President also
    constituted an endeavor to `corruptly persuade another person with the
    intent to influence the testimony they might give in an official
    proceeding'. Such are the elements of tampering with witnesses found at
    section 1512 of the Federal Criminal Code.''--House Manager Barr,
    Congressional Record, January 15, 1999, Page S274-S275.
        ``Under both sections of the Federal Criminal Code, that is, 1503,
    obstruction, and 1512, obstruction in the form of witness tampering,
    the President's conduct constituted a Federal crime and satisfies the
    elements of those statutes.''--House Manager Barr, Congressional
    Record, January 15, 1999, Page S275.
        ``The evidence, however, clearly establishes that the President's
    statement constitutes perjury, in violation of section 1623 of the U.S.
    Federal Criminal Code for the simple reason the only realistic way Ms.
    Lewinsky could get out of having to testify based on her affidavit.
    There was no other way it could have happened. The President knew this.
    Ms. Lewinsky knew this. And the President's testimony on this point is
    perjury within the clear meaning of the Federal perjury statute. It was
    willful, it was knowing, it was material, and it was false.''--House
    Manager Barr, Congressional Record, January 15, 1999, Page S275.
        ``Please keep in mind also, it is not required that the target of
    the defendant's actions actually testify falsely. In fact, the witness
    tampering statute can be violated even when there is no proceeding
    pending at the time the defendant acted in suggesting testimony. As the
    cases discussed by Manager Cannon demonstrate, for a conviction under
    either section 1503, obstruction, or 1512, obstruction by witness
    tampering, it is necessary only to show it was possible the target of
    the defendant's actions might be called as a witness. That element has
    been more than met under the facts of this case.''--House Manager Barr,
    Congressional Record, January 15, 1999, Page S276.
        ``In my opening statement before this body, I outlined the four
    elements of perjury: An oath, intent, falsity, materiality. In this
    case, all those elements have been met.''--House Manager Chabot,
    Congressional Record, February 8, 1999, Page S1341.
        ``In the past month, you have heard much about the Constitution;
    and about the law. Probably more than you'd prefer; in a dizzying
    recitation of the U.S. Criminal Code: 18 U.S.C. 1503. 18 U.S.C. 1505.
    18 U.S.C. 1512. 18 U.S.C. 1621. 18 U.S.C. 1623. Tampering. Perjury.
    Obstruction. That is a lot to digest, but these are real laws and they
    are applicable to these proceedings and to this President.''--House
    Manager Barr, Congressional Record, February 8, 1999, Page S1342.
                                     ______

                                   Appendix K

        Though written in his diary almost 200 hundred years ago, John
    Quincy Adams' thoughts on the impeachment of Justice Samuel P. Chase,
    who was acquitted, are relevant to the impeachment of President
    Clinton.
        On the day that Justice Chase was acquitted in 1805, John Quincy
    Adams wrote the following:
        ``. . . This was a party prosecution, and is issued in the
    unexpected and total disappointment of those by whom it was brought
    forward. It has exhibited the Senate of the United States fulfilling
    the most important purpose of its institution . . . It has proved that
    a sense of justice is yet strong enough to overpower the furies of
    factions; but it has, at the same time, shown the wisdom and necessity
    of that provision in the Constitution which requires the concurrence of
    two-thirds for conviction upon impeachments.''
                                     ______

                                   Appendix L

     additional statement of senator carl levin regarding the independent
                                    counsel
        Mr. President, four and one half years ago, the Special Court under
    the independent counsel law appointed Kenneth Starr to investigate
    certain specific and credible allegations concerning President
    Clinton's involvement in the Madison Guaranty Savings and Loan
    Association of Little Rock, Arkansas. Three and half years later--and
    after what appears to be the most thorough criminal investigation of a
    sitting President, Mr. Starr was unable to find any criminal wrongdoing
    on the part of the President in what came to be known as
    ``Whitewater.'' A similar conclusion was reached by Mr. Starr with
    respect to additional investigations assigned to Mr. Starr along the
    way--namely, allegations with respect to the White House use of FBI
    files and the discharge of White House employees from the White House
    Travel Office.
        A year ago Mr. Starr's investigation was coming to an end. That's
    when Linda Tripp walked through Mr. Starr's door with promises of taped
    phone conversations between Ms. Tripp and Monica Lewinsky about Ms.
    Lewinsky's sexual relationship with President Clinton. And what was the
    alleged crime? That President Clinton and Ms. Lewinsky were about to
    lie about their relationship--if they were asked about it by the
    attorneys for Paula Jones in her sexual harassment case against
    President Clinton. Mr. Starr had to know that the relationship between
    President Clinton and Monica Lewinsky had been a consensual one. Mr.
    Starr had to know that, because Ms. Tripp was informed by Ms. Lewinsky
    of every aspect of her relationship with President Clinton. And at this
    point--January 12, 1998--neither Monica Lewinsky nor President Clinton
    had been deposed.
        I am convinced that no ordinary federal prosecutor, if confronted
    with the same situation involving a private citizen, would have pursued
    this case. But Mr. Starr was no ordinary federal prosecutor. Without
    jurisdiction with respect to these matters, he immediately gave Ms.
    Tripp immunity in exchange for access to her tapes, and he wired her to
    tape a private luncheon conversation with Ms. Lewinsky. Shortly after
    Mr. Starr wired Ms. Tripp, he confronted Ms. Lewinsky and, according to
    her, threatened her with 27 years in prison and the prosecution of her
    mother in order to get her cooperation and to tape Betty Currie, the
    President, and/or Vernon Jordan. Mr. Starr brought his enormous
    criminal investigative resources to bear on testimony yet to be given
    in a civil lawsuit involving a consensual, sexual relationship.
        At the time Ms. Lewinsky was threatened by Mr. Starr, her affidavit
    in the Jones case had not been filed. She was still in a position to
    retrieve it or amend it. Also, President Clinton had not been deposed.
    He had not given his testimony in the Paula Jones suit. In effect, Mr.
    Starr and his agents lay in wait--waiting for the President to be
    surprised at the Jones deposition with information about Monica
    Lewinsky. And how did that information about Monica Lewinsky get in the
    hands of the Jones attorneys? Ms. Tripp gave them the information. And
    she was able to do that even though she was under an immunity
    arrangement with Mr. Starr, because--as Mr. Starr acknowledged to the
    House Judiciary Committee under questioning--Mr. Starr's agents never
    directed Ms. Tripp to keep her information confidential, even though
    Mr. Starr had a major concern that the Lewinsky matter would leak to
    the press. Mr. Starr's agents did not tell Ms. Tripp not to talk to the
    Jones attorneys or anyone else in order to ensure that the story would
    not leak to the press.
        So the enormous criminal investigative resources of the federal
    government were brought to bear on the President of the United States
    to catch him by surprise in a future deposition in a civil proceeding
    on a matter peripheral to the lawsuit, prior to any of the suspected
    unlawful conduct.
        Once the President testified in that civil suit, Mr. Starr convened
    a grand jury to investigate the truthfulness of Mr. Clinton's
    testimony. Again, using the virtually unlimited resources of the
    federal government with respect to a criminal investigation, Mr. Starr
    called countless witnesses before the grand jury--recalling numerous
    witnesses multiple times. Betty Currie testified on 5 different
    occasions; so did Vernon Jordan. Monica Lewinsky testified 3 times and
    was interviewed over 20 separate times. I don't believe any regular
    prosecutor would have invested the time and money and resources in the
    kind of investigation that Kenneth Starr did.
        At the end, Mr. Starr wrote a report arguing for impeachment to the
    House of Representatives. He didn't just impartially forward evidence
    he thought may demonstrate possible impeachable offenses.
        The Starr report spared nothing. Lacking good judgment and balance,
    the Starr report contained a large amount of salacious detail, and
    skipped over or dismissed important exculpatory evidence, such as
    Monica Lewinsky's statement that no one asked her to lie and no one
    promised her a job for her silence. Mr. Starr violated the standards
    enunciated by Judge Sirica when he addressed the status of the grand
    jury report in the Watergate matter. In that case, Judge Sirica wrote
    in granting Leon Jaworski, the Watergate prosecutor, the right to
    forward grand jury information to the House of Representatives:
        ``It draws no accusatory conclusions. . . . It contains no
    recommendations, advice or statements that infringe on the prerogatives
    of other branches of government. . . . It renders no moral or social
    judgments. The Report is a simple and straightforward compilation of
    information gathered by the Grand Jury, and no more. . . . The Grand
    Jury has obviously taken care to assure that its Report contains no
    objectionable features, and has throughout acted in the interests of
    fairness. The Grand Jury having thus respected its own limitations and
    the rights of others, the Court ought to respect the Jury's exercise of
    its prerogatives.'' (In re Report and Recommendation of June 5, 1972,
    Grand Jury Concerning Transmission of Evidence to the House of
    Representatives, U.S. District Court, District of Columbia, March 18,
    1974.)
        What a far cry the Watergate grand jury report was from Mr.
    Starr's. The Starr Report violates almost every one of the standards
    laid out by Judge Sirica in the Watergate case.
        The House of Representatives the Judiciary Committee then almost
    immediately released the Starr report and the thousands of pages of
    evidence to the public.
        Because of that release--enormous damage had been done to the
    public's sense of decorum and to appropriate limits between public and
    private life.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                         Statement of Senator Herb Kohl

        Mr. KOHL. Mr. Chief Justice, throughout this process my
    colleagues from both sides of the aisle have conducted
    themselves with decency and dignity, exactly the qualities
    President Clinton's conduct lacked. But we risk opening the
    floodgates to more party-line impeachments if we oust a
    President from office for behavior that--while truly
    deplorable--isn't truly removable. Lowering the standard would
    do as great a disservice to the Constitution as the President's
    behavior has done to the Oval Office. So I am voting to acquit
    on both articles.
        I state these conclusions with a certainty I do not feel.
    We have heard many say these votes are the most difficult they
    will ever cast, and I agree. This case is made up of many small
    questions, matters of opinion and fact: Did the President lie?
    Did he commit perjury? Did he obstruct justice? Did he weaken
    the judicial system? Did he undermine the Constitution? Are
    these ``high'' crimes? Is this what the founders envisioned
    when they talked about removal of a President?
        Most of us have answers for each of these questions. Most
    of us will lay them out in well-worded, well-argued statements.
    But the sum of the answers is not the sum of this case. The sum
    of our opinions, our findings of fact, and our legal briefs
    cannot sum up the deep disquiet I feel about the failings,
    lies, and weakness displayed by the President. Under the cold
    body of evidence before us runs the bad blood of bad character,
    and that deeply disturbs me.
        The evidence does not prove high crimes, but it does prove
    low character in our highest office--and that matters, it is
    relevant, it is material. This Nation is not defined merely by
    demographics, boundaries, geological features, and government
    regulations; it is also about families and individuals who
    struggle to be larger, braver, and stronger than their
    circumstances. It is a nation that has a history of putting
    lives, faith, and hope in causes bigger than any one person:
    justice, democracy, freedom. Similarly, the Office of the
    Presidency is not just a set of protocols, formalities, and
    policies. It is the human face we put on our country, and that
    face ought to be as honest, just, strong and brave as we all
    aspire to be--and as our history demands that we be.
        That's why character matters. I cannot find a way to fit my
    concern for that spirit into these very formal, legal
    proceedings, but I also cannot, in good conscience, let go of
    my deep concern for the harm and the loss this President has
    caused. I will not vote for either article of impeachment, but
    I also will not let go of my firm belief that this President
    has done real damage to the Office of the Presidency. And I
    will not let go of a commitment to do everything I can to
    restore and protect the idea that good character is essential
    in those who ask to serve and represent this country.
        Let me explain in more detail why I am voting against both
    articles. First, removing a President is a drastic measure,
    called for in only the most extraordinary circumstances. And
    our Founding Fathers clearly wanted it to be used sparingly:
    that's why they limited impeachment to only ``high crimes and
    misdemeanors'' involving abuse of power, incapacity to hold
    office, or a serious threat to our Constitution or system of
    government.
        But the President's conduct, however reprehensible, related
    to purely personal matters. He lied to the American people. He
    lied to his family, his friends and his staff. He lied under
    oath and evidence suggests that he may have obstructed justice.
    Simply put, his conduct was disgraceful and, possibly, illegal.
        However, his actions did not relate to abuse of power. They
    had nothing to do with his official acts or his capacity to
    hold office. They did not threaten our Constitution or system
    of government. Though serious offenses to our American values
    and decency, they do not rise to the level of constitutional
    ``high'' crimes.
        Some of my colleagues have a different view, and I respect
    their position. But even the House prosecutors respect mine. In
    response to one of my questions, House Manager Graham
    acknowledged that ``reasonable people can disagree'' about
    whether the President should be removed. In fact, he went on to
    say:

        ``[I]f I was sitting where you're at, I would probably get down on
    my knees before I made that decision, because the impact on society is
    going to be real either way. And if you find the President guilty in
    your mind from the facts, that's he a perjurer and he obstructed
    justice, you've got to somehow reconcile continued service in light of
    that event. And I think it's important for this body not to have a
    disposition plan that doesn't take in consideration the good of this
    Nation. . . . [Y]ou've got to consider what's best for this Nation.''

        Representative Graham deserves credit for putting candor
    above partisanship, and inviting us to decide ``what's best for
    this Nation.'' To do that, it makes sense to consider the views
    of the American people. Most of them know what this case is
    about and most of them oppose this impeachment. Nothing we've
    heard clearly justifies rejecting the overwhelming weight of
    their opinion and removing a twice-elected President.
        Indeed, if ``reasonable people can disagree,'' as the House
    prosecutors concede, have we really met the high threshold
    established for removal?
        To ask that question is to answer it.
        It is true, of course, that we have removed judges for
    lying under oath; for example, 10 years ago the Senate removed
    Judge Nixon on that basis. But impeaching the President, our
    highest elected official, is far different. Judge Nixon was
    appointed. He held office during ``good Behaviour.'' At the
    time of his Senate trial, he was already convicted and sitting
    in jail. He lied about bribery, not sex. And most importantly,
    the only way a judge can be removed is by impeachment. A
    President, on the other hand, can be removed every 4 years
    through an election, and is automatically removed after 8 years
    by the 22d amendment.
        Second, in addition to the constitutional problems, the
    prosecution has not proved its allegations by clear and
    convincing evidence. This is especially true on the
    ``obstruction of justice'' charge, which is by far the more
    serious allegation. The House managers argue that more
    witnesses would have made a difference in bolstering their
    case, and they may be right. But why then did the House choose
    not to call witnesses in its own proceedings, even though it
    had called ``fact'' witnesses in nearly every other
    impeachment?
        Third, as many of us told the House in the Judge Nixon
    impeachment trial, lumping together a series of charges in each
    article--at least four perjury charges and seven obstruction of
    justice charges here--isn't fair or responsible. Alarmingly,
    the President could be found guilty without a two-thirds
    majority believing any single charge. For example, in theory,
    even if each obstruction charge were rejected by a 90 to 10
    margin, the President could be convicted--because ten different
    Senators convicting on each of seven separate charges adds up
    to 70--more than a two-thirds majority.
        Mr. Chief Justice, this kind of ``one from column A and two
    from column B'' approach may work for a Chinese restaurant, but
    not for removing a President--or a judge. And this lack of
    specificity shortchanges the American people, who may never
    understand which charges were believed and which ones weren't.
        Still, President Clinton is not ``above the law.'' His
    conduct should not be excused, nor will it. The President can
    be criminally prosecuted, especially once he leaves office. In
    other words, his acts may not be ``removable'' wrongs, but they
    could be ``convictable'' crimes. Moreover, the House vote of
    impeachment--and the President's misconduct with Monica
    Lewinsky--will forever scar this President's legacy. Finally,
    the Senate can and should censure the President, and we ought
    make our condemnation of his conduct as strong as possible.
        In sum, Mr. Chief Justice, President Clinton's conduct was
    wrong, reckless and indefensible. Under the Constitution it
    does not justify removal. But for those who love this country,
    it demands outrage and disappointment. It demands a commitment
    from this President and future Presidents, this Congress and
    future Congresses--not now, and not ever again, to let personal
    weakness and personal failing stain or shake our democracy.
    Thank you.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Fred Thompson

        Mr. THOMPSON. Mr. Chief Justice, in 1994, Paula Corbin
    Jones sued President Clinton for sexual harassment which she
    alleged he committed against her in 1991, when he was Governor
    of Arkansas. The Supreme Court of the United States permitted
    the lawsuit to proceed in 1997.
        Monica Lewinsky began work as a White House intern on July
    10, 1995. At the time, she was 21 years old. She later worked
    in the Office of Legislative Affairs at the White House. In
    1996, she left the White House for a job at the Department of
    Defense.
        The first day that Ms. Lewinsky spoke with President
    Clinton, November 15, 1995, she and the President engaged in
    sexual relations. Their sexual relationship lasted until 1997.
    The two also engaged in telephone sex at least 17 times, and
    they exchanged numerous gifts. The two agreed to keep their
    relationship secret through the use of cover stories. Ms.
    Lewinsky, if discovered in the Oval Office, was to say that she
    was delivering papers, although her job duties never included
    delivering papers. Once she left the White House, her visits to
    the President were disguised as visits to Presidential
    secretary Betty Currie.
        The President told Ms. Lewinsky that she could return to
    the White House after the 1996 election had concluded. Although
    Ms. Lewinsky tried numerous times to regain employment at the
    White House, she was never able to do so. After being informed
    by a friend, Linda Tripp, that she would never be permitted to
    return to the White House, Ms. Lewinsky decided to seek
    employment in New York, initially receiving and rejecting a job
    offer with the United States Ambassador to the United Nations.
    She then decided to seek employment in New York in the private
    sector. On November 5, 1997, she met with Vernon Jordan, a
    prominent Washington lawyer and friend of President Clinton, to
    seek his assistance in securing such a position. This meeting
    was arranged by Ms. Currie. Mr. Jordan took no action to help
    her in November, and does not remember meeting her at this
    time.
        On December 5, 1997, attorneys for Ms. Jones notified the
    President's attorneys of their list of witnesses. That list
    included Ms. Lewinsky. Although she was unaware at the time
    that her name was on the Jones litigation witness list,
    Lewinsky coincidentally decided to terminate her relationship
    with the President the following day, but was unable to see him
    at the White House. President Clinton and Ms. Lewinsky
    initially exchanged angry words that day over the telephone,
    but later that day, she came to the White House at his
    invitation. During this meeting, Ms. Lewinsky told the
    President that Mr. Jordan had not appeared to have done
    anything to help her in her job search. In a conversation Ms.
    Lewinsky described as ``sweet'' and ``very affectionate,'' he
    told her that he would speak to Mr. Jordan about her job
    situation. The President did not at that time inform Ms.
    Lewinsky that her name was on the witness list.
        Ms. Currie again called Mr. Jordan, and on December 8,
    1997, Ms. Lewinsky called to set another appointment with Mr.
    Jordan for December 11. Although Ms. Lewinsky provided Mr.
    Jordan with a list of corporations in which she was interested
    in obtaining employment, Mr. Jordan determined based on his own
    contacts which companies he would pursue on Ms. Lewinsky's
    behalf. Following his meeting with Ms. Lewinsky, acting by his
    own admission at the behest of the President, Jordan called
    three corporate executives in New York. He also called the
    President to report on his efforts on behalf of Ms. Lewinsky.
        December 11, 1997, was also the date on which Judge Susan
    Webber Wright, the presiding judge in the Jones litigation,
    issued an order permitting Jones' attorneys to pursue discovery
    concerning the names of any state or federal employees with
    whom the President had had sexual relations, proposed sexual
    relations, or sought to have sexual relations.
        On December 17, 1997, between 2 and 2:30 a.m., the
    President telephoned Ms. Lewinsky. He informed her that Ms.
    Currie's brother had been killed, as well as that her name was
    on the Jones witness list. The President indicated that if Ms.
    Lewinsky were subpoenaed, she should let Ms. Currie know. He
    also told her that she might be able to sign an affidavit in
    that event to avoid testifying. In addition, he suggested that
    she could say that she was coming to see Betty or was bringing
    him papers. Ms. Lewinsky says that she understood implicitly
    that she was to continue to deny their relationship.
        Ms. Lewinsky was subpoenaed to testify in the Jones
    litigation on December 19, 1997. The subpoena also required Ms.
    Lewinsky to produce all gifts that she had received from the
    President, and enumerated one specific gift that the President
    had given Ms. Lewinsky, a hatpin. Because Ms. Currie was in
    mourning, Lewinsky called Jordan, who invited her to his
    office. She was in a highly emotional state, and that fact,
    combined with her statements in the conversation that
    demonstrated her personal fascination with the President,
    prompted Jordan to ask whether she, a person for whom he was
    providing job assistance, had had sexual relations with the
    President. He says she denied such relations. Jordan took a
    telephone call from the President during that meeting, and made
    plans to see him that night. Jordan later called Frank Carter,
    a Washington lawyer, to arrange a meeting at which he would
    refer Ms. Lewinsky to Mr. Carter as a client.
        Notwithstanding Ms. Lewinsky's denial of sexual relations
    with the President, Jordan asked President Clinton that same
    evening the same question. The President also denied having had
    sexual relations with Ms. Lewinsky. Jordan also conveyed a
    number of Lewinsky's statements to the President, and informed
    Clinton that Lewinsky had received a subpoena to testify in the
    Jones case. Following a discussion in which Lewinsky informed
    Jordan of the nature of the telephone calls she had had with
    the President, Jordan drove Lewinsky to a meeting at Mr.
    Carter's office on December 22.
        The President met with Ms. Lewinsky on December 28, 1997,
    at which time they again exchanged gifts. They discussed the
    subpoena, and she expressed concern, which the President
    shared, about the specific enumeration of the hatpin, since
    that suggested that someone knew details of their relationship.
    Ms. Lewinsky then suggested taking the gifts out of her
    apartment or giving them to Ms. Currie. The President
    responded, ``I don't know'' or ``Let me think about that.''
    Later that same day, Ms. Lewinsky's consistent recollection is
    that Ms. Currie called her and stated, ``I understand you have
    something to give me'' or ``the President said you have
    something to give me.'' Ms. Currie later drove to Ms.
    Lewinsky's apartment, picked up a box containing gifts the
    President had given Ms. Lewinsky, and hid that box under her
    bed without asking any questions.
        On December 31, 1997, Jordan and Lewinsky had breakfast.
    Lewinsky, fearing that her relationship with the President
    would become known and wanting to ensure that she not appear
    responsible for its becoming known, told Jordan that she
    possessed notes she had addressed to the President that
    suggested the nature of their relationship. According to
    Lewinsky, Jordan told her to dispose of those notes. Jordan
    initially denied that he ever had breakfast with Lewinsky, but
    later recalled having done so when shown the receipt. But he
    denied ever telling Lewinsky to destroy any notes.
        Ms. Lewinsky pursued filing an affidavit to obviate the
    need for her to testify in the Jones case. On January 6, 1998,
    she communicated to Mr. Jordan concerns she had about the
    affidavit that Mr. Carter had drafted for her. Jordan
    telephoned Carter with her suggestions. Although Mr. Jordan
    denies the allegations, Ms. Lewinsky contends that she informed
    Jordan about the details of Carter's proposed affidavit, and
    that she and Jordan made changes to it prior to her signing it.
    Lewinsky also spoke with the President about Carter's questions
    to her about how she obtained her Pentagon job. The President
    told her that she ``could always say that the people in
    Legislative Affairs got it for you or helped you get it.''
        On January 7, 1998, Lewinsky signed an affidavit denying
    sexual relations with the President. She later testified that
    the affidavit was false. She showed Jordan the affidavit, and
    Jordan spoke with the President after conferring with Ms.
    Lewinsky about the changes. Lewinsky testified that she
    believed that the President would be satisfied with any
    affidavit that Jordan approved.
        The following day, Lewinsky was interviewed at a company
    that Jordan had called on her behalf. Believing that the
    interview had proceeded poorly, she called Jordan, who then
    called the head of the holding company of the firm with which
    she had interviewed. Jordan asked that a second interview be
    granted Lewinsky. She interviewed again the next day, and was
    made an informal job offer. Jordan testified that his ``magic''
    was responsible for that offer. Lewinsky informed Jordan of her
    success, and he telephoned Ms. Currie to notify her: ``Mission
    accomplished.'' He later informed the President.
        The President was scheduled to be deposed in the Jones
    litigation on January 17, 1998. The President knew that one of
    the issues was his relationship with Ms. Lewinsky. For the
    affidavit to successfully deflect questions to the President
    concerning that relationship, the affidavit would have had to
    have been filed in time for the court to consider it and for
    the President's lawyers to see it before the deposition. The
    President's lawyers called Ms. Lewinsky's attorney once on
    January 14, twice on January 15, and once on January 16. On the
    15th, Lewinsky's lawyer, Mr. Carter, sent President Clinton's
    counsel a copy of the affidavit. Mr. Carter also called the
    court twice on that day to ensure that the affidavit could be
    filed on January 17.
        During his deposition, President Clinton made numerous
    false statements while under oath. These included the sexual
    nature of his relationship with Ms. Lewinsky, and whether they
    had exchanged gifts. He relied on the same cover stories as he
    had discussed with Ms. Lewinsky. The President's lawyer used
    Ms. Lewinsky's affidavit in an attempt to deflect questions
    about the President's relationship with her, specifically
    stating that the President had already seen that affidavit. As
    the President appeared to be paying close attention, he did not
    contradict his attorney when he represented to the court that
    ``there is absolutely no sex of any kind in any manner, shape
    or form with President Clinton. . . .'' And he testified, when
    asked by his attorney, that Ms. Lewinsky's affidavit was
    absolutely true. However, the judge insisted that President
    Clinton answer additional questions about his relationship with
    Ms. Lewinsky. These questions were asked based on the judge's
    peculiar ruling that used only one-third of a standard
    courtroom definition of ``sexual relations'' and the
    plaintiff's attorneys' insistence in using that truncated
    definition as a reference for questions they posed to the
    President about the nature of his relationship with Ms.
    Lewinsky, rather than asking specific questions concerning what
    had occurred. In six instances, the President answered
    questions by referencing Betty Currie, such as in using the
    cover story that Ms. Lewinsky had come to the White House to
    visit Ms. Currie, and on one occasion, expressly stated that
    his questioners should ``ask Betty.'' Indeed, Ms. Jones'
    attorneys later placed Ms. Currie's name on their witness list.
        After the deposition, at 7 p.m. that evening, the President
    called his secretary, Betty Currie, at home. She later
    testified that she could not remember the President ever
    calling her at home so late on a Saturday. In that
    conversation, he asked Ms. Currie to see him in the Oval Office
    the following day, a Sunday. This was also an unusual
    occurrence. While in the Oval Office, and contrary to the
    admonition from the Jones case judge not to discuss his
    deposition testimony with anyone, the President made the
    following statements to Ms. Currie: (1) ``I was never really
    alone with Monica, right?'' (2) ``You were always there when
    Monica was there, right?'' (3) ``Monica came on to me, and I
    never touched her, right?'' (4) ``You could see and hear
    everything, right?'' (5) ``She wanted to have sex with me, and
    I could not do that.''
        Once the President met with Ms. Currie on January 18, Ms.
    Currie began to seek Ms. Lewinsky. She paged Ms. Lewinsky four
    times that night. Later than 11 p.m. that evening, the
    President called Ms. Currie at home to determine if she had yet
    reached Ms. Lewinsky. She had not. In a period of less than 2
    hours on the morning of the 19th, Ms. Currie paged Ms. Lewinsky
    an additional eight times. The President then called Mr.
    Jordan, who called the White House three times, paged Ms.
    Lewinsky, and called Mr. Carter, all within 24 minutes of
    receiving the President's call. Mr. Jordan called Mr. Carter
    again that afternoon and learned that Mr. Carter had been
    replaced as Ms. Lewinsky's attorney. Mr. Jordan then called the
    White House six times in the next 24 minutes trying to relay
    this information. Mr. Jordan called Mr. Carter again, and then
    called the White House again.
        On January 20, the White House learned that a story about
    the President's relationship with Ms. Lewinsky would appear in
    the next day's edition of The Washington Post. On January 21,
    the President told his chief of staff and two deputies that he
    did not have sexual relations with Ms. Lewinsky. He later told
    one of those deputies, John Podesta, that he had not had oral
    sex with Ms. Lewinsky.
        Later on January 21, the President told his aide, Sidney
    Blumenthal, that Lewinsky had made a sexual demand on him, and
    that he rebuffed her. The President told Blumenthal that
    Lewinsky had threatened him. President Clinton also indicated
    that Lewinsky said that she was known among her peers as the
    stalker, that she hated it, and that she would say that she had
    an affair with the President whether it was true or not, so
    that she would not be known as the stalker any more. He also
    told Blumenthal that he felt like a victim who could not get
    out the truth. Blumenthal later testified that he believes the
    President lied to him. The President testified that he was
    aware at the time that he made his statements that his aides
    might be summoned before the grand jury.
        The President also met with his political consultant, Dick
    Morris, on January 21. The President authorized that Morris
    conduct an overnight poll measuring potential public reaction
    to the affair. The poll concluded that the American people
    would forgive the President for adultery, but not for perjury
    or obstruction of justice. The President then indicated that
    ``we just have to win, then.'' The President's lawyers could
    not answer Senators' questions why such a poll had been
    undertaken if the President had not committed any of these
    acts.
        Shortly after the President met with Mr. Blumenthal, press
    reports began to appear that, quoting White House sources,
    characterized Ms. Lewinsky as a stalker, and as an
    ``untrustworthy climber obsessed with the President.'' Although
    Mr. Blumenthal in his Senate deposition denied any knowledge of
    how White House sources were attributed to these stories, one
    journalist by the time of this writing has sworn to an
    affidavit stating that Mr. Blumenthal made such
    characterizations to him. A second similar affidavit has also
    been filed, corroborating the first one.
        Ultimately, Ms. Lewinsky was granted immunity from
    prosecution by the independent counsel. The independent counsel
    received from Ms. Lewinsky a dress that according to DNA
    testing was stained by the President's semen.
        On August 17, 1998, the President testified before the
    grand jury convened by the independent counsel. In a prepared
    statement, the President made a number of false statements. He
    stated that he engaged in inappropriate conduct with Ms.
    Lewinsky in 1996 and 1997, whereas the conduct actually began
    in 1995, when she was an intern. Based on Ms. Lewinsky's
    testimony and the dress, he appears to have testified
    untruthfully about whether he engaged in sexual relations even
    as that term had been defined at his deposition in the Jones
    case. And he also testified that he was not paying attention to
    his attorney when the attorney described the affidavit; that
    his relationship with Ms. Lewinsky had originally begun as a
    ``friendship;'' that he made the statements to Ms. Currie after
    his deposition in an effort to refresh his recollection; and
    that he told his aides statements that were true about his
    relationship with Ms. Lewinsky. Nonetheless, when testifying
    before the grand jury, the President no longer made a number of
    the assertions that he had made in the deposition, including
    denying that he was ever alone with Ms. Lewinsky. With respect
    to his deposition testimony, the President told the grand jury
    that his ``goal in this deposition was to be truthful, but not
    particularly helpful . . . I was determined to walk through the
    mine field of this deposition without violating the law, and I
    believe I did.''
        The independent counsel filed a report with the House of
    Representatives that referred allegations of possible
    impeachable offenses. The House of Representatives voted to
    pass two articles of impeachment against President Clinton, for
    perjury before the grand jury and for obstruction of justice.
    Two other articles of impeachment, which had been based on
    perjury in his deposition in the Jones case and misstatements
    to the House in response to questions propounded to the
    President by the House of Representatives, failed to pass the
    House.
        The most fundamental question, against which the
    President's actions must be measured, is, ``What constitutes an
    impeachable offense?'' The Constitution makes impeachable
    ``treason, bribery and other high crimes or misdemeanors.'' The
    Constitution also says that upon conviction in the Senate the
    President ``shall be removed.'' Therefore, the question
    becomes, in effect, ``What actions constitute grounds for
    removal?''
        It should be noted at the outset that what we have in
    effect is a ``mandatory sentence'' wherein if there is a
    finding of guilt then one particular sentence must be imposed--
    in this case removal from office. However, unlike judges in a
    criminal case, the Senate may take into consideration the
    ``punishment'' in determining guilt. Some have contended that
    the President may be guilty of high crimes and misdemeanors,
    but his actions may not be sufficient for removal. I believe
    the better analysis is that the Senate may conclude that the
    President's conduct is not sufficient for removal and that that
    determination, by definition, means that the President is not
    guilty of high crimes and misdemeanors. I believe that this
    analysis is important in understanding the scope of our
    discretion and helps us get away from the notion that there is
    an objective standard for high crimes and misdemeanors if we
    could only find it. Historical analysis covering over 600 years
    reveals that there is no ``secret list'' of high crimes and
    misdemeanors, but rather our forefathers perpetuated a
    framework that allows for a certain amount of subjectivity
    which may encompass changing times and differing circumstances.
        Such a conclusion emerges from an examination of English
    law, original State constitutions, our Federal Constitutional
    Convention, the ratification debates, American impeachment
    precedents and scholarly commentary.
        The phrase ``high crimes and misdemeanors'' can be traced
    back to the thirteen hundreds in England. It was clear from the
    outset that the phrase covered serious misconduct in office
    whether or not the conduct constituted a crime. Commentators
    say that the English impeachment tradition covered political
    crimes against the state and injuries to the state. Beyond
    that, it is difficult to glean covered conduct from the English
    tradition.
        Apparently there was only one discussion during the
    Constitutional Convention that dealt with the phrase ``high
    crimes and misdemeanors,'' and that occurred on September 8,
    1787. As reported out of committee, impeachable offenses
    included only ``treason and bribery.'' Mason wanted to add
    ``maladministration,'' which was also contained in many state
    constitutions. Madison was under the impression that such
    language would leave the President at the mercy of the Senate.
    Madison relented and we wound up with the phrase as we have it
    today. The founding fathers quite clearly rejected impeachment
    for congressional disapproval of policy. Impeachable offenses
    were ``political'' offenses and, as under English law, not
    necessarily criminal. Other guidance that can be derived from
    the Convention is the fact that the founders were acutely aware
    of their rejection of bills of attainder as existed in the
    English system and, therefore, they thought that impeachable
    offenses should be something that any reasonable man could
    anticipate. He should not be punished for some crime made up
    after the fact. Also, there was to be a requirement for
    ``substantiality.'' This mechanism was not designed for trivial
    offenses.
        We cannot determine the precise intent of the framers
    because their deliberations were in secret and nothing was
    printed from their deliberations. They intended for the
    ratifiers at the State Conventions to be the more authoritative
    voice for interpretation of the provisions in the Constitution.
    It is fair to conclude that the attitude of the ratifiers was
    reflected to a certain extent in ``The Federalist Papers.'' The
    most definitive comments concerning impeachment were by
    Hamilton in Federalist No. 65 wherein he stated:

        The subjects of [impeachment] are those offenses which proceed from
    the misconduct of public men, or, in other words, from the abuse or
    violation of some public trust. They are of a nature which may be with
    peculiar propriety denominated political, as they relate chiefly to
    injuries done immediately to the society itself.

        The ratifiers at the North Carolina convention spoke in
    terms of serious injuries to the Federal Government. James
    Iredell, later to become an Associate Justice on the Supreme
    Court, stated that impeachment was ``calculated to bring [great
    offenders] to punishment for crimes which it is not easy to
    describe but which everyone must be convinced as a high crime
    and misdemeanor against governments . . . the occasion for its
    exercise will arise from acts of great injury to the
    community.'' He gave as an example of an impeachable offense
    the giving of false information to the Senate. Impeachment was
    not for ``want of judgment'' but rather to hold him responsible
    for ``willfully abusing his trust.'' Iredell also called
    attention to the complexity if not impossibility of defining
    the scope of impeachable offenses with any more precision than
    the above. And the ratifiers at the Virginia Convention clearly
    agreed that a President could be impeached for nonindictable
    offenses.
        There was continued discussion and debate after
    ratification concerning the impeachment process. James Madison
    contended that the wanton removal of meritorious officers would
    subject a President to impeachment and removal from office.
    Forty years later, Justice Story, in his ``Commentaries''
    insisted that ``not every offence'' is a high crime and
    misdemeanor, that ``many offences, purely political . . . have
    been held to be within the reach of parliamentary impeachments,
    not one of which is in the slightest manner alluded to in our
    statute book,'' that ``the only safe guide'' in determining
    ``high crimes and misdemeanors'' ``must be the common law,''
    and left open the possibility that actions a civil officer took
    that were unconnected to his office might be properly the
    subject of impeachment.
        Therefore, it seems that despite the framers' and
    ratifiers' incomplete discussion, our inability to put our
    hands on documentation reflecting some of their thoughts, and
    the fact that perhaps they simply did not think of some of the
    problems that might arise in the future, we see a certain
    framework develop--certain perimeters within which our decision
    should be made.
        The Senate's own precedents do not change this evaluation
    because they are not terribly instructive either. In
    impeachment cases, the Senate has convicted on seven occasions,
    acquitted on five, dismissed two cases on jurisdictional
    grounds and one case was withdrawn because of resignation. An
    acquittal serves very little value as precedent beyond the
    facts of the case since an acquittal can be based on any number
    of grounds--jurisdictional, failure to prove the factual
    allegations, offenses not rising to the level of impeachable
    conduct, etc.--and the motivation for the vote is not reflected
    when the verdict is rendered ``not guilty.'' There is little
    more help derived from convictions, in terms of precedential
    value. There has only been one impeachment trial for a
    President, that of Andrew Johnson, and that, of course,
    resulted in an acquittal. A large majority of the remainder of
    the cases have been those of Federal judges.
        The question has arisen whether judicial impeachments are
    to be considered by the same standards as presidential
    impeachments. It seems to me that certainly the application of
    the standard of ``high crimes and misdemeanors'' for a
    President must differ from that of a judge. Removing the
    President removes the elected head of the Nation. Removing a
    single judge does not carry the same implications for the
    country. And while a President should act according to the
    highest standards of probity, it is quite easy to imagine
    circumstances that would warrant judicial impeachment that
    would not justify presidential impeachment, such as making
    official decisions based purely on political considerations. It
    is also possible that certain crimes would be impeachable if a
    judge committed them, because of the specific nature of the
    judicial office in our system of government, but would not be
    impeachable for a President.
        It has been argued that the standard should be different
    for Presidents than judges because the former serves for a
    fixed term and the latter serve ``during good behavior.'' I do
    not share that view. The standard itself is the same for each
    category: treason, bribery, and other high crimes and
    misdemeanors. But the difference in tenure is relevant in a
    way. Because impeachment is not punishment and is political,
    the framers vested the process in the legislative branch.
    Prosecution for crimes was lodged in the judiciary. Thus, a
    President, who cannot be prosecuted while in office, can be
    impeached and removed from office before he faces criminal
    prosecution. While a judge can also be impeached and removed
    before being convicted of a crime, it is also the case that
    criminal punishment can be, and has been, imposed on sitting
    judges. But since courts were expressly not given the power to
    remove civil officers, Federal judges who have been criminally
    convicted and have refused to resign have continued to draw
    their salary ``during good behavior,'' i.e., until they were
    impeached. That is the only significance with respect to
    impeachment of judges and of Presidents based on their
    differing terms of service.
        Scholars have looked to the purposes to be served by the
    impeachment process as well as history in making their own
    analysis as to the meaning ``high crimes and misdemeanors.''
    For Charles Black they would include offenses: (1) which are
    extremely serious, (2) which in some way corrupt or subvert the
    political and governmental process, and (3) which are plainly
    wrong in themselves to a person of honor or to a good citizen
    regardless of words on the statute books.
        Also qualifying according to Professor Black would be
    ``serious offense against the Nation or its governmental or
    political processes.'' Furthermore, he would include purely
    personal actions that would make a President unviable as a
    national leader. Murder, of course, would be the prime example
    here. He would also include a totally different category of
    offenses which seriously threaten the order of political
    society as to make dangerous the continuation in power of the
    President. Finally, he would include actions that would
    ``undermine government and confidence in government'' such as
    serious tax fraud.
        Professor Michael J. Gerhardt on the issue of purely
    personal conduct of the President states:

        Even if such a crime were unrelated to the President's
    Constitutional duties, his criminal act considerably cheapens the
    Presidency, destroys his credibility with the other branches (and other
    nations, for that matter), and shows such lack of respect for human
    life and disdain for the law (which he has sworn to enforce faithfully)
    that Congress could reasonably conclude that he had seriously breached
    his trust and no longer deserves to hold office.

        Again, murder was the easy example.
        However, he contends further that an official may be
    impeached for conduct in office that does not relate to his or
    her former responsibilities if an office holder violates his
    public trust and loses the confidence of the people. Then he
    must forfeit the privilege of holding at least his or her
    present office. ``In this context, conduct that may plainly be
    unrelated to the responsibilities of a particular office may
    still relate to an official's capacity to fulfill the functions
    of that office and to hold the people's trust.'' He gives the
    example of income tax fraud.
        Gerhardt points out that not all statutory crimes
    demonstrate unfitness for office, but that on the other hand,
    there are some indictable offenses for which certain high level
    government officials may be impeached. Among them are offenses
    which ``demonstrate serious lack of judgment or disdain for the
    law and the commission lowers respect for the office.'' In
    other words, there are certain statutory crimes, that, if
    committed by public officials, reflect, in Congress' estimation
    such lapses of judgment, breaches of the public trust and
    disregard for the public welfare, the law, and the integrity or
    reputation of the office held, that the occupant may be
    impeached.
        What I derive from this is that there is no ``holy grail''
    of impeachable offenses. The framers provided the Senate with a
    framework within which to operate and history provides us with
    a map, but not a destination. Our conclusions must depend upon
    the particular circumstances of the case, the nature of the act
    or acts involved, and their effects on society or integral
    parts of our political structure.
        Today we are faced with an unprecedented situation. The
    President engaged in inappropriate personal conduct. It had
    nothing to do with his official duties, but it did involve a
    federal employee under his supervision, government time and
    government facilities. In an attempt to conceal and cover up
    that activity, he lied, misled and helped conceal evidence both
    physical and testimonial in a court proceeding. In doing so he
    elicited the help of other government employees. Therefore, the
    subject matter was essentially private, but the forum, a United
    States court, became public. One side says that he ``only lied
    about sex,'' and it had nothing to do with his official duties,
    therefore, it ``clearly does not rise to the level of an
    impeachable offense.'' The other side says that any perjury and
    any obstruction of justice ``clearly does rise to the level of
    an impeachable offense.'' I do not think that either position
    is consistent with history or proper analysis.
        For example, I agree with Professor Black that not every
    imaginable act that might technically constitute obstruction of
    justice would necessarily be impeachable.
        On the other hand, opponents of conviction in the present
    case, have raised the bar for impeachment to unreasonable
    heights. Usually they concede that an impeachable offense does
    not have to be a crime, but often it is maintained that the
    abuse of power has to come from his public position such as
    Nixon's abuse of the CIA or FBI. Of course, this immediately
    runs headlong into the murder hypothetical and many other
    hypotheticals of serious, although totally personal, conduct as
    well.
        They then make the further argument that the violation has
    to be ``an offense against the state.'' While I agree that an
    offense against the state is one of the categories of offenses
    that impeachment was primarily designed to cover, offenses
    against the state's governmental and political processes,
    including the court system, as well as attempts to subvert
    them, are also impeachable. Besides, it would seem to me, that
    subversion or serious damage to our governmental institutions
    constitute offenses against the state.
        They also point out that one of the purposes of impeachment
    is to protect the Nation from the offender President. I agree
    again that this may be one of the purposes of impeachment.
    However, it is not the only purpose, and protection of the
    public is not always a requirement. If an offense has been laid
    bare and totally exposed, and the President is completely
    incapable of continuing his conduct, this lack of imminent
    threat to the Nation does not necessarily mean that he should
    not and cannot be impeached. President Nixon probably would not
    have been forced from office if that were the only criteria.
        Opponents of conviction also overlook the fact that we may
    look to the effects of the President's conduct. Actions, even
    private actions, that serve to undermine the government or the
    people's confidence in the government or the President, may
    also be impeachable. In other words, opponents of impeachment
    rightly point out some of the categories that are applicable in
    impeachment cases, but they set them forth as exclusive when,
    in fact, they are not.
        The impeachment bar has been raised even higher most
    recently by respected commentators in the media. The New York
    Times editorial page, for example, takes a position that the
    President's action must ``threaten the welfare or stability of
    the state.'' On another occasion, they stated that the
    President's actions must ``show some fundamental harm to the
    security interest or stability of the state or some attempt to
    undermine the Constitution.'' The problem with this is that
    there is absolutely no authority to support such a contention.
    Such a theory relies exclusively upon the ``protect the
    Nation'' theory of impeachment. The founders certainly did not
    mean that the President had to be on the verge of throwing the
    Nation into chaos or endangering national security in order to
    be impeached.
        It is extremely important that we refrain from latching
    onto a definition of ``high crimes and misdemeanors'' simply
    because it leads us inexorably to a conclusion which we may
    desire. Clearly, a President's offense or offenses must be
    serious and/or have serious consequences. Also, while they do
    not have to be crimes, my own opinion is that in most cases
    they will be crimes. They must be crimes against the state, but
    we cannot adopt an unreasonable restriction of that term. The
    President does not have to order tanks to move on the J. Edgar
    Hoover Building. Offenses against the state can include
    activity which will undermine our governmental institutions.
    How can we say that bribing a judge to effect an outcome in a
    law suit involving a President's purely personal conduct
    constitutes an impeachable offense, but say that insinuating
    perjury into that same law suit to effect the same outcome is
    clearly not impeachable? And while it is true that the founders
    meant to cover ``public'' behavior, I believe they also meant
    to cover behavior that has a negative effect on the public if
    it is of sufficient gravity. Furthermore, if the President's
    conduct poses a threat and danger to a country, that certainly
    is a legitimate, though not exclusive, consideration. If that
    same conduct serves to undermine the President's credibility
    and moral authority, that could also pose a danger to the
    country and is similarly a legitimate consideration. And, again
    his conduct does not necessarily have to deal with his office.
    In the Constitution, a named offense is bribery--treason,
    bribery or other high crimes and misdemeanors--and bribery
    itself does not necessarily have to do with the President's
    official capacity, if the President is making the bribe.
        I believe that the founders did not intend to make our job
    easy. They provided no list of offenses. They refused to spare
    us from the difficult analysis that we must now go through. We
    must take into consideration the offense or offenses, the
    capacity in which they were committed, the effect on our public
    institutions, the effect on our people and our people's
    attitude toward the Presidency and our other institutions,
    whether the President's conduct was one or more isolated
    events, or a pattern of conduct, the period of time over which
    the conduct was carried out and ultimately decide whether in
    view of all of these circumstances, it is in the best interest
    of the country to remove this President.
        The significance of a ``pattern of conduct'' is recognized
    by John R. Labovitz in his book ``Presidential Impeachment.''
    Labovitz concluded that focusing on whether the President has
    committed ``an impeachable offense'' is of limited usefulness,
    since few individual crimes warrant removal, such as a single
    act of treason or a single act of bribery. Even in the case of
    President Nixon, ``[i]t was necessary to combine distinct
    actions into a pattern or course of conduct to establish
    grounds for removal from office.'' As he also wrote:

        The concept of an impeachable offense guts an impeachment case of
    the very factors--repetition, pattern, coherence--that tend to
    establish the requisite degree of seriousness warranting the removal of
    a president from office. Just as a recidivist deserves a more stringent
    sentence than a first offender, so presumably a repeated offender is
    more likely to deserve removal from an office of public trust, and
    especially the highest trust in the land. . . . [I]t is necessary to
    take a less divided view of the charges. Because the remedy is not
    additive, the offenses must be considered cumulatively in deciding
    whether or not it should be imposed. The House must decide whether or
    not to prosecute an impeachment on the basis of the charges taken as a
    whole. And, unless the Senate is to take the determination of the House
    without question, it too must judge the combined seriousness of the
    wrongdoing that is proved.

        I believe that this statement is very relevant to the
    obstruction of justice charge, which I will discuss later.
        Article I, after alleging generally that President Clinton
    violated his oath of office and failed to take care that the
    laws be faithfully executed by manipulating the judicial
    process for his personal gain, alleges that on August 17, 1998,
    following taking an oath to tell the truth, he

    willfully provided perjurious, false, and misleading testimony to the
    grand jury concerning one or more of the following: (1) the nature and
    details of his relationship with a subordinate Government employee; (2)
    prior perjurious, false, and misleading testimony that he gave in a
    Federal civil rights action brought against him; (3) prior false and
    misleading statements he allowed his attorney to make to a Federal
    judge in that civil rights action and (4) his corrupt efforts to
    influence the testimony of witnesses and to impede the discovery of
    evidence in that civil rights action.
        In doing this, William Jefferson Clinton has undermined the
    integrity of his office, has brought disrepute on the Presidency, has
    betrayed his trust as President, and has acted in a manner subversive
    of the rule of law and justice, to the manifest injury of the people of
    the United States.
        Wherefore, William Jefferson Clinton, by such conduct, warrants
    impeachment and trial, and removal from office and disqualification to
    hold and enjoy any office of honor, trust, or profit under the United
    States.

        Never has the Senate convicted on an article worded such as
    this. Several crimes or categories of crimes--the exact number
    cannot be determined from reading the article--are charged in
    this one article. The perjurious statements are not described,
    nor are their dates. In large part, this article charges that
    the President committed perjury because he denied prior
    perjury.
        At the outset, it is clear that a count such as this in an
    indictment would not survive court challenge. However, it is
    equally clear that the Senate is not bound to follow normal
    legal rules. Impeachment, Hamilton wrote in Federalist No. 65,
    ``can never be tied down by such strict rules, either in the
    delineation of the offense by the prosecutors or in the
    construction of it by the judges, as in common cases serve to
    limit discretion of courts in favor of personal security.''
    Nevertheless, we should examine the basis for such rules and
    determine the extent, if any, we should apply them to our
    deliberations.
        The reason for rules against charging several offenses in
    one article is clear. A group of Senators, as few as 17, could
    conclude that the President was guilty of one offense in the
    article, and a group of other Senators could conclude that the
    President was guilty of another offense in the article and so
    on. This could result in the President being found guilty on
    one article without two-thirds of the Senators ever agreeing
    upon a single offense that the President committed.
        Compounding this problem, the individual items alleged in
    the article are vague because they could reach different
    instances of objectionable conduct within a general heading.
    The problem with failing to specifically identify the offenses
    charged is that it does not give the person charged fair
    notice. Although I believe that the President had actual notice
    for the most part, what is actually being charged in this
    article has not been without dispute.
        The articles pending against President Clinton are unique.
    Never has the Senate considered articles that are
    simultaneously omnibus, vague, and based upon ``one or more''
    of the charges being proved.
        Again, we have substantial leeway in considering these
    matters, but we must be fair. We are creating precedent, and
    this is not good practice. The rule of law must apply to the
    President when it inures to his benefit just as when it inures
    to his detriment.
        The House relies on rule XXIII of the Senate's impeachment
    rules as granting this body's tacit approval for the drafting
    of impeachment articles in the form of those from President
    Nixon's impeachment proceedings. The House also argues that its
    committee report provided adequate notice of charges, occupying
    20 pages just to list ``the most glaring instances of the
    President's perjurious, false, and misleading testimony before
    a Federal grand jury and requir[ing] 13 pages just to list the
    most glaring incidents in the President's course of conduct
    designed to prevent, obstruct, and impede the administration of
    justice.'' But this argument underlines the problem. These
    allegations were not made in the articles themselves, and even
    now, can it truly be said that these were the entirety of the
    charges that could have been raised at trial, or even in a
    later impeachment?
        Articles of impeachment henceforth should not permit
    conviction based upon ``one or more'' findings of guilt. They
    should list specific conduct, preferably in separate articles.
    Removal of elected or appointed government officials,
    especially a President, should occur only when the public can
    be sure that the process has been appropriate. Articles such as
    those before the Senate in this case do not further that goal.
    The Senate should amend rule XXIII to permit impeachment
    articles to be divided, so as to eliminate any incentive for
    the House to adopt duplicitous articles of impeachment.
        In prior impeachments charging false statements, the House
    has always delineated the date and substance of the false
    statement. Indeed, in every impeachment proceeding since Judge
    Pickering in 1803, articles of impeachment exhibited by the
    House have included allegations of specific misconduct.
    Although the Senate has at times voted in favor of articles
    containing multiple or cumulative allegations, it has only done
    so where specific allegations were made in other separate
    articles and where the omnibus article was written in the
    conjunctive. Never has the Senate voted for conviction on an
    article that charged an individual with ``one or more''
    improper actions.
        Unfortunately, instead of following precedent, the House in
    the case before us deviated from previous practice. In prior
    cases, the House avoided lumping together several amorphous
    charges into one article, with conviction permitted if ``one or
    more'' alleged offenses had been proved--in all cases but one:
    Richard Nixon. Here, the House explicitly followed the
    Watergate example, probably thinking that they would be on safe
    ground. Unfortunately, the articles drafted against President
    Nixon were deficient in the extreme.
        The first article of impeachment against President Nixon
    charged that the President had ``engaged in a course of conduct
    or plan designed to delay, impede and obstruct investigations
    of [the] unlawful entry [of the headquarters of the Democratic
    National Committee]; to cover up, conceal and protect those
    responsible; and to conceal the existence and scope of other
    unlawful activities. The means used to implement this course of
    conduct or plan have included one or more of the following.''
    The article of impeachment then listed nine separate charges,
    each extremely broad. The second Nixon article charged dozens
    of indeterminate criminal offenses within several wide-ranging
    categories.
        The charges contained in the Nixon articles are alarmingly
    vague and duplicitous. The articles before us are not that
    deficient, but they represent a second step down a road we
    should not take. While these problems with article I in
    isolation may not be sufficient to defeat this article, they
    are more than technicalities, and pose potentially serious
    consequences for the future.
        The Senate, of course, did not have occasion to consider
    the impeachment articles against President Nixon. Only once in
    its history has the Senate actually considered an article of
    impeachment charging violations of ``one or more'' alleged
    acts. Among the articles of impeachment against Judge Walter
    Nixon in 1989 was an article alleging that Judge Nixon made
    ``one or more'' false statements. Unlike the articles against
    Presidents Nixon or Clinton, however, the article in question
    in the case of Judge Nixon specifically enumerated the alleged
    material false statements, including the date and nature of the
    statement made. The Senate, though defeating a motion to
    dismiss the article, nevertheless acquitted Judge Nixon on this
    article. Several Senators explained their votes to acquit on
    this article due to the multiplicitous--actually, duplicitous--
    and disjunctive ``one or more'' form of the article.
        I agree with those Senators who criticized the form of the
    omnibus article of impeachment that was brought against Judge
    Nixon. An article of impeachment charging a defendant with
    ``one or more'' acts is not only unfair to the defendant, but
    it does not permit Senators to perform adequately their
    constitutional duty and the American people to understand their
    actions. If the Senate were to convict on a ``one or more''
    acts count of an article of impeachment, the votes to convict
    would obscure the real basis for each Senator's vote.
    Ultimately, the American people would be deprived of knowing
    the basis on which the President they duly elected was removed
    from office.
        The Senate also has never been asked to convict someone for
    conduct that formed the basis for an article of impeachment
    that was rejected by the House. Although in a literal sense, no
    such article is before the Senate, in a practical sense that is
    the situation. The House failed to pass an article of
    impeachment against President Clinton that accused him of, on
    January 17, 1998, ``willfully provid[ing] perjurious, false,
    and misleading testimony in response to questions deemed
    relevant by a Federal judge concerning the nature and details
    of his relationship with a subordinate Government employee, his
    knowledge of that employee's involvement and participation in
    the civil rights action brought against him, and his corrupt
    efforts to influence the testimony of that employee.'' Yet, in
    article I, the Senate is asked to convict the President based
    on ``one or more'' sets of actions, one of which is the
    President's ``prior perjurious, false, and misleading testimony
    he gave in a Federal civil rights action brought against him.''
    That portion of article I has resulted in the House recharging
    all the allegations of perjury made by the President in his
    civil deposition that were dismissed when the House rejected an
    article of impeachment that was based on that deposition. The
    House does so explicitly: ``In addition to his lie about not
    recalling being alone with Ms. Lewinsky, the President told
    numerous other lies at his deposition. All of those lies are
    incorporated in Article I, Item 2.'' (House Trial Memo., p.
    61.) The House claims that the President's statement in his
    grand jury testimony that he intended to be unhelpful but
    truthful in his deposition, and that he did not violate the law
    in his deposition, amount to perjury in the grand jury if a
    single statement in his deposition was perjurious. However, the
    President did not broadly reaffirm the truth of all his
    deposition testimony. Indeed, before the grand jury, the
    President revised many statements he had made in the Jones
    deposition.
        Two perjury statutes have been enacted as part of the
    federal criminal code, 18 U.S.C. 1623 and 1621. The elements of
    section 1623 are that the defendant: (1) knowingly make a (2)
    false (3) material declaration (4) under oath in a proceeding
    before or ancillary to any court or grand jury of the United
    States. Statements which are misleading but literally true
    cannot form the basis for a perjury conviction. Bronston v.
    United States, 409 U.S. 352 (1973). The most difficult element
    of the offense is materiality. A statement is said to be
    material ``if it has a natural tendency to influence, or is
    capable of influencing, the decision of the decisionmaking body
    to whom it is addressed.'' United States v. Durham, 139 F.3d
    1325, 1329 (10th Cir. 1998); Kungys v. United States, 485 U.S.
    759 (1988). The Supreme Court has characterized the conduct
    prohibited by section 1621 as follows: ``A witness testifying
    under oath or affirmation violates this section if she gives
    false testimony concerning a material matter with the willful
    intent to provide false testimony, rather than as a result of
    confusion, mistake, or faulty memory.'' United States v.
    Dunnigan, 507 U.S. 87, 94 (1993). As with section 1621,
    testimony that is misleading but literally true does not fall
    within the ambit of section 1623.
        A preliminary matter before consideration of these charges
    concerns the burden of proof of the charges in the articles of
    impeachment which I believe should apply. It is well
    established that Senators are free to weigh the evidence in
    particular cases under a standard they consider appropriate. My
    own view is that different cases will be considered under
    different standards, depending on the nature of the particular
    charge. Impeachment is neither a civil nor a criminal
    proceeding, but a hybrid. It is therefore inappropriate to
    always apply one or the other of the criminal or civil burdens
    of proof. When the consequences to the nation of the alleged
    conduct are most serious, such as treason, then the Senate
    should consider the case under a clear and convincing standard,
    for fear of leaving a likely traitor in office simply because
    his guilt has not been established beyond a reasonable doubt.
    By contrast, when the charges allege harms that are not
    imminently serious to the national well-being, it becomes more
    appropriate to apply the criminal burden of proof: beyond a
    reasonable doubt. I concede that the charges alleged here,
    while serious, do not fall within the former category, and I
    will therefore review the facts under the beyond a reasonable
    doubt standard.
        With that background, I now consider the facts relating to
    the three perjury specifications concerning the President's
    grand jury testimony that are properly before the Senate. The
    first is his testimony concerning ``the details and nature of
    his relationship with a subordinate Government employee.'' The
    President admitted in the grand jury that he had an
    inappropriate relationship with Ms. Lewinsky.
        To be sure, President Clinton contended that the
    relationship began in 1996, rather than 1995. The House
    managers note that this is significant because Ms. Lewinsky was
    an intern in 1995. The House also points out that the President
    admitted inappropriate conduct ``on certain occasions,'' when,
    in reality, there were eleven such occasions, and that he had
    ``occasional'' telephone encounters with Ms. Lewinsky when
    there were at least seventeen that contained sexual banter. I
    do think that these statements constitute perjury. They were
    false, were made willfully, and were material. Something that
    happens 17 times in a year does not occur ``occasionally.''
    Given the sensitivity of Ms. Lewinsky's status as an intern, I
    believe that the President deliberately told the grand jury
    that his relationship with her began in 1996, when she no
    longer had that status. Finally, the statement is material
    because it concerns a matter that the grand jury was
    investigating as part of its work: the nature of the
    President's relationship with Ms. Lewinsky. For these reasons,
    the statement was perjurious.
        The President's statement to the grand jury that he
    regretted that what began as a friendship changed into an
    inappropriate sexual relationship was also knowingly false,
    since the two engaged in sexual relations twice on the same day
    that they first spoke. Thus, the statement was made to deceive,
    and given that it related to a subject of the grand jury's
    inquiry, it was material. Therefore, I agree that this
    statement also constitutes perjury, so that the first item of
    article I has been proved. The second item charged in article I
    addresses statements the President made in the grand jury
    regarding the truth of his deposition testimony. For the
    reasons above stated, I consider finding perjury based on an
    article of impeachment that the House rejected to be
    questionable.
        The third item charged in article I concerns grand jury
    testimony involving ``false and misleading statements he
    allowed his attorney to make to a Federal judge in that civil
    rights action.'' Before the grand jury, President Clinton
    testified that he was ``not even sure I paid attention to what
    he [Mr. Bennett] was saying'' when his attorney represented to
    the court that Ms. Lewinsky's affidavit stated that there was
    no sex of any kind between her and the President. As a factual
    matter, given the videotape that shows the President
    concentrating very carefully on his attorney's words and the
    great importance that he placed on that affidavit and its
    filing in time, this statement's characterization of the
    President's attention was certainly false. However, the
    President said that he ``was not even sure'' that he was paying
    attention. It is possible, although unlikely, that he was not
    sure in August that he was paying attention to that specific
    statement in January. That would make the statement literally
    true and thus, by definition, not perjurious. And in any event,
    I cannot determine beyond a reasonable doubt that his statement
    was perjurious. Indeed, the real issue is whether President
    Clinton used the affidavit to obstruct justice: whether he
    actually was paying attention to his unsuspecting attorney when
    the affidavit was actually used to obstruct justice is of
    questionable materiality.
        The fourth item of the perjury allegations in article I
    concerns ``his corrupt efforts to influence the testimony of
    witnesses and to impede the discovery of evidence in that civil
    rights action.'' The first set of facts under this category
    evidently concerns President Clinton's statements to Ms. Currie
    on January 18, 1998, which he described as having been made to
    refresh his recollection. The President's stated reason for
    making these statements to Ms. Currie was false. He knew that
    they were not true, and the President knew that Ms. Currie
    could not testify to their truthfulness. Thus, his statement of
    purported purpose for making them, as communicated to the grand
    jury, was made willfully, with the intent to deceive the grand
    jury. They were material as well, since they went to the issue
    of whether he had committed a Federal crime. They thus
    constitute perjury.
        The second set of facts at issue in item 4 of article I
    apparently concerns whether the President truthfully told the
    grand jury that when the subject of the subpoenaed gifts arose
    at his December 28, 1997, meeting with Ms. Lewinsky, he told
    her ``if they asked her for the gifts, she'd have to give them
    whatever she had, that that's what the law was.'' Although Ms.
    Lewinsky never testified that the President said this to her,
    she once indicated that it sounded familiar. Thus, I am not
    convinced beyond a reasonable doubt that the President lied
    when he testified that he made this statement.
        The third set of facts in item 4 of article I addresses
    alleged lies that he made to the grand jury concerning the
    truth of statements that he made to White House aides. Before
    the grand jury, the President stated that he had told his aides
    that he did not have sex with Ms. Lewinsky as he defined it,
    and that he told them ``things that were true about this
    relationship.'' In reality, the President told them false
    statements, such as a broader denial of sexual activity than
    that defined as even he had defined it, and that Ms. Lewinsky
    was a stalker who came on to him, but whom he rebuffed. The
    President's statements to the grand jury in this regard were
    false, and were intended to deceive the grand jury about a
    Federal crime of obstruction of justice through the telling of
    false statements to persons he knew might become witnesses
    before that grand jury, and therefore committed perjury.
        As noted above, not all impeachable offenses are crimes,
    and not all crimes are impeachable offenses. While I conclude
    that one of the three sets of facts at issue in item 4 of
    article I does not constitute perjury, I conclude that the
    statements concerning Betty Currie, and the statements
    concerning what he told his aides do constitute perjury. I also
    find that the President committed perjury with respect to item
    1 of article I with respect to his statements that he and Ms.
    Lewinsky's relationship began as a friendship, that it started
    in 1996, and that he had ``occasional'' encounters with her.
    These are the only examples of grand jury perjury that I
    believe have been proved in the entirety of article I. The
    question then is whether these examples of perjury warrant
    removal of the President for the commission of high crimes and
    misdemeanors.
        Make no mistake, perjury is a felony, and its commission by
    a President may sometimes constitute high crimes and
    misdemeanors. But is removal appropriate when the President
    lied about whether he was refreshing his recollection or
    coaching a witness about the nature of a sexual relationship?
    Is removal appropriate when the President lied to the grand
    jury that he denied to his aides that he had engaged in sex
    only as he had defined it, when in fact he had denied engaging
    in oral sex? Is removal warranted because the President stated
    that his relationship began as a friendship in the wrong year
    and actually encompassed more telephone encounters than could
    truthfully be described as ``occasional''? To ask the question
    is to answer it. In my opinion, these statements, while wrong
    and perhaps indictable after the President leaves office, do
    not justify removal of the President from office.
        In no way does my conclusion ratify the White House
    lawyers' view that private conduct never rises to impeachable
    offenses, or that only acts that will jeopardize the future of
    the nation warrant removal of the President. It simply
    recognizes how the principles the Founding Fathers established
    apply to these facts.
        I therefore vote to acquit the President of the charges
    alleged against him in article I.
        Article II charges that President William Jefferson
    Clinton, in violation of his oath of office, and in violation
    of his constitutional obligation to take care that the laws be
    faithfully executed:

    has prevented, obstructed, and impeded the administration of justice,
    and has to that end engaged personally, and through his subordinates
    and agents, in a course of conduct or scheme designed to delay, impede,
    cover up, and conceal the existence of evidence and testimony related
    to a Federal civil rights action brought against him in a duly
    instituted judicial proceeding.
        The means used to implement this course of conduct or scheme
    included one or more of the following acts:
        (1) On or about December 17, 1997, William Jefferson Clinton
    corruptly encouraged a witness in a Federal civil rights action brought
    against him to execute a sworn affidavit in that proceeding that he
    knew to be perjurious, false, and misleading.
        (2) On or about December 17, 1997, William Jefferson Clinton
    corruptly encouraged a witness in a Federal civil rights action brought
    against him to give perjurious, false and misleading testimony if and
    when called to testify personally in that proceeding.
        (3) On or about December 28, 1997, William Jefferson Clinton
    corruptly engaged in, encouraged, or supported a scheme to conceal
    evidence that had been subpoenaed in a Federal civil rights action
    brought against him.
        (4) Beginning on or about December 7, 1997, and continuing through
    and including January 14, 1998, William Jefferson Clinton intensified
    and succeeded in an effort to secure job assistance to a witness in a
    Federal civil rights action brought against him in order to corruptly
    prevent the truthful testimony of that witness in that proceeding at a
    time when the truthful testimony of that witness would have been
    harmful to him.
        (5) On January 17, 1998, at his deposition in a Federal civil
    rights action brought against him, William Jefferson Clinton corruptly
    allowed his attorney to make false and misleading statements to a
    Federal judge characterizing an affidavit, in order to prevent
    questioning deemed relevant by the judge. Such false and misleading
    statements were subsequently acknowledged by his attorney in a
    communication to that judge.
        (6) On or about January 18 and January 20-21, 1998, William
    Jefferson Clinton related a false and misleading account of events
    relevant to a Federal civil rights action brought against him to a
    potential witness in that proceeding, in order to corruptly influence
    the testimony of that witness.
        (7) On or about January 21, 23, and 26, 1998, William Jefferson
    Clinton made false and misleading statements to potential witnesses in
    a Federal grand jury proceeding in order to corruptly influence the
    testimony of those witnesses. The false and misleading statements made
    by William Jefferson Clinton were repeated by the witnesses to the
    grand jury, causing the grand jury to receive false and misleading
    information.
        In all of this, William Jefferson Clinton has undermined the
    integrity of his office, has brought disrepute on the Presidency, has
    betrayed his trust as President, and has acted in a manner subversive
    of the rule of law and justice, to the manifest injury of the people of
    the United States.
        Wherefore, William Jefferson Clinton, by such conduct, warrants
    impeachment and trial, and removal from office and disqualification to
    hold and enjoy any office of honor, trust, or profit under the United
    States.

        Section 1503(a) of title 18 of the United States Code
    states:

        Whoever corruptly, or by threats or force, or by any threatening
    letter or communication, endeavors to influence, intimidate, or impede
    any grand or petit juror, or officer of any court of the United States,
    or officer who may be serving at any examination or other proceeding
    before any United States magistrate judge or other committing
    magistrate, in the discharge of his duty, or injures any such grand or
    petit juror in his person or property on account of any verdict or
    indictment assented to by him, or on account of his being or having
    been such juror, or injures any such officer, magistrate judge, or
    other committing magistrate in his person or property on account of the
    performance of his official duties . . . shall be punished as provided
    in subsection (b).

        Courts have interpreted this provision to require the
    Government to prove: ``(1) that there was a pending judicial
    proceeding, (2) that the defendant knew this proceeding was
    pending, and (3) that the defendant then corruptly endeavored
    to influence, obstruct, or impede the due administration of
    justice.'' United States v. Monus, 128 F.3d 376, 387 (6th Cir.
    1998).
        Here, there is no doubt that a judicial proceeding was
    pending and that President Clinton knew that the proceeding was
    pending. The question is whether he corruptly intended to
    influence, obstruct, or impede the due administration of
    justice. Courts have held that to act corruptly means to act
    with the intent to influence, obstruct, or impede the
    proceeding in question. United States v. Mullins, 22 F.3d 1365,
    1369 (6th Cir. 1994); United States v. Littleton, 76 F.3d 614,
    619 (4th Cir. 1996); United States v. Russo, 104 F.3d 431, 435
    (D.C. Cir. 1997). Because the prohibited intent is so closely
    related to the prohibited act, courts have required a nexus
    between the obstructing conduct and the target proceedings.
    Thus, the defendant's acts must have the ``natural and probable
    effect'' of interfering with the due administration of justice.
    United States v. Aguilar, 515 U.S. 593, 599 (1995). But the
    defendant need only endeavor to obstruct justice to commit this
    offense. There is no requirement that he actually succeed in
    obstructing justice. (Id. at 599, 600.)
        Among the acts that courts have concluded violate section
    1503(a) include the creation of false documents to be presented
    in evidence, United States v. Chihak, 137 F.3d 252 (5th Cir.
    1998); and instructing a subordinate to conceal evidence,
    United States v. Lefkowitz, 125 F.3d 608 (8th Cir. 1997). These
    actions are alleged to have occurred in article II.
        Section 1512(b) of title 18 prohibits witness tampering.
    Specifically, it prohibits knowingly using one or more of the
    prohibited forms of persuasion with the intent to prevent a
    witness's testimony from being presented at official Federal
    proceedings or with the intent to prevent a witness from
    reporting evidence of a crime to Federal authorities. United
    States v. Thompson, 76 F.3d 442, 452-53 (2d Cir. 1996). Unlike
    section 1503, section 1512(b) does not require that the
    defendant be aware of the pendency of Federal proceedings.
    United States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995). Courts
    differ about the standard of corrupt persuasion, but even the
    more stringent courts agree that it is sufficient if the
    defendant attempts to persuade a witness ``to violate her legal
    duty to testify truthfully in court.'' United States v.
    Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996). Contrary to the
    representations of White House counsel at the impeachment
    trial, it is not necessary that the defendant threaten or cause
    physical harm to a witness to fall within subsection (b). When
    the defendant's misconduct takes the form of deceiving a
    potential witness with the intent that the witness later repeat
    the deception in federal proceedings, the crime does not
    require that the potential witness was in fact deceived, nor
    that there was any particular likelihood that that potential
    witness would in fact ever be called upon to testify. United
    States v. Gabriel, 125 F.3d 89, 102-03 (2d Cir. 1997). The
    prohibited intent of this subsection is intent to obstruct a
    federal proceeding.
        There are seven specifications of obstruction of justice in
    article II. The first two charge that on or about December 17,
    1997, President Clinton corruptly urged a witness in a Federal
    civil rights action to execute a false affidavit and to give
    false testimony if called to testify. That is the day he
    informed Ms. Lewinsky that she was on the Jones witness list,
    that she should contact Ms. Currie if she were subpoenaed, and
    that she could file an affidavit in the case to avoid
    testifying. In this conversation, the President told Ms.
    Lewinsky that she could ``always say you were coming to see
    Betty or that you were bringing me letters.''
        The President conducted an improper relationship with an
    employee of the Federal Government, Monica Lewinsky. He carried
    on that relationship off the Oval Office. He engaged in sexual
    banter over unsecured telephone lines to Ms. Lewinsky's
    residence, compromising himself and making himself susceptible
    to blackmail.
        And on December 17, 1997, the President raised to Ms.
    Lewinsky both the cover stories and filing an affidavit to
    prevent these facts from being disclosed. While Ms. Lewinsky
    testified that he did not expressly tell her to raise the cover
    stories in the affidavit, his intent was unmistakable: to
    corruptly endeavor to influence Ms. Lewinsky to file an
    affidavit that would prevent Paula Jones's attorneys from
    learning of the President's relationship with Ms. Lewinsky, a
    relationship of the type that the judge in her case had ruled
    to be relevant. And even if not directly linked to the
    affidavit, there is no question from Ms. Lewinsky's consistent
    testimony that the President was asking her to use those cover
    stories if she were ultimately asked to testify, since that was
    the context of the conversation. The White House's repeated
    retort that the relationship with Ms. Lewinsky was consensual,
    while the allegations by Ms. Jones were of nonconsensual sex,
    is therefore irrelevant. President Clinton did not tell Ms.
    Lewinsky to lie, but neither did he need to, as she understood
    that she was to raise the cover stories. Ms. Lewinsky admitted
    that the affidavit was indeed false. And since Lewinsky's
    truthful testimony would have definitely led to her being
    called as a witness, the President clearly understood that Ms.
    Lewinsky would file an affidavit he had strong reason to
    believe would be false. That is obstruction of justice, as
    shown by the cases that have held creation of false documents
    to be presented in evidence to fit within the statutory
    prohibition. Moreover, this charge must be considered in
    connection with the President's discussions with Ms. Lewinsky
    as her affidavit was being prepared, his conversation with Mr.
    Jordan after he spoke with her, and his lawyer's deep
    involvement in ensuring that the affidavit was filed and that
    the President had an opportunity to see it before that
    occurred, all of which shed light on what the President
    intended Ms. Lewinsky to do in that affidavit and if she
    testified.
        The third item of article II charges that President
    Clinton, on or about December 28, 1997, corruptly engaged in,
    encouraged, or supported a scheme to conceal evidence that had
    been subpoenaed in a Federal civil rights action against him.
    That is the day the President discussed the subpoenaed gifts
    with Ms. Lewinsky, and there is no doubt that the President
    indicated that he was ``bothered'' by the specific gift, a
    hatpin, that the subpoena requested. In none of the many times
    that Ms. Lewinsky testified did she ever say that the President
    told her to turn over the gifts, although once she said that
    the remark seemed familiar, and a number of times she testified
    that he asked to think about her suggestion that she give the
    gifts to Ms. Currie. The gifts, of course, ultimately were
    secreted under Ms. Currie's bed, and there is no doubt in Ms.
    Lewinsky's mind that Ms. Currie initiated the call that led to
    that exchange of the gifts. Since only the President and Ms.
    Lewinsky were present when the subject of giving the gifts to
    Ms. Currie was raised, and since Ms. Lewinsky did not call Ms.
    Currie, the only way that Ms. Currie could have called Ms.
    Lewinsky and not be surprised to obtain the gifts was if the
    President had told her to contact Ms. Lewinsky to retrieve
    them. This is also consistent with the President's course of
    conduct in this matter.
        The President thus corruptly acted to obstruct the Jones
    case by asking Ms. Currie to retrieve and secret the gifts.
    That constitutes obstruction of justice, as demonstrated by the
    cases that have convicted defendants of that charge for having
    instructed subordinates to conceal evidence.
        The White House's arguments to the contrary are
    unpersuasive. It is irrelevant that the President did not
    initiate the subject of the gifts in his conversation with Ms.
    Lewinsky. It is also irrelevant that he did not tell her to
    conceal the gifts. What is relevant is that the President,
    after thinking about the gifts, instructed Ms. Currie to
    retrieve the gifts from Ms. Lewinsky. The President's and Ms.
    Currie's denials simply cannot be squared with the evidence.
        Also irrelevant is the fact that Ms. Currie's cell phone
    call to Ms. Lewinsky occurred at 3:30 p.m., whereas Ms.
    Lewinsky testified that the gift pickup occurred at 2 p.m.
    Notwithstanding the White House's willingness to excuse the
    President's error by two or more months concerning when his
    improper relationship with Ms. Lewinsky began, while insisting
    that the cell phone call's 90-minute mistiming is fatal to the
    theory that Ms. Currie instituted the gift exchange, the cell
    phone call at 3:30 does not prove that Ms. Lewinsky instituted
    the gift exchange. First, Ms. Lewinsky testified that she might
    have been mistaken about the time that Ms. Currie picked up the
    gifts. Second, there is no evidence that the cell phone call
    was the one in which Ms. Currie's gift pickup was proposed. Ms.
    Lewinsky testified that she received other telephone calls from
    Ms. Currie that day to learn when Ms. Currie was coming to her
    apartment and also to know when she should actually come
    outside to meet Ms. Currie.
        The White House also maintains that the President would not
    have given Ms. Lewinsky additional gifts on December 28, if he
    planned to hide the gifts. The facts do not support that
    theory. The President gave Ms. Lewinsky those gifts before,
    pondering Ms. Lewinsky's idea, he determined that he would ask
    Ms. Currie to retrieve them. Since he had no intent to retrieve
    the gifts at the time he gave her the gifts on December 28,
    there is no inconsistency with his later direction to Ms.
    Currie to pick them up.
        The fourth item of article II alleges that the President,
    beginning on December 7, 1997, and continuing through January
    14, 1998, intensified and succeeded in an effort to secure job
    assistance to a witness in a Federal civil rights action
    brought against him to corruptly prevent the truthful testimony
    of that witness. Following a meeting with Ms. Lewinsky in
    November in which she sought his assistance, Mr. Jordan took no
    action and provided no help. He does not even remember this
    meeting. Thus, he made no serious effort to find her a job
    until after December 7, once the President, not Ms. Lewinsky,
    asked him to conduct a job search for Ms. Lewinsky. That
    followed Ms. Lewinsky's appearance on the Jones lawyers'
    witness list, and followed the President's promise to Ms.
    Lewinsky that he would ask Mr. Jordan to do more to help her
    find a job.
        Although Ms. Currie, not the President, called Mr. Jordan,
    he was aware that the request came from the President and that
    he acted at the behest of the President. Jordan did not call
    the companies Ms. Lewinsky suggested, but rather, the companies
    where he was likely to produce a job for her. After December
    19, Jordan obviously became aware that the President may have
    been asking him to assist Ms. Lewinsky obtain a job because he
    may have had a sexual affair with Ms. Lewinsky. That prompted
    him to ask both Ms. Lewinsky and the President whether such a
    relationship had occurred. Jordan continued to help find Ms.
    Lewinsky employment once they both denied that this was the
    case. However, he took no additional action until the day after
    Ms. Lewinsky signed the affidavit, when he called the CEO of
    MacAndrews & Forbes to successfully obtain a second interview
    for her at Revlon after she told him that the first had
    proceeded badly. Thus, it is true that Mr. Jordan intensified
    his job assistance to Ms. Lewinsky at the President's request,
    following the President's, but not Mr. Jordan's knowledge, that
    she appeared on the Jones witness list. Jordan took no further
    action on her behalf until satisfying himself that each had
    denied that there had been any sexual relationship. He then
    obtained a job for Ms. Lewinsky by calling the CEO of the
    holding company of the company that offered Ms. Lewinsky a job.
    That call was made the day after Ms. Lewinsky signed her
    affidavit. Because President Clinton did ask Mr. Jordan to
    intensify his job efforts to assist Ms. Lewinsky to obtain a
    job after he knew she was on the Jones witness list, the
    President corruptly obstructed justice by attempting to
    influence the testimony of a witness in a case against him.
        The White House responses to this charge miss the mark.
    That Ms. Lewinsky had begun her job search in July, and after a
    few months had not landed a job of her liking is irrelevant to
    whether, not having obtained a job, the President took steps to
    make sure she did obtain one once her name appeared on the
    witness list. That Ms. Lewinsky testified that no one ever
    promised her a job in return for her silence does not change
    the fact that these efforts were undertaken. That Linda Tripp
    suggested that Ms. Lewinsky originally speak with Mr. Jordan
    means nothing because he took no action following that meeting;
    only after the President requested that Mr. Jordan assist Ms.
    Lewinsky once her name appeared on the witness list did he do
    so. That Mr. Jordan testified that he acted with no sense of
    urgency is also of no import: it was the President who acted
    with a sense of urgency, using Mr. Jordan as his agent. Nor is
    it of consequence that Mr. Jordan placed no undue pressure on
    the persons he contacted in support of Ms. Lewinsky. The
    corrupt influence in obstruction of justice that matters is
    directed to the witness, not to the prospective employer of the
    witness. President Clinton knew, and Mr. Jordan knew, that the
    ``Jordan magic'' in finding people employment did not depend in
    any way on undue pressure being applied. Thus, the White
    House's contention that there was no connection between Ms.
    Lewinsky obtaining her Revlon offer and Mr. Jordan's call to
    Mr. Perelman is denied by Mr. Jordan himself. President Clinton
    could be sure that Mr. Jordan would find Ms. Lewinsky a job
    when her testimonial support of his denials was critical
    without his own need to do anything. It is also irrelevant that
    she did not obtain a job offer in each company Mr. Jordan
    called. Nothing in the record shows that the President ever
    requested Mr. Jordan to find employment for any White House
    intern who was not on a witness list in a federal case pending
    against him. The President obstructed justice through using Mr.
    Jordan to find Ms. Lewinsky a job once her name appeared on the
    Jones witness list.
        The fifth item of article II claims that the President
    obstructed justice by corruptly allowing his attorney to make
    false and misleading statements to a Federal judge. In the
    President's presence, his attorney represented to the court,
    based on Ms. Lewinsky's affidavit, that the President had seen
    the affidavit, and that it showed that ``there is absolutely no
    sex of any kind in any manner, shape or form with President
    Clinton,'' a statement his lawyer later retracted out of
    professional ethics obligations. The affidavit stated, inter
    alia, that ``I have never had a sexual relationship with the
    President, he did not propose that we have a sexual
    relationship . . .'' and ``the occasions that I saw the
    President after I left my employment at the White House in
    April 1996, were official receptions, formal functions or
    events related to the U.S. Department of Defense, where I was
    working at the time. There were other people present on those
    occasions.'' The President testified that the affidavit was
    ``absolutely true.'' The President knew that Ms. Lewinsky's
    affidavit would be used to perpetrate a fraud on the court, and
    because he was briefed on its contents by his attorney in
    advance, he knew that his attorney misunderstood the affidavit,
    and would inadvertently present the affidavit to the court in a
    false light. Yet, he took no action to either change his
    lawyer's understanding or to prevent the use of the affidavit
    under those conditions. Moreover, with knowledge that the
    affidavit used the cover stories that he had reminded Ms.
    Lewinsky to continue on December 17, he testified to those same
    cover stories. Regardless of whether he was paying attention at
    the moment that this happened, the President clearly knew at
    the time the deposition commenced that the affidavit would be
    used in a way that perpetrated a fraud on the court and on Ms.
    Jones's proceedings. He corruptly impeded Ms. Jones's efforts
    to prove the fact relevant to her case that Mr. Clinton had had
    a sexual relationship with another government employee. He did
    so intentionally by allowing that affidavit to be portrayed by
    an officer of the court as proof that there was in fact no
    sexual relationship between the President and another
    government employee. That is obstruction of justice. The White
    House has addressed these facts only with respect to whether
    the President's statement denying that he was in fact paying
    attention to his attorney as opposed to looking at him
    constituted perjury, but has never refuted the President's
    knowledge that a false affidavit would be used in the
    deposition to obstruct the proceeding.
        The sixth item of article II concerns the President's
    obstruction of justice by relating false and misleading
    statements to Betty Currie in order to corruptly influence her
    testimony. The President's conversation with Ms. Currie
    followed his telephone call to her, a call that she testified
    was made later on a Saturday than any call she had ever
    received from the President at home. The conversation occurred
    on a Sunday, when it was rare for Ms. Currie to come to the
    White House. The conversation occurred in the Oval Office,
    where the President would exercise the full powers and
    trappings of his office in the presence of a subordinate. The
    conversation addressed issues from the President's testimony in
    the Jones case, despite the fact that at the end of his
    deposition, the presiding judge ordered him not to discuss his
    testimony with anyone. In that conversation, the President told
    Ms. Currie statements that he knew to be false about his
    relationship with Ms. Lewinsky, and that she also knew were
    false. Two or three days later, that is, the day the President
    learned that the court had permitted Independent Counsel Starr
    to expand his inquiry into the Lewinsky matter or the day
    after, the President repeated these same statements to Ms.
    Currie.
        The President's call to Ms. Currie followed rapidly upon
    his deposition in the Jones case, its questions concerning Ms.
    Lewinsky, and his repeated answers to such questions by
    invoking Ms. Currie's name, one of which invited the Jones
    attorneys to ``ask Betty.'' In fact, Ms. Jones' lawyers placed
    Ms. Currie's name on their witness list. The ``questions'' that
    he asked were leading, and even according to Ms. Currie, were
    more like statements than questions. He asked her to agree that
    he was never really alone with Ms. Lewinsky, even though they
    both knew that he had been alone with her. He asked her to
    agree that she was always there when Ms. Lewinsky was there,
    even though she could not logically know whether Ms. Lewinsky
    had ever been there when Ms. Currie was absent. He asked her to
    agree that Ms. Lewinsky came on to him and that he never
    touched her, even though Ms. Currie would have had no ability
    to know those ``facts.'' He asked her to agree that she had
    seen and heard everything, when that was also not the case. And
    he suggested to her that Ms. Lewinsky wanted to have sex with
    him and that he could not do that.
        These statements constitute witness tampering. The
    President engaged in misleading conduct, through the use of
    false statements and omissions to mislead, toward Ms. Currie,
    with intent to influence her testimony in a federal court
    proceeding. He acted corruptly, because he acted with the
    improper purpose of obtaining false testimony from a witness
    who would corroborate the lies he issued in the Jones
    deposition to obstruct that case. As stated above, witness
    tampering convictions need not rest on the defendant's actually
    having deceived the potential witness or any particular
    likelihood that the potential witness would in fact ever be
    called upon to testify. United States v. Gabriel, 125 F.3d 89,
    102-03 (2d Cir. 1997).
        The White House arguments in response to these facts are
    inadequate. It is inadequate as a matter of law for the White
    House to contend that the President did not know that Ms.
    Currie was an ``actual or contemplated witness,'' and is
    difficult to accept that proposition factually. Nor as a matter
    of law is it ``critical,'' as the White House contends, that
    Ms. Currie testified that she felt no pressure to agree with
    the President. Witness tampering under section 1512 can be
    accomplished through ``misleading conduct,'' which includes the
    making of false statements or intentional omissions that make
    statements misleading. The White House counsel repeatedly
    argued that threats are necessary for witness tampering, even
    after senatorial questions demonstrated the White House's
    misstatements of the law. The White House also misstated the
    law of witness tampering by claiming that there ``must be a
    known proceeding.'' In fact, the defendant need not know that
    there is any pending federal proceeding to constitute witness
    tampering. United States v. Kelley, 36 F.3d 1118, 1128 (D.C.
    Cir. 1994). The White House contends that the President could
    not have tampered with Ms. Currie in the proceeding in which
    she was ultimately a witness, the independent counsel's
    investigation, since the President could not have known that it
    existed, at least as of January 18. But the statute does not
    require that the defendant know of any pending or even
    contemplated proceedings so long as he engages in misleading
    conduct with respect to a potential witness. United States v.
    Romero, 54 F.3d 56, 62 (2d Cir. 1995).
        The White House's factual defense to this charge is also
    insufficient. The President could not have made these false
    statements to Ms. Currie for the purpose of refreshing his
    recollection. Nor could he have spoken with her for the purpose
    of seeking information for the same reason. These claims also
    do not explain why he simply did not ask her the questions over
    the telephone on the night of the seventeenth, if that was his
    intention, or explain why he spoke with her a second time.
        The seventh item of article II alleges that the President
    obstructed justice by relaying false and misleading statements
    to his aides. On January 21, the President told his chief of
    staff and two deputies that he had not had sexual relations
    with Ms. Lewinsky. On January 23, he told one of those deputy
    chiefs of staff, John Podesta, that he did not engage in oral
    sex with Ms. Lewinsky. The President on January 21 told his
    aide, Sidney Blumenthal, that Ms. Lewinsky had threatened him.
    President Clinton also indicated that Lewinsky was known among
    her peers as the stalker, and that she would say that she had
    an affair with the President whether it was true or not, so
    that she would not be known as the stalker any more. Blumenthal
    later testified that he believes the President lied to him. The
    President testified that he was aware at the time that he made
    his statements that his aides might be summoned before the
    grand jury. These facts constitute paradigmatic witness
    tampering. The President knowingly engaged in misleading
    conduct, as defined in the statute, towards his aides, with
    intent to influence the testimony of those aides in an official
    proceeding.
        Once again, the White House's arguments to the contrary are
    unavailing. The charge is not that the President lied to his
    friends, as the White House maintains, but that he lied to
    potential witnesses about his conduct that the grand jury was
    investigating. It is not relevant, as the White House contends,
    that the President did not attempt to influence his aides' own
    personal knowledge, only their knowledge of the President's
    views, nor, as stated above, is it relevant as a matter of law
    that the President did not know that any of these individuals
    would ultimately become witnesses. Most surprising was the
    claim that White House Counsel Mr. Ruff raised for the first
    time in closing argument that the President could not be
    convicted of obstructing justice with respect to his
    conversations with Mr. Blumenthal because the fact that the
    President claimed executive privilege with respect to his
    conversation with Mr. Blumenthal meant that he never expected
    the grand jury to hear about it. The President's conversation
    with Mr. Blumenthal was not subject to a legitimate claim of
    executive privilege for two independent reasons. First, it was
    not a discussion that related to the President's official
    duties. Second, it constituted evidence of crime in and of
    itself. There was no possibility that any court would have ever
    upheld such a personally self-serving and frivolous misuse of
    executive privilege, and the President, as a former
    constitutional law professor during the time of Watergate fully
    understood that, as does Mr. Ruff. Indeed, Mr. Blumenthal was
    required to testify to the grand jury about this conversation
    notwithstanding the fact that the President did invoke an
    unwarranted executive privilege claim in an attempt to prevent
    its disclosure. Nor is there evidence that the President
    intended to claim executive privilege at the time that he had
    his conversation with Blumenthal. In any case, there was no
    reason for the President to tell this tale to Mr. Blumenthal
    except to disseminate it to his press contacts and on any
    occasion when he might appear before the grand jury.
        Each and every allegation of obstruction of justice and
    witness tampering has thus been proven. The question then
    arises whether the conclusion that the President has broken the
    law in this respect warrants his removal from office. Since all
    have been proven, I am far less concerned that the ``one or
    more'' language appears in this article. It is appropriate to
    charge an omnibus article in which a series of specific charges
    are leveled, a finding of guilt on each of which is required
    for conviction.
        President Clinton has committed a pattern of acts of
    obstruction of justice. The record demonstrates that the
    President, when his misconduct became relevant to a civil court
    proceeding in which he was a defendant, used all the methods at
    his disposal, including his status as President, to obstruct
    these proceedings and to keep the truth from emerging,
    including:
        Coaching and encouraging a witness, another Federal
    employee, Betty Currie, to give false testimony;
        Facilitating and encouraging Monica Lewinsky to submit an
    affidavit that he had reason to believe would be false;
        Through Vernon Jordan, securing employment for Monica
    Lewinsky in order to keep her from divulging to the court the
    true nature of their relationship;
        Using Government employees to transfer false information to
    the grand jury;
        Allowing a false affidavit to be used to perpetrate a fraud
    on a Federal court;
        After lying in a civil deposition, authorized a poll and
    made a cold, calculated decision based on those poll results to
    continue his obstruction;
        Attempting to speak to Monica Lewinsky before she might
    testify truthfully to the independent counsel about their
    relationship;
        Following his inability to contact Monica Lewinsky, telling
    defamatory lies about her in order to discredit her with his
    aides and with the public;
        Facilitating the hiding of evidence in a civil lawsuit;
        Providing false and misleading testimony in both a civil
    deposition and before a grand jury in order to protect his
    personal interests;
        Lying to the American people in order to cover up his own
    personal misconduct;
        Still failing to acknowledge that he committed the above
    actions, while admitting only as little as he has been forced
    to by the discovery of definitive physical evidence.
        For at least 9 months and in some respects up until today,
    the President has done everything within his power to bring
    about a miscarriage of justice in both a civil court proceeding
    and a criminal court proceeding. He took these actions for the
    sole purpose of protecting himself personally, politically and
    legally. For those who emphasize the private nature of his
    original misconduct, I would ask if he should be protected
    because he obstructed justice for such a low purpose? Time and
    again, and with premeditation, he was willing to use government
    personnel to assist in his coverup and his lies, acknowledging
    part of the truth only when confronted with physical evidence.
    And he carried his lies and cover up right on into legal
    proceedings with the grace and ease of someone who regarded a
    court of law as deserving of no more respect than if he were
    dealing with a stranger on the street. It is this persistent
    relentless, remorseless pattern of conduct that requires a
    verdict of guilty. He was willing to lie, defame, hide evidence
    and enlist anyone necessary, including government employees
    over and over again. At every juncture when he had the
    opportunity to stop, relent or come clean with a forgiving
    public, he chose instead to go forward. And even today he
    refuses to acknowledge the damage he has done to the Presidency
    and the judiciary, choosing instead to rely upon his high job
    approval rating and acknowledging only what he is forced to
    after the production of physical evidence.
        Consider what those who oppose impeachment say about his
    actions:
        Senator Bumpers, one of the counsel for the President
    during his trial, described the President's conduct as
    ``indefensible, outrageous, unforgivable, shameless.'' The New
    York Times editorialized that ``President Clinton behaved
    reprehensibly, [and] betrayed his constitutional duty to uphold
    the rule of law. . . .'' A censure resolution offered by
    Members of his own party in the House, including one of the
    strongest opponents of impeachment in the Judiciary Committee,
    concluded that President Clinton ``egregiously failed in [his]
    obligation'' ``to set an example of high moral standards and
    conduct himself in a manner that fosters respect for the
    truth;'' ``violated the trust of the American people, lessened
    their esteem for the office of President, and dishonored the
    office which they have entrusted to him;'' ``made false
    statements concerning his reprehensible conduct with a
    subordinate;'' and ``wrongly took steps to delay discovery of
    the truth.'' Respected members of the President's party in this
    body expressed or shared the expression of the view that his
    actions were ``disgraceful,'' that it was ``dismay[ing]'' to
    consider ``the impact of his actions on our democracy and its
    moral foundations,'' that it was ``immoral'' and ``harmful''
    since ``the President's private conduct can and often does have
    profound public consequences'' and ``compromised his moral
    authority,'' and they described his deception as ``intentional
    and premeditated.''
        So we castigate the President in the most bitter terms;
    decry his disgraceful conduct and his damage to the
    institutions we hold most dear; disgrace him with the most
    condemnatory language at our command and yet refuse to even
    consider his removal from office? By such action we treat the
    loss of public office as the worst fate imaginable, reserved
    for only the most treasonous of villains. Has public office
    become so precious in the United States that we treat it as a
    divine right? Actually, by such treatment we cheapen it.
        At a time when all of our institutions are under assault,
    when the Presidency has been diminished and the Congress is
    viewed with scepticism, our judiciary and our court system have
    remarkably maintained the public's confidence. Now the
    President's actions are known to every schoolchild in America.
    And in the midst of these partisan battles, many people still
    think this matter is just ``lying about sex.'' But little by
    little, there will be a growing appreciation that it is about
    much more than that. And in years to come, in every court house
    in every town in America, juries, judges, and litigants will
    have the President's actions as a bench mark against which to
    measure any attempted subversion of the judicial process. The
    notion that anyone, no matter how powerless, can get equal
    justice will be seen by some as a farce. And our rule of law--
    the principle that many other countries still dream about--the
    principle that sets us apart, will have been severely damaged.
    If this does not constitute damage to our government and our
    society, I cannot imagine what does. And for that he should be
    convicted.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                  Statement of Senator Daniel Patrick Moynihan

        Mr. MOYNIHAN. Mr. Chief Justice, Senators, I speak to the
    matter of prudence. Charles L. Black, Jr. begins his masterful
    account ``Impeachment: A Handbook'' with a warning: ``Everyone
    must shrink from this most drastic of measures. . . . [t]his
    awful step.''
        For it is just that. The drafters of the American
    Constitution had, from England and from Colonial government,
    fully formed models of what a legislature should be, what a
    judiciary should do. But nowhere on earth was there a nation
    with an elected head of an executive branch of government.
        Here they turned to an understanding of governance which
    marks the American Constitution as a signal event in human
    history--what the framers called ``the new science of
    politics.'' What we might term the intellectual revolution of
    1787. The victors in the Revolution could agree that no one, or
    not many, wanted another monarchy in line with the long
    melancholy succession since Rome. Yet given what Madison termed
    ``the fugitive and turbulent existence of . . . ancient
    republics,'' who could dare to suggest that a modern republic
    could hope for anything better?
        Madison could. And why? Because study had produced new
    knowledge, which could now be put to use. This great new claim
    rested upon a new and aggressively more ``realistic'' idea of
    human nature. Ancient and medieval thought and practice were
    said to have failed disastrously by clinging to illusions
    regarding how men ought to be. Instead, the new science would
    take man as he actually is, would accept as primary in his
    nature the self-interestedness and passion displayed by all men
    everywhere and, precisely on that basis, would work out decent
    political solutions.
        This was a declaration of intellectual independence equal
    to anything asserted in 1776. Until then, with but few
    exceptions, the whole of political thought had turned on ways
    to inculcate virtue in a small class that would govern. But,
    wrote Madison, ``If men were angels, no government would be
    necessary.'' We would have to work with the material at hand.
    Not pretty, but something more important: predictable. Thus,
    men could be relied upon to be selfish; nay, rapacious. Very
    well: ``Ambition must be made to counteract ambition.''
    Whereupon we derive the central principle of the Constitution,
    the various devices which in Madison's formulation offset ``by
    opposite and rival interests, the defect of better motives.''
        Impeachment was to be the device whereby the Congress might
    counteract the ``defect of better motives'' in a President. But
    any such behavior needed to be massive and immediately
    threatening to the state for impeachment ever to go forward.
    Otherwise a quadrennial election would serve to restitute
    wrongs.
        Further, they had a model for this process in the
    impeachment of Warren Hastings which had begun in April of 1786
    with Edmund Burke presenting 22 ``Articles of Charge of High
    Crimes and Misdemeanors.'' The debate in the House of Commons
    continued into 1787 and was reported in the Pennsylvania
    Gazette.
        Burke was hardly a stranger to the Americans at
    Philadelphia. He had championed the cause of the American
    colonies during the Revolution, and was now doing much the same
    as regards the governance of British India. He accused the
    Governor General of the highest crimes possible against, inter
    alia, the peoples of India.
        At Philadelphia, the standard for impeachment was discussed
    only once--on Saturday, September 8, 1787. At that point in the
    convention, the draft of the clause in the Constitution
    pertaining to impeachment referred only to ``treason and
    bribery.''
        Here are Madison's notes of the debate that day:

        The clause referring to the Senate, the trial of impeachments
    against the President, for Treason & bribery, was taken up.
        Col. MASON. Why is the provision restrained to Treason & bribery
    only? Treason as defined in the Constitution will not reach many great
    and dangerous offences. Hastings is not guilty of Treason. Attempts to
    subvert the Constitution may not be Treason as above defined. As bills
    of attainder which have saved the British Constitution are forbidden,
    it is the more necessary to extend: the power of impeachments. He mov.d
    to add after ``bribery'' ``or maladministration.'' Mr. GERRY seconded
    him.
        Mr. MADISON. So vague a term will be equivalent to a tenure during
    pleasure of the Senate.
        Mr. GOV. MORRIS. It will not be put in force & can do no harm. An
    election of every four years will prevent maladministration.
        Col. MASON withdrew ``maladministration'' & substitutes ``other
    high crimes & misdemeanors ag.st the State.''

        The convention later replaced the word ``State'' with
    ``United States.'' And on September 12, 1787, the Committee of
    Style--which had no authority to alter the substantive meaning
    of the text--deleted the words ``against the United States.''
        Thus the framers clearly intended that a President should
    be removed only for offenses ``against the United States.'' It
    may also be concluded that the addition of the words ``high
    Crimes and Misdemeanors'' was intended to extend the
    impeachment power of Congress so as to reach ``great and
    dangerous offences,'' in Mason's phrase.
        The question now before the Senate is whether the acts that
    form the basis for the articles of impeachment against
    President Clinton rise to the level of ``high crimes and
    misdemeanors,'' which is to say ``great and dangerous
    offences'' against the United States.
        Over the course of 1998, as we proceeded through various
    revelations, thence to impeachment and so on to this trial at
    the outset of 1999, I found myself asking whether the assorted
    charges, even if proven, would rise to the standard of ``great
    and dangerous offences'' against the United States. More than
    one commentator observed that we were dealing with ``low
    crimes,'' matters that can be tried in criminal courts after
    the President's term expires. Early in his address to the
    Senate our distinguished former colleague Dale Bumpers made
    this point:

        Colleagues, you have such an awesome responsibility. My good
    friend, the senior Senator from New York, has said it well. He says a
    decision to convict holds the potential for destabilizing the Office of
    the Presidency.

        The former Senator from Arkansas was referring to an
    article in The New York Times on December 25 in which I said
    this:

        We are an indispensable nation and we have to protect the
    Presidency as an institution. You could very readily destabilize the
    Presidency, move to a randomness. That's an institution that has to be
    stable, not in dispute. Absent that, do not doubt that you could
    degrade the Republic quickly.

        This could happen if the President were removed from office
    for less than the ``great and dangerous offences'' contemplated
    by the framers.
        In ``Grand Inquests,'' his splendid and definitive history
    of the impeachments of Justice Samuel Chase in 1804, and of
    President Andrew Johnson in 1868, Mr. Chief Justice Rehnquist
    records how narrowly we twice escaped from a precedent that
    would indeed have given us a Presidency, and a Court, subject
    to ``tenure during the pleasure of the Senate.''
        It is startling how seductive this view can be. In 1804 it
    was the Jeffersonians, including Jefferson himself, who saw
    impeachment as a convenient device for getting rid of a Justice
    of the Supreme Court with whose opinions they disagreed. Not
    many years later radical Republicans sought the same approach
    to removing a President with whom they disagreed over policy
    matters.
        It could happen again. Impeachment is a power singularly
    lacking any of the checks and balances on which the framers
    depended. It is solely a power of the Congress. Do not doubt
    that it could bring radical instability to American Government.
        We are a blessed Nation. But our blessings could be our
    ruin if we do not see how rare they are. There are two nations
    on earth, the United States and Britain, that both existed in
    1800 and have not had their form of government changed by force
    since then. There are eight--I repeat eight--nations which both
    existed in 1914 and have not had their form of government
    changed by violence since then: the United States, the United
    Kingdom, Australia, Canada, New Zealand, South Africa, Sweden,
    and Switzerland.
        Senators, do not take the imprudent risk that removing
    William Jefferson Clinton for low crimes will not in the end
    jeopardize the Constitution itself. Censure him by all means.
    He will be gone in less than 2 years. But do not let his
    misdeeds put in jeopardy the Constitution we are sworn to
    uphold and defend.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Bob Graham

        Mr. GRAHAM. Mr. Chief Justice: ``We hold these truths to be
    self-evident, that all men are created equal, that they are
    endowed by their Creator with certain unalienable rights, that
    among these are Life, Liberty, and the pursuit of happiness.
    That to secure these rights, governments are instituted among
    men, deriving their just powers from the consent of the
    governed.''
        Those words were a radical declaration when spoken in 1776.
    Never before had it been asserted that the purpose of
    government was to secure the individual freedoms and liberties
    of its citizens. To the contrary, previous governments existed
    for the opposite purpose, to control the people and suppress
    their aspirations.
        Eleven years after the Continental Congress approved these
    revolutionary sentiments--and after a violent war which severed
    the colonies' tie to King George III--many of the same
    individuals who had declared independence gathered again in
    Philadelphia to secure those rights so recently and tenuously
    won.
        The governmental structure they constructed during those
    weeks in the oppressive summer heat was far from simple. But
    its complexity wasn't an accident, or simply a result of the
    diverse geographical and economic interests represented at the
    Constitutional Convention. As our colleague Senator Patrick
    Moynihan has so aptly observed, our Government was the first to
    insert conflict as a conscious element, to achieve inefficiency
    by design.
        Our Nation's founders had personal knowledge of and
    experience with English history, in which both kings and
    parliaments had at times exerted excessive power over the
    people. They realized that liberty would be enhanced if
    political power was divided instead of centralized.
        Unlike other forms of democracy, where a no confidence vote
    of the national legislature can bring down a government at any
    time, the framers took great pains to establish a delicate
    balance of powers--and a careful system of checks and
    balances--between the Nation and the States and among the
    executive, legislative, and judicial branches of the Federal
    Government. They created a structure in which every branch
    would have the strength needed to keep excessive power from
    flowing into the hands of any other branch and thus threatening
    the liberties of the people.
        This determination to achieve balance is reflected in the
    discussion of impeachment and removal from office in article I,
    section 3 of the Constitution. By requiring action from both
    houses of Congress, and mandating a two-thirds Senate majority
    for removal, the framers purposely made it difficult for
    Congress to undo the results of a properly constituted
    Presidential election--one of the most disruptive acts
    imaginable in a democracy--and relieve a President of his or
    her constitutional duties. The framers wisely recognized that
    impeachment, when improvidently used, could create an
    overbearing Congress from the ruins of a destabilized and
    delegitimized Presidency.
        But the framers' attention to balance was not limited to
    the procedures of impeachment. They also made clear their
    belief that impeachment and removal from office should only be
    an option in situations in which a President becomes a threat
    to the Government and the people it serves. We see this in
    their small number of enumerated offenses--``Treason, Bribery,
    other High Crimes and Misdemeanors''--and in their commentary.
        For example, at the Constitutional Convention in 1787,
    George Mason said that the term ``high crimes and
    misdemeanors'' referred to ``great and dangerous offenses'' and
    ``attempts to subvert the Constitution.''
        Mr. Chief Justice, the President's self-indulgent actions
    were immoral, disgraceful, reprehensible. History should--and,
    I suspect, will--judge that William Jefferson Clinton
    dishonored himself and the highest office in our American
    democracy.
        But despite their disreputable nature, President Clinton's
    actions should not result in his conviction and removal from
    office. After careful objective study of each article presented
    by the House of Representatives, I have concluded that the
    charges against the President do not meet the high
    constitutional standards established by the framers. Removal of
    this President on the grounds established by the House managers
    would upset the delicate balance of powers so meticulously
    established 212 years ago.
        Mr. Chief Justice, the framers set high standards for
    removal because they understood that the office of the
    Presidency would be held by imperfect human beings. They
    assembled a Government that could withstand personal failings.
        We should be outraged that William Jefferson Clinton's
    personal failings debased himself and his office. But they did
    not cause permanent injury to the proper functioning of our
    Government. He did not upset the constitutional balance of
    powers.
        I hope that the Chief Justice, my colleagues, and the
    American people will not misinterpret my comments. While it has
    not been proven that President William Jefferson Clinton
    committed the high crimes and misdemeanors required for removal
    from office, he is not above the law. His acquittal in this
    impeachment trial is not exoneration.
        The framers made this clear in Article I of the
    Constitution. They established that an impeached President,
    even if convicted and removed from office, would still ``be
    liable and subject to Indictment, Trial, Judgment, and
    Punishment, according to law.'' When this President leaves
    office, he could face sanction or conviction for his actions.
        Mr. Chief Justice, during the questioning phase of this
    trial, I sought assurances from the President, through White
    House Counsel, Mr. Charles Ruff, that he would not attempt to
    circumvent this judicial process by seeking a pardon for his
    actions. Counsel Ruff responded as follows:

        I have stated formally on behalf of the President in response to a
    very specific question by the House Judiciary Committee that he would
    not, and, indeed, we have said in this Chamber, and we have said in
    other places, that the President is subject to the rule of law like any
    other citizen and would continue to be on January 21, 2001, and that he
    would submit himself to whatever law and whatever prosecution the law
    would impose on him. He is prepared to defend himself in that forum at
    any time following the end of his tenure. And I committed on his
    behalf, and I have no doubt that he would so state himself, that he
    would not seek or accept a pardon.

        I take Counsel Mr. Charles Ruff at his words. Once the
    President leaves office, he will be subject to the same
    prosecutorial and judicial review that all Americans face.
        Mr. Chief Justice, now that we are at the end of this
    divisive and unpleasant experience, what have we learned?
        We have learned that the Constitution works. The framers
    made it clear that the President should only be impeached and
    removed from office in cases where he becomes a threat to the
    government and the governed. The President's acquittal will
    uphold the sanctity of the office and prevent a weakening of
    the balance of powers that protects our individual rights and
    liberties.
        We have reaffirmed the principle that no man is above the
    law. While I believe that the President is not guilty of high
    crimes and misdemeanors in this court of impeachment, he will
    be subject to legal sanction in other forums when he becomes a
    private citizen.
        Mr. Chief Justice, the President's misdeeds will affect his
    standing in history. But they do not justify the first removal
    of a President of the United States from the office to which he
    was elected by the American people. When my name is called on
    the roll, I will vote ``not guilty'' on both articles of
    impeachment.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Wayne Allard

        Mr. ALLARD. Mr. Chief Justice, as we all know, this
    impeachment trial has been a difficult process for the Senate
    and for our nation.
        As this trial draws to a close each of us has the solemn
    duty of voting our conscience according to the dictates of the
    Constitution. I do not take this responsibility lightly.
        For me, the vote in this trial will be the second most
    important of my congressional career. The only other vote to
    rank higher was my vote to authorize the Gulf War and thereby
    send American soldiers into combat.
        My ultimate goal as we moved into this process was to
    maintain precedent and not shatter a very thoughtful process
    laid out in the Constitution and within Senate rules.
        At the start of this Senate impeachment trial I took an
    oath to do impartial justice according to the Constitution and
    laws. I worked hard to adhere to that oath, and I pray that I
    have kept that oath.
        This is particularly important to me since much of my
    thinking in this case centers on my conclusion that the
    President has violated his oath of office.
        I have determined to base my decision on the facts of the
    case, not the polls, the performance of the economy, the
    President's popularity or where he is in his term of office.
        Finally, I have felt that if any of the parts of an article
    constitute grounds for impeachment, then an affirmative vote on
    the article is warranted.
        While the Senate is clearly divided on conviction and
    removal, one thing we have all learned is the importance of the
    Constitution.
        We may be separated by political party or ideology, but we
    are united in our belief in the Constitution as the governing
    charter of our Republic.
        Presidents come and go, and Senators come and go. The
    Constitution remains. It is the foundation of our political
    system.
        The Constitution is what preserves the rule of law, and
    guarantees that we remain a nation of laws, not of men.
        And, as we have all learned, in the impeachment and trial
    of a President, the Constitution is the document that directs
    how we shall proceed as members of the Congress.
        Some have argued that this trial has divided America. In
    the short run, yes. But in the long run, it has united us and
    made us stronger.
        We are stronger because we have once again demonstrated
    that we determine who shall lead this nation by democratic
    means, not by force of arms.
        During the past month, I have listened to the evidence and
    I have weighed it carefully. It is now time for me to cast my
    vote and to explain my reasoning to my colleagues and to my
    constituents.
        We have before us two articles of impeachment. The first
    deals with perjury, the second with obstruction of justice.
        The first article alleges that the President violated his
    Constitutional oath and his August 17, 1998 sworn oath to tell
    the truth before a Federal grand jury.
        He did so by willfully providing perjurious, false and
    misleading testimony in one or more of the following: (1) the
    nature and details of his relationship with a subordinate
    government employee; (2) prior perjurious, false and misleading
    testimony he gave in a Federal civil rights action brought
    against him; (3) prior false and misleading statements he
    allowed his attorney to make to a Federal judge in that civil
    rights action; and (4) his corrupt efforts to influence the
    testimony of witnesses and to impede the discovery of evidence
    in that civil rights action.
        In my view the House managers demonstrated that at least
    three of the four provisions are true. The physical evidence is
    there, and the testimony supports that position.
        I realize that with enough lawyers, one can certainly cloud
    things, and confuse and distract, but I believe the facts speak
    for themselves.
        To me, once you cut through all the legal details and hours
    and hours of argument, this case is very clear. The President
    lied under oath. He lied not once, but repeatedly.
        On this article, the only question for me is whether it
    rises to the level of an impeachable offense. I believe that it
    does. And this has certainly been the prior view of the Senate
    since it has on several occasions convicted and removed Federal
    judges for perjury.
        Most recently in 1989, when Federal District Judge Nixon
    was convicted and removed from office for ``knowingly and
    contrary to his oath mak[ing] a material false or misleading
    statement to a grand jury.''
        Here the judge's violation of the oath ``to tell the truth,
    the whole truth, and nothing but the truth'' was deemed an
    impeachable offense. I simply cannot justify a different
    standard for the President.
        Some have argued that the standard for him should be lower
    because he is elected by the people, while Federal judges are
    appointed by the President and confirmed by the U.S. Senate to
    serve for life. While I respect those who hold this view, I
    cannot agree with it.
        I hold the President to a higher standard because he is the
    chief law enforcement official of the Nation. If he is above
    the law, then we have a double standard; one for the powerful,
    and one for the rest.
        Now let me address the second article. The charge is that
    the President violated his Constitutional oath in that he
    prevented, obstructed, and impeded the administration of
    justice.
        Obstruction of justice is clearly an impeachable offense.
    History and prior practice support this view, and it seems that
    many members of this body agree that obstruction does warrant
    removal from office.
        The question then is whether the House managers have
    demonstrated obstruction of justice. I believe that they have.
        When we review the witness depositions of Monica Lewinsky,
    Vernon Jordan, and Sidney Blumenthal, we compare those with the
    depositions of the President, and when we review all the
    evidence gathered and presented by the House managers, and by
    the independent counsel and the grand jury, there are at least
    four areas of obstruction by the President.
        These relate to the encouraging of a false affidavit, the
    concealment of gifts, the assistance in employment, and the
    attempt to refresh the memory of his secretary Betty Currie
    which done a second time several days later is pure and simple
    trying to influence her testimony.
        While we may never know with absolute certainty what
    occurred, the evidence is overwhelming that the President took
    numerous actions designed to impede the administration of
    justice.
        I am also of the view that if the President committed
    perjury, then he obstructed justice. Perjury is a form of
    obstruction of justice.
        I will therefore vote for conviction on both articles. I
    don't believe I will be voting to undo an election. We have a
    process of succession to the Presidency which maintains control
    in the Vice President of the same party with the same agenda.
        Let me now explain why I feel conviction is so important in
    this case. It has to do with the role of the oath in our
    society. This is why the President's removal is necessary to
    protect the republic.
        When I was sworn in as a United States Senator I took the
    following oath to uphold the Constitution as did each one of
    you:

        I do solemnly swear that I will support and defend the Constitution
    of the United States against all enemies, foreign and domestic; that I
    will bear true faith and allegiance to the same; that I take this
    obligation freely, without any mental reservation or purpose of
    evasion, and that I will well and faithfully discharge the duties of
    the office on which I am about to enter. So help me God.

        I took the same oath on three occasions when I served in
    the U.S. House of Representatives. The President takes a
    similar oath when he enters office:

        I do solemnly swear that I will faithfully execute the Office of
    President of the United States, and will to the best of my ability,
    preserve, protect and defend the Constitution of the United States.

        Both of these oaths are required by the Constitution.
        Article VI of the Constitution requires that all Senators,
    Representatives, members of the State legislatures, and all
    executive and judicial officers of the United States and the
    States shall be bound by oath or affirmation to support the
    Constitution. The oath of office lies at the center of this
    impeachment debate.
        As George Washington stated in his Second Inaugural Address
    on March 4, 1793:

        Previous to the execution of any official act of the President the
    Constitution requires an oath of office. This oath I am now about to
    take, and in your presence: That if it shall be found during my
    administration of the Government I have in any instance violated
    willingly or knowingly the injunctions thereof, I may (besides
    incurring constitutional punishment) be subject to the upbraidings of
    all who are now witnesses of the present solemn ceremony.

        The sworn oath is central not only to our Constitution, but
    also to the administration of justice. Our legal system would
    not function without it.
        Witnesses in trials swear under oath to ``tell the truth,
    the whole truth, and nothing but the truth.''
        Similarly, parties in civil lawsuits answer written
    questions or ``interrogatories'' put to them by their
    opponents. All answers are given under penalty of perjury. The
    answering party must sign a statement attesting to the
    truthfulness of the answers.
        Testimony before a Federal grand jury is given under oath,
    with the witness swearing to ``tell the truth, the whole truth,
    and nothing but the truth.'' And the citizens who sit on a
    grand jury take an oath to seek the truth.
        The Federal Rules of Evidence make reference to the
    importance of the oath in our judicial system.
        Rule 603 states that the oath is ``calculated to awaken the
    witness' conscience and impress the witness' mind with the
    duty'' to tell the truth.
        The Supreme Court has commented in a number of cases on the
    question of perjury. In the 1975 case of United States v.
    Mandujano, the Court opinion noted:

        In this constitutional process of securing a witness' testimony,
    perjury simply has no place whatever. Perjured testimony is an obvious
    and flagrant affront to the basic concepts of judicial proceedings.
    Effective restraints against this type of egregious offense are
    therefore imperative.

        In the much earlier 1937 case of United States v. Norris,
    the Court observed:

        There is occasional misunderstanding to the effect that perjury is
    somehow distinct from ``obstruction of justice.'' While the crimes are
    distinct, they are in fact variations on a single theme: preventing a
    court, the parties, and the public from discovering the truth. Perjury,
    subornation of perjury, concealment of subpoenaed documents, and
    witness tampering are all forms of obstruction of justice.

        As the House prosecutors have argued, the principle of
    ``Equal Justice Under Law'' is at the very heart of our legal
    system.
        In order to survive it requires not only an impartial
    judiciary and an ethical bar, but also a sacred oath. Without
    the sanctity of the oath, ``Equal Justice Under Law'' cannot be
    guaranteed.
        In addition to our legal system, other sectors of our
    society rely on oaths to ensure truthfulness and uphold values.
        At a very early age we frequently ask our young people to
    take an oath. The Boy Scout Oath is as follows:

        On my honor I will do my best
        To do my duty to God and my country
        and to obey the Scout Law;
        To help other people at all times;
        To keep myself physically strong,
        mentally awake, and morally straight.

        And the Girl Scout Promise:

        On my honor, I will try:
        To serve God and my country,
        To help people at all times,
        And to live by the Girl Scout Law.

        Members of our armed forces take the following oath of
    enlistment:

         1I do solemnly swear that I will support and defend the
    Constitution of the United States against all enemies, foreign and
    domestic; that I will bear true faith and allegiance to the same; and
    that I will obey the orders of the President of the United States and
    the orders of the officers appointed over me, according to regulations
    and the Code of Military Justice. So help me God.

        Police officers, local officials and members of many civic
    organizations take an oath.
        What is the purpose of an oath, and why do we rely on an
    oath in so many sectors of our society?
        The oath in legal proceedings is designed to ensure
    truthfulness.
        The oath taken by public officials and the military is
    designed to uphold the Constitution and preserve the rule of
    law.
        The oath taken by scouts and members of civic organizations
    is designed to encourage values and good citizenship.
        A violation of these oaths is taken seriously, and is often
    punished under the law. Why? To protect the organization, to
    protect the government, to protect the republic.
        The President's oath is the most important oath any person
    takes in our Constitutional system. If that oath can be ignored
    it will set a very damaging precedent for our society.
        Throughout this impeachment process there have been many
    proposals concerning the best means of resolution.
        At each turn however, Members of the Congress have
    ultimately recognized that the appropriate path to take is the
    path laid out in the Constitution. That path was a full trial
    in the U.S. Senate.
        I am proud to have been among those who argued for a trial.
        Whatever the outcome, I will leave this process confident
    that the system has worked. While I may disagree with the final
    vote, I will respect that vote and I will urge that we move
    forward united and determined to do the people's business.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Mitch McConnell

        Mr. McCONNELL. Mr. Chief Justice, as the senior Senator
    from Kentucky, it is my distinct privilege today to rise and
    speak at the desk formerly occupied by one of the greatest
    Senators in the history of our country and the greatest Senator
    from the Commonwealth of Kentucky: Henry Clay.
        Henry Clay is best remembered for two things: (1) the
    Compromise of 1850, and (2) a famous statement he made after
    being told that advocating the Compromise of 1850 would doom
    his chances for the presidency. At that critical moment Clay
    replied: ``I had rather be right than be President.''
        In many respects, William Jefferson Clinton had a similar
    choice over the past several months. He could do the right
    thing. Or he could cling to his Presidency--regardless of the
    costs and regardless of the consequences. Consequences to his
    family, to his friends, to his aides, to his Cabinet, and, most
    importantly, to his country.
        Time after time, the President came to a fork in the road.
    Time after time, he had the opportunity to choose the noble and
    honorable path. Time after time, he chose the path of lies and
    lawlessness--for the simple reason that he did not want to
    endanger his hold on public office.
        Nowhere is the President's cold, calculated choice more
    clear than in the private conversation he had with his
    confidant and long-time advisor, Dick Morris, just after he
    raised his right hand to God and testified under oath in a
    civil rights lawsuit that he had not had any sexual relations
    with a young intern named Monica Lewinsky.
        After that critical denial, the President did what he does
    best: he put his finger to the wind to determine which path he
    should take. He asked Mr. Morris to conduct a poll to determine
    whether the American people would forgive him for adultery, for
    perjury, and for obstruction of justice. Morris came back with
    bad news.
        The public, in Morris's words was ``just not ready for
    it.'' They would forgive him for adultery, but not for perjury
    and obstruction of justice.
        The President then faced a fundamental choice. He could
    tell the truth--and admit that he perjured himself in the Jones
    suit. Or he could cling to public office--and deny, delay and
    obstruct.
        The choice for President Clinton was clear. He told Morris:
    ``Well, we just have to win.''
        And, thus the course was charted. The President would seek
    to win at any cost. If it meant lying to the American people.
    If it meant lying to his Cabinet. If it meant lying to a
    Federal grand jury. If it meant tampering with witnesses and
    obstructing justice. If it meant falsely branding a young woman
    with the scarlet labels of liar and ``stalker.'' The name of
    the game was winning. Winning at any cost.
        Based on the evidence before the Senate, I want to walk you
    down the road that Bill Clinton has traveled these past several
    months. That twisted, tortured road that he has forced the
    American people and their government to plod along--for what
    seems to many of us like an eternity.
        The first fork in the President's road came on November 15,
    1995, when he met a young, White House intern named Monica
    Lewinsky. He could be her President. He could be her boss. He
    could even be her friend. Or, he could choose to be in a
    relationship with her that was clearly inappropriate.
        The President chose the wrong path. As we heard Ms.
    Lewinsky testify, on the day of their first meeting, which also
    happened to be the day of their first sexual encounter,
    President Clinton looked at Ms. Lewinsky's intern pass, tugged
    on it and said, ``This is going to be a problem.''
        But the President persisted down that problematic path. He
    had approximately 10 more sexual encounters with Ms. Lewinsky
    over the next 21 months.
        It is important, however, to note that had the President
    stopped there, we would not be here. At that point, the
    President's defenders could have credibly argued, ``it's a
    private matter; it's just about sex.''
        But, Bill Clinton didn't stop there.
        In December of 1997, the President came to another fork. At
    that time, he learned the following critical facts:
        One: Ms. Lewinsky had been placed on the witness list in
    the Jones case;
        Two: Judge Susan Webber Wright had ordered the President to
    provide information concerning any government employee with
    whom he had engaged in sexual activity; and
        Three: Ms. Lewinsky had been served with a subpoena and
    ordered to produce any gifts she had received from the
    President.
        At this point, the President had a choice. He could tell
    Ms. Lewinsky to obey the law, tell the truth, and turn over the
    gifts. Or, he could not.
        Again, President Clinton chose the path of lies and deceit.
    Let's, again, hear this account from Ms. Lewinsky:

        ``[I]t wasn't as if the President called me and said, `You know,
    Monica, you're on the witness list, this is going to be really hard for
    us, we're going to have to tell the truth. . . .' And by him not
    calling me and saying that, you know, I knew what that meant. . . .
        [A]s we had on every other occasion and every other instance of
    this relationship, we would deny it.''

        The evidence indicates that the President was not
    interested in the truth, but rather, was only interested in
    getting Ms. Lewinsky to sign a false affidavit and getting her
    a job in New York where, from the President's way of thinking,
    she was less apt to be contacted by the Jones lawyers.
        I must say that I am baffled at how the President of the
    United States--the leader of the free world--was intimately
    involved in both of these efforts. The evidence indisputably
    establishes that the President worked with his close friend
    Vernon Jordan to secure: (1) a job offer for Ms. Lewinsky in
    New York, and (2) a lawyer for Ms. Lewinsky to prepare and file
    her false affidavit. As Mr. Jordan's testimony made clear, his
    efforts on behalf of Ms. Lewinsky were at the behest of the
    President.
        The evidence also indicates that during this same time
    period the President participated in a scheme to conceal gifts
    in the Jones civil rights suit. Ms. Lewinsky's testimony is
    clear that she met with the President on December 28, and
    suggested to him that she could ``put away or maybe give to
    Betty or give to someone the gifts[.]'' Ms. Lewinsky further
    testified that later that same day the President's loyal
    secretary, Betty Currie, initiated a call to her to pick up the
    gifts. I find Ms. Lewinsky's testimony to be credible.
    Moreover, it is corroborated by Ms. Currie's cell phone record.
        And, of course, the President didn't stop there.
        The President came to another fork in the road where he had
    to decide whether to testify truthfully under oath regarding
    his relationship with Ms. Lewinsky. And, again, the President
    chose the path of lies and deceit.
        He walked into the deposition room, raised his right hand,
    swore to tell the truth, the whole truth, and nothing but the
    truth, and then proceeded to give false statements. In a civil
    case about alleged sexual misconduct with a subordinate
    government employee, the President testified under oath that he
    never had a ``sexual relationship'', a ``sexual affair'' or
    ``sexual relations'' with a subordinate government employee
    named Monica Lewinsky.
        But, again, as egregious as those actions were, had the
    President stopped there, we still might not be here.
        The stakes for President Clinton continued to go higher and
    higher. Following his deposition, the President had to decide
    what to do with his loyal secretary, Ms. Betty Currie. And,
    again, the undisputed evidence shows that the President took
    the path of lies and deceit.
        Contrary to Federal obstruction of justice laws and
    contrary to Judge Wright's protective order instructing
    President Clinton ``not to say anything whatsoever about the
    questions . . . asked, the substance of the deposition, . . . ,
    [or] any details. . . ,'' President Clinton left the
    deposition, went back to the White House, and called Ms. Currie
    at home to ask her to come to the White House the next day--
    which, I might add, was a Sunday.
        At that somewhat surreal Sunday afternoon meeting, the
    President--in violation of Judge Wright's protective order--
    told Ms. Currie that he had been asked several questions about
    Monica Lewinsky at his deposition. Then the President--in
    violation of the Federal obstruction of justice law--fired off
    a string of fundamentally declarative statements to his
    secretary.

        ``You were always there when she was there, right? We were never
    really alone.
        ``You could see and hear everything.
        ``Monica came on to me, and I never touched her, right?
        ``She wanted to have sex with me and I couldn't do that.''

        And, of course, the President didn't stop there. According
    to Ms. Currie, the President again called her into the Oval
    Office a few days later, and again, repeated the same false
    statements to her that he had made under oath in his civil
    deposition.
        The winding road continued its perilous twists and turns.
    The President next came to a point where he had to decide
    whether to tell the truth to his Cabinet, his top aides, and,
    most importantly, to the American people.
        Again, the President rejected the right path, telling his
    Cabinet and staff that the allegations were untrue. He claimed
    to his then-Deputy Chief of Staff, John Podesta, for example,
    that he ``never had sex with [Ms. Lewinsky] in any way
    whatsoever.'' Specifically, he told Podesta that ``they had not
    had oral sex.'' And, the President admits in his grand jury
    testimony that he knew that his aides could be called to
    testify before the grand jury. Ultimately, his top aides were
    called to testify, and they repeated his lies.
        And, as everyone in America knows, the President lied to
    the Nation. I do not need to recite the defiant, indignant,
    finger-wagging denial that the President gave to 270 million
    Americans who had placed their trust in him as the chief law
    enforcement officer of this land.
        But, it didn't have to go any further. I think that there's
    still a chance that had the President stopped there at that
    awful, disgraceful moment, we would not be here, today.
        On August 17, 1998, the President came to the most
    important crossroads. He stood before a Federal criminal grand
    jury--a Federal criminal grand jury that was trying to
    determine whether he had committed perjury and obstructed
    justice. He had one last chance to do the right thing. He could
    tell the truth, the whole truth, and nothing but the truth to
    the grand jury. Or, he could commit perjury.
        Again, President Clinton chose the wrong path. During that
    criminal probe, the President admitted to an ``inappropriate''
    relationship with Ms. Lewinsky, but continued to falsely deny
    ever having sexual relations with her, in the face of
    corroborating evidence that included an undisputed DNA test and
    the testimony of Ms. Lewinsky and two of her therapists.
        The President's strained, persistent, and--in the words of
    his own lawyer--``maddening'' denials of the obvious were
    blatantly and patently false.
        The President also declared under oath to the grand jury
    that his post-deposition coaching of Betty Currie about his
    relationship with Monica Lewinsky was a mere attempt to refresh
    his ``memory about what the facts were.'' This statement is
    also blatantly and patently false.
        In fact, there is no reasonable interpretation that would
    make the President's statements about coaching Ms. Currie to be
    true. Ms. Currie was not always there. She could not always see
    and hear everything. She could not know whether the President
    ever touched Ms. Lewinsky. And, she did not know whether Ms.
    Lewinsky ever had sex with the President. It is difficult to
    comprehend how the President could be refreshing his own memory
    through the act of making false statements to a potential
    witness.
        Moreover, it is my opinion that these false statements by
    the President under oath were clearly material. A false and
    misleading denial of a sexual relationship with a subordinate
    government employee and a false and misleading denial of
    tampering with a potential witness goes to the very heart of
    whether the President obstructed justice or committed perjury.
        Based on the evidence in the record, I am firmly convinced
    that the President has committed both perjury and obstruction
    of justice. He lied to the grand jury about the nature of his
    relationship with Ms. Lewinsky. He lied to the grand jury about
    coaching his loyal secretary, Betty Currie. He obstructed
    justice by encouraging Ms. Lewinsky to give false testimony, by
    participating in a scheme to conceal gifts that were
    subpoenaed, by tampering with his secretary on two occasions,
    and by lying to top aides that he knew could be called to
    testify before the grand jury.
        The Senate's inquiry, however, does not end there. We must
    decide whether perjury and obstruction of justice are high
    crimes and misdemeanors. Based on the Constitution, the law,
    and the clear Senate precedent, I conclude that these offenses
    are high crimes and misdemeanors.
        First, Senate precedent establishes that false statements
    under oath by a public official are high crimes and
    misdemeanors. In 1986, I sat on the impeachment committee that
    heard the evidence against Judge Harry Claiborne. After hearing
    the evidence, I, along with an overwhelming number of my
    colleagues, concluded that Judge Claiborne had made false
    statements under the pains and penalties of perjury by failing
    to disclose certain amounts of income on his tax forms. The
    Senate--understanding the gravity of a public official making
    false statements under oath--voted to remove Judge Claiborne
    from office.
        In 1989, the Senate held impeachment trials against Judge
    Hastings and Judge Nixon--both of whom had been accused of
    making false statements under oath. In Judge Nixon's case, the
    false statements were made directly to a criminal grand jury.
    The Senate--again understanding the gravity of a public
    official, who has sworn to uphold the laws, violating those
    very laws by lying under oath--voted to remove Judge Hastings
    and Judge Nixon from office.
        My colleagues on both sides of the aisle had no hesitation
    about removing these Federal officials for making false
    statements under oath. As Senator Herb Kohl explained:

        ``One might argue, as Judge Nixon does, that his false statements
    were not material. . . . But Judge Nixon took an oath to tell the truth
    and the whole truth. As a grand jury witness, it was not for him to
    decide what would be material. That was for the grand jury to decide. .
    . .
        So I am going to vote `guilty' on articles I and II. Judge Nixon
    lied to the grand jury. He misled the grand jury. These acts are
    criminal and warrant impeachment.''

        I think Senator Kohl's statements accurately reflect the
    sentiment of the 89 Senators who voted to convict Judge Nixon
    for lying to a Federal grand jury. And, I might add, one of
    those Senators voting to remove Judge Nixon for perjury was
    then-Senator, now-Vice President Al Gore.
        Of those 89 Senators, 48 of us are still here in this
    distinguished body. Will we send the same message about the
    corrosive impact of perjury on our legal system or will we
    simply lower our standards for the Nation's chief law
    enforcement officer?
        Second, article II, section 4 of the Constitution plainly
    sets forth that bribery is a high crime and misdemeanor, and
    our Federal laws tell us clearly that perjury and obstruction
    of justice are equivalent offenses to bribery. In fact, the
    Federal Sentencing Guidelines actually mandate a harsher
    punishment for perjury than for bribery and a harsher
    punishment for obstruction of justice than for bribery. So, I
    am completely and utterly perplexed by those who argue that
    perjury and obstruction of justice are not high crimes and
    misdemeanors.
        If Federal law mandates a harsher penalty for perjury and
    obstruction of justice, how can this Senate--who drafted,
    debated, and passed those Federal laws--now argue that perjury
    and obstruction of justice are lesser offenses than bribery?
        Listen to the Supreme Court's declaration: ``[f]alse
    testimony in a formal proceeding is intolerable.'' ABF Freight
    System v. NLRB, 510 U.S. 317, 323 (1994). Moreover, the high
    Court has labeled perjury as an ``egregious offense,'' United
    States v. Mandujano, 425 U.S. 564, 576 (1976), calling it ``an
    obvious and flagrant affront to the basic concepts of judicial
    proceedings.'' (Id.)
        Even the President's own Justice Department understands
    that our Nation of laws cannot tolerate perjury and obstruction
    of justice. President Clinton and his Justice Department have
    prosecuted approximately 600 cases of perjury since he came to
    office. And today--as we debate whether perjury is a serious
    offense--over 100 people are locked behind bars in Federal
    prison for committing the criminal act of perjury.
        Perjury and obstruction hammer away at the twin pillars of
    our legal system: truth and justice. Every witness in every
    deposition is required to raise his or her right hand and swear
    to tell the truth, the whole truth, and nothing but the truth,
    so help them God. Every witness in every grand jury proceeding
    and in every trial is required to raise his or her right hand
    and swear to tell the truth. Every official declaration filed
    with the court is stamped with the express affirmation that the
    declaration is true. In the words of our nation's first Supreme
    Court Chief Justice, John Jay: ``if oaths should cease to be
    held sacred, our dearest and most valuable rights would become
    insecure.''
        The facts clearly show that the President did not value the
    sacred oath. He was interested in saving his hide, not truth
    and justice. I submit to my colleagues that if we have no truth
    and we have no justice, then we have no nation of laws. No
    public official, no President, no man or no woman is important
    enough to sacrifice the founding principles of our legal
    system.
        On this point, I am proud to quote Justice Louis Brandeis--
    a native of my hometown of Louisville and the man for whom the
    University of Louisville Law School is named:

        ``In a government of laws, existence of the government will be
    imperiled if it fails to observe the laws scrupulously. Our government
    is the potent, the omnipresent teacher. For good or for ill, it teaches
    the whole people by its example. Crime is contagious. If the government
    becomes a lawbreaker; it breeds contempt for law; it invites every man
    to become a law unto himself; it invites anarchy.''

        William Jefferson Clinton is not and should not be a law
    unto himself.
        President Clinton's decisions have led the United States
    Senate to its own critical crossroads. And, now we must choose
    our path.
        We can do the right thing. Or we can lower our standards
    and allow Bill Clinton to cling to public office--regardless of
    the consequences to our Nation, to our system of justice, and
    to our future generations.
        More than 150 years ago, Alexis de Tocqueville wisely
    observed that ``man rarely retains his customary level in very
    critical circumstances; he rises above or sinks below his usual
    condition, and the same thing is true of nations.''
        So what will we do this day? Will we rise above or will we
    sink below? Will we condone this President's conduct or will we
    condemn it? Will we change our standards or will we change our
    President?
        As most of you will recall, the Senate faced a similar
    choice just a few short years ago. It was one of our own who
    had clearly crossed the line. It was one of our own who had
    engaged in sexual misconduct and obstruction of justice.
        He, like President Clinton, was an intelligent and
    accomplished man. Senator Carol Moseley-Braun called him
    ``brilliant'' and said he was a man who ``ha[d] certainly been
    fair.'' But, that brilliant and fair man had crossed the line.
        At that critical moment in Senate history, we could have
    taken the wrong path and called it a private matter, saying
    ``it's just about sex.'' But my friend, Senator Dianne
    Feinstein, was right when she said: ``This is not private,
    personal conduct. This is conduct that took place in public
    service, and many of the people involved are themselves Federal
    employees.''
        At that moment, the Senate could have said, ``He lied about
    his conduct to everybody, so lying in an official proceeding is
    OK.'' Or, we could have said, ``He was covering it up before
    the investigation, so it's irrelevant and immaterial that he's
    covering it up during the investigation.''
        The Senate could have said, ``We can't overturn a Federal
    election. After all, he'll be out of office in a few years.''
    Or: ``He may be prosecuted in the courts, so there's no reason
    for us to act.''
        And, finally, the United States Senate could have defended
    its own Member by arguing that, ``A United States Senator
    should be held to a lower standard than others, not a higher
    standard. After all, there are only 100 U.S. Senators in the
    country. Any one of them is just too precious to lose.''
        But, we didn't say any of those things. Those doubletalking
    defenses were reserved exclusively for President Clinton.
        During the Packwood debate, we made the tough choice. And,
    I have to say, that decision was one of the most difficult
    things I have ever had to do in my career in public service. To
    recommend expelling from the United States Senate a colleague,
    a member of my own party, and most importantly, a friend with
    whom I had served in the Senate for over a decade.
        We sent a clear message to the Nation that no man is above
    the law. That no man is so important to the well-being of our
    strong and prosperous Nation that we have to compromise the
    fundamental, founding principles of truth and justice. We chose
    to rise above, not sink below. Rather than change our
    standards, we changed our Senator.
        Let me also make a political point, here. We Republicans
    were aware during the Packwood debate that we would likely lose
    that Senate seat if Senator Packwood was removed from office.
    So, we had a choice: Retain the Senate seat or retain our
    honor. We chose honor, and never looked back.
        I think that the United States Senate has a clear choice
    today. Do we want to retain President Clinton in office, or do
    we want to retain our honor, our principle, and our moral
    authority?
        For me, and for many members in my impeachment-fatigued
    party, I choose honor.
        I want to close my remarks today with an insightful and
    fascinating statement from Richard Nixon. A few years after his
    tragic downfall, President Nixon explained:

        It's a piece of cake until you get to the top. You find you can't
    stop playing the game the way you've always played it. So you are lean
    and mean and resourceful, and you continue to walk on the edge of the
    precipice, because over the years, you have become fascinated by how
    closely you can walk without losing your balance.

        Ladies and gentleman of this fine and distinguished body, I
    submit to you that William Jefferson Clinton has lost his
    balance. He has lost his sense of right and wrong, of truth and
    justice. And, by doing so, he has--to paraphrase Alexander
    Hamilton in Federalist No. 65--abused and violated the trust of
    the American people.
        Again, let me quote my esteemed colleague, Senator Dianne
    Feinstein, who said just a few months ago: ``My trust in his
    credibility has been badly shattered.''
        Senator Feinstein is not an island on this issue of
    shattered trust. There are many others who have expressed
    similar sentiments. A recent poll confirms what we all know,
    that is, the American people do not trust their Commander in
    Chief. A majority of Americans believe that President Clinton
    has lied to the country and that he will lie to the country
    again.
        The New York Times, which I rarely ever quote, had this to
    say about the President's violation of the public trust:

        ``The American President is a person who sometimes must ask people
    in the ranks to die for the country. The President is a person who asks
    people close around him to serve the government for less money than
    their talents would bring elsewhere. The President sometimes requires
    that people out in the country sacrifice their dollars or their
    convenience for national goals. All he is asked to provide in return is
    trustworthiness, loyalty and judgment. . . . President Clinton has
    failed that simple test abjectly, not merely with undignified private
    behavior in a revered place, but with his cavalier response to public
    concern.''

        In 1829, at his home in Lexington, Kentucky, Henry Clay
    opined that ``[g]overnment is a trust, and the officers of the
    government are trustees[.]'' I believe that fundamental
    principle to be true, and I believe that William Jefferson
    Clinton has abused and violated that public trust.
        His cold, calculated actions betrayed the trust vested in
    him by the American people and the high office of the
    presidency. The President of the United States looked 270
    million Americans in the eye, and lied--deliberately and
    methodically. He took an oath to faithfully execute the laws of
    this Nation, and he violated that oath. He pledged to be the
    Nation's chief law enforcement officer, and he violated that
    pledge. He took an oath to tell the truth, the whole truth, and
    nothing but the truth, and he willfully and repeatedly violated
    that oath.
        I firmly believe that the evidence establishes beyond a
    reasonable doubt that William Jefferson Clinton made statements
    to the Federal grand jury regarding the nature of his
    relationship with a subordinate government employee and the
    purpose of his post-deposition conversation with a loyal
    secretary that were false, misleading, and perjurious, and
    warrant removal from office. Thus, I find the President guilty
    under article I.
        I believe with equal conviction that the evidence
    establishes beyond a reasonable doubt that William Jefferson
    Clinton willfully engaged in a deliberate course of conduct
    designed to delay, impede, cover up, and conceal the existence
    of evidence and testimony relating to a Federal civil rights
    action against him, and that this conduct warrants removal from
    office. Thus, I find the President guilty under article II.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Edward M. Kennedy

        Mr. KENNEDY. Mr. Chief Justice, every 4 years, citizens of
    our country exercise one of the most important rights of our
    democracy--the right to vote for the President of the United
    States. This constitutional privilege is valued by all
    Americans and envied by millions around the world. It proves
    that the will of the majority will prevail, and that power will
    be transferred peacefully through the election process from one
    President to the next, time and again.
        The essence of our democracy is the power of the right to
    vote. Many of our greatest battles in the Senate and the
    country in recent decades have been waged to extend and protect
    that right.
        I think especially of the Voting Rights Acts, which have
    been at the heart of our civil rights debates. I think of our
    success in 1970 in lowering the voting age to 18, so that young
    Americans who were old enough to fight in the Vietnam War would
    be old enough to vote about that war, which America never
    should have fought. I think of the Supreme Court's great
    decision on one person, one vote, and our efforts in Congress
    to protect it.
        I also think of the success of democracy in other lands--in
    Chile and Argentina and other nations in our hemisphere--and in
    Greece, in South Africa, and in many other countries.
        The framers of the Constitution clearly understood the
    fundamental place of the right to vote in the new democracy
    they were creating. They clearly did not intend the Impeachment
    Clause to nullify the vote of the people, except in the most
    extraordinary cases of great danger to the nation.
        The entire history of the debates at the Constitutional
    Convention demonstrates their clear intent to limit impeachment
    as narrowly as possible, to prevent a willful partisan majority
    in Congress from undermining the right to vote and the power of
    the President the people had elected.
        The framers of the Constitution also made clear that the
    President was not to be subordinate to the Senate or the House
    of Representatives. The new government they created was based
    on another fundamental principle as well--the principle of
    separation of powers among the three coequal branches of
    government--the executive branch, the legislative branch, and
    the judicial branch. They specifically did not create a
    parliamentary system of government, in which the President
    would serve at the pleasure of Congress.
        In their wisdom, the framers recognized that in certain
    extreme cases, a narrow exception to the orderly transfer of
    Presidential power through national elections every 4 years was
    necessary to protect the nation from an abusive President. And
    so they created the impeachment process, by which the President
    could be removed from office by the Senate and the House of
    Representatives in extreme cases where the President had
    committed ``Treason, Bribery, or other high Crimes and
    Misdemeanors''.
        The framers of the Constitution made clear that the orderly
    transfer of presidential power through national elections was
    to be scrupulously followed. They took great care to guarantee
    that this transfer would rarely, if ever, be undermined by the
    impeachment of the President. Removal of the President would
    come only after the House of Representatives--with the sole
    power to impeach--and the Senate--with the sole power to
    conduct a trial--found that the President had committed
    ``Treason, Bribery, or other high Crimes and Misdemeanors,'' a
    term borrowed from the English impeachment experience.
        Clearly, the framers intended the House and the Senate to
    use the impeachment power cautiously, and not wield it
    promiscuously for partisan political purposes. Sadly, in this
    case, Republicans in the House of Representatives, in their
    partisan vendetta against the President, have wielded the
    impeachment power in precisely the way the framers rejected--
    recklessly and without regard for the Constitution or the will
    of the American people.
        First, Republicans on the House Judiciary Committee
    essentially swallowed the referral of independent counsel
    Kenneth Starr whole, without seriously questioning it or
    calling any witnesses. They used the referral as the foundation
    for articles of impeachment which were released to the public
    before the White House counsel had an opportunity to complete
    their testimony before the Committee.
        Why were the House Judiciary Committee and the House of
    Representatives on the fast track to impeachment? Because, as
    House Manager Hyde told the Senate, ``we were operating under
    time constraints which were self-imposed but I promised my
    colleagues to finish it before the end of the year. I didn't
    want to drag it out.'' In the battle between speed and
    fairness, should speed have prevailed over fairness? Clearly
    not. But the lame duck Republican House of Representatives was
    bent on acting before the last Congress ended, fearful that
    their slimmer majority in the current Congress would not
    approve any articles of impeachment at all.
        In their most blatant attempt of all to stack the deck
    against the President, the House Republican leadership refused
    to allow a fair vote on censure as an alternative to
    impeachment, an alternative that would have ended this unseemly
    charade two months ago. Instead, Members of the House were
    given a single choice--a vote to impeach the President or do
    nothing.
        After their partisan victory in the House of
    Representatives, the House managers brought their vendetta
    against the President to the Senate. They brought thousands of
    pages of evidence, containing 22 statements by Monica Lewinsky,
    6 statements by Vernon Jordan, 3 statements by Sidney
    Blumenthal, the videotaped deposition of President Clinton in
    the Jones case, and the videotaped record of his appearance
    before the grand jury. Their opening statements attempted to
    shed the most favorable light on the evidence, but it was
    quickly apparent that they had not and could not persuade two-
    thirds of the Senate to remove the President.
        While trying to persuade Senators to convict President
    Clinton, the House managers argued relentlessly for the
    opportunity to examine witnesses during the trial. The
    hypocrisy in the position of the House managers on witnesses
    was obvious. They did not think it was necessary to call
    witnesses in the House proceedings. They demeaned the House by
    their partisan excesses. But they were shameless in their
    attempt to force the Senate to wallow in witnesses.
        Our Republican friends have desperately been trying to
    produce a two-thirds majority to remove the President from
    office. But their efforts have succeeded only in turning a
    serious constitutional process into a partisan process that
    demeaned both the House and the Senate and became a painful
    ordeal for the entire country.
        In pursuing the allegations of perjury and obstruction of
    justice, the House managers presented an ever changing,
    constantly shifting list of charges to the Senate. Veteran
    prosecutors testified before the House Judiciary Committee that
    they would never prosecute such a case, and that it would be
    irresponsible for the Senate to attempt to use these
    allegations as a basis to remove the President from office.
        Some of the allegations of perjury by the House managers
    were laughable. Clearly, it was not perjury for the President
    to use the phrase ``certain occasions'' to describe the
    frequency of his contacts with Miss Lewinsky, or to use the
    word ``occasional'' to describe the frequency of his telephone
    conversations with her.
        Even the few allegations of perjury and obstruction of
    justice that are arguably more serious are far from proven
    beyond a reasonable doubt, which is the standard that I believe
    should be applied by the Senate in considering the facts of
    this case. Indeed, I do not believe they were proved by clear
    and convincing evidence. But even if any such allegations were
    true, they still fall far short of the constitutional standard
    required for impeaching a President and removing him from
    office.
        President Clinton's behavior was wrong. All of us condemn
    it. None of us condones it. He failed to tell the truth about
    it, and he misled the country for many months. But nothing he
    did rises to the high constitutional standard required for
    impeachment and removal of a President from office.
        I believe that conclusion is required by the Constitution.
    At the time of the Constitutional Convention in 1787, the
    framers engaged in a vigorous debate about the role of the
    President, the new chief executive they were creating. In
    addition to determining the basic powers of the office, many of
    those at the convention debated whether or not impeachment
    should apply at all to the President. As University of Chicago
    Law School Professor Cass Sunstein told the House Judiciary
    Subcommittee on the Constitution, ``Many of the framers wanted
    no impeachment power whatsoever . . . [t]hey suggested that in
    a world of separation of powers and election of the President,
    there was no place for impeachment. . . . That position was
    defeated by reference to egregious hypotheticals in which the
    President betrayed the country during war or got his office
    through bribery. Those are the cases that persuaded the swing
    votes that there should be impeachment power.'' In the end, the
    framers reluctantly agreed that there might be limited
    circumstances in which a President should be removed from
    office by Congress in order to protect the country from great
    harm, without waiting for the next election.
        Once the framers concluded that the President could be
    removed by the legislature in such cases, they debated the
    standard for impeachment. Nine days before the final
    Constitution was signed, the impeachment provision was limited
    only to treason and bribery. George Mason then argued that the
    provision was too restrictive, and should be amended to include
    the phrase, ``or maladministration.'' But, vigorous opposition
    came from others who believed that such a vague phrase would
    give Congress too much power to undermine the President. Mason
    withdrew his original proposal and substituted the phrase,
    ``other high Crimes and Misdemeanors against the State''--a
    phrase well-known from English law.
        The Constitutional Convention adopted the modification by a
    vote of eight States to three--confident that only serious
    offenses against the Nation would provide the basis for
    impeachment. Later, the Committee of Style removed the words,
    ``against the State,'' but because the committee had been
    instructed not to change the meaning of any provision, the
    impeachment clause should be interpreted as it was originally
    drafted.
        The debate surrounding the impeachment clause was
    significant. By first expanding and then narrowing the clause,
    the framers clearly intended that the President could be
    removed from office for ``crimes'' beyond treason and bribery,
    but that he could not be removed for inefficient administration
    or administration inconsistent with the dominant view in
    Congress. Impeachment was not to be the illegitimate twin of
    the English vote of ``no confidence'' under a parliamentary
    system of government. The doctrine of separation of powers was
    paramount. The President was to serve at the pleasure of the
    people, not the pleasure of the Congress, and certainly not at
    the pleasure of a willful partisan majority in the House of
    Representatives.
        As Charles Black stated in his highly regarded work on
    impeachment, the two specific impeachable offenses--treason and
    bribery--can help identify both the ``ordinary crimes which
    ought also to be looked upon as impeachable offenses, and those
    serious misdeeds, not ordinary crimes, which ought to be looked
    on as impeachable offenses . . .'' Using treason and bribery as
    ``the miners' canaries,'' Professor Black states that ``high
    crimes and misdemeanors, in the constitutional sense, ought to
    be held to be those offenses which are rather obviously wrong,
    whether or not `criminal,' and which so seriously threaten the
    order of political society as to make pestilent and dangerous
    the continuance in power of their perpetrator.''
        The distinguished historian, Professor Arthur Schlesinger,
    told the House Judiciary Subcommittee on the Constitution, the
    ``[e]vidence seems to me conclusive that the Founding Fathers
    saw impeachment as a remedy for grave and momentous offenses
    against the Constitution; George Mason said, great crimes,
    great and dangerous offenses, attempts to subvert the
    Constitution.''
        In addition to Professor Schlesinger, over 430 law
    professors and over 400 historians and constitutional scholars
    have stated emphatically that the allegations against President
    Clinton do not meet the standard set by the Constitution for
    impeachment. The scholarly support for the argument that the
    charges against President Clinton do not rise to the level of
    impeachable offenses--even if they are true--is overwhelming,
    and it cannot be ignored.
        The law professors wrote, ``[i]t goes without saying that
    lying under oath is a very serious offense. But even if the
    House of Representatives had the constitutional authority to
    impeach for any instance of perjury or obstruction of justice,
    a responsible House would not exercise this awesome power on
    the facts alleged in this case.''
        The historians wrote, ``[t]he framers explicitly reserved
    [impeachment] for high crimes and misdemeanors in the exercise
    of executive power. Impeachment for anything else would,
    according to James Madison, leave the President to serve
    `during the pleasure of the Senate,' thereby mangling the
    system of checks and balances that is our chief safeguard
    against abuses of power . . . Although we do not condone
    President Clinton's private behavior or his subsequent attempts
    to deceive, the current charges against him depart from what
    the framers saw as grounds for impeachment.''
        The House managers apparently made no attempt to obtain
    scholarly support for their opposition. It is a fair inference
    that they did not do so because they knew they could not obtain
    it.
        The House managers argue that because the Senate convicted
    and removed three federal judges for making perjurious
    statements, we must now convict and remove the President. But,
    to determine whether or not President Clinton should be removed
    from office requires the Senate to do more than make simplistic
    analogies to federal judges.
        Removal of the President of the United States and removal
    of a Federal judge are vastly different. The President is
    unique, and his role is in no way comparable to the role of the
    over 900 Federal judges we have today. The impact on the
    country of removing one of 900 Federal judges is infinitesimal,
    compared to the impact of removing the only President we have.
    And the people elect the President for a specific 4-year term,
    while Federal judges are appointed for life, subject to good
    behavior. These distinctions are obvious, and they make all the
    difference.
        Other precedents also undermine the House managers'
    insistence that the Senate is bound to remove President Clinton
    from office. The House Judiciary Committee refused on a
    bipartisan basis to impeach President Nixon for deliberately
    lying under oath to the Internal Revenue Service, although he
    underreported his taxable income by at least $796,000. During
    the 1974 Judiciary Committee debates, many Republican and
    Democratic members of the Committee agreed that tax fraud was
    not the kind of abuse of power that impeachment was designed to
    remedy.
        Finally, the House managers argue that President Clinton
    must be removed to protect the rule of law and cleanse the
    office. It is not enough, they say, that he can be prosecuted
    once he leaves office. But protecting the rule of law under the
    Constitution is not the proper standard for removal of the
    President. Before impeaching and convicting the President, the
    Senate must find that he committed ``Treason, Bribery, or other
    high Crimes and Misdemeanors.'' As Professor Laurence Tribe
    testified before the House Judiciary Subcommittee on the
    Constitution, ``[i]f the proposition is that when the President
    is a law breaker, has committed any crime, then the rule of law
    and the take care clause requires that one impeach him, then we
    have rewritten the [impeachment] clause.''
        The Constitution has guided our country well for two
    centuries. The decision we make now goes far beyond this
    President. As we decide whether President Clinton will be
    removed from office, the future of the Presidency and the well-
    being of our democracy itself are at stake.
        How will history remember this Congress? The Radical
    Republicans in the middle of the 19th century were condemned in
    the eyes of history for using impeachment as a partisan
    vendetta against President Andrew Johnson. And I believe the
    Radical Republicans at the end of the 20th century will be
    condemned even more severely by history for their partisan
    vendetta against President Clinton.
        The impeachment process was never intended to become a
    weapon for a partisan majority in Congress to attack the
    President. To do so is a violation of the fundamental
    separation of powers doctrine at the heart of the Constitution.
    It is an invitation to future partisan majorities in future
    Congresses to use the impeachment power to undermine the
    President. It could weaken Republican and Democratic Presidents
    alike for years to come.
        This case is a constitutional travesty. We deplore the
    conduct of President Clinton that led to this year-long
    distraction for the Nation. But we should deplore even more the
    partisan attempt to abuse the Constitution by misusing the
    impeachment power.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Susan M. Collins

        Ms. COLLINS. Mr. Chief Justice, my colleagues, the issue
    now before the Senate may well be the most significant of our
    public careers. Other than declaring war, it is difficult to
    imagine a weightier decision that could come before us than
    whether to remove the President of the United States from
    office.
        Our founders designed impeachment to protect our system of
    government against officials who lose their moorings in the law
    or who endanger our most basic institutions. They designed it
    neither as a popular referendum nor as a mechanism by which--as
    in parliamentary systems--the legislature can remove the head
    of government based on nothing more than a policy difference.
    Instead, this process is a check upon rogue chief executives,
    designed equally to remove the politically popular malefactor
    and to protect the innocent, but unpopular, official. It is a
    vital, but extraordinary, remedy that should neither be shunned
    out of political expediency nor invoked for political gain.
        The question before us is not whether President Clinton's
    conduct was contemptible or utterly unworthy of the great
    office he holds. It was. The question before us is whether the
    President has committed an impeachable offense for which he
    should be removed from that office.
        The framers thought carefully about where to vest the
    ultimate power to remove a President. They chose the United
    States Senate. This was not an obvious choice. The power to
    convict and remove could as easily have been assigned to a
    court of law, where a jury would apply the law to the facts in
    the ordinary way.
        But the framers gave the power to try impeachments to the
    Senate. They did so because they recognized that an impeachment
    trial should not be an ordinary trial, requiring an ordinary
    application of law to fact. The framers wanted the Senate to
    make not only a determination of guilt, but also a judgment
    about what is best for our nation and its institutions.
        Throughout this impeachment trial, in order to lessen the
    ambiguity in this process, I have sought to find a way to allow
    the Senate to express its view of the facts we have so
    carefully considered for the past month. The vote we now
    approach is to convict or acquit. It is a blunt instrument that
    does not allow me to express clearly my belief that President
    Clinton willfully lied to a Federal grand jury, and that he
    wrongfully tried to influence testimony and to conceal evidence
    related to Paula Jones' lawsuit.
        As this case has been argued in this chamber, I have become
    convinced that the perjury charges of article I are not fully
    substantiated by the record. The President's grand jury
    testimony is replete with lies, half-truths, and evasions. But
    significantly, not all evasion is lying, and not all lying is
    perjury. Even blatantly misleading testimony that all fair-
    minded people would consider dishonest may not actually
    constitute perjury, as the law defines it.
        Time and time again, the attorneys questioning President
    Clinton before the grand jury--perhaps out of a misguided sense
    of deference--neglected to pin him down as he gave
    nonresponsive, evasive, confusing, or simply absurd responses.
    The only remedy for imprecise answers is more precise
    questioning. Unfortunately, this did not occur, and
    consequently, the record is too murky to require the
    President's removal based on article I.
        The evidence supporting article II is more convincing.
    Indeed, the case presented by the House managers proves to my
    satisfaction that the President did, in fact, obstruct justice
    in Paula Jones' civil rights case. While the circumstances
    surrounding Monica Lewinsky's filing of a false affidavit are
    unclear, there is no doubt in my mind that the frantic efforts
    to find Ms. Lewinsky a job, the retrieval and concealment of
    gifts under the bed of the President's secretary, and, most
    egregious, the President's blatant coaching of Betty Currie--
    not once, but twice--were clear attempts to tamper with
    witnesses and obstruct justice. Indeed, if I were a juror in an
    ordinary criminal case, I might very well vote to convict faced
    with these facts.
        Nevertheless, I do not think that the President's actions
    constitute a ``high crime'' or ``misdemeanor'' as contemplated
    by article II, section 4 of the Constitution. This is, I
    readily acknowledge, a judgment that can neither be made nor
    explained with anything approaching scientific precision. But I
    can point to two factors that influence my conclusion.
        First, obstruction of justice is generally more serious in
    a criminal case, as opposed to a civil case, as it interferes
    with the effective enforcement of our Nation's laws and not
    solely with the adjudication of private disputes. Consistent
    with this conclusion, the vast majority of obstruction
    prosecutions involve underlying criminal actions, and the
    statutory penalties are more severe in the context of criminal
    trials. This is not to suggest for a moment that we should
    tolerate obstruction of justice in civil cases, but only to
    observe that our legal system treats it as a less serious
    offense.
        Second, I believe that for impeachment purposes,
    obstruction of justice has more ominous implications when the
    conduct concealed, or the method used to conceal it, poses a
    threat to our governmental institutions. Neither occurred in
    this case.
        Therefore, I will cast my vote not for the current
    President, but for the presidency. I believe that in order to
    convict, we must conclude from the evidence presented to us
    with no room for doubt that our Constitution will be injured
    and our democracy suffer should the President remain in office
    one moment more.
        In this instance, the claims against the President fail to
    reach this very high standard. Therefore, albeit reluctantly, I
    will vote to acquit William Jefferson Clinton on both counts.
        In voting to acquit the President, I do so with grave
    misgivings for I do not mean in any way to exonerate this man.
    He lied under oath; he sought to interfere with the evidence;
    he tried to influence the testimony of key witnesses. And,
    while it may not be a crime, he exploited a very young, star-
    struck employee whom he then proceeded to smear in an attempt
    to destroy her credibility, her reputation, her life. The
    President's actions were chillingly similar to the White
    House's campaign to discredit Kathleen Willey.
        As much as it troubles me to acquit this President, I
    cannot do otherwise and remain true to my role as a Senator. To
    remove a popularly elected President for the first time in our
    Nation's history is an extraordinary action that should be
    undertaken only when the President's misconduct so injures the
    fabric of democracy that the Senate is left with no option but
    to oust the offender from the office the people have entrusted
    to him.
        President Clinton has written a shameful and permanent
    chapter of American history. He alone is responsible for this
    year of agony that the American people have endured. I do not,
    however, take solace in the prospect of a censure, nor do I
    take comfort in the possibility that the President may be
    prosecuted for his wrongdoing after he leaves office. Rather, I
    look to the verdict of history to provide the ultimate
    punishment for this president, a verdict that no public
    relations gloss or smear campaign can obscure. As Maine's great
    poet, Henry Wadsworth Longfellow, wrote in 1874, ``Whatever
    hath been written shall remain, nor be erased, nor written o'er
    again.'' When the history of the Clinton presidency is written,
    every book will begin with the fact that William Jefferson
    Clinton was impeached, and that will be not only the ultimate
    censure but also the final verdict on this sad chapter in our
    Nation's history.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Tom Harkin

        Mr. HARKIN. Mr. Chief Justice, a few weeks ago, I used a
    barnyard term that is quite known in Iowa to describe what I
    thought of this case. The longer this case has gone on, the
    more I am convinced this characterization is correct.
        This case should never have been brought before the Senate.
    I think it is one of the most blatant partisan actions taken by
    the House of Representatives since Andrew Johnson's case was
    pushed through by the radical Republicans of his time.
        I think it is important for us to take a look at how this
    case got here. One might ask why is it important how it got
    here?
        Well, if you believe that the end justifies the means, it
    is probably not very important. But if you believe the end
    doesn't justify the means, that those who are charged with
    enforcing the law cannot break the law in order to bring
    someone to the bar of justice, and if you believe the rule of
    law applies not only to the defendant, the President in this
    case, but also to the prosecutors and those sworn to uphold
    that rule of law, then it is important to look at how the case
    got here.
        First, we have a statute, the independent counsel statute
    which at best I believe is flawed and at worst unworkable which
    allows someone to be targeted without regard to money or time.
    In fact, it has essentially created a fourth branch of
    Government with no checks or balances.
        Again, the conduct, I want to point out, of Ken Starr does
    not excuse the behavior of the President but has everything to
    do with our perspective on the case and how we approach it, how
    we weigh our decision. We are not jurors, we are judges and the
    supreme court of impeachment, which has some of the elements of
    a court of equity. If somebody approaches this court, they
    better do it with clean hands.
        Where the political motivation is so blatant, as it has
    been in this case, I think we in the Senate should have our
    guard up, not only on what the case is about, but how it got
    here. This is the sort of political impeachment case that
    Madison and Hamilton wanted to avoid, and I refer you to
    Federalist No. 65, and Hamilton warned the greatest danger
    would be ``that the decision will be regulated more by the
    comparative strength of parties than by the real demonstrations
    of innocence or guilt.'' That is why he argued for it to come
    to the Senate and have a two-thirds requirement in order to
    convict and remove.
        So in the beginning, Ken Starr is picked by a three-judge
    panel to investigate Whitewater. Whitewater turns into
    Travelgate. Travelgate turns into Filegate, and then one
    wonders, how did Monica Lewinsky ever drop in on this?
        If we look back, when Ken Starr was a private attorney, in
    1994, he had dealings with Paula Jones' attorneys in terms of
    her then-pending lawsuit. So he had prior involvement himself
    with the Paula Jones case.
        So the Paula Jones case proceeds forward. And in October of
    1997, an entity called the Rutherford Institute, funded by
    conservative forces in the United States, found some new
    attorneys for Paula Jones and became heavily involved in the
    case.
        Now some time around that time, Linda Tripp, with whom
    Monica Lewinsky had shared her most intimate details of her
    involvement with the President, begins talking with these
    attorneys. That is sort of the status of the case as of
    December 1997.
        And here I ask unanimous consent to have printed an article
    from the New York Times, dated January 24, which more or less
    documents this.
        There being no objection, the article was ordered to be
    printed in the Record, as follows:
                    [From the New York Times, Jan. 24, 1999]

      Quietly, Team of Lawyers Who Disliked Clinton Kept Jones Case Alive

                    (By Don Van Natta Jr. and Jill Abramson)
        Washington, Jan. 23.--This time last year, Hillary Rodham Clinton
    described, in a now-famous appearance on the NBC News program
    ``Today,'' how a ``vast right-wing conspiracy'' was trying to destroy
    her husband's Presidency.
        As it turns out, some of the most serious damage to Bill Clinton's
    Presidency came not from his high-profile political enemies but from a
    small secret clique of lawyers in their 30's who share a deep antipathy
    toward the President, according to nearly two dozen interviews and
    recently filed court documents.
        While cloaking their roles, the lawyers were deeply involved--to an
    extent not previously known--for nearly five years in the Paula Jones
    sexual misconduct lawsuit. They then helped push the case into the
    criminal arena and into the office of the independent counsel, Kenneth
    W. Starr.
        The group's leader was Jerome M. Marcus, a 39-year-old associate at
    the Philadelphia law firm of Berger & Montague, whose partners are
    major contributors to the Democratic Party.
        Although Ms. Jones never met him or knew he had worked on her
    behalf, Marcus drafted legal documents and was involved in many of the
    important strategic decisions in her lawsuit, according to billing
    records and interviews with other lawyers who worked on the case. As
    much as any of Ms. Jones's attorneys of record, Marcus helped keep Ms.
    Jones's case alive in the courts.
        Marcus recruited others to assist his efforts, including several
    friends from the University of Chicago Law School. One of those who was
    approached, Paul Rosenzweig, briefly considered doing work for Ms.
    Jones in 1994, according to billing records and interviews, but decided
    not to. In November 1997, Rosenzweig joined Starr's office, where he
    and Marcus had several telephone conversations about the Jones case.
        It was Rosenzweig who fielded a ``heads-up'' phone call from Marcus
    on Jan. 8, 1998, that first tipped off Starr's office about Monica S.
    Lewinsky and Linda R. Tripp. The tip was not mentioned in the 445-page
    Starr report, even though the information revived a moribund Whitewater
    investigation that would not have produced, it now seems, an
    impeachment referral to Congress.
        Marcus did make his views known publicly last month when he wrote
    an impassioned commentary in The Washington Times urging the
    impeachment of Clinton. ``The cancer is deadly,'' Marcus wrote. ``It,
    and its cause, must be removed.'' He identified himself in the
    newspaper simply as ``a lawyer in Philadelphia.''
        In his long efforts to promote Ms. Jones's lawsuit, and helping
    Mrs. Tripp find her way to Starr, Marcus found other allies, including
    another Chicago law classmate, Richard W. Porter. Porter had worked as
    an aide to former Vice President Dan Quayle and was a partner of
    Starr's at the law firm of Kirkland & Ellis, based in Chicago.
        George T. Conway 3d, a New York lawyer educated at Yale, shared
    Marcus's low view of President Clinton. When the Jones case led to Ms.
    Lewinsky, Marcus and Conway searched for a new lawyer for Mrs. Tripp.
    Marcus and Porter helped arrange for Mrs. Tripp to take her explosive
    allegations to Starr.
        Their efforts are only now coming into focus, as a few of their
    associates have begun to discuss their activities and their names
    appear repeatedly in the final legal bills submitted by the original
    Jones legal team. Messrs. Marcus, Porter and Conway did not respond to
    numerous requests for comment.
        In their arguments before the Senate this week, the President's
    lawyers said that there was collusion between Starr's office, Mrs.
    Tripp and the lawyers for Ms. Jones in the weeks leading up to the
    President's deposition last January. If witnesses are called in the
    Senate impeachment trial, the President's lawyers may explore the issue
    further, several Clinton legal advisers said.
        Charles G. Bakaly 3d, the spokesman for Starr, denied there was
    collusion between the independent counsel's office and the Jones team,
    including Marcus. ``There was absolutely no conspiracy between the
    Jones lawyers and our office,'' Bakaly said. ``Judge Starr has
    testified to the circumstances as to how this matter came to our
    attention, and the actions that we took thereafter.''
        Clinton said in his grand jury testimony in August that his
    political enemies ``just thought they would take a wrecking ball to me
    and see if they could do some damage.'' That wrecking ball was wielded
    by Marcus and his colleagues, who managed to drive Paula Corbin Jones's
    allegation of sexual misconduct into the courtroom and beyond.
        Marcus, Porter and Rosenzweig were classmates at the University of
    Chicago Law School, graduating in 1986. Conway met the others through
    the Jones case. Some of the lawyers were also involved with the
    Federalist Society, a legal group that includes conservative and
    libertarian luminaries like Starr, Robert H. Bork and Richard Epstein,
    a University of Chicago law professor.
        Porter was the most overtly political member of the group, having
    worked on the staff of Vice President Quayle and on the Bush-Quayle
    campaign, where he did opposition research.
        Porter was also an associate of Peter W. Smith, 62, a Chicago
    financier who was once the chairman of College Young Republicans and a
    major donor to Gopac, a conservative political group affiliated with
    former Speaker Newt Gingrich. Beginning in 1992, Smith spent more than
    $80,000 to finance anti-Clinton research in an effort to persuade the
    mainstream press to cover Clinton's sex life. Among others, his efforts
    involved David Brock, the journalist who first mentioned the name
    ``Paula'' in an article on Clinton.
        Smith declined an interview request.
        In 1993, Brock said, Smith helped introduce him to the Arkansas
    state troopers who accused Clinton of using them to procure women when
    he was Governor of Arkansas. Brock wrote an article based on the
    troopers' account of Clinton's sexual escapades that was published in
    the January 1994 issue of The American Spectator, a conservative
    magazine. According to Brock, Smith wanted to establish a fund for the
    troopers, in case they suffered retribution. Brock said he opposed
    payments because they would undermine the troopers' credibility.
        To allay his concerns, Brock said, Smith urged him to speak to
    Porter, who was then working at Kirkland & Ellis, the Chicago law firm
    that employed Starr in its Washington office. Brock said he had hoped
    his talk with Porter would put an end to any planned payments to the
    troopers, but Smith did pay them and their lawyers $22,600.
        In 1992, Smith also paid Brock $5,000 to research another bit of
    Arkansas sex lore regarding Clinton, a rumor that has since proved to
    be baseless.
        Brock did not pursue the article.
        Brock's trooper article in The American Spectator mentioned a woman
    identified as ``Paula,'' and in May 1994, Ms. Jones filed her lawsuit
    against President Clinton. Ms. Jones's lawyers of record were from the
    Washington area, Gilbert K. Davis and Joseph Cammarata, whom Marcus had
    helped recruit.
        The Davis and Cammarata billing records show that from their
    earliest involvement in the case, they were consulting with Marcus and
    Porter. Conway also helped draft briefs, Cammarata said.
        ``Marcus was involved,'' Cammarata said, ``but he insisted that he
    not be identified. But that was fine with me. We were just two guys
    involved in the middle of a world war. We welcomed his help.''
        No one was more important to the Jones case than Marcus. Besides
    helping to write several important briefs, Marcus spoke numerous times
    at the most critical moments in the case with Cammarata and Davis,
    offering legal advice that Cammarata said was ``vital.''
        According to the billing records, Porter also offered ``legal
    strategy'' and once wrote a memo on ``investigative leads'' that might
    embarrass the President.
        ``Porter was a cheerleader,'' Cammarata said. ``He used to call up
    and say, `Maybe we can find you some money.' ''
        One of President Clinton's legal advisers said he noticed a marked
    difference in quality between the routine legal pleadings filed by the
    Cammarata and Davis team, and the polished, scholarly briefs written by
    the shadow legal team headed by Marcus and Conway.
        Marcus, meanwhile, was so successful at keeping the extent of his
    role a secret that even Cammarata only found out recently that Marcus
    had trouble finding lawyers to agree to represent Ms. Jones. ``No one
    wanted to touch this case,'' Cammarata said. ``No one wanted to take on
    the President of the United States.''
        Another friend of Marcus also briefly considered assisting the
    Jones lawyers.
        In June 1994, Rosenzweig, a lawyer at a small law firm in
    Washington, with experience working in the Justice Department,
    expressed interest in doing legal work on behalf of Ms. Jones, but he
    did none, lawyers involved in the case said.
        Conway wanted his role kept hidden as well, because his New York
    law firm, Wachtell, Lipton, Rosen & Katz, included influential
    Democrats like Bernard W. Nussbaum, a former White House counsel.
    Conway's name does not appear on any billing records.
        Although the billing records show communication between Porter and
    the Jones lawyers from 1994 to 1997, he denied in a written statement
    last fall doing legal work for Ms. Jones.
        Because Porter is a partner at the firm where Starr worked until he
    took a leave of absence last August, any role played by Porter in the
    Jones case could have posed a conflict of interest for Starr once he
    became independent counsel. Starr has said he did not discuss the Jones
    case with Porter.
        Starr has acknowledged contacts with Davis, specifically six
    telephone discussions the two had in 1994, before Starr became
    independent counsel. In fact, Starr has been criticized for not
    disclosing the phone conversations to Attorney General Janet Reno when
    he was seeking to expand his investigation to the Lewinsky matter.
    Starr has said it did not occur to him to mention the conversations
    because he did not do work on the Jones case and simply offered his
    publicly stated position on a point of constitutional law that
    Presidents are not immune from civil lawsuits.
        Before the Jones lawyers argued before the Supreme Court in May
    1996, paving the way to the fateful 9-0 decision that the President was
    not immune from civil lawsuits, Conway went to Washington for a
    practice argument. He joined Davis, Cammarata, Judge Robert Bork and
    Theodore Olson, a Washington lawyer and friend of Starr, at the Army-
    Navy Club here.
        When Cammarata and Davis quit as Ms. Jones' lawyers after she
    failed to reach a settlement with President Clinton's lawyers in 1997,
    Marcus and his colleagues established ties to her new lawyers at the
    Dallas law firm of Rader, Campbell, Fisher & Pyke and the Rutherford
    Institute of Charlottesville, Va., which helped pay her legal expenses.
        In November 1997, Rosenzweig went to work as a prosecutor in
    Starr's office. And from November to January, Rosenzweig spoke several
    times by telephone with Marcus and discussed the Jones case, a lawyer
    with knowledge of the conversations said. But Bakaly, a spokesman for
    Starr, said that Rosenzweig did not tell any of his colleagues about
    what he learned about developments in the Jones case.
        By this time, Mrs. Tripp was cooperating with the Jones lawyers.
    She was also taping her conversations with Ms. Lewinsky, which her
    friend, Lucianne Goldberg, a Manhattan literary agent, had incorrectly
    assured her was legal. In December, Mrs. Tripp became frantic that she
    might be prosecuted because such taping is illegal in Maryland, where
    Mrs. Tripp lives. Mrs. Tripp and Ms. Goldberg thought of a possible
    solution: perhaps she could receive immunity from prosecution from
    Starr.
        Ms. Goldberg called Smith, the Chicago financier, and Porter for
    advice on how Mrs. Tripp might approach Starr. In a teleconference
    during the first week of January 1998, Ms. Goldberg talked to Porter
    and Marcus. Meanwhile, Marcus sought new lawyers for Mrs. Tripp. Conway
    suggested an old friend, James Moody, a Washington lawyer and fellow
    Federalist Society member, whom Mrs. Tripp retained.
        Because he was Starr's former law partner, Porter did not want to
    be the first one to call the independent counsel's office on behalf of
    Mrs. Tripp. So Marcus made the call to Rosenzweig.

        Mr. HARKIN. So now we have the involvement of Linda Tripp
    giving information to Paula Jones' attorneys. From about late
    October, early November until January 1998, a lawyer by the
    name of Jerome Marcus in Philadelphia, who has done extensive
    work for the Jones legal team, had been talking to a friend of
    his, Paul Rosenzweig, a prosecutor in Mr. Starr's office, about
    the Lewinsky matter. We didn't know the exact nature of these
    discussions, but we do know they talked a number of times. But
    we do know that on January 8 Marcus contacted Rosenzweig and
    told him about the relationship of Monica Lewinsky and the
    President.
        Right after this, Linda Tripp contacts the Office of
    Independent Counsel to talk about Lewinsky and tells them about
    the tapes she has made, the telephone tapes, the tapes of her
    telephone conversations with Monica Lewinsky. The day after
    that, Tripp is wired by FBI agents working with Starr, meets
    with Lewinsky, and records their conversation without
    Lewinsky's knowledge--and doing this without any authorization
    to do it. They didn't get it until 4 days later.
        Now, all this is done prior to President Clinton ever
    giving a deposition or testifying before a grand jury. And so
    Clinton has done nothing yet in terms of testifying. So one
    might ask, What was Starr and his team after? If, in fact, this
    was a consensual sexual relationship between Clinton and a
    young woman who was an adult, what did it have to do with
    Whitewater or anything else they were investigating?
        Well, here is why it had something to do with it. Let me
    quote from an article written by Joseph Isenburgh, a professor
    of law at the University of Chicago. I happen to have read it
    because he was supporting this findings of fact procedure, and
    I wanted to see what his thoughts were. But later on in his
    treatise he said this:

        What is perverse about the impeachment of President Clinton is the
    idiotic premise on which it rests. The President wasn't forced to
    respond to judicial process in the Paula Jones sexual harassment suit
    because he committed a crime of paramount public concern. That case,
    remember, was dismissed as meritless.

        I am continuing to quote him:

        The misconduct at issue here had no independent significance. It
    is, itself, merely a byproduct of a judicial process directed at the
    President, essentially of a ``sting'' set-up in the courts.

        ``A `sting' set-up in the courts.'' That is what Ken Starr
    and the Jones attorneys, working in tandem, were doing, setting
    him up. And you can see this clearly when you watch Clinton on
    videotape in the deposition before the Paula Jones attorneys.
    They present him with this definition of ``sexual relations''
    that even the judge herself said was confusing. They knew what
    they were going after. But President Clinton did not know that
    they had all this information about his involvement with Monica
    Lewinsky--a classic sting operation.
        Also, keep in mind that Linda Tripp briefed the Paula Jones
    attorneys the night before that deposition and gave them the
    tapes of her telephone conversations. In light of this, it is
    interesting to note that in today's New York Times, February
    10, the conduct of the independent counsel is so suspect and
    potentially violative of Justice Department policy and law that
    he now is under investigation for a number of reasons which I
    won't read. But I ask unanimous consent that it be printed in
    the Record. And you can read it in today's New York Times.
        There being no objection, the articles were ordered to be
    printed in the Record, as follows:

                  [From the New York Times, February 10, 1999]

            Inquiry to Ask Whether Reno Was Misled by Starr's Office

                   (By David Johnston and Don Van Natta, Jr.)
        Washington, Feb. 9.--The Justice Department has decided to begin an
    inquiry to determine whether Kenneth W. Starr's prosecutors misled
    Attorney General Janet Reno about possible conflicts of interest when
    they obtained permission to investigate the Lewinsky matter in January
    1998, Government officials said today.
        Among other concerns, the inquiry will focus on whether the
    prosecutors should have disclosed the contacts between Mr. Starr's
    office and the Paula Jones legal team in the weeks leading up to Mr.
    Starr's decision to ask Ms. Reno to expand his inquiry beyond the
    Whitewater matter, said the officials, who spoke on the condition of
    anonymity.
        In recent months, documentation has emerged indicating that there
    were conversations between a prosecutor in Mr. Starr's office and a
    lawyer working behind the scenes with the Jones legal team from
    November 1997 to January 1998.
        But a series of newly disclosed notes taken at the initial meetings
    on Jan. 15 and Jan. 16, 1998, between Mr. Starr's prosecutors and
    Justice Department officials, shows that the prosecutors flatly
    asserted that there had been no contacts with the Jones team.
        For example, Eric H. Holder, Jr., the Deputy Attorney General,
    wrote in this three pages of notes of a Jan. 15, 1998, meeting with Mr.
    Starr's prosecutors: ``They've had no contact with plaintiff's attys.''
        Handwritten notes by two other Justice Department officials, Monty
    Wilkinson and Josh Hochberg, corroborate the statements attributed to
    Mr. Starr's prosecutors.
        Moreover, notes taken by another participant in the meeting, Steven
    Bates, a prosecutor in Mr. Starr's office, indicate that Jackie M.
    Bennett, one of Mr. Starr's deputies, told the Justice Department
    officials: ``We've had no contact with the plaintiffs' attorneys. We're
    concerned about appearances.''
        The notes have become crucial evidence in the Justice Department
    inquiry, which will be conducted by the Office of Professional
    Responsibility, which investigates prosecutorial misconduct. The
    lawyers' notes became public just last month as part of the Senate
    record of documents related to the impeachment trial of the President.
        The truthfulness of Mr. Starr's prosecutors is one of several
    issues that the department wants to examine, the Government officials
    said. Lawyers in the ethics office also intend to investigate whether
    Mr. Starr abused his authority to convene grand juries, or improperly
    pressed witnesses like Ms. Lewinsky, and disclosed secret grand jury
    information to reporters, the officials said.
        Mr. Clinton's lawyers and supporters have long contended that there
    was collusion between Mr. Starr's office and the conservative Jones
    lawyers, noting that Linda R. Tripp found her way to the Office of
    Independent Counsel through a group of private lawyers who performed
    legal work on the Jones case. Mr. Starr has insisted that his office
    sought permission from Ms. Reno to expand his jurisdiction when he
    learned of allegations that President Clinton's close friend Vernon E.
    Jordan, Jr. was helping Monica S. Lewinsky find a job in exchange for
    her silence as a possible witness in the Jones lawsuit.
        Charles G. Bakaly 3d, a spokesman for Mr. Starr's office, would not
    comment on the Justice Department's plans to start an investigation.
    But Mr. Bakaly said the notes showed that prosecutors had supplied the
    Justice Department with a thorough status report on the then-nascent
    inquiry.
        ``I don't know how else to put it,'' Mr. Bakaly said. ``There was
    no misleading of Justice. This was a very fluid evolving situation.
    Unlike most public corruption cases, this one was ongoing; felonies
    were still possibly being committed.''
        This latest inquiry has exacerbated tensions that have existed
    between the Justice Department and the Office of Independent Counsel
    almost since the beginning of the Lewinsky scandal.
        At one point last spring, Ms. Reno asked her senior aides to
    research whether she had the authority to discipline Mr. Starr in some
    way that stopped short of removing him, said a former Justice
    Department official who spoke on condition of anonymity.
        Some aides told her that it would be a mistake, comparing it to the
    ``Saturday Night Massacre'' when President Nixon ordered the firing of
    the Watergate special prosecutor Archibald Cox in October 1973.
        But, the official said, Ms. Reno shot back: ``I'm not asking you to
    make a political judgment. I'm asking you to make a legal judgment.''
        Deepening hostilities between the Justice Department and Mr.
    Starr's office delayed the start of the new ethics inquiry. The ethics
    investigators recently wrote to Mr. Starr outlining the scope and
    authority for the investigation, the officials said. Mr. Starr's
    prosecutors are challenging the inquiry, asserting that the Attorney
    General does not have the authority to delve into highly sensitive
    grand jury material or investigative decisions that led Ms. Reno to
    refer the case to Mr. Starr.
        Ms. Reno's aides have said that investigative authority is implied
    by language in the independent counsel statute, which gives the
    Attorney General the sole responsibility to remove an independent
    prosecutor.
        Over time, Justice Department officials, including Ms. Reno, have
    become troubled by what they view as possible violations of Justice
    Department guidelines. From issues like calling the Secret Service
    before the grand jury to the crossfire over leaks to reporters, Mr.
    Starr's prosecutors and Justice Department officials have feuded
    privately.
        ``As time went on, people became more and more frustrated with
    him,'' the Justice Department official said of Mr. Starr. ``He seemed
    less concerned with Department of Justice policies.''
        The ethics lawyers are trying to determine whether prosecutors in
    Mr. Starr's office had a vested interest in the outcome of the Jones
    case, an interest that would have undercut their ability to impartially
    investigate allegations related to the lawsuit. If that conflict
    existed, the officials said, it would have been an important factor as
    Ms. Reno weighed whether to recommend to a three-judge panel that Mr.
    Starr take on the Lewinsky matter.
        At this point, the ethics unit of the Justice Department must
    determine whether Mr. Starr and his prosecutors violated departmental
    rules and prosecutorial guidelines. Their findings could lead to
    recommendations for disciplinary action, like reprimands or suspension
    of employment.
        The relationship between Ms. Reno and Mr. Starr began as a wary but
    cordial one that a Government official compared to ``Thatcher and
    Gorbachev.''
        At times, Ms. Reno has expressed exasperation over Mr. Starr's
    conduct, fuming over letters sent by Mr. Starr's prosecutors accusing
    the Justice Department of trying to undercut the inquiry.
        Mr. Starr's prosecutors had also grown angry and suspicious about
    Ms. Reno's aides, suggesting that the Justice Department was under the
    control of the White House and had quietly tried to squelch Mr. Starr's
    effort, the officials said.
        Since October, several news organizations have reported how Mr.
    Starr's office first learned about the Lewinsky matter. On Jan. 8,
    1998--four days before Linda R. Tripp contacted Mr. Starr's office--
    Jerome M. Marcus, a Philadelphia lawyer who did extensive work for the
    Jones legal team, informed Paul Rosenzweig, a prosecutor in Mr. Starr's
    office, about the Lewinsky accusations.
        The early tip was not disclosed in Mr. Starr's 445-page referral to
    Congress. Nor was it disclosed to the Justice Department. And The New
    York Times reported last month that there were several conversations
    between Mr. Marcus and Mr. Rosenzweig from November 1997 to January
    1998.
        David E. Kendall, one of the President's personal lawyers,
    complained to Ms. Reno in October that ``very serious questions'' were
    raised about those contacts.
        The allegations of collusion prompted lawyers at the Justice
    Department to turn their attention to their own recollections and their
    own handwritten notes, of statements made by Mr. Starr's
    representatives on Jan. 15, 1998, officials said today.
        One former Justice Department lawyer said in an interview that Ms.
    Reno was especially disappointed in the fact that the early phone call
    was not shared with her senior aides in January 1998.
        Last month, The New York Times reported that Mr. Marcus was the
    leader of a small secret group of lawyers working behind the scenes on
    the Jones case. Mr. Marcus drafted legal documents and was involved in
    many of the most important strategic decisions in the Jones lawsuit,
    according to billing records in the Jones case and interviews with
    other lawyers who worked with him.
        Mr. Marcus recruited other conservative lawyers to assist with his
    efforts, approaching among others, Paul Rosenzweig, who briefly
    considered doing work for Ms. Jones in 1994, the billing records show,
    but decided not to.
        In November 1997, Mr. Rosenzweig joined Mr. Starr's office, where
    he and Mr. Marcus had several conversations about the Jones case, said
    a lawyer familiar with their discussions.
        Mr. Bakaly, the spokesman for Mr. Starr, has adamantly denied any
    suggestion of collusion. When Mr. Starr testified before the House
    Judiciary Committee on Nov. 19 of last year, he was asked by the chief
    counsel for the minority, Abbe D. Lowell, about the ``substantial
    contacts'' that Mr. Starr had had with Jones lawyers.
        In a series of questions, Mr. Lowell tried to suggest that Mr.
    Starr should have revealed the contacts to the Justice Department in
    January 1998, and that Richard W. Porter, a partner of Mr. Starr's at
    the law firm, Kirkland & Ellis, had declined a request to represent Ms.
    Jones.
        ``I know Richard Porter; I've had communications with him from time
    to time,'' Mr. Starr testified. ``But in terms of a specific discussion
    with respect to what the law firm may be doing or may not be doing, I'm
    not recalling that specifically, no.''
                                     ______

                    [From the New York Times, Feb. 9, 1998]

         Tracing the Past: How Legal Paths of Jones and Lewinsky Joined

                       (By Tim Weiner with Neil A. Lewis)
        Washington, Feb. 8.--Shortly after 10 a.m. on Jan. 17, a Saturday,
    the president of the United States stepped out of the White House into
    the back of a black limousine and rode a block to his lawyer's office
    to undergo a six-hour grilling in the case of Paula Jones vs. William
    Jefferson Clinton.
        For six weeks, the president's lawyers had known that he might be
    asked a startling question: Did you have a sexual relationship with
    Monica Lewinsky? When the question came, the president's body tensed
    and his jaw tightened, said a lawyer involved in the case, and, under
    oath, he denied it.
        The questions continued: Had the president been alone with
    Lewinsky? Had he given her gifts? He said he might have been alone with
    her briefly while she performed some clerical task, and he might have
    given her some presidential souvenirs, the lawyer recalled.
        The deposition ended, President Clinton returned to the White
    House, canceled dinner plans with his wife and called his personal
    secretary, Betty Currie, asking her to meet him at the White House the
    next morning.
        When they met, the president asserted that he had never been alone
    with Lewinsky at the White House, said lawyers familiar with Mrs.
    Currie's account. But that assertion did not square with Mrs. Currie's
    recollection.
        In addition, Mrs. Currie had turned over to investigators a hat
    pin, a brooch and a dress she retrieved from Lewinsky, the lawyers
    said, items that are believed to have been given to her by the
    president but which do not fit his description of have been given to
    her by the president but which do not fit his description of White
    House souvenirs. It is not clear who, if anyone, instructed Mrs. Currie
    to retrieve the gifts.
        Was Clinton less than truthful about his relationship with
    Lewinsky, the 24-year-old former White House intern? Was he using his
    trusted secretary to hide evidence from Mrs. Jones, the former Arkansas
    state employee suing him over what she says was a crude sexual advance
    nearly seven years ago?
        The president's battle with the Whitewater independent counsel,
    Kenneth Starr--and, perhaps, Clinton's place in history--may depend on
    the answers. If he lied, or if he urged others to lie or conceal
    evidence, he could face the threat of impeachment.
        How did Clinton become the first president forced to testify under
    oath about his private life? How did the Jones case--once demeaned by
    the president's lawyers as third-rate ``tabloid trash''--come to
    threaten Clinton's presidency? The answers lie in a detailed look at
    the recent past.
        When Mrs. Jones' lawyers learned of Lewinsky's existence, it was as
    if two live wires had met in an incendiary tangle.
        The lawyers' hunt for information about Lewinsky, which they sought
    to buttress Mrs. Jones' charge of sexual misconduct by Clinton, led
    directly to Starr's investigation into the possibility of perjury and
    obstruction of justice at the highest levels. Now Starr is demanding
    that Mrs. Jones' lawyers turn over everything they have learned in
    their search for women who contend they have had sexual encounters with
    Clinton.
        The two cases merged that Saturday morning. As the president
    testified, with Mrs. Jones staring him in the face during the
    deposition, Lewinsky was at home at the Watergate, recovering from the
    shock of her life.
        Twelve hours earlier, she ended an intense encounter with federal
    investigators pursuing the president on Starr's behalf. The
    investigators confronted Lewinsky with the devastating news that her
    colleague and confidante Linda Tripp had been taping their intimate
    telephone conversations for months.
        Tripp had told Starr's investigators that Lewinsky lied in her
    affidavit in the Jones case by denying that she had ever had sex with
    Clinton. While Tripp was working undercover for Starr, she was
    preparing to file an affidavit in Jones vs. Clinton, swearing that
    Lewinsky ``had a sexual relationship with President Clinton.''
        The tapes presented the threat of prison for Lewinsky unless she
    disavowed her affidavit and cooperated with Starr. The tapes recorded
    Lewinsky saying that the president ``won't settle'' the Jones case
    because ``he's in denial,'' according to published excerpts of the
    tapes. If so, refusal had turned that private lawsuit into a potential
    personal and political disaster.
        The miasma enveloping the White House began rising four months ago.
        On Oct. 1, the Rutherford Institute, a conservative legal center in
    Virginia, publicly offered to help Mrs. Jones. The institute found Mrs.
    Jones new lawyers from the Dallas firm of Rader, Campbell, Fisher &
    Pyke and offered to pay her legal expenses.
        In the first week of October, a woman telephoned the Rutherford
    Institute with an anonymous tip: a woman named Monica had had sex with
    the president in the White House. The same tipster, described by the
    man who took the call as ``a nervous young woman,'' called back in late
    October, providing a surname: Lewinsky.
        Days after the first tip, the Dallas lawyers telephoned Tripp.
    Newsweek quoted her in its Aug. 11 issue as a witness to a supposed
    sexual encounter between the president and Kathleen Willey, a White
    House volunteer. A lawyer involved in the chain of events said Tripp
    later gave the lawyers Lewinsky's name. Tripp's lawyer, James Moody,
    denies that. The question is unresolved.
        On Oct. 7, Lewinsky sent the first of nine packages from her office
    at the Pentagon to the White House and to the office of Vernon Jordan,
    Clinton's friend and confidant. The packages contained, among other
    things, letters and documents relating to her search for a new job. A
    key question for Starr is whether the White House and Jordan helped her
    find a job for reasons beyond altruism.
        Two weeks later, Lewinsky secured a job interview with Bill
    Richardson, the chief U.S. delegate to the United Nations, arranged by
    a White House deputy chief of staff, John Podesta, at Mrs. Currie's
    request.
        On Oct. 22, Richardson had a 40-minute interview with Lewinsky in
    Richardson's living room at the Watergate apartment and hotel complex,
    where she lives and where he maintains an apartment. In November,
    Lewinsky was offered a job on Richardson's public relations staff.
        But Lewinsky eventually declined the offer. She wanted a better-
    paying position in the private sector in New York.
        In early December, Jordan talked to Lewinsky about helping her find
    that job. The go-between for their discussions was again Mrs. Currie.
    Jordan set up interviews for Lewinsky at three companies where he had
    personal and corporate connections: Revlon, American Express and Young
    & Rubicam, the advertising agency.
        Dec. 5 was the deadline for submitting witness lists in the Jones
    case. And on that list, on that day, the president's lawyers saw
    Lewinsky's name for the first time.
        From that moment on, the paths of two people from two different
    worlds--Paula Jones from Lonoke, Ark., and Monica Lewinsky from Beverly
    Hills, Calif.--were on course to collide at the White House.
        Dec. 19, a Friday, Mrs. Jones' lawyers served Lewinsky with a
    subpoena requesting information, including any gifts from the
    president. She called a Washington lawyer, Francis Carter, on Jordan's
    recommendation.
        Christmas Eve was Lewinsky's last day of work at the Pentagon. She
    still did not have a new job.
        On or about Dec. 28, a Sunday, she had a private talk with Clinton
    at the White House, said lawyers in the case. The president told her
    not to worry about being drawn into a lawsuit and advised her to
    describe her earlier White House visits as meetings with Mrs. Currie,
    the lawyers said.
        As for the subpoenaed gifts, the president said Lewinsky could not
    produce them if she no longer had them, according to the lawyers'
    account. Mrs. Currie has told investigators that she retrieved a box of
    gifts from Lewinsky--including the dress, the brooch and the hat pin--
    and subsequently turned the items over to Starr.
        On Jan. 7, a Wednesday, Lewinsky completed an affidavit saying she
    never had sex with the president, said her lawyer William Ginsburg. The
    affidavit was not immediately filed with Mrs. Jones' lawyers.
        The judge in the case had suggested that testimony be limited to
    accounts of sexual favors received by Clinton in exchange for
    government jobs. Lewinsky contended she knew nothing of the sort,
    Ginsburg said; her affidavit was intended to keep her out of the Jones
    trial.
        Tripp has suggested to lawyers in the case that Lewinsky did not
    intend to file the affidavit until she had secured a job. That
    suggestion has not been independently corroborated by Lewinsky or
    anyone else.
        On Jan. 8, Lewinsky had a final job interview at Revlon, and Jordan
    made telephone calls on her behalf to the company, where he serves as a
    director. One of those calls went to Revlon's chairman, Ronald O.
    Perelman. A few days later, Revlon offered Lewinsky a job.
        Now events approached critical mass.
        On Jan. 12, Tripp made contact with Starr's office, saying that
    Lewinsky had had an affair with the president and that she, Tripp, had
    secret tapes to prove it. The same day, Carter told Mrs. Jones' lawyers
    that Lewinsky had denied any sexual relationship with the president in
    her affidavit.
        On Jan. 13, Tripp, with a tiny tape recorder provided by Starr's
    office, met Lewinsky for a long lunch, during which Lewinsky is said to
    have described her conversations about her affidavit with Jordan.
        On Jan. 14 or Jan. 15, Lewinsky handled Tripp three pages of
    ``talking points,'' aimed at persuading Tripp to deny any knowledge of
    sexual impropriety by Clinton in the Jones lawsuit. It is unclear who
    wrote the document.
        On Jan. 15, Starr's office told the Justice Department about
    Tripp's accusations. A panel of federal judges authorized Starr to
    investigate whether Clinton and Jordan had encouraged Lewinsky to lie
    under oath in her affidavit.
        On Jan. 16, a Friday, the case reached an explosive state. The
    Federal Bureau of Investigation confronted Lewinsky. That day and the
    next, reporters began asking White House officials pointed questions,
    including whether the president had tried to influence other people's
    testimony in Jones vs. Clinton, a former White House official said.
    News of Starr's expanded investigation had already leaked.
        Clinton knew none of this. Nor did he know, as he confronted Mrs.
    Jones on Jan. 17, that he would be so extensively questioned about
    Lewinsky. Mrs. Jones lawyers appeared to know more details about
    Lewinsky than the president's lawyers had anticipated.
        The next morning, Clinton summoned Mrs. Currie to the White House
    and reviewed with her some of the questions and answers he had given
    the previous day about Lewinsky, said lawyers familiar with Mrs.
    Currie's account. The president told her he had never been alone with
    Lewinsky and that he had resisted her sexual advances, these lawyers
    said.
        If this was an effort at damage control, it failed. The story of
    Tripp's tapes was already leaking out, and Starr was already aiming
    this investigation directly at the White House, preparing to summon a
    parade of aides, including Mrs. Currie, to a grand jury.
        On Jan. 21, a Wednesday, the inquiry was national news. That day,
    Tripp signed an affivadit for Mrs. Jones' lawyers. It said Lewinsky had
    ``revealed to me in detailed conversations that she had a sexual
    relationship with President Clinton since November 15, 1995.''
        If that is so, the president ``committed perjury'' in his sworn
    deposition, and ``embarked on a very aggressive cover-up campaign''
    afterward, one of Mrs. Jones' lawyers, Donovan Campbell, said in court
    papers filed last Thursday.
        Those charges are now at the heart of one of the strangest
    investigations ever carried out against a president of the United
    States.

        Mr. HARKIN. So I just want to end this part of my
    discussion by saying we have heard a lot about the rule of law
    recently, about how it applies. Now, how about how it applies
    to those who are supposed to enforce the law, how it applies to
    Ken Starr and the Office of Independent Counsel?
        Mr. Hyde went on many times in his opening and closing
    arguments about what this teaches our kids about honesty and
    truthfulness, that the rule of law means something. Well, yes,
    it means something. It means something to our kids and future
    generations that honesty and truthfulness and the rule of law
    also applies to those who are cloaked with the authority to
    enforce that law. We must teach our kids that the ends do not
    justify the means, that law enforcement officials cannot break
    the law in order to bring someone to the bar of justice.
        So now, in this long process, the case is before the House
    Judiciary Committee. And only Ken Starr testifies on the facts.
    He gives them all these documents. But it is interesting to
    note, he does that before the election. He waits until after
    the election to give them all the Whitewater, Filegate, and
    Travelgate charges, which he drops. That happens after the
    election. They hear Ken Starr. And it is interesting to note
    that at the end of his long testimony, every Republican on the
    House Judiciary Committee gives him a standing ovation. What
    kind of political statement does that make? This was nothing
    like the kind of balanced evidentiary material given the
    Judiciary Committee in the House by Leon Jaworski in the
    Watergate case concerning then-President Nixon.
        So in summary, what we have here is an out-of-control
    independent counsel with his own political agenda and vendetta,
    a blank check to spend millions to look into every nook and
    cranny of President Clinton's public as well as personal life.
    You add this to a zealous group of House Republican Judiciary
    Committee members who fanned the flames, and some Members who
    already, prior to this, filed a resolution to impeach the
    President. What you have here is a blatant, vindictive
    political case.
        The American people figured it out a long time ago. They
    know the truth of what happened. And the truth is very simple.
    The President had a consensual, illicit affair with a young
    woman. He tried to cover it up. He misled others to cover it
    up. That is the truth. All this other stuff we are delving into
    is the details of about who touched who where, how many times
    they met, who exchanged gifts. The truth is simple and
    straightforward, and the American people figured it out, and
    they have a judgment about this.
        They said it is wrong, but it's personal. And he violated
    his marriage oath, not his oath of office. It is a sin, but not
    a crime. It is between him and his wife and his family and his
    God. And it is not an impeachable offense. I have said many
    times the American people can abide sin but not hypocrisy.
        Throughout this entire case, hypocrisy abounds. Much has
    been said about the rule of law and the truthfulness and
    honesty regarding President Clinton. How about as it applies to
    Starr? How about truthfulness, when he doesn't include, in his
    presentation, that very important statement that Monica
    Lewinsky said: ``No one ever asked me to lie''? How about
    honesty when it comes to him not providing exculpatory
    material?
        Having failed to get Bill Clinton on the stated reasons for
    the independent counsel--on Whitewater, Travelgate and
    Filegate--they shift to illicit sex and a classic sting
    operation.
        So we are left with two charges: perjury. This falls far
    short, and there is no evidence to support the fact that he
    perjured himself before the jury. Evasive? Yes. Dodging? Yes.
    But not knowingly making a false statement under oath material
    to the case. Doesn't fit.
        Second article: obstruction of justice. The House managers
    built their case on what they called the seven pillars of
    obstruction, which we have seen turned out to be seven sand
    castles of speculation. I think the most telling point was
    Monica Lewinsky, on her own tape last Saturday, when Mr. Bryant
    asked her, ``You didn't have a personal reason to file a false
    affidavit?'' And she said, ``Yes, I did.'' He said, ``Why?''
    She said, ``Because I didn't want to get involved with the
    Jones case. I didn't think it was any of their business.'' End
    of story on obstruction because everything else rests on that.
        That is why I have said, the more we look at this case, the
    more it is a counterfeit case. Like a counterfeit dollar bill,
    even to a trained eye, you look and it may look real, but you
    put it under a microscope and you see it's counterfeit. That's
    what happened in this case.
        The House managers' case was based on inferences and
    conjecture. The White House's case was based on direct facts in
    evidence, and that is the difference.
        In closing, two wrongs don't make a right. President
    Clinton did have an illicit affair. It was wrong and demeaning.
    Ken Starr abused justice, set up a sting operation, the wiring
    of Linda Tripp, the leaks, the salacious material.
        Clinton's wrong, I submit, was more of a sin. Ken Starr's
    wrong is more of a crime. The damage to the rule of law is done
    more by Ken Starr than by Bill Clinton. At the beginning, I
    said the House had a heavy burden, given the history and
    partisanship of this case, to prove articles I and II and that
    they rise to an impeachable level. They never met that burden.
    Accordingly, I will vote not guilty on both charges.
        Finally, as you know, there has been much talk of a censure
    resolution. As I said before, I said I believe the appropriate
    form is for each Senator to express his or her opinion on this
    matter. I personally see no need to join 99 others, and in
    doing so, set a dangerous precedent that could be easily abused
    in the future. So here is my censure of the President.
        I want to state emphatically, I do not condone his behavior
    that has been so thoroughly exposed and seared in the American
    conscious ad nauseam. It is the sordid affair of all sordid
    affairs. The President brought dishonor to himself. He brought
    tremendous pain and embarrassment to his family, friends and
    colleagues. And rather than ennobling the Presidency, his
    behavior has been the butt of jokes and ridicule.
        This behavior was totally at odds with his many
    achievements and conduct in his official capacity as President.
    The President has stated clearly he has sinned and that he has
    misled his family, his friends, his staff, and the American
    people. He has said that he is sorry and he has asked for
    forgiveness.
        I do so now and say it is time to put this sad chapter
    behind us; move on to the important work of this Nation.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Harry Reid

        Mr. REID. Mr. Chief Justice, I extend to you my personal
    appreciation for the dignity that you have extended to each of
    us during these proceedings. I also say that I have been
    disappointed. It appears the vote is going to be very
    comparable to the vote in the House, down partisan lines, even
    though during the break I understand two of my colleagues from
    the other side of the aisle announced that they would not vote
    for conviction on the articles of impeachment.
        But in spite of this, I want to extend my appreciation to
    the Republican leaders. Senator Nickles has been available any
    time that there is a problem that has arisen during this
    proceeding. And you, Senator Lott, have 10 more votes than we
    have and you on many occasions during this proceeding could
    have steamrolled us. You chose not to do that. I think that is
    the reason we have had this feeling of harmony, even though we
    have had some disagreement on what is going to transpire. So I,
    again, on behalf of all Democratic Senators, express our
    appreciation to you for the work you have done.
        Often as I stand before this body, I am reminded of the
    lessons of great books. Today, though, the beginning of a novel
    keeps running through my mind--Charles Dickens' ``A Tale of Two
    Cities'':

        It was the best of times, it was the worst of times.

        I have often felt, these last weeks, as if I were trapped
    in a work of fiction. Like all really interesting fiction, the
    story now before us reduces itself to an examination of the
    human soul--or, to be more accurate, to an examination of human
    souls. I use the plural because this trial has been about the
    flaws of two people, each with the gifts to make them great,
    and of the contrast between them--one who has failed to rise
    above his flaws and the other who has embraced them. Much of
    what we call great literature is about the petty failings which
    destroy great men. It is about how common sins, of which we are
    all to some degree guilty, bring low the mighty and turn to
    ashes the fruits of victory in the mouths of monarchs.
        We have heard much in this historic Senate Chamber about
    the judgment of history, but I daresay that, even more than by
    historians, the truest judgment of these events will be written
    as novels and plays. On the one level, these works will deal
    with some or all of the seven deadly sins: Pride, anger, greed,
    gluttony, sloth, envy, and, yes, especially lust.
        But on another level, those plays and novels will deal with
    the theme of all literature. They will be written about
    conflicts between great men, great men who are flawed; great
    men, each with their own public and private failings. We are
    here to sit in judgment of the President of the United States,
    a very public man, for his very private failings. Bill Clinton
    fell from grace. Driven by the private sin of lust, he violated
    his marriage vows and when his sins were uncovered by his
    enemies, he tried to conceal them by lying to his wife, his
    friends, and ultimately to all of us. It is a common story, the
    sin of lying. It begins in the Old Testament with many
    examples--Cain, of course, is a good example, who asked, ``Am I
    my brother's keeper?''--and with the lie, the kiss of Jesus by
    Judas Iscariot in the New Testament.
        It may be the beginning of a great work of art, it may be
    the first chapter in a summer day's light reading, but it is
    not a good reason, it is not the beginning of a good reason,
    for removing an elected President of the United States.
        The core issue is one which has apparently eluded many in
    this Capitol, but which is obvious to the American people.
    Great dreams are dreamed by people with human flaws. Great
    policies and actions are sometimes set in motion by those with
    broken souls. Great deeds are not always done by good men.
    Recent history gives us many examples. Winston Churchill, one
    of my heroes, a man who initially stood alone in leading the
    defense of Western civilization, was by most standards an
    alcoholic--at least modern standards. Franklin Roosevelt,
    Churchill's stalwart comrade and the author of policies which
    saved the very lives of families of many in this Chamber today,
    died in the arms of his lover. Each of us, each one of us in
    this Chamber, every human being, is flawed. Each of us needs
    all the forgiveness and forbearing we can be granted by the
    charity of others.
        Bill Clinton has been a friend of the State of Nevada. He
    has been a friend to me. But he has committed grievous wrongs
    against his family and his friends. He has dishonored his high
    office and lowered the standard of public behavior. I have no
    doubt that he has strayed from the path of goodness. But I do
    have very real doubts as to whether he perjured himself or
    suborned perjury. But I have no doubt whatsoever that, under
    the circumstances of this case, the crimes alleged do not rise
    to the level of an impeachable offense. Because of what the
    President did in public and in violation of the public trust,
    if I have the opportunity I will vote to censure. I will not
    vote to impeach.
        I said a few moments ago that great men are not always good
    men. But there is an obvious corollary: Good men are not always
    capable of doing great deeds and they are not even always
    capable of doing good. I began today by saying this trial was
    about the flaws of two people. Both are men with God-given
    gifts. Both are extraordinary in their intellect, perseverance,
    and dedication to certain core values. Both are capable of
    great goodness and even good greatness. Both have sinned. One
    is the President of the United States. His sins are of the
    flesh and of the spirit. About these I have already spoken. The
    other is the special prosecutor, Ken Starr, who has pursued the
    President beyond all bounds of reason and decency. His are the
    sins of unremitting, undiluted, unrepentant McCarthyism. They
    are the sins of pride, the sins of anger--they are damning sins
    indeed.
        I don't use lightly McCarthy's name or accuse others of his
    tactics. I am old enough to remember how he misused and abused
    this sacred Chamber. My friend and my client, the late
    newspaper publisher, Hank Greenspun, was a victim of his lies,
    a victim who had the courage to stand up and fight back. Others
    fought, but many also suffered irreparable harm because of
    Senator McCarthy.
        I know McCarthy's tactics were the back room stab, the
    whispered smear, the half-truth, the leaked calumny. I know
    that he subpoenaed witnesses and forced them to choose between
    betraying their friends or committing perjury. I know he
    destroyed the careers of innocent men and women, drove some to
    suicide and sent others to jail. But at least McCarthy had an
    excuse, of sorts. For all his lies, leaks and libels, there
    really was a Communist threat. There really were Communist
    spies. Some of the people he accused really did commit treason.
    They were guilty of treason. At least, Mr. Chief Justice,
    McCarthy and his cohorts had that excuse. Kenneth Starr doesn't
    have an excuse.
        Before I came to the national legislature 17 years ago, I
    was a trial lawyer. At various times, I prosecuted and defended
    people charged with crimes. Long before that, I served as a
    police officer. I never argued a case in the U.S. Supreme
    Court, but I tried more than 100 jury trials, hundreds of other
    cases before various courts, and argued before different
    appellate courts. I tried criminal cases, lots of them, and I
    know something about when a case should be pursued and when it
    should be dismissed. I know something about the impact that a
    criminal charge has on any man or woman, about how they agonize
    over telling their children, how they struggle to face the
    community. I know something about prosecutorial misconduct, and
    I know something about prosecutorial discretion.
        Every American is entitled to equal justice, no matter
    their rank in society; equal justice but not equally unfair
    justice.
        The independent counsel's argument throughout his tenure
    seems to be that any U.S. attorney, any criminal prosecutor
    would treat any defendant in the same unredeemedly savage and
    unfair fashion in which Mr. Starr and his office have treated
    the witnesses, the defendants in peripheral cases and the
    President of the United States. Almost $60 million has been
    spent--Whitewater, Filegate, Travelgate and now this. I think
    not.
        No prosecutor of integrity, of principle, of fairness would
    have tried to bootstrap a sexual affair into something
    criminal. A truly independent prosecutor would not make deals
    time after time with organizations established to embarrass the
    President, cavort with attorneys for Paula Jones, do business
    with Linda Tripp and others to entrap the President. A
    fairminded prosecutor would not have leaked salacious details
    to the press in an effort to force the target to resign from
    office. And, most fervently, a principled prosecutor would have
    the common sense and the common decency not to misuse their
    office to go all out, no holds barred, to ``get'' that targeted
    individual out of pride, anger and envy.
        I invite each of you to look at Justice Scalia's brilliant
    dissent in the Morrison versus Olson case where he talks about
    the constitutionality of the independent prosecutor. He
    predicted what we are now witnessing. Justice Scalia was
    visionary. Here is one of the things he said:

        The context of this statute is acrid with the smell of threatened
    impeachment.

        He was right. What else did he say? His opinion was 8 or 9
    years ago. He said then:

        . . . Congress appropriates approximately $50 million annually for
    general legal activities, salaries, and expenses of the Criminal
    Division of the Department of Justice.

        Fifty million dollars the whole year covers everything for
    the whole civil division of the Department of Justice. We are
    spending more than that to go after one man. Scalia could see
    that coming.
        He also said, and my friend, the Senator from Vermont,
    earlier today talked about what Justice Jackson had said, but
    he also quoted Scalia. Scalia said:

        If the prosecutor is obliged to choose his case, it follows that he
    can choose his defendants. Therein is the most dangerous power of the
    prosecutor: that he will pick people that he thinks he should get,
    rather than cases that need to be prosecuted. . . . [I]t is not a
    question of discovering the commission of a crime and then looking for
    the man who has committed it, it is a question of picking the man and
    then searching the law books, or putting investigators to work, to pin
    some offense on him.

        Justice Scalia could see this coming, and we got just what
    he said we would get.
        This is a bad situation. When you have someone of the
    brilliance of Ken Starr and the viciousness of Ken Starr, you
    get what we have here today.
        I want to use this occasion to say something to the
    American people, to the people of the State of Nevada, to leave
    them with the hope that those in high office have not been
    bereft of all reason, sense and sensibility. What the President
    did was wrong. It was immoral. I don't believe it constitutes a
    crime justifying his removal from office. What Mr. Starr did,
    and continues to do, is also wrong, and it is also immoral.
        But their conduct is not the standard to which we must hold
    ourselves. We, all of us in Government, can do better. We must
    do better. The American people have the right to expect that or
    it doesn't matter how great we are, how great our ideas or how
    powerful our values. Set the standard high and judge by that
    standard. That is how the system is supposed to work, and in
    the long run it is how our constitutional form of government,
    with a legacy of more than 200 years, has worked and, with the
    help of a Power greater than any of us, will continue to work.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator John Edwards

        Mr. EDWARDS. I add my praise, Mr. Chief Justice, for the
    work you have done, but I would add one other thing. The last
    time I saw you before this impeachment trial you were leading a
    sing-along at the Fourth Circuit Judicial Conference. I thought
    it might be a good idea for this group.
        The CHIEF JUSTICE. A healing device. [Laughter.]
        Mr. EDWARDS. Thank you, Mr. Chief Justice. I have prepared
    remarks. But I am not going to use them. I made that decision
    about 20 minutes ago.
        I have been sitting, listening to my fellow Senators speak,
    and I want to speak to you from the heart. I want to speak to
    you about a struggle, because I have been through a struggle.
    It is a real struggle. And I suspect that there are an awful
    lot of you who have been through the same struggle--both before
    we voted on the motion to dismiss and, for me, since we voted
    on the motion to dismiss.
        For me, the law is a sacred thing. And that is part of my
    life. I have seen what the law can do. It is a powerful,
    powerful thing. It can do extraordinary things for ordinary
    people. And I believe we have been given a sacred
    responsibility. I will tell you what that sacred responsibility
    means to me personally. It means that when I walked in here the
    first day of this impeachment trial I was 100 percent
    completely open to voting to remove this President.
        And I have to tell you all something, my friends on this
    side of the aisle, that wasn't a hard thing for me to do. I
    think this President has shown a remarkable disrespect for his
    office, for the moral dimensions of leadership, for his
    friends, for his wife, for his precious daughter. It is
    breathtaking to me the level to which that disrespect has
    risen.
        So I said to myself, what is the right and fair thing to
    do? And this is what I have done. I have looked--many times
    until 3 a.m. in the morning--at the evidence in this case.
    Because I think that is the way we need to make this decision.
        The perjury charge, I believe, is just not there. The
    evidence is not there to support it. I know many of you believe
    it is there. I respect your view on that. I don't believe it is
    there. The obstruction charge is a totally different matter.
    And this is the way I have thought about the obstruction
    charge.
        I view, in my mind's eye, the scales of justice. And on one
    side, where the prosecution makes an allegation, I put their
    evidence. On the other side I put the defense evidence. And I
    do believe that for a charge this serious that the proper
    standard is beyond a reasonable doubt.
        So after that evidence is put on both sides of the scale of
    justice, what happens? I want to just very briefly go through
    what I think are the four main charges for obstruction.
        First, the false affidavit. The prosecution side: There is,
    in my judgment, clearly a false affidavit. The President had a
    conversation with Monica Lewinsky about filing an affidavit
    where he said to her, ``You can file an affidavit; that might
    be a way for you to avoid testifying.'' That is on the
    prosecution side.
        I want to make a really important point for me personally
    here. I think there is an enormous difference between what has
    been proven and what we suspect, because I have to tell you
    all, I suspect a lot that has not been proven.
        What is on the defense side? On the defense side: what has
    been proven in this case is that President Clinton never saw
    the affidavit, never had a discussion with anyone about the
    contents of that affidavit. He didn't know what was in it. He
    never told, according to her, Monica Lewinsky or anyone what
    should be in the affidavit.
        So that is the evidence on the scales of justice: One for
    the prosecution; that evidence for the defense. For me it is a
    very clear thing. The scales tilt in favor of the defense, and
    they certainly don't tilt strongly enough to be beyond a
    reasonable doubt.
        The second charge--and the one that bothers me the most--
    coaching Betty Currie. The evidence on the side of the
    prosecution: President Clinton has a conversation with Betty
    Currie just after he has been questioned in his deposition
    where he makes very declarative statements to her--it happens
    twice--very declarative statements to her about what he
    remembers, many of which we now know to be false. And his
    explanation for that conversation lacks credibility, to say the
    least, that he was trying to refresh his memory. I doubt if
    anybody buys that. That is on one side, that is on the
    prosecution side.
        What is on the other side? On the other side we have Betty
    Currie saying it had no influence on her. But that is not the
    most troublesome thing for me. The troublesome thing is this:
    For that conversation to be obstruction of justice, it must
    have been proven that it was President Clinton's intent to
    affect her sworn testimony.
        Now, what are the other possibilities? We have a man who
    has just been confronted with this problem, who is political by
    nature. And do we really believe that the first thing he
    thought about is, ``I'm going to go protect myself legally''? I
    suspect the first thing he thought about is, ``I'm going to
    protect myself politically.'' He was worried about his family
    finding out. He was worried about the rest of the staff finding
    out. He was worried about the press finding out. Do I know
    which of these things are true? Absolutely not. I don't know
    which of them are true. Doesn't that answer the question? If we
    don't know which of those things are true, have they been
    proven? If we don't know what was in his head at that moment,
    how can we find that the prosecution has proven intent beyond a
    reasonable doubt?
        The third charge, the job search. On the prosecution side
    of the scales of justice, we have an intensified effort to find
    a job for Monica Lewinsky. I think that has been proven. I
    think that has been proven clearly. On the other side, we have
    testimony from Monica Lewinsky that she was never promised a
    job for her silence. We have evidence that the job search,
    although not as intense, was going on before anyone knew she
    would be a witness. We have Vernon Jordan testifying under
    oath--I sat there and watched it and looked him in the eye--
    that there was never a quid pro quo, that the affidavit was
    over here and the job search was over here.
        The reality is, when you put all that evidence on the
    scale--prosecution evidence on one side, defense evidence on
    the other--at worst the scale stays even. And the prosecution
    has got to prove this case in order to remove the President of
    the United States beyond a reasonable doubt. They just have not
    proven it no matter what we suspect. No matter what we suspect.
    So that is the false affidavit which we have talked about,
    coaching Betty Currie, the job search.
        Now to the gifts. Let's see what the proof is. What is the
    proof--not the suspicion. On the prosecution side, we know that
    the President's secretary went to Monica Lewinsky's house, got
    the gifts, took them home and hid them under her bed. I have to
    tell you, on its face, that is awful suspicious, and it is
    strong, heavy evidence. The problem is, there is evidence on
    the other side. That evidence doesn't stand alone.
        First, we have the testimony of Betty Currie that Monica
    Lewinsky called her. Second, we have the fact that President
    Clinton gave her other gifts on that Sunday, which makes no
    sense to me. I heard the House managers try to explain it away.
    I have been a lawyer for 20 years, and I have been in that
    place of trying to explain away something that makes no sense.
    It doesn't make sense. Monica Lewinsky, herself, testified that
    she brought up the issue of gifts--not President Clinton--and
    that the most President Clinton ever said was something to the
    effect of ``I'm not sure. Let me think about that.''
        Now when that evidence goes on the defense side and the
    only evidence on the prosecution side is the fact that those
    gifts are sitting under the bed of Betty Currie, what happens
    to the scale? At best, the scale stays even. In my judgment, it
    actually tilts for the defense. There is no way it rises to the
    level of ``beyond a reasonable doubt.''
        Every trial I have ever been in has had one moment, one
    quintessential moment when the entirety of the trial was
    described, and in this case we have such a moment. There was a
    question that had my name on it. The reality is, Senator Kohl
    wrote it--I tagged on--but it was a great question. The
    question was, ``Is this a matter about which reasonable people
    can differ?'' I will never forget Manager Lindsey Graham coming
    to this microphone and his answer was ``Absolutely.'' Now if
    the prosecution concedes that reasonable people can differ
    about this, how can we not have reasonable doubt?
        These things all lead me to the conclusion that however
    reprehensible the President's conduct is, I have to vote to
    acquit on both articles of impeachment.
        I have one last thing I want to say to you all, and it is
    actually most important. If you don't remember anything else I
    said, and you weren't listening to anything else I have said,
    please listen to what I am about to say because it is so
    important to me.
        I have learned so much during the 30 days that I have been
    here. I have had a mentor in Senator Byrd, who has probably
    been a mentor to many others before me. I have formed
    friendships with people on both sides. Senators Leahy and Dodd,
    who I worked with on these depositions--wonderful, wonderful
    Senators. I have learned what leadership is about from these
    two men sitting right here--Senators Lott and Daschle. I have
    loved working with Senators DeWine and Thompson. And Senator
    Specter and I worked together on a deposition. He showed me
    great deference and respect. I have no idea why, but he did;
    and I appreciate it. I have deep respect and admiration for my
    senior Senator from North Carolina, who has been
    extraordinarily kind and gracious to me since I arrived here.
        Let me tell you what I will be thinking about when my name
    is called and I cast my vote, hopefully tomorrow. I will be
    thinking about juries all over this country who are sitting in
    deliberation in rooms that are not nearly as grand as this but
    who are struggling, just as you all have and I have, to do the
    right thing. I have to say, I have a boundless faith in the
    American people sitting on those juries. They want to do what
    is right. They want to do what is right in the worst kind of
    way.
        An extraordinary thing has happened to me in the last 30
    days. I have watched you struggle, every one of you. I have
    watched you come to this podium. I have listened to what you
    have had to say. I talked to you informally; I watched you
    suffer. I believe in my heart that every single one of you
    wants to do the right thing. The result of that for me is a
    gift. And that gift is that I now have a boundless faith in
    you.
        Thank you, Mr. Chief Justice.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Daniel K. Akaka

        Mr. AKAKA. Mr. Chief Justice and esteemed colleagues, I
    rise to offer my thoughts on the momentous decision we will
    render shortly. At the start, I deeply regret that the American
    people have been denied the opportunity to hear the Senate's
    final deliberations on the impeachment charges against
    President Clinton. I say this because I have been thoroughly
    impressed with the thought, tenor, and passion brought to this
    deliberation by my colleagues on both sides of the aisle. I
    wish the American people could have the opportunity to observe
    what I have had the privilege of witnessing for the past two
    days. Whether seated in the gallery, watching on television,
    listening on radio, or following on-line, the public would have
    benefitted tremendously from the opportunity to hear, in real
    time and full context each of our remarks. The opportunity to
    read a transcript later this week in the Record will not come
    close to viewing these proceedings. It lacks the power of the
    moment.
        When I took the oath to do impartial justice on January 7,
    1999, I knew, as one of 100 Senators, that I was assuming the
    unique role of judge and juror in the Senate impeachment trial
    of William Jefferson Clinton. Over these weeks, I have listened
    to the presentations by the House managers, the White House
    counsel, and the President's defense team without prejudice. I
    have analyzed the video testimony of Monica Lewinsky, Vernon
    Jordan, and Sidney Blumenthal, and read numerous grand jury
    transcripts, the referral from the independent counsel, and the
    House report and related documents.
        The House of Representatives approved two articles of
    impeachment by straight party line votes after bitter and
    divisive partisan debate, forwarding to the Senate the
    impeachment articles to remove the President of the United
    States as authorized by the Constitution. At the same time, the
    partisan nature of the House action invites challenge to its
    legitimacy. And, although we have more often than not voted
    along party lines during the impeachment trial, I am proud of
    this body and its genuine effort to pursue a bipartisan course
    during our trial of the President. We have disagreed without
    being disagreeable.
        The body has not strayed too far from the comity and tone
    that marked our first bipartisan caucus to set the framework
    for this proceeding.
        We have taken the admonition of the senior Senator from
    West Virginia to heart and avoided descending into the pit of
    caustic partisanship and recrimination.
        After reviewing volumes of evidence and weighing weeks of
    presentations before the Senate, I have concluded that a case
    has not been made on either of the articles of impeachment
    against President Clinton. Conviction and removal from office,
    as charged by the House managers, is simply not warranted.
        The record does not sustain the level of proof necessary to
    convict and remove the President. Certain facts are
    indisputable: the President lied to the American people and to
    his wife and daughter about an extramarital affair; he lied to
    his staff; and he was misleading in his deposition in the Jones
    v. Clinton civil suit and his grand jury testimony.
        However, impeachment is not a Constitutional means to
    punish a President ``when he gets out of bounds,'' as proposed
    by the House managers. The constitutional standard is whether
    high crimes and misdemeanors were committed, and that test has
    not been met.
        In 1974, the House Judiciary Committee rejected an article
    of impeachment against President Nixon based on the filing of a
    false tax return. It was reasoned that the President's
    misleading tax return was unrelated to his duties as President,
    although a minority believed the count was unsupported by the
    evidence. Thus we see that all crimes that may be punishable by
    the courts are not punishable by impeachment.
        Rather, impeachment is narrowly limited by the Constitution
    to offenses of treason, bribery, or other high crimes and
    misdemeanors. After listening to many presentations on this
    issue, I am convinced that impeachment and removal from office
    should only be used for crimes against the country or threats
    to our national security.
        Our Founding Fathers carefully defined the terms of
    impeachment in a manner that establishes a high threshold and
    requires the charges to be of an egregious nature. That is why
    the Senate has only once before held an impeachment trial for a
    President.
        The House managers recommend impeachment because it is the
    only way in which the President's misconduct can be punished.
    Yet, I remind my colleagues that the President remains subject
    to criminal and civil penalties after he leaves office in 2
    years.
        As I will point out, the facts and other evidence
    accumulated and presented to the Senate do not meet the
    constitutional standard for impeachment and removal that our
    founding fathers established.
        Article I charges the President with perjury before the
    grand jury in August 1998, for willfully giving false testimony
    under oath in a judicial proceeding. Yet to prove this charge
    the House Managers introduced material from the Jones suit
    during their Senate presentation even though the House rejected
    an article of impeachment dealing with the Paula Jones suit.
    Nonetheless, despite this blurring of the lines between
    criminal and civil matters, a perjury conviction requires that
    the testimony be material to the case at hand. Judge Susan
    Webber Wright's rulings in the Jones case specifically excluded
    evidence concerning Monica Lewinsky because it was immaterial.
        Furthermore, Thomas Sullivan, former U.S. Attorney for the
    Northern District of Illinois, testified before the House
    Judiciary Committee that perjury ``can be particularly arcane,
    including the requirements that the government prove beyond a
    reasonable doubt that the defendant knew his testimony to be
    false at the time he or she testified, that the alleged false
    testimony was material, and that any ambiguity or uncertainty
    about what the question or answer meant must be construed in
    favor of the defendant.'' Mr. Sullivan also noted that
    generally, ``federal prosecutors do not use the criminal
    process in connection with civil litigation involving private
    parties,'' because, ``there are well established remedies
    available to civil litigants who believe perjury or obstruction
    has occurred.''
        Article II charges the President with seven different
    instances of obstruction of justice. The House managers insist
    that the evidence shows that these separate acts constitute a
    deliberate attempt by the President to obstruct justice. The
    White House argues that the President did not seek to influence
    witnesses nor impede discovery. Legal scholars have argued that
    the lumping together of these seven charges would cause most
    courts to throw out the charges, and witness testimony
    undermines the House charges. After the smoke cleared from the
    charges and countercharges, it was evident to me that the
    connections between the actions of the President and the
    actions by the witnesses were circumstantial, at best.
        Moreover, I agree with White House Counsel Charles F. Ruff,
    who in his closing arguments said of the House managers, ``I
    believe their vision to be too dark, a vision too little
    attuned to the needs of the people, too little sensitive to the
    needs of our democracy.''
        In the obstruction of justice count, the managers charge
    the President with asking Monica Lewinsky to lie, a charge that
    she denies in two dozen depositions, and testimony given under
    the protection of immunity. There is no evidence that the
    President ever asked her to provide a false affidavit in the
    Jones case or to testify falsely. Vernon Jordan, the
    President's close friend and advisor, testified that although
    he met with Ms. Lewinsky and was given a draft of the
    affidavit, he refused to review the document and referred the
    young woman to her attorney for advice and counsel.
        The House managers say the President is guilty of
    obstructing justice when he ordered his secretary, Betty
    Currie, to retrieve gifts given by the President to Monica
    Lewinsky. However, Ms. Lewinsky's testimony, on a number of
    occasions, indicates that it was she who asked Ms. Currie to
    keep the gifts, not the President.
        The House states that the President asked Vernon Jordan to
    intensify an on-going job search in Ms. Lewinsky's behalf after
    Judge Webber Wright ruled that Paula Jones's attorney could
    investigate the President's sexual relations with State or
    Federal employees.
        Mr. Jordan and Ms. Lewinsky first met in November 1997, a
    month before Ms. Lewinsky was listed as a witness in the Jones
    case. Sinister motives do not appear to be involved in the
    inquiries by Mr. Jordan on her behalf that led to two job
    rejections and one job offer. Efforts by the House managers to
    link the job search and the affidavit unravel when the dates on
    which Mr. Jordan and Ms. Lewinsky first met, when Ms.
    Lewinsky's name first appeared on the Paula Jones case witness
    list, and the drafting of the affidavit are analyzed.
        The President, Ms. Lewinsky, and Mr. Jordan have testified
    that no one was seeking Ms. Lewinsky's silence, and Ms.
    Lewinsky further testified that she realized in October 1997
    that she would not be returning to the White House for
    employment and she renewed her job search in New York City.
        The additional testimonies of Ms. Lewinsky, Mr. Jordan, and
    Mr. Blumenthal added no new information to the case against the
    President. I voted against deposing these witnesses since they
    already had been deposed many times.
        Moreover, we each received thousands of pages of testimony
    from the grand jury, various depositions, statements given
    under oath, and documents relating to the impeachment charges.
    We know that Ms. Lewinsky had been questioned on at least 23
    separate occasions, including after the President's grand jury
    testimony and as recently as January 22, 1999, by the House
    prosecutors before testifying February 1, 1999, on video.
    During arguments in favor of deposing Ms. Lewinsky, House
    Manager Bryant urged the deposition because he believed the
    Senate should observe her demeanor, her tone, and her tenor in
    responding to questions.
        I respectfully disagreed with Mr. Bryant then, as I do now.
    My decision was bolstered when I viewed Ms. Lewinsky's
    videotaped testimony in which she reaffirmed her grand jury
    testimony. I saw no purpose in bringing her to the witness
    table again, nor Mr. Jordan, who had been questioned five
    times, nor Mr. Blumenthal, who has answered questions under
    oath four times. These witnesses did not change their
    testimonies, nor did they provide information that was omitted
    in previous testimony.
        The witnesses' statements are a matter of record, and they
    comprise thousands of pages encompassed in the volumes of
    testimony and sworn affidavits that are the basis of the House
    articles of impeachment. I concur with House majority counsel
    David Schippers who said during the House Judiciary impeachment
    proceedings, ``As it stands, all of the factual witnesses are
    uncontradicted and amply corroborated.''
        In conclusion, I cannot overstate my disappointment with
    the actions of the President. He deliberately misled the
    American people and greatly diminished the public's trust in
    the office of the Presidency. However, I have concluded that
    the two articles of impeachment, as drafted and presented by
    the House, fail to meet the level of high crimes and
    misdemeanors, and I will vote to acquit the President.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Patrick J. Leahy*

        Mr. LEAHY. Thank you, Mr. Chief Justice.
    ---------------------------------------------------------------------------
                                       * * * * *
    * Sen. Leahy submitted additional statements on February 12 and
    February 23, see pp. 2996, 3090, and 3102, below.
    ---------------------------------------------------------------------------
        I ask unanimous consent that a fairly lengthy brief on this
    issue be printed in the Record at the conclusion of my remarks.
        The CHIEF JUSTICE. Without objection, it is so ordered.
        (See Appendix.)
        Mr. LEAHY. Mr. Chief Justice, like others, I want to thank
    you for your professionalism and good humor in these
    proceedings even though I suspect there are days that both you
    and I wish we were back at our homes in Vermont rather than
    here.
        But I want to tell the Senators also of an extraordinary
    day that my good friend, Senator Stevens of Alaska, and I
    spent. We left Sunday afternoon from Washington for the funeral
    of King Hussein of Jordan. We came back at about 2 o'clock
    yesterday morning. The delegation was an extraordinary one: Two
    other Members of Congress, senior members of the President's
    staff; even the parents of the King's widow, Queen Noor of
    Jordan, were with us.
        And the airplane, Air Force One, that is so recognizable
    around the world as a symbol of America, underscored our
    country's presence even as it landed. And Ted will recall the
    TV was on in the plane. We could see they interrupted national
    television in Jordan to show our plane landing. What was most
    remarkable to the people assembled from around the world for
    the funeral was the dramatic appearance not only of the
    President of the United States, William Jefferson Clinton, but
    three former U.S. Presidents--Gerald Ford, Jimmy Carter and
    George Bush--they joined with President Clinton as an
    extraordinary demonstration not only of bipartisanship but of a
    united American commitment to the peace policies of King
    Hussein, and the U.S. role in a continuing peace process.
        The symbol of American presence and the American continuity
    could not have been stronger with these four Presidents. It was
    a privilege to be there, a privilege I will always cherish.
        In the frenetic hours on the ground, I observed the leaders
    from the Middle East and around the world.
        I saw leader after leader making a strong effort to come to
    President Clinton and to speak with him. I listened to his
    conversation. It was clear to me he had a very good
    understanding of the issues that faced not only our country,
    but their country, and an understanding about how America's
    interest affect all of us.
        Probably the greatest contrast was in President Clinton's
    brief meeting with Boris Yeltsin, the President of Russia, a
    country that long symbolized our polar opposite during the cold
    war. We saw an aging President Yeltsin, unable to stand without
    two men helping him, a man who had to leave very shortly
    thereafter--well before the funeral was over--because his
    strength had faded. What a contrast.
        We saw a dynamic Tony Blair, the Prime Minister of England.
    We saw the leaders of Israel, Japan, Syria, Kuwait, Saudi
    Arabia, Libya, Pakistan, India, Germany, France, Ireland,
    Egypt, and others coming together, brought together by their
    respect for King Hussein. Much of their attention was focused
    on the leader of the United States.
        The questions raised by this trial came back to me. I
    thought, do we abandon our elected leader because of concern
    about his personal conduct? Now, if this question was in my
    mind, it was in the minds of a lot of people there. I have been
    privileged to know many of them, and many asked me the
    question, Are we really serious about impeachment and removal?
    They asked that because they said the United States is not a
    parliamentary system of government, and the one thing that they
    can rely on is when we elect a President, even if it is not the
    President they wished we had elected, there are 4 years to deal
    with him and they can determine their foreign policy with the
    most powerful Nation on Earth accordingly.
        They said they have great respect for our strength and
    leadership, and they asked if it is really possible that
    partisanship in the Congress could destroy that heritage
    overnight.
        In my notes, as I flew back throughout the dark night, I
    asked myself, Are we going to spend our heritage of continuity
    and strength this way? Are we going to convict the President on
    these charges in this record? Are we going to destroy a
    heritage and continuity we earned, from our own Revolution,
    through a Civil War, through World Wars, through deaths and
    assassinations of Presidents, through great economic prosperity
    and devastating recession and depression. I completed my notes
    by writing, ``It is no longer a question of whether we do this
    to Bill Clinton, but whether we do it to ourselves.''
        The record of this impeachment trial is a time capsule. We
    leave it for succeeding generations. As the trial began, we
    reopened the records of 1868. I looked at those records. I
    thought, someday someone will review ours in the same way. We
    leave behind a trail of precedents. Our successors will try to
    understand them. If we act wisely, they will try to emulate it.
    Our actions can stir a chord that will vibrate throughout the
    history of our Republic.
        So in explaining my decisions in this trial, I know that I
    am addressing myself to fellow Vermonters and fellow Senators,
    but also to future generations. In that future generation is my
    own grandson and perhaps even his grandchildren.
        The conclusion I have reached on the articles of
    impeachment is imbued with this solemn knowledge and sense of
    duty. My conclusion is we must not avenge the faults of William
    Jefferson Clinton upon our Nation, our children and our
    Constitution.
        Extreme partisanship and prosecutorial zealotry have
    strained this process in its critical early junctures. Partisan
    impeachments are lacking in credibility. The framers knew this.
    We all know this.
        Socrates said: ``The greatest flood has soonest ebb; the
    sorest tempest, the most sudden calm.''
        In many ways, I say to my friends, especially our two
    distinguished leaders who worked so hard on this, in many ways
    the Senate's work has been the calm after the storm. We began
    the 106th Congress, the last of the 20th century, facing a
    challenge no Senate has been called upon to address since the
    aftermath of the Civil War. We took a special oath administered
    to Senators who must determine whether to override the election
    by the people of the United States of their President and
    remove him from office.
        The Constitution purposely restrains the Congress, and
    carefully circumscribes our powers to remove the head of the
    executive branch of the Federal Government. The Constitution
    intentionally makes it difficult to override the electoral
    judgment of the American people. I will cast my vote wary of
    the dangers posed by the House managers' seductive invitation
    to vote to remove the President for symbolic purposes.
        We all agree the President's conduct was inexcusable. It
    was deeply disappointing, especially to those who know the
    President and who support the many good things he has done for
    this country and the world. His conduct in trying to keep this
    relationship secret from his wife and family, his friends and
    associates, from the public glare of a politically charged
    lawsuit, may be understandable on the human level, but it has
    had serious consequences for him personally and for the legacy
    of his Presidency.
        The President has admitted before a Federal grand jury
    terribly embarrassing personal conduct and has seen a videotape
    of that grand jury testimony broadcast to the entire Nation,
    with excerpts replayed over and over again. This modern day
    version of the public stockade has been difficult to witness
    for those who know this man and his family and care about them.
        The Jones lawsuit has now been settled and $850,000 has
    been paid on a case that the District Court judge had dismissed
    for failing to state a claim.
        The Clinton Presidency has been permanently tarnished. The
    Senate trial provided a forum to replay the embarrassing and
    humiliating facts of the President's improper relationship. No
    one can say the Presidency has emerged unscathed.
        For me, the most regrettable action is the nationally
    televised statement to the American people, where he shook his
    finger defiantly and said the allegations were untrue. That was
    not charged in the articles of impeachment, but it was intended
    to mislead the American people. That statement was wrong. And
    even though he later apologized for his action, I feel strongly
    that no President should so intentionally deceive the American
    people.
        But condemning the President is not the purpose of the
    impeachment trial. Impeachment cannot be about punishing the
    officeholder. One predecessor of mine and of Senator Jeffords,
    Senator George Edmunds of Vermont, explained in 1868, that:

        [p]unishment by impeachment does not exist under our Constitution.
    . . . [The accused] can only be removed from the office he fills and
    prevented from holding office, not as punishment, but as a means merely
    of protection to the community. . . .

        So our focus has to be on whether conduct which the House
    has charged has been proven and warrants President Clinton's
    removal from office to protect the public.
        The President's indiscretions alone did not bring us to
    this point. Raising this matter to the level of a
    constitutional impeachment only began with the referral from
    the special prosecutor, Kenneth Starr. Justice Robert Jackson,
    when he was attorney general, observed that the most dangerous
    power of prosecutors is the power to ``pick people that he
    thinks he should get rather than cases that need to be
    prosecuted.'' I am concerned that is what has happened in the
    case of President Clinton.
        Does anyone recall after the fruitless years of
    investigation of this President, the past year of upheaval,
    that it was the talking points given to Ms. Tripp by Ms.
    Lewinsky which were supposed to be the smoking gun that proved
    a vast conspiracy to suborning perjury? I don't think anybody
    doubts Ms. Lewinsky's account that she wrote the talking points
    based on her discussions with Ms. Linda Tripp, and she never
    discussed them with the President.
        Monica Lewinsky consistently maintained that no one ever
    asked or encouraged her to lie; she was never promised a job
    for her silence. Indeed, in her 24th interview, the Senate
    videotaped deposition demanded by the House managers, she
    testified to her own purposes in keeping her relationship
    secret. She acted in what she thought was her own best
    interests. She sought to conceal this relationship because she
    did not want to be humiliated in front of the whole world. And
    the record establishes it was Linda Tripp rather than President
    Clinton who acted in the conflicting roles as Ms. Lewinsky's
    intimate confidante and ultimate betrayer.
        As a former prosecutor, one of the questions I asked is
    whether these criminal charges of perjury and obstruction would
    have been brought against Bill Jones rather than Bill Clinton.
    Experienced prosecutors, Republican and Democrat, testified
    before the House Judiciary Committee that no prosecutor would
    have proceeded based on the record compiled by Mr. Starr, and
    prosecutors I have talked to have said they wouldn't even get
    to a jury with it. As a former prosecutor, I agree and note
    that during the course of the Senate proceeding, the case has
    gotten weaker.
        The testimony in the record shows that Ms. Lewinsky had no
    intention of revealing her relationship with the President. She
    is the person who originated and carried out the plan to hide
    certain gifts from the Jones lawyers. The only crimes shown to
    possibly have occurred are not high crimes but those for which
    Ms. Lewinsky and Ms. Tripp have already received immunity from
    prosecution from Ken Starr. To influence our judgment, the
    managers have argued that the consequences of the President's
    acquittal of their unproven charges would be dire for our
    children, I have been married for 37 years to a woman I love;
    my wife and I have raised three wonderful children. I don't
    need the House of Representatives to tell me how to raise my
    children. I trust the parents of America to raise their
    children, to explain what the President did was wrong, to point
    out the humiliation and other consequences brought on himself
    and his Presidency. That is not our the Congress' job. That is
    the job for parents in this country.
        I don't believe the Constitution calls upon us to remove a
    duly elected President for symbolic purposes. Rather, I believe
    the precedent set by conviction without proof and removal
    without constitutional justification would be far more
    dangerous for our Republic than his actions.
        The House managers have warned that should the President be
    acquitted, it would damage the ``rule of law.'' I strongly
    disagree, because the supreme rule of law in this country is
    the Constitution; that is what we have to uphold.
        Partisan impeachment drives are doomed to fail. The Senate
    must restore sanity to this impeachment process. We must
    exercise judgment and do justice. We have to act in the
    interest of the Nation. History will judge us based on whether
    this case was resolved in a way that serves the good of the
    country, not the political ends of any party or the fortunes of
    any person.
        We have all talked about President Andrew Johnson's
    impeachment. Few people will recall that after the unsuccessful
    effort to remove him from office, former President Johnson
    returned to serve this country as a U.S. Senator. I look
    forward to the day when the Senate can close our work as an
    impeachment court and that we can all return to our work--our
    important work we face as U.S. Senators representing our
    States.
        I have served here with 259 Senators, including the 100
    here now. I have respected all of you. I have had great
    affection for many of you on both sides of the aisle. I count
    among my best friends many Senators on both sides of the aisle.
    This is a difficult time. I will not question any Senator's
    vote on this. But the Senator from Vermont cannot vote to
    convict and I will not.
        Thank you.

                                    Appendix

     Procedural and Factual Insufficiencies in the Impeachment of William
     Jefferson Clinton--Analysis by Senator Patrick Leahy, Ranking Member,
                           Senate Judiciary Committee
                                    contents
    I. Oath of Office
    II. How Did We Get Here?
        A. The President's Conduct
        B. Special Prosecutor Starr
        C. The House Judiciary Committee
        D. Vote by the House of Representatives
            1. Lame Duck House
            2. Rejected Charges
    III. Secret Evidence
    IV. The Articles Are Unfairly Drafted
        A. Article I is Defectively Vague
        B. Both Articles Charge Multiple Offenses
    V. The Senate's Duty
        A. Standard of Proof
        B. The Charges Have Not Been Proven
            1. Article I
            2. Article II
        C. There Was No Need to Call Witnesses
        D. Removal Is Not Warranted
    VI. Prior Judicial Impeachments for Perjury
    VII. ``Findings of Fact'' Fallacies
    VIII. Effect on Children and National Security
    IX. Deliberations on Dispositive Trial Motions Should be Open
    X. Conclusion
                               i. oath of office
        On the first day of this Congress, the Vice President of the United
    States administered the oath of office to the most recently elected
    Members of the Senate. I was honored by the people of Vermont to be
    among those Members and to take the oath of office to serve here as a
    representative of Vermont. With this oath I have again sworn to protect
    and defend the Constitution of the United States.
        We were reminded by the Majority Leader at the beginning of the
    last Congress that the oath we take was formulated in 1868 to help
    bring the country back together. As Senator Lott has noted, following
    the Civil War, some urged continued use of an ironclad test oath that
    barred those who had served the Confederacy from serving in the Federal
    Government. It took ``nearly a quarter of a century of confusion and
    acrimony'' for the Senate to settle upon the oath that we take
    today.1
    ---------------------------------------------------------------------------
        Footnotes at end of analysis.
    ---------------------------------------------------------------------------
        The same year in which our oath was developed, our country
    experienced its first, and until now, its only presidential impeachment
    trial. History has judged harshly the ``Radical Republicans'' who
    pursued that impeachment against President Andrew Johnson. A notable
    exception is William Maxwell Evarts, a Vermonter who was criticized by
    many Republican party leaders for defending a President of the opposite
    political party.
        I have been proud of another Vermonter, Gregory Craig, who has
    played a critical role in the defense of President Clinton.
        This Senate is the last of the 20th century. We began this first
    session of the 106th Congress facing a challenge that no other Senate
    in over 100 years has been called upon to address. To deal with that
    challenge, we all took another oath, an oath to do ``impartial justice
    according to the Constitution and laws.'' That is the oath administered
    to Senators who must determine whether to override the election of the
    President of the United States and remove him from office. That oath
    calls upon Senators to rise above partisan politics and our personal
    feelings about President Clinton.
        I focus first on the oaths we take to be Members of the Senate and
    to serve in this impeachment trial since the House Managers opened and
    closed their presentation to the Senate pointing to the oaths the
    President swore to uphold when he assumed on two occasions the office
    of the President.
        The Managers have emphasized that the President's inaugural oath of
    office imposes a constitutional duty to ``take Care that the Laws be
    faithfully executed.'' Their argument is that the presidential oath
    spelled out in Article II, section 1 of the Constitution establishes a
    special standard of conduct for the President, and when the President
    violates a law which he has sworn faithfully to execute, he should be
    removed.
        Frustrated by the restrictions placed on Congress's impeachment
    power, which limits the grounds for removal to ``Treason, Bribery or
    other high Crimes and Misdemeanors,'' the Managers seek to find
    alternative constitutional footing to remove this President. But, the
    Constitution simply does not say that a President shall be removed for
    ``Treason, Bribery, or other conduct inconsistent with his presidential
    oath and duties.'' Nor does it say that a President shall be removed
    for ``Treason, Felony, or other Crime,'' which is the formulation used
    in the Constitution's Extradition Clause.2
        The Framers purposely restrained the Congress and carefully
    circumscribed our power to remove the head of the co-equal Executive
    Branch of the Federal Government. As Professor Laurence Tribe pointed
    out last November, during a House subcommittee hearing on the history
    of impeachment, the presidential oath and Take Care clause cannot
    properly be invoked so as to make the President of the United States
    more vulnerable to impeachment and removal from office than other
    federal officials. ``[I]t simply cannot be the case under our
    Constitution that removing a sitting president should be easier, not
    harder, than removing a vice president, a cabinet officer, or a sitting
    federal judge.'' 3
        The Managers have invited the Senate to lower the bar for
    impeachment and removal of a President by distorting the constitutional
    text and using the presidential oath in a manner never contemplated by
    the Framers. I cast my vote mindful of the dangers this seductive
    invitation poses not only for this President but, more importantly, for
    the future of the Presidency and our constitutional framework.
        As my oaths demand, I will work to protect and defend the
    Constitution. I will continue to defend our constitutional democracy
    against encroachments from all sides.
        Over the last few years, we have seen scores of constitutional
    amendments introduced each Congress and several voted upon each year. I
    have spoken about the assault by amendment being made against the
    Constitution and defended the Constitution against these ``bumper
    sticker'' proposals for constitutional edits. The impeachment of the
    President is a matter of similar importance. What we do, in terms of
    the standards we apply and the judgments we make, will either follow
    the Constitution or alter the intent of the Framers and lower those
    standards for all time. I have heard more than one Senator acknowledge
    that in this sense it is not just the President but also the Senate on
    trial in this matter.
        In considering what to do we cannot and must not ignore how we
    arrived at this point lest our actions countenance repetition in the
    future. We are now in a position to write the lessons we want heeded by
    future Members who have the privilege to serve America in Congresses
    into the next century and millennium.
                            ii. how did we get here?
        When former Senator Dale Bumpers spoke to us about the task before
    us, he posed a question that many Senators have asked themselves over
    the course of these impeachment proceedings. He asked, ``How do we come
    to be here?'' 4 I raised virtually the same question in an
    opinion editorial published on December 13, 1998, in the Los Angeles
    Times. I noted Barbara Tuchman's gripping account in The Guns of August
    of how the world teetered into the catastrophe of World War I. She
    recalled a former German chancellor's question to his successor: ``How
    did it all happen?'' ``Ah, if only we knew,'' was the reply.
        Future generations may ask the same question of us as they ponder
    not only how but also why this sorry episode of admitted presidential
    misconduct led this great country to the brink of paralysis over the
    possibility of removing a popular President, whose leadership has given
    this country not just a balanced budget but a surplus two years
    running, the lowest unemployment in decades and the strongest economy
    in the world. Our economy is in the best shape in a generation in no
    small part because of the President's economic policies. We should be
    working with the President to make the hard choices and develop the
    bipartisan cooperation that are needed to move the country forward into
    the 21st Century with a secure Social Security, strong Medicare and
    needed investments in education.
        Instead, we find ourselves facing the first impeachment trial of a
    duly-elected President and only the second impeachment trial of a
    sitting President in the history of this country. We find ourselves in
    this situation due to the poor judgment of the President, whose
    personal conduct was inexcusable; the antics of a Special Prosecutor
    run amok; and the political posturing of partisan House Republican
    leaders, who misconstrued the constitutional role of the House and
    advanced a take-it-or-leave it strategy of impeachment or nothing. Each
    step of this unfortunate process has notably lacked one important
    element: the exercise of sound judgment.
        That is why the country has looked to the Senate to restore
    political sanity to this process. The demand on us is not simply to
    uphold the ``rule of law,'' about which the Managers have repeatedly
    lectured us. Our oath requires far more than the ministerial act of
    applying the law to the facts or accepting blindly the facts and
    conclusions presented by either side in this trial. We are required to
    evaluate the facts, not in isolation, but in the context of our
    precedent and the history of impeachments, and with our focus always on
    what is good for the country. In short, we are required to do what has
    been missing up to now: exercise judgment, and do so in an impartial
    fashion. The beginning point in this process must start with the
    President.
    A. The President's Conduct
        We can all agree that the President's conduct with a young woman
    who was working in the White House was wrong. It was also deeply
    disappointing, especially to those who know the President and who
    support the many good things he has done for this country and the
    world. His conduct in trying to keep his inexcusable relationship
    secret from his wife and family, his friends and associates, and from
    the public glare of a politically-charged lawsuit, though
    understandable on a human level, has had terrible consequences for him
    personally and for the legacy of his Presidency.
        For me, one of the President's most regrettable actions was his
    nationally-televised statement to the American people in which he shook
    his finger and defiantly told us that the allegations were untrue.
    Although not charged in the Articles of Impeachment, that statement was
    intended to mislead the American people with respect to the nature of
    his relationship with Ms. Lewinsky. While I understand the pressures
    that he was under at the time, that statement was wrong. Although the
    President later apologized for his actions, I feel very strongly that
    no President should intentionally deceive the American people and I
    condemn him for having done so.
        Senator Bumpers reminded us of the human costs that have been paid
    by this President and his family. The President has admitted before a
    Federal grand jury terribly embarrassing personal conduct and has seen
    a videotape of that grand jury testimony broadcast to the entire
    nation, with excerpts replayed over and over again. This modern day
    version of the public stockade has been difficult to witness for those
    who know this man and his family. His punishment has also taken its
    financial toll. The underlying lawsuit has now been settled and
    $850,000 paid on a case that initially sought only $75,000 in
    compensatory damages--a case that the District Court judge had
    dismissed for failing to state a claim.
        His Presidency has been permanently tarnished by impeachment. The
    Senate trial has provided a forum to replay the embarrassing and
    humiliating facts of the President's improper relationship. No one can
    say this President or his Presidency has emerged unscathed.
    B. Special Prosecutor Starr
        But the President's indiscretions and conduct did not alone bring
    us to this point. Raising this matter to the level of a constitutional
    impeachment only began with an investigation and referral from Special
    Prosecutor Kenneth Starr.
        Justice Robert Jackson, when he was Attorney General in 1940,
    observed that the most dangerous power of the prosecutor is the power
    to ``pick people that he thinks he should get, rather than cases that
    need to be prosecuted.'' When this happens, he said, ``it is not a
    question of discovering the commission of a crime and then looking for
    the man who has committed it, it is a question of picking the man and
    then . . . putting investigators to work, to pin some offense on him.''
    ``It is here,'' he concluded, ``that law enforcement becomes personal,
    and the real crime becomes that of being unpopular with the predominant
    or governing group, being attached to the wrong political views, or
    being personally obnoxious to or in the way of the prosecutor
    himself.'' 5
        In the case of President Clinton, things became personal a long
    time ago. When Whitewater failed to produce, the President's detractors
    began searching for a scandal. ``Travelgate'' went nowhere.
    ``Filegate'' was another dead end. Vincent Foster's tragic death was a
    suicide. Last summer, it was reported that the Special Prosecutor had
    his investigators scouring the countryside looking for women who may
    have been intimate with Bill Clinton at some point over the last
    several years. I spoke out then, noting my concern and trying to sound
    a cautionary note that the permanent investigation of the President was
    taking yet another wrong turn.6
        Finally, after four years of fruitless investigations, Special
    Prosecutor Starr renewed his acquaintance with Linda Tripp and began
    the Monica Lewinsky phase of his investigation. According to Mr. Starr,
    that contact with Linda Tripp began on January 8, 1998, days before Ms.
    Lewinsky had filed her affidavit in the Jones case and before the
    President's deposition in that matter.7 As an officer of the
    court, he could have immediately referred Ms. Tripp's information to
    others with authority over such matters. But he did not.
        Most law enforcement authorities strive to prevent crimes from
    occurring. Not so with Special Prosecutor Starr. He engaged all the
    influence, power and authority he could muster to get the President. He
    adopted Ms. Tripp as his agent, arranged to provide her with immunity
    from prosecution, and had her wear a wire and lunch with Monica
    Lewinsky while surreptitiously recording her. He then tried over an
    extended period of many hours to convince Ms. Lewinsky to agree
    likewise surreptitiously to record conversations and help him make a
    case against the President.
        Does anyone recall after the past year of upheaval the crimes the
    Special Prosecutor was seeking to find last January? Recall that the
    ``talking points'' given to Ms. Tripp by Ms. Lewinsky were supposed to
    be the ``smoking gun'' showing that the President was involved in a
    vast conspiracy and cover-up to suborn perjury from Ms. Tripp. No one
    now doubts Ms. Lewinsky's account that she, and she alone, wrote the
    talking points based on her discussions with Ms. Tripp. Moreover, no
    one now doubts that Ms. Lewinsky never even discussed those talking
    points with the President, the President's attorneys, the President's
    friend Vernon Jordan, or anyone associated with the White House.
        Also recall that Mr. Starr justified his pursuit of this
    investigation based on Vernon Jordan helping Ms. Lewinsky find a job in
    New York. His theory, as described in his referral, was that Ms.
    Lewinsky was influenced to lie about her relationship with the
    President through the assistance of Mr. Jordan in finding her a
    job.8 Yet it was not the President but Linda Tripp who, in
    early October 1997, first suggested that Ms. Lewinsky move to New York
    and first discussed with Ms. Lewinsky that she enlist Mr. Jordan's help
    with her New York job search.9 Indeed, Linda Tripp's role in
    this scandal is a pivotal one.
        Fresh from conferring with Mr. Starr's investigators, armed with
    promises of immunity from prosecution, Linda Tripp met with the Jones
    lawyers on the eve of the President's deposition and briefed them on
    the President's relationship with Ms. Lewinsky. Even Mr. Starr
    eventually admitted that his office could--and should--have kept
    ``better control'' of Ms. Tripp.10
        A number of concerns have been raised about how this investigation
    was initiated and conducted by the Special Prosecutor, including
    whether Mr. Starr withheld material information from the Attorney
    General when seeking to extend his jurisdiction over the Lewinsky
    matter, whether he concealed his prior consultations with the attorneys
    in the Jones case, threatened a potential witness with the loss of the
    custody of her child, and subpoenaed a minor at school. I have also
    expressed my concern over the aggressiveness and lack of prosecutorial
    discretion of his investigation in requiring the testimony of mother
    against daughter, attorney against client, and Secret Service
    protectors against protectee--the latter raising serious security
    issues that could jeopardize the future safety of presidents--and
    requiring bookstores to disclose their customers'' choice of reading
    material.11
        Finally, the persistent and politically damaging leaks of secret
    grand jury proceedings have tarnished Mr. Starr's investigation and
    fueled concern over his partisanship. Indeed, soon after he had been
    appointed as special prosecutor, leaks from ``law enforcement sources''
    about the Whitewater investigation under his supervision prompted Mr.
    Starr to confirm publicly his understanding of the grand jury secrecy
    rules. He issued a press release on October 20, 1994, pledging that the
    Office of Independent Counsel (``OIC'') would ``abide by all of the
    obligations imposed upon us to protect the integrity of the grand jury
    process and our ethical obligations as professionals, including those
    requiring the secrecy of our proceedings.''
        Despite this pledge by Mr. Starr, a federal judge determined in
    June 1998 that the evidence established a prima facie case that Mr.
    Starr's office had violated federal secrecy rules prohibiting attorneys
    for the government from disclosing confidential grand jury material. A
    final adjudication of the matter has not been made.
        Then we come to the matter of the referral from Mr. Starr's office.
    The Independent Counsel statute authorizes an independent counsel to
    ``advise the House of Representatives of any substantial and credible
    information . . . that may constitute grounds for an impeachment.''
    12 This provision should not be construed to make an
    independent counsel the House's Grand Inquisitor, nor to require an
    independent counsel to become an advocate for impeachment. Rather, a
    simple, straightforward delivery of the facts collected by the
    independent counsel, unadorned by surmise, conjecture and conspiracy
    theories is all that is authorized.
        Nevertheless, Mr. Starr used this statutory authorization as a
    springboard to advocate impeachment. His conduct stands in stark
    contrast to that of the Special Prosecutor in Watergate. As Georgetown
    University Law Professor Robert Drinan, who served with distinction on
    the House Judiciary Committee, observed last November in testimony
    before the House Judiciary Subcommittee on the Constitution:
        ``It is noteworthy that in 1974, the Special Prosecutor gave
    information and facts to the House Judiciary Committee. He did not,
    however, recommend impeachment. He knew that the power to recommend
    impeachment was committed solely to the House of Representatives by the
    Constitution itself.'' 13
        I am not alone in questioning Mr. Starr's conduct and his
    misinterpretation of his role. His own ethics advisor felt compelled to
    resign his position after Mr. Starr appeared before the House Judiciary
    Committee as the chief cheerleader for impeachment.
        Thereafter, Mr. Starr went from chief cheerleader to chief
    ``talking head,'' making a lengthy television appearance on the news
    show 20/20. This was only days after he told the House Judiciary
    Committee, ``We [the OIC] go to court and not on the talk-show
    circuit.'' 14 In this regard, it bears mention that Mr.
    Starr's public relations advisor and his highly touted ``career
    prosecutors'' have also appeared on countless talk shows over the past
    year.
        Even during the Senate impeachment trial, Mr. Starr has overstepped
    his proper role and intruded into the Senate's prerogatives on how
    these proceedings should be conducted. In effect, he became the chief
    prosecutor for impeachment. In contravention of a unanimously adopted
    consent resolution on how the trial would proceed, the Managers
    enlisted Mr. Starr's help to force Monica Lewinsky to meet with them as
    part of her immunity agreement. If she did not say the right things,
    she subjected herself and her mother and father to prosecution.
        Press accounts make clear that while Mr. Starr's representatives
    were allowed to attend the interview of Ms. Lewinsky on January 24,
    1999, neither the Senate nor the President's counsel were extended such
    courtesy. This collusive move between the Managers and Mr. Starr was
    unfair to the President's counsel and contemptuous of the Senate, which
    had resolved to defer the issue of witnesses until later in the trial.
        Mr. Starr's continued meddling during the Senate impeachment trial
    has been roundly criticized by both Democrats and Republicans. With his
    appetite whetted by one weekend's interference with the Senate
    impeachment trial, the very next weekend, on Sunday, January 31, 1999,
    Mr. Starr's office leaked word to the New York Times that he had
    determined he could indict a sitting President. Even the House Managers
    balked at this interference, saying Mr. Starr's latest leak was ``not
    helpful at all.'' 15
    C. The House Judiciary Committee
        The next protagonist in this constitutional saga was the House
    Judiciary Committee. In addition to the serious substantive concerns
    raised by the way the Committee drafted the Articles of Impeachment--
    which I will discuss later--the Committee also made at least four
    critical procedural errors.
        First, the Republicans on the House Judiciary Committee used the
    muscle of the majority to force its partisan will. History tells us
    that, to be successful, impeachments must be handled in a bipartisan
    manner. Chairman Henry Hyde himself has observed on more than one
    occasion that bipartisanship is crucial to any impeachment proceeding
    because a political, partisan impeachment will not be trusted.
        The Framers anticipated that impeachments might be driven by
    partisanship rather than real demonstrations of guilt. The
    distinguished historian Arthur M. Schlessinger, Jr., stressed the need
    for bipartisanship in impeachment proceedings in his testimony before
    the House Judiciary Subcommittee on the Constitution on November 9,
    1998, stating:
        ``The Framers further believed that, if the impeachment process is
    to acquire popular legitimacy, the bill of particulars must be seen as
    impeachable by broad sections of the electorate. The charges must be so
    grave and the evidence for them so weighty that they persuade members
    of both parties that removal must be considered. The Framers were
    deeply fearful of partisan manipulation of the impeachment process. . .
    . The domination of the impeachment process by `faction' would in the
    view of the Framers deny the process legitimacy.'' 16
        In the 24 years that I have had the honor of serving as a United
    States Senator, there have been three impeachments, all of Federal
    judges. Questions have been raised about how our actions as a body and
    as individual Members in those prior judicial impeachments should serve
    as precedent for this impeachment trial. I will address the significant
    and dispositive factual differences between these trials later, but
    want to stress another significant difference: Those three judicial
    impeachments were, from beginning to end, handled in a bipartisan
    fashion. In each case, the House of Representatives was unanimous, or
    nearly so, in voting to impeach and there was strong bipartisan support
    in the Senate to convict. Unfortunately, this was not the model
    followed in the impeachment proceedings against President Clinton.
        Second, the Committee skirted the important threshold question
    whether, as a matter of constitutional interpretation, the accusations
    set out in Mr. Starr's referral stated a sufficient basis to justify
    the President's impeachment and removal. Despite the concurrence of
    over 800 historians and constitutional scholars that no impeachable
    offenses had been alleged,17 the majority on the House
    Judiciary Committee never questioned Mr. Starr's initial judgment that
    the President had committed impeachable offenses. Had the Committee
    addressed itself to this issue at the start, a factual inquiry may have
    been unnecessary.
        Third, having avoided this threshold issue, the Committee then
    failed to conduct an independent fact-finding inquiry, as it was
    instructed to do by House Resolution 581. This resolution, adopted on
    October 8, 1998, directed the Committee ``to investigate fully and
    completely whether sufficient grounds exist for the House of
    Representatives'' to impeach the President. For making such
    investigation, the resolution authorized the Committee to issue
    subpoenas for the attendance and testimony of any person, to take
    depositions of potential witnesses, to require the production of
    documents and other things, and to issue interrogatories.
        House Resolution 581 was patterned from the resolution adopted by
    the House in February 1974, directing the Judiciary Committee to
    investigate President Nixon. That Committee spent almost five months
    gathering its own evidence and hearing testimony from multiple
    witnesses before debating and voting to adopt articles of
    impeachment.18
        By contrast, the House Judiciary Committee in 1998 relied entirely
    on the referral of Special Prosecutor Starr. The Committee called not a
    single witness with first-hand knowledge of the facts to testify about
    the matters contained in Mr. Starr's referral. The Committee instead
    relied on the one-sided testimony procured by Mr. Starr's lieutenants
    in the grand jury. Though this testimony was under oath, it certainly
    was not tested by cross-examination nor was the Special Prosecutor's
    office interested in any information that might have been exculpatory
    to the President.
        The most probative testimony by Ms. Lewinsky before the grand jury,
    for example, about no one asking her to lie or promising her a job, was
    elicited by a diligent grand juror. Yet another startling omission of
    exculpatory information from Mr. Starr's referral was only discovered
    during the Senate deposition of Ms. Lewinsky. She testified in response
    to Manager Bryant's inquiry about whether the President told her she
    should turn the gifts over to the Jones lawyers that she had previously
    told Mr. Starr's agents that the President saying, ``Well, you have to
    turn over whatever you have,'' sounded familiar to her.19
        Nevertheless, the House Judiciary Committee gave a standing ovation
    to this Special Prosecutor, who misconstrued his statutory role on
    advising the House and who failed the most basic of a prosecutor's
    duties to be fair and to disclose exculpatory information in his
    possession.
        Fourth and finally, the House Judiciary Committee minimized the
    constitutional role of the House in the impeachment process. The
    Committee erroneously relegated the House to the role of mere
    ``accuser'', leaving to the Senate the heavier responsibility of
    determining whether the conduct at issue warranted removal of the
    President. Chairman Hyde said, on September 11, 1998, at the beginning
    of the House impeachment process, ``We are acting as a grand jury . . .
    we are operating as a grand jury.'' 20 This view persisted
    during the House floor debate on the Articles of Impeachment against
    President Clinton. Manager Buyer told his colleagues that the House
    served ``the grand jury function.'' 21 Yet another House
    Member said, ``the role of the House and our duty to the American
    people is to act simply as a grand jury in reference to the impeachment
    charges presented.'' 22 This erroneous view of the role of
    the House of Representatives in the impeachment process has persisted
    even in this trial, with one Manager telling us that the House of
    Representatives ``operates much more like a grand jury than a petit
    jury.'' 23
        Having incorrectly analogized its role to that of a grand jury, the
    House then applied a grand jury ``probable cause'' standard in
    reviewing the evidence. Manager Barr confirmed this mistake, stating,
    ``the House performed admirably in essentially reaching the conclusion
    that there is probable cause to convict the President of perjury and
    obstruction of justice.'' 24 Manager Hyde likewise described
    the House as having ``a lower threshold . . . which is to seek a trial
    in the Senate.'' 25
        Harvard Law Professor Laurence Tribe warned House Republicans
    against misinterpreting and minimizing their constitutional impeachment
    role. He testified before the House Judiciary Subcommittee on the
    Constitution that, ``the fallacy is that this is not, despite the loose
    analogies that some invoke, not like a grand jury.'' 26 His
    warning went unheeded.
        Minimizing the House's role has had serious consequences. It
    explains why the majority in the House Judiciary Committee forfeited
    the opportunity and shirked its responsibility to conduct any
    independent examination of the facts. The House's constitutional
    responsibility for charging the President should not be misinterpreted
    to justify applying only a grand jury's ``probable cause'' standard of
    proof.
        It also amounted to giving the House a ``free vote'' since they
    could duck any responsibility for actually removing the President. On
    the contrary, House Members who vote to impeach should also be
    convinced this President has so abused the public trust and so
    threatens the public that he should be removed. Sending impeachment
    articles to the Senate means exactly what the articles say: That based
    on the evidence reviewed by the House, the President has committed acts
    warranting his conviction and removal.
        Even some Republican Members of the House who voted for impeachment
    admitted, belatedly, in a letter to the Senate Majority Leader that
    they did not mean it. They said they actually did not want this
    President removed and urged the Senate to consider
    censure.27
        In spite of what the House Managers believe, the impeachment
    process is not a ``cause.'' It should not be about partisan political
    pique or about sending a message. Rather, along with the power to
    declare war, it is one of the gravest constitutional responsibility of
    the Congress. This impeachment asks the question whether the conduct
    charged in the Articles of Impeachment passed by the House require the
    Senate to override the judgment of the American people and remove from
    office the person they elected to serve as President.
        That is what the impeachment process is all about--removal from
    office. It is the Constitution's fail-safe device. It is not to be
    undertaken lightly or without justification for it has serious
    consequences.
        We suffered a lengthy Senate impeachment trial because House
    Republicans misinterpreted their constitutional role. House Republican
    leaders mistakenly relegated the House to a limited role, depreciated
    the function of impeachment and expressly left to the Senate
    responsibility for reviewing the charges and determining whether the
    charges warrant the President's removal from office. Articles of
    Impeachment are simply not an appropriate vehicle for the expression of
    political disapproval to be punted by a partisan vote in the House to
    the Senate for some face-saving compromise verdict.
        Not surprisingly, given their misinterpretation of their own role,
    the first ruling that the Chief Justice was called upon to make in this
    trial was to correct the Managers' mischaracterization of the role of
    the Senate. The Chief Justice sustained Senator Harkin's objection and
    corrected the Managers, stating, ``the Senate is not simply a jury; it
    is a court in this case. Therefore counsel should refrain from
    referring to the Senators as jurors.'' 28
    D. Vote by the House of Representatives
        Proceedings in the full House were themselves a sorry spectacle. On
    December 19, 1998, a lame duck session of the House of Representatives
    approved two Articles of Impeachment against President Clinton on the
    slimmest of partisan margins.
                1. Lame Duck House
        The two Articles of Impeachment now before the Senate were decided
    by the votes of a handful of Members who were defeated in the November
    election or are no longer serving. Article I passed with an 11-vote
    margin, which is the number of House Republicans replaced by Democrats
    in the new Congress due to election defeats and retirements. Article
    III (now Article II in the Senate) passed with only a 5-vote margin,
    which is the number of House Republicans who lost their reelections in
    November and were replaced by Democrats. There is no record of any
    prior impeachment reaching the Senate on so slim a margin.
        The House Republican leadership pressed an extreme, all-or-nothing
    action through a lame duck House without allowing an opportunity to
    vote on a censure or other alternative.
        Those who claim that censure is unconstitutional are just plain
    wrong. There is ample historical precedent for censure. Both the House
    and the Senate have adopted resolutions expressing disapproval of
    various individuals, including sitting Presidents. The Senate censured
    Andrew Jackson in 1834; the House censured James Buchanan in 1860. As
    early as 1800, with ``Founding Fathers'' then serving in Congress, the
    House debated a resolution to censure John Adams, though this
    resolution was ultimately rejected.
        Perhaps it should not be surprising that the final votes in the
    divisive speakership of Newt Gingrich set the Congress and the nation
    on this course. Mr. Starr's investigation has dragged on for five
    years, with no end in sight. The entire House impeachment inquiry
    lasted a short three months. Why the sudden push to bring this matter
    to the floor? There were at least five good reasons--the five seats
    that the Republicans had lost in the election--which might have altered
    the outcome on at least one Article of Impeachment. The sixth reason is
    also clear: Speaker Gingrich had said he was resigning from the House,
    and his seat would be vacant when the new House convened.
        An impeachment resolution supported by only one political party
    against a twice-elected incumbent of the opposing party is divisive and
    damaging for the country. During Watergate, constitutional scholar
    Charles L. Black, Jr., wrote that a close vote along party lines
    ``would go to the Senate tainted, or at least suspicious, and would be
    unlikely to satisfy the country, because party motives would be
    suspected.'' 29 The impeachment of a President must be
    bipartisan. A partisan impeachment cannot command the respect of the
    American people. It is no more valid than a stolen election.
        House Republicans have permanently marked this President as
    impeached, but I do not believe that history will judge them kindly
    either. Instead, the manner in which these impeachment proceedings were
    conducted in the House Committee on the Judiciary and in the full House
    of Representatives will serve as a model of mistakes that should be
    avoided in the future.
                2. Rejected Charges
        In the end, the House did not approve the 11 articles recommended
    by Special Prosecutor Starr or the 15 articles of impeachment
    recommended by the Republican Committee staff. The House rejected
    outright two of the four articles reported along party lines by the
    House Judiciary Committee, and authorized Managers to exhibit only two
    Articles of Impeachment in the Senate. In considering these two
    Articles, the Senate has been forced to sort through what is left of
    the allegations against the President in light of the matters rejected
    by the House.
                              iii. secret evidence
        Before the vote, press reports indicated that wavering House
    Members were escorted by Republican House Judiciary Members to review
    certain ``secret evidence'' that the President's counsel had never been
    allowed to review or given an opportunity to rebut.
        That action was fundamentally unfair. A bedrock principle of our
    system of justice is that the prosecutor, not the accused, has the
    burden of proof. The accused is presumed innocent unless and until
    adequate proof of guilt is presented. Such proof may take many forms--
    direct or circumstantial, testamentary or physical. But whatever form
    it takes, it must be introduced, admitted into evidence, and subject to
    examination and inspection before it may be considered by the fact
    finders.
        I note that in 1974, the House Judiciary Committee made available
    to President Nixon and his counsel all the documents and other material
    considered by the Committee, whether in executive or open
    session.30 In short, during the House Judiciary Committee's
    investigation of Watergate, there was no secret evidence and President
    Nixon and his counsel were allowed to see--fully and completely--every
    item of evidence in the possession of the House Judiciary Committee.
        As both a judge and juror in the Senate, I take seriously my
    responsibility to ensure that the Senate's consideration of these
    Articles of Impeachment is fair. Part of that fairness requires that
    the only evidence we consider relates to the Articles actually approved
    by the House--not what the House refused to charge and not matters that
    are not charged by the Articles of Impeachment. During the depositions
    authorized by the majority in the Senate, I and the other Presiding
    Officers from both parties stood firm on this principle and insisted
    that the Managers' questions remain focused on the subject matters
    already in the Senate record and on the Articles before us.
        Certain House Republicans suggested before this trial began that
    Senators should review the ``secret evidence'' as part of their
    deliberative processes. This suggestion was first advanced at about the
    time that the ``secret evidence'' began leaking to the press. From what
    I have read about it, it seems as flimsy as it is inflammatory, and
    completely irrelevant to any issue now before the Senate. Clearly,
    Senators should not allow themselves to be influenced by shady
    accusations and innuendo that would be excluded from any judicial
    proceeding in the land. Consideration of the Articles must be based on
    only one record--the trial record--and evidence that is not admitted at
    trial must play no part in our deliberations.
        I should note that the House Managers have selectively tried to
    keep secret certain unfavorable evidence elicited during the Senate
    trial. For example, they argued strenuously and successfully to
    subpoena witnesses for depositions and for permission to introduce
    parts of those depositions into evidence. The parts they introduced do
    not, as the Legal Times pointed out ``tell the whole story.''
    31
        As one of the Presiding Officers at those depositions, I am well
    aware of the parts of those depositions intentionally omitted by the
    Managers. In fact, following their presentation of the evidence
    obtained from the depositions, I asked unanimous consent that the
    record be made complete and include Vernon Jordan's brief remarks at
    the end of his deposition, ``defending his own integrity.''
    32 There is no question but that the Managers attacked and
    impugned Mr. Jordan's word and his integrity. Senator Boxer echoed this
    unanimous consent request at the conclusion of the Managers' rebuttal
    presentation.33 Due to Republican objections, however,
    neither request was accepted and, unfortunately, the Senate trial
    record does not contain that moving and important part of Mr. Jordan's
    deposition.
                     iv. the articles are unfairly drafted
        Close examination of the Articles exhibited by the Managers
    reflects the underlying unfairness in the impeachment proceedings in
    the House.
    A. Article I is Defectively Vague
        Article I is drafted with such vague accusations, a significant
    question arises whether Senators can responsibly and constitutionally
    pass judgment on it.
        The notion that William Jefferson Clinton committed perjury before
    the Starr grand jury has been a legal conclusion in search of a basis
    for some time. In his referral to the House of Representatives, Special
    Prosecutor Starr urged only three allegations of possible perjury
    before the grand jury as grounds for seeking to remove the President.
    Article I merges those three allegations into one generalized
    allegation that President Clinton gave false testimony ``as to the
    nature and details of his relationship with Ms. Lewinsky.'' In
    addition, the House Judiciary Committee has joined three additional
    categories of allegedly false testimony, without specifying the
    allegedly perjurious statements. Those additional categories cover
    statements that the President made or allowed his attorney to make
    during the Jones case, in spite of the fact that a majority of the
    House of Representatives rejected such statements as a basis for a
    separate article of impeachment.
        Since the outset of the Senate trial, the charges of grand jury
    perjury have continued to be a moving target. In their initial Trial
    Brief, the Managers alluded to 26 instances of grand jury perjury.
    Manager Rogan spoke of 34 instances. In their Reply Brief, the Managers
    tallied up 48 instances of grand jury perjury.
        Yet, Article I does not identify a single statement before the
    grand jury that the House of Representatives alleges to have been
    perjurious, false and misleading. All the Senate is told in Article I
    is that the allegedly perjurious statements fall into ``one or more''
    of four broad categories. This is wholly inconsistent with criminal law
    and Senate standards for identifying perjury.
        First, requiring the President to defend himself against such an
    unspecified charge is fundamentally unfair. Vague, generalized charges
    of perjury, such as the charge now before the Senate, would never hold
    up in a court of law. Under federal law, a perjury indictment must set
    forth the precise falsehood alleged and the factual basis of its
    falsity with sufficient clarity to permit a jury to determine its
    veracity.34 The Justice Department's manual for Federal
    prosecutors acknowledges this basic principle of law.35
        This is not just a technical matter of proper, lawyerly pleading.
    It is a matter of fundamental fairness and due process. As the
    respondent in this proceeding, the President has been denied the basic
    fairness of having clear notice of the specific charges against him and
    of knowing in advance of the trial precisely what the House of
    Representatives accuses him of having done that merits removing him
    from the office to which the people of the United States have twice
    elected him.
        Providing specificity in perjury articles has been the practice in
    past impeachments. Two prior impeachments before the Senate, both of
    Federal judges, involved perjury charges. In both instances, the House
    of Representatives identified each alleged falsehood in a separate
    Article of Impeachment. In the case of Judge Alcee Hastings, 14 of the
    Articles alleged that he had committed perjury with respect to a
    different specific statement. In the case of Judge Walter Nixon, two of
    the Articles alleged perjury, again, each with respect to a single
    discrete statement.
        This time, however, the House of Representatives chose to be
    unacceptably vague. Republicans on the House Judiciary Committee flatly
    refused to pin themselves down to specific statements in the resolution
    they drafted or in their Committee debate. In fact, the only change the
    House Judiciary Committee made to Article I had the effect of making it
    even more ambiguous and obscure: They amended it to allege that the
    President testified falsely as to ``one or more'' of the four
    categories, rather than all of them. By so doing, they have undermined
    the basic fairness of these proceedings.
        Second, the lack of specificity in Article I makes it impossible to
    know whether the requisite majority of the House of Representatives
    agreed that any specific statement was perjurious. To impeach President
    Clinton under Article I, House Members had only to find that he made
    one or more of an unspecified number of unspecified false statements,
    broadly categorized. Accordingly, it is impossible to know whether the
    House properly exercised its exclusive, constitutional power of
    impeachment.
        If there are 3, 4, 7, 34 or possibly 48 allegations of perjury, but
    only one vote by the House, how can the Senate be sure, how can the
    President be sure, and, most importantly, how can the American people
    be sure that a majority of the House agreed on any single allegation of
    perjury? Only a narrow majority of 228 members of the prior House of
    Representatives voted in favor of Article I. If as few as 11 members of
    that slim majority did not agree on which of the 3 to 48 perjury
    allegations were to be forwarded to the Senate, that Article did not
    have the support of a majority of the House and should not be
    considered by the Senate.
        Third, the lack of specificity makes any Senate vote for conviction
    on Article I similarly constitutionally suspect. If, as the Managers'
    Reply Brief indicates, there are 48 separate allegations of perjurious
    statements by the President before the grand jury, then as few as two
    Senators could believe any particular allegation of perjury had been
    established and the Senate as a whole could nonetheless convict and
    remove the President--so long as enough other pairs of Senators thought
    alternative allegations were established. This falls far short of the
    two-thirds of the Senate required to concur before a President is
    removed from office.
        The Managers ignore the grave constitutional questions raised by
    the vagueness of Article I presented to the House and now to the Senate
    for a vote. Instead they defend the fairness of this Article by
    asserting that if President Clinton had suffered from any lack of
    specificity, he could have filed a motion in the Senate for a bill of
    particulars.36 Just as the Managers had to be corrected by
    the Chief Justice about the role of the Senate, they also overestimate
    their power to detail the particulars of the conduct underlying Article
    I.
        The Constitution vests the sole power of impeachment in the House
    of Representatives, not in a handful of managers appointed by that
    body. Just as prosecutors may not save a defective indictment without
    usurping the constitutional role of the grand jury, these Managers may
    not save a defective bill of impeachment without usurping the
    constitutional role of the full House. Put another way, 13 Members may
    not take it upon themselves to guess what was in the minds of over 200
    Members of the 105th Congress when they voted to impeach the President.
    The full House must pass on any amendments to the Articles.
        That is how it has always been done. In 1933, for example,
    impeached judge Harold Louderback moved the Senate to require the House
    to make one of its articles ``more definite and certain.'' In that
    instance, the Managers wisely consented to the motion. An amendment to
    the articles was then approved by the full House and presented to the
    Senate.37
        Similarly, in the case of Judge Nixon, it was the House of
    Representatives that amended its articles in light of evidence
    presented during the Senate proceedings. That amendment was made to
    correct the text of one of the statements that the House alleged to be
    false.
        The Managers do not have the power to make the Article more
    specific, nor have they tried. Instead, they have exploited the
    vagueness in Article I by continuing to add to the litany of alleged
    falsehoods by the President. Any advantage gained by the House Managers
    by purposely crafting Article I in this vague fashion diminishes the
    fairness of the entire proceeding.
    B. Both Articles Charge Multiple Offenses
        Both of the Articles before us allege that the President committed
    ``one or more'' of a laundry list of misdeeds. In fact, as I already
    mentioned, Article I was specifically amended in Committee to use this
    ``one or more'' formulation. Manager Rogan tried to spin this as ``a
    technical amendment only,'' 38 but it was obviously much
    more.
        With this amendment, Article I not only fails to identify a single
    allegedly perjurious statement, it fails even to identify a single
    broad category of statements. It lists four broad categories that could
    allude to virtually every word the President said before the grand jury
    and says, in effect, take your pick. If you think he said something,
    anything, that was not true, then vote to convict. Article II, which
    lumps together seven alleged acts of obstruction, does the same.
        Manager McCollum treated the decision Senators must make on Article
    I like a choice diners would make from a Chinese take-out menu: choose
    some from column A and, if you like, some from column B. He explained
    that Senators could vote to remove the President if ``you conclude he
    committed the crimes that he is alleged to have committed--not every
    one of them necessarily, but certainly a good quantity, and there are a
    whole bunch of them that have been charged.'' 39
        The Senate has made clear that it expects precision in articles of
    impeachment. In the last two impeachments, of Judges Hastings and
    Nixon, the House tacked on an omnibus or ``catchall'' charge that
    included all the others. I and other Senators expressed concern with
    this blunderbuss approach. During the Hastings proceedings, I
    specifically asked whether the catchall Article could be interpreted as
    requiring a finding of guilt as to all the allegations in order to
    convict. By asking the question, I hoped to avoid the constitutional
    problem that I just described, of conviction based on less than a two-
    thirds vote. The Presiding Officer ruled that a Senator would be within
    his right to interpret the Article as I proposed, but expressed the
    view that a Senator could vote guilty based on any one of the alleged
    acts of misconduct.40 Ultimately, the Senate rejected the
    omnibus Articles against Judges Hastings and Nixon, while convicting
    them of more specific charges of perjury.
        Articles of impeachment that contain multiple allegations are
    troubling in several respects. First, they make it virtually impossible
    for the impeached person to prepare an adequate defense. Second, they
    permit the House to impeach, and the Senate to convict, based on less
    than the majority or super majority vote required by the Constitution.
    Third, they allow individual Members to avoid accountability to the
    American people, who may never know exactly which charges their
    representatives regarded as proven and warranting removal from office.
        President Kennedy, in Profiles in Courage, described the omnibus
    Article against President Andrew Johnson as a ``deliberately obscure
    conglomeration of all the charges in the preceding Articles, which had
    been designed . . . to furnish a common ground for those who favored
    conviction but were unwilling to identify themselves on the basic
    issues.'' 41 The House Managers in the Johnson case called
    for the first vote to be on that deliberately obscure Article because
    it was thought to be the easiest way to get a conviction. Today's
    Managers are hoping that this tactic works better in 1999 than it did
    in 1868, when President Johnson was acquitted.
        But impeachment is not a shell game. Deliberate obfuscation
    trivializes what should be a grave and solemn process.
        In 1989, after the Senate rejected the omnibus Article against
    Judge Nixon, then Minority Leader Bob Dole and others urged the House
    to stop bunching up its allegations and, from there on out, to charge
    each act of wrongdoing in a separate article.42 The House
    has unfortunately chosen to ignore this plea in this matter of historic
    importance, contrary to fundamental notions of fairness, proper notice,
    and justice.
                              v. the senate's duty
        The Senate does not sit as an impeachment court in a vacuum. The
    fairness of the process by which the Articles reached the Senate, and
    the specificity and care with which the Articles are drafted to
    identify the charges fairly to the respondent, are significant
    considerations in deciding whether to vote for conviction or acquittal.
    Senators are not merely serving as petit jurors who will be instructed
    on the law by a judge and are asked to find facts. Senators have a
    greater role and a greater responsibility in this trial. The Senate is
    the court in this case, as the Chief Justice properly observed. Our job
    is to do justice and be fair in this matter and to protect the
    Constitution.
        In casting our final votes on the Articles the Senate should be
    clear about the questions that our votes answer and equally clear about
    the questions not before us. The question is not whether Bill Clinton
    has suffered, for surely he has as a result of his conduct, nor whether
    he has suffered enough. The question is not even whether Bill Clinton
    should be punished and sent to jail on a criminal charge, for the
    Constitution does not confer that authority on this court of
    impeachment.
        This vote only and necessarily requires addressing the following
    questions: has the conduct charged in each Article been proven to my
    satisfaction; and, if so, does the charged conduct amount to a high
    crime or high misdemeanor warranting the President's conviction and
    removal from the office to which he was elected by the American people
    in 1996. I will address each of these questions in turn.
    A. Standard of Proof
        In this impeachment trial, the President starts out with fewer
    rights than any criminal defendant in any court in this country. He
    starts out with no clear rules of evidence, conviction based on a mere
    two-thirds vote, rather than a unanimous verdict required for any
    criminal conviction, and no higher court of appeal. This makes the
    obligation imposed by our oath to make this process fair and impartial
    that much more important.
        Fulfilling our duty in the impeachment trial involves evaluating
    the evidence presented by the Managers and the President to determine
    whether the allegations have been proven. Juries in legal cases are
    asked to evaluate evidence presented according to a specific ``standard
    of proof.'' The Constitution is silent on the standard of proof to be
    applied in impeachment trials, and the Senate has refused to bind
    itself to a single standard for all impeachments. As a result, each
    Senator may follow the burden of proof he or she believes is
    appropriate to determine whether the House's charges have been
    adequately proven.
        The fact that each Senator may evaluate the evidence under any
    standard of proof of their choice presents a remarkable challenge to
    the Managers and to the President's counsel. One commentator has noted
    that, ``this practice can often work . . . to the disadvantage of all
    the participants in an impeachment trial by precluding them from
    knowing in advance what standard the Senate will actually apply.''
    43
        The standard of proof in criminal proceedings is ``beyond a
    reasonable doubt'' and in civil proceedings is generally ``a
    preponderance of the evidence.'' An impeachment trial is neither a
    civil or criminal proceeding, leading some commentators to suggest that
    ``a hybrid of the criminal and civil burdens of proof may be desirable.
    . . . Too lenient a proof standard would allow the Senate to impose the
    serious punishments for impeachment ``even though substantial doubt of
    guilt remained.'' Too rigid a standard might allow an official to
    remain in office even though the entire Senate was convinced he or she
    had committed an impeachable offense.'' 44
        The fact that the Senate has adopted no uniform standard of proof
    for each Member to follow is not for lack of attention. The Senate
    considered the standard of proof question when impeachment proceedings
    against President Nixon were contemplated, but adopted none.
    Thereafter, a member of the Watergate impeachment inquiry staff, now a
    professor of law, concluded that the standard of proof in impeachment
    trials will vary with the seriousness of the charges:
        ``If a president were charged with conduct amounting to treason,
    for example, it seems highly unlikely that a senator would insist on
    proof of treason beyond a reasonable doubt before he would vote for the
    president's removal from office. . . . On the other hand, a greater
    quantum of proof might be required for less flagrant wrongdoing.''
    45
        More recently, in 1986, Judge Harry Claiborne moved to establish
    ``beyond a reasonable doubt'' as the standard of proof at his
    impeachment trial. The Senate rejected that motion by a 17 to 75 vote.
    I joined those Members voting against adoption of a uniform standard of
    proof because I believe, as the Presiding Officer made clear at the
    time, that in fulfilling his or her oath each Senator is free to apply
    any standard of proof, including reasonable doubt.
        The charges here stem from alleged efforts by the President to
    conceal a personal inappropriate relationship. While the relationship
    itself may be fair game for public rebuke and censure, only when
    questions were raised about whether his conduct crossed the line into
    criminal activity did this matter become the subject of an impeachment
    inquiry. Indeed, Manager McCollum argued that the President must not be
    convicted and removed from office except upon a finding that he
    committed a crime.46 Fairness dictates that we use the
    exacting standard of proof that is used--and that is constitutionally
    mandated--in criminal trials.
        I note that Majority Leader Trent Lott reached the same conclusion
    25 years ago, as a young Member of the House Judiciary Committee
    considering articles of impeachment against President Nixon. He joined
    other Republican Members in writing:
        ``Because of the fundamental similarity between an impeachment
    trial and an ordinary criminal trial . . . the standard of proof beyond
    a reasonable doubt is appropriate in both proceedings. Moreover, the
    gravity of an impeachment trial and its potentially drastic
    consequences are additional reasons for requiring a rigorous standard
    of proof. This is especially true in the case of a presidential
    impeachment. . . . The removal of a President by impeachment in mid-
    term . . . should not be too easy of accomplishment, for it contravenes
    the will of the electorate. In providing for a fixed four-year term,
    not subject to interim votes of No Confidence, the Framers indicated
    their preference for stability in the executive. That stability should
    not be jeopardized except on the strongest possible proof of
    presidential wrongdoing.'' 47
        Were the President accused of treason or serious public corruption,
    the best interests of the Nation might well demand a somewhat lower
    standard. He is not, however, accused of such crimes. We hundred
    Senators are stand-ins for over a quarter billion Americans. President
    Clinton has been twice elected to his office, and we should only undo
    that choice based on the charges before us on proof tested against the
    highest standard. Under the circumstances, in evaluating the evidence
    that could result in the impeachment and removal of the President of
    the United States, I will use the highest standard of proof used in any
    court of law in this country, that is, proof beyond a reasonable doubt.
    B. The Charges Have Not Been Proven
        I do not believe that the Managers proved their case beyond a
    reasonable doubt. To reach their conclusions, they had to tease
    inculpatory inferences from exculpatory evidence and generally view the
    record in the most sinister light possible. Having taken an oath to do
    impartial justice, my vote must be based on the evidence in the record,
    not on speculation and surmise.
                1. Article I
        The record does not come close to supporting the allegations in
    Article I. Perjury is a complex charge, requiring more than just lying
    or even lying under oath. To constitute perjury, a lie must be both
    material and willful. Lying under oath about trivial or inconsequential
    matters, even if willful, is not a crime. Lying under oath as a result
    of confusion, mistake or faulty memory, even if about material matters,
    is also not a crime. In addition, there is no crime of perjury where a
    witness's answers are literally true, even if unresponsive, misleading
    or false by negative implication.
        The American people saw President Clinton's grand jury testimony
    when the videotape was made public by the House Judiciary Committee. We
    saw him admit that:
        He had engaged in wrongful conduct;
        He had been alone with Ms. Lewinsky on numerous occasions;
        His inappropriate relationship with Ms. Lewinsky lasted over a two-
    year period;
        Many of their encounters involved inappropriate intimate contact;
    and
        He had given her a number of gifts.
        Given these admissions, the Managers had a heavy burden to prove
    that the President testified falsely about any material matter.
        Perhaps for this reason, the Managers repackaged the three alleged
    falsehoods identified by the Special Prosecutor in their Senate
    presentation. In their Reply Brief, the Managers claimed that the
    President perjured himself no less than 48 times during his grand jury
    appearance. They hoped that the sheer number of allegations would
    overcome the essential triviality of each individual charge. It does
    not.
        In this regard, the most remarkable charge leveled by the Managers
    is that the President's prepared statement, in which he made his many
    admissions, was itself perjurious. The President said that his
    relationship with Ms. Lewinsky ``began as a friendship''; Ms. Lewinsky
    disagreed, although she allowed for the possibility that the President
    had a different perception of how the relationship had
    evolved.48 The President said that the inappropriate
    intimate contacts occurred in early 1996 and 1997; Ms. Lewinsky claimed
    the contacts began on November 15, 1995. The President described being
    alone with Ms. Lewinsky only on ``certain occasions,'' and described
    their telephone conversations as ``occasional''; there is nothing in
    the record to the contrary. Indeed, Ms. Lewinsky used the same term to
    describe these events, since a few dozen meetings or telephone
    conversations over a two-year period may appropriately be described as
    ``occasional''.
        Such allegations trivialize the serious business in which we are
    now engaged. Can anyone really believe that the President should be
    removed from office because of a six-week discrepancy as to when his
    admittedly inappropriate affair began? Or because of general statements
    that are allegedly contrary to specific numbers? Or because he did not
    inform the grand jury that the relationship began with a crude sexual
    overture by Ms. Lewinsky, as she herself was compelled to describe in
    humiliating detail, at the whim of the Special Prosecutor's inquisitors
    and for no legitimate investigatory purpose?
        Another set of statements that the Managers consider perjurious
    relate to the President's state of mind. The Managers claim, without
    support, that the President did not genuinely believe, for example,
    that Ms. Lewinsky could file a truthful affidavit that might relieve
    her of having to testify in the Jones case. Such unsupported
    speculation about what was in the President's mind is not, as the
    President's counsel stated, ``the stuff or fuel of a perjury
    prosecution.'' 49
        Asked to identify which of the President's statements were of
    particular importance to the perjury charge, Manager Rogan pointed to
    the President's explanations for his attorney Robert Bennett's
    statement, during the Jones deposition, that Ms. Lewinsky's affidavit
    showed there ``is'' no sex of any kind. Never mind that, in general, a
    person cannot be held criminally liable for false statements or
    representations by the person's counsel to a judge or
    magistrate.50
        Manager Rogan first took issue with the President's argument that
    the statement at issue was technically accurate because his intimate
    contact with Ms. Lewinsky had been over for many months. While the
    President has been derided for legal hairsplitting over ``what the
    meaning of `is' is,'' no amount of derision can transform this sort of
    argumentative testimony into a perjurious statement.
        The President also testified that he had not paid much attention to
    what his attorney was saying and, indeed, did not focus on it until
    months after the deposition, when he read the transcript in preparation
    for his grand jury appearance. The Managers assert that the President
    was paying attention, and they base this on the President's blank stare
    at the time in question. How can we possibly know, from that, what was
    going on in his mind?
        Appreciating the weakness of their assertion, the Managers obtained
    an affidavit from Barry W. Ward, law clerk to the presiding judge in
    the Jones suit, and submitted it with their motion to expand the
    record. Mr. Ward's affidavit states that when he attended the
    deposition of President Clinton in that case, he ``observed President
    Clinton looking directly at Mr. Bennett while this statement was being
    made.'' The Managers used this statement to argue in their motion
    brief, at p. 21, that ``Mr. Ward's declaration proves that Mr. Ward saw
    President Clinton listening attentively while the exchange between Mr.
    Bennett and the presiding Judge occurred.'' According to a Legal Times
    report on February 1, 1999, Mr. Ward ``vigorously disputes that
    interpretation.'' Contrary to the Managers' assertion, Mr. Ward stated
    in a subsequent interview that, ``I have no idea if he was paying
    attention. He could have been thinking about policy initiatives, for
    all I know.'' 51
        The only explanation for the misleading characterization of Mr.
    Ward's affidavit in the Managers' motion brief is the same one offered
    by Senator Bumpers to explain yet another unsupported inference
    asserted by the Managers. He said, ``I am a trial lawyer and I will
    tell you what it is: it is wanting to win too badly.'' 52
        As a former prosecutor, one of the questions I have asked myself is
    whether, based on these facts, criminal charges of perjury or
    obstruction of justice would have been brought against any person other
    than the President of the United States. If William Jefferson Clinton
    were Billy Blythe or Bill Jones, would any prosecutor in the country
    have successfully brought such charges? Experienced prosecutors,
    Republican and Democratic, testified before the House Judiciary
    Committee that no prosecutor would have proceeded based on the record
    compiled by Mr. Starr. I agree and note that during the course of these
    Senate proceedings, the case has only gotten weaker.
                2. Article II
        The same is true of Article II, which charges the President with
    obstruction of justice. The Managers repeatedly urged Senators to look
    at ``the big picture,'' view the evidence as a whole, and not to get
    ``hung up'' on the details. This is lawyer-speak for, ``my case does
    withstand scrutiny.''
        To begin with, the principal witnesses to the President's alleged
    scheme to obstruct justice testified that there was no such scheme.
    Monica Lewinsky has clearly and consistently maintained that no one
    ever asked or encouraged her to lie, and that she was never promised a
    job for her silence. Betty Currie, the President's secretary, and
    Vernon Jordan, a distinguished attorney, also exonerated the President
    of any wrongdoing or any conspiracy with them to obstruct justice. For
    example, Ms. Currie testified that the President did not ask her on
    December 28, 1997, or at any time, to obtain and hide gifts he had
    given Ms. Lewinsky, and Mr. Jordan testified that his involvement in
    Ms. Lewinsky's job search was unrelated to any participation by Ms.
    Lewinsky in the now-settled Jones case. The Managers argue that such
    exculpatory testimony ``may well take on a sinister, or even criminal
    connotation when observed in the context of the whole plot,''
    53 but I fail to see why exculpatory testimony cannot be
    viewed for what it is: exculpatory.
        The Managers do their best to transmogrify other exculpatory
    testimony into evidence of criminality. For example, Ms. Lewinsky
    testified that the President declined to review her affidavit before
    she signed it and did not discuss the content of the affidavit with her
    ``at all, ever.'' 54 Manager Rogan cited this as evidence of
    obstruction on the theory that the President would have reviewed the
    affidavit if he really believed it could be truthful. In case we
    rejected this theory, Manager McCollum speculated that the President
    had reviewed 15 prior drafts of the affidavit--speculation at odds with
    Ms. Lewinsky's testimony that she did not show the President her
    affidavit in final or draft form. But neither Mr. Rogan's theory nor
    Mr. McCollum's speculation can overcome or obscure the fundamentally
    exculpatory nature of Ms. Lewinsky's testimony on this point. Indeed,
    if the President had reviewed or discussed Ms. Lewinsky's affidavit,
    the Managers would doubtless have trumpeted the incident as proof
    positive of obstruction.
        Unable to conjure inculpatory evidence out of the President's
    refusal to review Ms. Lewinsky's affidavit, the Managers invited the
    Senate to infer guilt from the ``fact'' that it was the President, not
    Ms. Lewinsky, who benefitted from the filing of her affidavit. Manager
    Bryant went further, arguing that Ms. Lewinsky ``had no motivation, no
    reason whatsoever'' to want to avoid testifying in the Jones
    case.55 But when Manager Bryant questioned Ms. Lewinsky on
    this point, she corrected him:
        ``Q. [Y]ou didn't file the affidavit for your best interest, did
    you?
        A. Uh, actually, I did.
        Q. To avoid testifying.
        A. Yes.'' 56
        This testimony should have come as no surprise, since most people
    would want to avoid the time, expense, and embarrassment of being
    dragged into a civil lawsuit to testify about their private affairs.
    Moreover, Ms. Lewinsky had already made clear that she had sought to
    conceal her relationship with the President in a vain attempt to avoid
    being ``humiliated in front of the entire world.'' 57 On her
    own initiative, she devised code names for use when communicating with
    the President's secretary 58; deleted correspondence from
    her computer and urged Linda Tripp to do the same 59; and
    composed false and misleading ``talking points'' for Ms. Tripp to use
    in the Jones case. In fact, Ms. Lewinsky was admittedly ``so
    desperate'' for Linda Tripp not to reveal anything about the
    relationship that she ``used anything and anybody that [she] could
    think of as leverage with her.'' 60
        Equally unavailing was the Managers' insistence that the President
    must have known Ms. Lewinsky's affidavit would be false because no
    truthful affidavit could have saved her from having to testify. Both
    the President and Ms. Lewinsky testified that, in their view, it was
    possible to craft a truthful affidavit that might have accomplished
    this objective. The Managers have never explained why we should not
    credit this unrebutted testimony.
        The Managers have stretched the facts in other ways as well, most
    notably with respect to the timing of Ms. Lewinsky's job search. In
    their Trial Brief, in their opening presentations, and in their charts,
    the Managers posited that Mr. Jordan intensified his efforts to find
    Ms. Lewinsky a job on December 11, 1997, only after, and because, the
    judge in the Jones case ordered the President to answer far-ranging
    questions about other women. The same theory appeared at page 11 of the
    Majority Report prepared for the House of Representatives.
        The President's counsel, in their opening presentations to the
    Senate, made clear beyond any doubt that Mr. Jordan met with Ms.
    Lewinsky before the judge issued her ruling, and that the meeting had
    been scheduled several days before that. Without acknowledging their
    error, the Managers retreated to the argument that Mr. Jordan's
    assistance on December 11 was triggered not by Judge Wright's order,
    but rather by the appearance of Ms. Lewinsky's name on the witness list
    six days earlier. But the Managers themselves refuted this argument in
    their Trial Brief, which states that there was ``still no urgency to
    help Ms. Lewinsky'' after the witness list arrived on December 5.
    61 Moreover, although Manager Hutchinson later insinuated
    that Mr. Jordan and the President discussed Ms. Lewinsky's job search
    during their meeting on December 7, 62 the Managers' Trial
    Brief acknowledges that the December 7 meeting was ``unrelated'' to Ms.
    Lewinsky. 63
        More generally, the Managers failed to show any connection between
    Ms. Lewinsky's status as an affiant and possible deponent in the Jones
    case and her New York job search. Every witness to testify on this
    point, including the President, Ms. Lewinsky, and Mr. Jordan, agreed
    that those events were unrelated. Beyond this, the record is clear that
    Ms. Lewinsky first mentioned the possibility of moving to New York in
    early July 1997; that people other than Mr. Jordan tried to help Ms.
    Lewinsky get a job at the United Nations in early October 1997; and
    that Ms. Lewinsky notified her employer that she would be leaving her
    job and moving to New York in November 1997--all well before her name
    surfaced on the Jones witness list.
        The Managers have also stretched and distorted the evidence
    regarding the box of gifts that Ms. Currie retrieved from Ms. Lewinsky
    on or about December 28, 1997. The Managers have argued that the Senate
    ``may reasonably presume'' that Ms. Currie retrieved the gifts, which
    had been subpoenaed by the Jones attorneys, at the behest of the
    President. 64 In making this argument, the Managers ask us
    to disregard Ms. Lewinsky's testimony that it was her idea to give the
    gifts to Ms. Currie; the President's testimony that he never told Ms.
    Currie to retrieve the gifts; Ms. Currie's testimony that it was Ms.
    Lewinsky, not the President, who asked her to retrieve the gifts; and
    the fact that the President gave Ms. Lewinsky additional gifts on the
    very morning that he is alleged to have asked for them back. They also
    ask us to ignore Ms. Lewinsky's testimony that she decided on her own
    to protect her own privacy by turning over only ``innocuous'' gifts to
    the Jones lawyers. 65 Finally, they ask us to ignore
    exculpatory information concealed by Mr. Starr and revealed to the
    Senate for the first time in Ms. Lewinsky's deposition that the
    President's statement, ``Well, you have to turn over whatever you
    have,'' sounded familiar to her.
        The Managers have made much of a conversation between Ms. Lewinsky
    and Mr. Jordan on December 31, 1997, that touched upon certain notes,
    or possibly drafts of notes, Ms. Lewinsky wrote to the President.
    According to Ms. Lewinsky, Mr. Jordan suggested ``something th[e]
    effect'' of, ``check to make sure they are not there,'' which Ms.
    Lewinsky interpreted to mean, ``get rid of whatever is there.''
    66 Mr. Jordan recalled having discussed the notes with Ms.
    Lewinsky, but denied having told her to destroy them. Did Ms. Lewinsky
    misunderstand Mr. Jordan, or is one witness lying? The Senate need not
    decide, since by either account, the President was not a party to any
    conversation about notes and, indeed, neither the notes nor the
    December 31 conversation between Ms. Lewinsky and Mr. Jordan are
    mentioned in the two Articles of Impeachment approved by the House.
        Perhaps the longest stretch by the Managers is their theory
    regarding presidential aides Sidney Blumenthal, John Podesta, and Bruce
    Lindsey. It simply cannot be that the target of a grand jury
    investigation obstructs justice by making false or misleading denials
    of wrongdoing in personal conversations with friends and colleagues,
    even if he knows that they may be compelled to testify about those
    conversations. Indeed, until recently, most federal courts held that
    false denials of wrongdoing--even when made under oath or to a federal
    agent--could not be a basis for criminal liability.
        The Managers have focused particular attention on the President's
    conversation with Sidney Blumenthal on January 21, 1998, the day the
    Lewinsky scandal erupted. According to Mr. Blumenthal, the President
    said that Ms. Lewinsky had told him that she was called ``the stalker''
    by her peers, and that she would claim they had an affair because then
    she would not be known as ``the stalker'' any more. Curiously, Ms.
    Lewinsky herself, in the now-famous ``talking points'' she prepared
    before her relationship with the President became public, encouraged
    Ms. Tripp to defuse questions about Ms. Lewinsky by saying, ``[S]he
    turned out to be this huge liar. I found out she left the W[hite]
    H[ouse] because she was stalking the P[resident] or something like
    that.'' 67 Ms. Lewinsky acknowledged in her original proffer
    to Mr. Starr that she was well aware of her reputation at the White
    House and sought a detail from the Pentagon ``so people could see Ms.
    L[ewinsky]'s good work and stop referring to her as `The Stalker.' ''
    68 Regardless, we can all agree that if the President tried
    to conceal his own misconduct by maligning Ms. Lewinsky, he acted
    shamefully. But this is a far cry from acting criminally.
        The Managers asked us to look at the ``big picture''. The ``big
    picture'' with respect to Ms. Lewinsky is that she had no intention of
    revealing her relationship with the President, regardless of whether he
    helped her find a new job; she acted independently and in her own best
    interests in filing her affidavit in the Jones case; she originated and
    carried out her plan to hide evidence from the Jones lawyers; and Linda
    Tripp rather than Bill Clinton was her principal advisor and ultimate
    betrayer. In fact, the only crimes shown to have possibly occurred are
    not high crimes but those for which Ms. Lewinsky and Ms. Tripp have
    received immunity from prosecution from Mr. Starr.
        What remains when you sweep aside the cobwebs of unsupported
    speculation and conspiracy theory? To my mind, the case on obstruction
    boils down to the charge that the President, in the wake of his
    deposition in the Jones case, ``coached'' his secretary about what to
    say if asked about Ms. Lewinsky. The President has argued that Ms.
    Currie was not then a witness in the Jones case and was not likely to
    be one given the approaching deadline for completing discovery.
    Moreover, he did not know that Mr. Starr had initiated an
    investigation. In fact, once he learned that Mr. Starr was
    investigating and that Ms. Currie might be a witness, the President
    told Ms. Currie, ``Don't worry about me. Just relax, go in there and
    tell the truth.'' 69
        I was seriously troubled by the President's counsel's initial
    suggestion that Ms. Currie was never subpoenaed in the Jones case.
    Still, Mr. Ruff's candid correction and apology to the Senate stands in
    stark contrast to the Managers' refusal to correct their own misleading
    representations.
        In the end, reasonable minds may differ over why the President
    spoke to Ms. Currie as he did in mid-January 1998. His explanation--
    that he was ``trying to think of the best defense we could construct in
    the face of what I thought was going to be a media onslaught''
    70--is not implausible. Using a trusted employee as a
    sounding board to test responses that might later be made public is
    also not implausible nor criminal. The President also had a legitimate
    interest in determining whether Ms. Currie was the source of the Jones
    lawyers' apparent knowledge regarding Ms. Lewinsky. In the end, in
    light of the plausible and innocent explanations for these
    conversations, I do not accept as proven beyond a reasonable doubt the
    Managers' conclusion that they were criminal ``coaching'' sessions. I
    cannot vote to overturn a national election based on the ambiguous
    record of this discrete episode.
        Back on March 8th of last year, one of my Republican colleagues on
    the Judiciary Committee stated his view that no impeachment proceeding
    should be brought unless there was ``an open-and-shut case'' because
    ``Americans cannot stand the trauma of an impeachment matter unless it
    is cut-and-dried.'' 71 Even more clearly, the country cannot
    tolerate a President's being removed from office based on the shifting
    patchwork of circumstantial evidence and surmise that the Managers have
    concocted.
    C. There Was No Need to Call Witnesses
        Witnesses would not fill the holes in the Managers' case.
        The Managers only became interested in hearing from witnesses once
    they faced trouble obtaining a conviction in the Senate. They had an
    opportunity to interview witnesses when this matter was still before
    the House. But the House Judiciary Committee called no fact witnesses.
    The House of Representatives called no witnesses at all. Rather, the
    House Republicans voted out these Articles based on what they were told
    by Special Prosecutor Starr.
        They took the position that witnesses were not necessary. For
    example, in November 1998, Manager Gekas stated that ``[b]ringing in
    witnesses to rehash testimony that's already concretely in the record
    would be a waste of time and serve no purpose at all.'' 72
    Similarly, on December 19, 1998, during the floor debate on the
    articles, Manager Hyde stated:
        ``No fact witnesses, I have heard that repeated again and again.
    Look, we had 60,000 pages of testimony from the grand jury, from
    depositions, from statements under oath. That is testimony that we can
    believe and accept. We chose to believe it and accept it. Why
    reinterview Betty Currie to take another statement when we already had
    her statement? Why interview Monica Lewinsky when we had her statement
    under oath, and with a grant of immunity that if she lied she would
    forfeit?'' 73
        Having chosen to proceed in the House without witnesses, the
    Managers were in no position to demand that the Senate hear witnesses.
    A Senate impeachment trial is not a make-up exam for an incomplete
    inquiry by the House.
        In attempting to explain his inconsistent positions on witnesses,
    Manager Hyde said, ``we were operating under time constraints which
    were self-imposed but I promised my colleagues to finish it before the
    end of the year. I didn't want it to drag out.'' 74 But
    self-imposed time constraints do not begin to explain why Mr. Hyde's
    Committee declined to call a single fact witness. The Committee did
    hold two day-long hearings. It heard from a panel of convicted felons
    who testified, to nobody's surprise, that perjury is a crime. And it
    heard from the prosecutor, Kenneth Starr, who had no first-hand
    knowledge of any facts in the case, and had not even spoken with anyone
    who had. Those two days could have been spent hearing fact witnesses
    and surely they would have been, if the Committee majority thought for
    one moment that fact witnesses would have any new and incriminating
    evidence to share.
        Mr. Hyde's second justification for failing to call witnesses in
    the House was grounded in his mistaken view of that body's role in the
    impeachment process. According to Mr. Hyde, ``[t]he threshold in the
    House was for impeachment, which is to seek a trial in the Senate. . .
    . All we could do was present evidence sufficient to convince our
    colleagues that there ought to be a trial over here in the Senate.''
    75 I have already explained the fallacy of this position.
    When these Articles of Impeachment fail, as I believe they must, I hope
    it will send a clear message to the House of Representatives not to do
    a slapdash, partisan job on something as momentous and wrenching for
    the nation as a presidential impeachment.
        Contrary to the suggestions of some Managers, there is no authority
    for the notion that the Senate must hear witnesses. It is true, as one
    Manager noted, that the Senate heard witnesses during the impeachment
    trial of President Johnson, notwithstanding the House's failure to do
    so. As most historians agree, however, the Johnson impeachment was an
    illegitimate attempt by the Reconstruction Republicans to unseat a
    President whose policies they disliked. It was hardly a model of
    procedural correctness.
        More recently, in the 1980's, the Senate removed three impeached
    federal judges without hearing any witnesses on the Senate floor.
    Indeed, in the impeachment trial of Judge Claiborne in 1986, a majority
    of the Senate approved a motion by then-Majority Leader Dole not to
    hear any live testimony. Instead, in each case, the Senate reviewed a
    written record of testimony prepared by a special committee of
    Senators. The Senate did this over the objections of the judges being
    removed.
        If the President is willing to forego the opportunity to cross-
    examine the witnesses being relied upon by the Managers, that
    eliminates the most pressing need for further discovery in this matter.
    After all, Ms. Lewinsky, Ms. Currie and other witness were interviewed
    multiple times by the Special Prosecutor's lawyers and investigators
    and then testified repeatedly before the grand jury. That is about as
    one sided as it gets--no cross examination, no opportunity to compare
    early statements with the way things are reconfigured and re-expressed
    after numerous preparation sessions with Mr. Starr's office.
        These witnesses testified under threat of prosecution by Mr. Starr.
    Ms. Lewinsky is still under a very clear threat of prosecution, even
    though she has a limited grant of immunity. This Special Prosecutor has
    shown every willingness to threaten and prosecute even those who have
    played minor, tangential roles in his investigations of the President,
    such as Julie Hiatt Steele, and those who have already been
    relentlessly pursued in serial prosecutions, such as Webster Hubbell
    and Susan McDougal.
        Thus, if the President has not initiated efforts to obtain more
    discovery and witnesses and is willing to have the matter decided on
    the current Senate record, the Managers carried a heavy burden to
    justify extending these proceedings further and requiring the
    reexamination of people who have already testified.
        During his opening remarks, Manager McCollum said, ``I don't know
    what the witnesses will say, but I assume if they are consistent,
    they'll say the same that's in here,'' 76 referring to the
    voluminous record before the Senate. Nevertheless, the majority in the
    Senate acceded to the Managers' request to conduct depositions, which
    only confirmed that subjecting the witnesses to further examination
    would not provide any new revelations.
        In fact, during the deposition of Ms. Lewinsky, Manager Bryant
    conceded, ``Obviously, you testified extensively in the grand jury, so
    you're going to obviously repeat things today. We're doing the
    depositions for the Senators to view.'' 77 Likewise, during
    Mr. Jordan's deposition, Manager Hutchinson acknowledged the witness's
    five prior grand jury appearances and conceded, ``I know that probably
    about every question that could be asked has been asked, but there are
    a number of reasons I want to go over additional questions with you,
    and some of them will be repetitious of what's been asked before.''
    78
        There was no reason to protract this process further merely to hear
    more redundant testimony live on the floor of the Senate, in light of
    the President's agreement to forfeit this opportunity to examine the
    witnesses.
    D. Removal Is Not Warranted
        The question each Senator must address is whether the conduct
    charged in the Articles meets the constitutional standard of high crime
    and misdemeanor warranting conviction and removal. The Managers, the
    President's counsel and, in particular, former Senator Dale Bumpers
    have provided us with erudite history lessons on the misconduct the
    Framers meant to cover by this standard.
        We have heard debate whether this standard covers only conduct
    performed in the President's public capacity or also covers private
    conduct. A strong case can be made that the Framers never intended that
    a President be subject to impeachment and removal for private conduct--
    no matter how egregious. Instead, they purposely limited the ground for
    impeachment to offenses against the state or grave abuses of official
    power.
        But this argument presents the proverbial ``slippery slope.'' Does
    this mean that a President may not be removed for murder? The Framers
    may very well have responded ``no.'' In fact, during the impeachment
    trial of Chief Justice Samuel Chase, the presiding officer was then
    Vice-President Aaron Burr, who at the same time was under indictment in
    both New Jersey and New York for the murder of Alexander Hamilton in a
    duel in 1804. As Chief Justice Rehnquist notes in Grand Inquests,
    ``This fact caused one contemporary wag to remark that whereas in most
    courts the murderer was arraigned before the judge, in this court the
    judge was arraigned before the murderer!'' 79 Nonetheless,
    Burr was not the subject of the impeachment trial, Chief Justice Chase
    was.
        No matter how the Framers would treat serious private misconduct, I
    do not hesitate to conclude that heinous crimes, such as murder, would
    warrant the remedy of removal. As Professor Charles Black explained:
        ``Many common crimes--willful murder, for example--though not
    subversive of government or political order, might be so serious as to
    make a president simply unviable as a national leader; I cannot think
    that a president who had committed murder could not be removed by
    impeachment. But the underlying reason remains much the same; such
    crimes would so stain a president as to make his continuance in office
    dangerous to public order.'' 80
        The House Judiciary Committee in 1974 summed up the thorny issue of
    how to evaluate the constitutional standard for impeachable and
    removable conduct as follows: ``Not all presidential misconduct is
    sufficient to constitute grounds for impeachment. There is a further
    requirement--substantiality.'' 81
        Professor Black also addressed the ``substantiality'' of the
    misconduct necessary to meet the constitutional standard for
    impeachment and removal, with the following illustration:
        ``Suppose a president transported a woman across a state line or
    even (so the Mann Act reads) from one point to another within the
    District of Columbia, for what is quaintly called an `immoral purpose.'
    Or suppose a president did not immediately report to the nearest
    policeman that he had discovered that one of his aides was a practicing
    homosexual--thereby committing `misprision of a felony.' Or suppose the
    president actively assisted a young White House intern in concealing
    the latter's possession of three ounces of marijuana--thus himself
    becoming guilty of `obstruction of justice.' . . . Would it not be
    preposterous to think that any of this is what the Framers meant when
    they referred to `Treason, Bribery, and other high Crimes and
    Misdemeanors,' or that any sensible constitutional plan would make a
    president removable on such grounds?'' 82
        In my view, the charges that the President committed perjury and
    obstructed justice to conceal an illicit relationship with Monica
    Lewinsky not only fail as a matter of proof, but to the extent they
    raise legitimate questions about his conduct they fail the test of
    substantiality. As one Vermonter recently wrote to the editor of the
    Burlington Free Press, ``If there ever was a situation in which the
    phrase making a mountain out of a mole hill is apt, it is the
    impeachment trial to date.'' 83
        The Managers tried to address the criticism that the conduct
    underlying the Articles is so insubstantial as to leave the American
    public scratching their heads. Manager Canady conceded that no
    President ``should be impeached and removed from office for trivial or
    insubstantial offenses. . . . A President should not be impeached and
    removed from office for a mistake of judgment. He should not be
    impeached and removed from office for a momentary lapse.''
    84 Similarly, Manager Graham acknowledged ``absolutely''
    that reasonable people could disagree about whether the President
    should be removed, even were the charges proven. 85 Manager
    Graham further opined during questioning by Senators that:
        ``I would not want my President removed for any criminal
    wrongdoing. I would want my President removed only when there was a
    clear case that points to the right decision for the future of the
    country. . . . I would not want my President removed for trivial
    offenses, and that is the heart of the matter here.'' 86
        My decision on this matter should not be misinterpreted to mean
    that I countenance perjury or obstruction of justice, or that I do not
    appreciate the need for enforcement of our laws prohibiting such
    conduct for the functioning of our judicial system. If committed, these
    are serious crimes. Nevertheless, as Manager Graham recognized,
    reasonable people can and do disagree on the ultimate questions in this
    trial.
        I do not agree with the Managers that they have proven these crimes
    were committed or that the conduct at issue here is sufficiently
    heinous to warrant impeachment and removal of the President. Chairman
    Henry Hyde recognized that ``one hardly exhausts moral imagination by
    labeling every untruth and every deception an outrage.'' 87
        The American people understand this point instinctively. In my home
    State of Vermont, for instance, the majority of people are
    overwhelmingly opposed to the removal of this President from office.
    They were against it in August 1998, when the House posted Mr. Starr's
    salacious referral on the Internet. They were against it in November
    1998, when Mr. Starr appeared before the House Judiciary Committee to
    try to breath some life back into his case for impeachment. They were
    against it in December 1998, when the House Republicans made even
    shriller pitches for impeachment to the American people. And judging
    from the calls and mail I have received, Vermonters are more certain
    than ever that they want Bill Clinton to serve out his term.
        Of course, we must not be led by the polls. The Framers wanted
    impeachments to be tried in the Senate, not in the court of public
    opinion. This is not a referendum. Still, whether the evidence is
    sufficient to warrant the President's removal turns at least in part on
    whether it makes him unfit to govern, and on that question, the voice
    of the governed should be heard.
        The Managers have eloquently expressed their concern about the
    ``kind of message'' it would send to America should the Senate refuse
    to convict and remove the President on the Articles. Chairman Hyde
    expressed his view that the message would be that ``charges of perjury,
    obstruction of justice are summarily dismissed--disregarded, ignored,
    brushed off'' and that there is a double standard for the President.
    88
        With all due respect for the Managers' belief on this score, I
    disagree. First, our assessment of whether the President's personal
    misconduct meets the constitutional standard for impeachment,
    conviction and removal should not be misconstrued to reflect our views
    on the seriousness of perjury or obstruction of justice. Professor
    Tribe, in his testimony last November before a House Judiciary
    subcommittee confronted this issue directly, stating:
        ``It is always possible to argue, when confronted by serious crime,
    that the system would crumble if everyone followed the wrongdoer's
    example. If everyone took President Richard Nixon's allegedly false
    filing of tax returns under oath, including backdating documents, as a
    model to emulate, the nation's tax system, and thus its defenses, would
    crumble. Yet there was no realistic basis to suppose that the Nixon
    example would start any such stampede, and the simple proposition that,
    if all did as Nixon had done, the consequences would be catastrophic
    did not mislead the House Judiciary Committee into treating the
    President's alleged tax evasion as an impeachable offense: By a vote of
    26-12, the Committee soundly declined to treat it as such.''
    89
        Second, the Managers are also wrong that Senate acquittal of the
    President would essentially set-up a ``double-standard'' and put the
    President above the law. The Managers ignore the fact that the
    Constitution itself establishes a purposely high and difficult standard
    for the Senate to remove a duly elected head of a co-equal branch of
    government. In a court of law, not a Senate court of impeachment, the
    President, in his personal capacity, stands subject to the same
    standard as any American.
                  vi. prior judicial impeachments for perjury
        Just ten years ago, the Senate voted to convict two Federal judges
    on charges of perjury. The Managers read those precedents to mean that
    perjury, if proved, is always an impeachable offense--that Presidents
    ought not be held to a lower standard of impeachability than judges.
    While the failure of proof in this case obviates the need to resolve
    the precedential effect, if any, that judicial impeachments may have on
    the impeachment of a President, the Managers' simplistic, ``one-size-
    fits-all'' approach is unsound.
        Perjury is not included in the impeachment section of Article II of
    the Constitution, even though, as Manager Buyer noted, the Framers were
    familiar with the crime.90 Treason is the defining crime in
    the Constitution--it is a crime against and undermining the very
    existence of the Government. Bribery is also expressly included--no
    officer of the United States can continue if he is corrupted by
    accepting a bribe to do something other than faithfully execute his
    public duties. Perjury may, if proved, provide a basis for impeachment,
    but only if it is determined to be within ``other high Crimes or
    Misdemeanors.''
        In the recent judicial impeachments, the lies at issue were aimed
    at concealing gross abuses of official power. Judge Alcee Hastings lied
    to conceal his participation in a conspiracy to fix cases in his own
    court. Judge Walter Nixon lied to conceal his corrupt efforts to
    influence a state prosecutor to drop a case. Significantly, Judge Nixon
    had been convicted by a Federal jury and was serving a 5-year prison
    sentence at the time he was impeached and removed; he simply could not
    continue to function as a Federal judge and perform his duties.
        House Managers have also referred to the impeachment of a third
    judge, Judge Harry Claiborne, but he was impeached for filing a false
    tax return and not perjury per se. In any event, as with Judge Nixon,
    Judge Claiborne had been convicted after a jury trial and was serving a
    federal prison term when he was impeached.
        By contrast, President Clinton is not accused of lying to conceal
    public misconduct. He is accused of lying to conceal the ``nature and
    details'' of an extramarital affair--an affair that he admitted had
    occurred.
        Beyond this, there are very basic differences in terms and
    functions between Federal judges and the President. Judges are
    appointed for life. Presidents are elected for fixed terms and
    accountable in political terms. A President can be subject to review by
    the people if he runs for reelection. Moreover, removing an appointed
    Federal judge, while extremely serious, implicates none of the
    momentous, anti-democratic consequences of removing an elected
    President.
        Another difference between Federal judges and the President is
    that, under the Constitution, only the former ``hold their Offices
    during good Behaviour.'' 91 The proposition, however, that
    this clause creates a different constitutional standard for removal of
    judges than for removal of the President or other civil officers is
    dangerous. Such an interpretation would invite attacks on the
    independence of the federal judiciary and undermine the balance among
    the three co-equal branches of our federal government. Indeed,
    Alexander Hamilton opined in Federalist No. 79 that impeachment was the
    only provision for removal ``which we find in our own Constitution in
    respect to our own judges.''
        The past few years have seen unprecedented attacks on controversial
    decisions by Federal judges. Should such decisions be deemed
    malfeasance by the party in control of Congress, then impeachment
    proceedings against judges who render unpopular decisions could provide
    a platform for endless political posturing. More importantly, this
    would chill the independent operation of our Federal judiciary.
        As Professor Michael Gerhardt has explained, the good behavior
    clause does not mean that Federal judges may be impeached on the basis
    of a lower standard than the President, but it does suggest that they
    may be impeached ``on a basis that takes account of their special
    duties or functions.'' 92 A judge who lies under oath is
    uniquely unfit to continue in an office that requires him to administer
    oaths and sit in judgment. It is perfectly appropriate for the Senate
    when sitting as a court of impeachment to take into account the type of
    duties that the impeached official is called upon to perform and
    whether the charges, if proved, clearly impair the official's ability
    to perform those duties. The outcome of this analysis may very well
    differ depending on the job of the impeached official.
                      vii. ``findings of fact'' fallacies
        As the impeachment trial wore on, without any prospect of a
    conviction and removal, a popular Republican exit strategy was to force
    a preliminary vote on so-called ``findings of fact'' that the President
    committed perjury and obstructed justice, to be followed by a second
    vote on removal. I opposed this initiative because, in my view, it
    reflected a basic misunderstanding of the Senate's constitutional
    function when sitting as a court of impeachment.
        The Senate's constitutional role is to determine whether to convict
    the President of an impeachable offense and remove him from office.
    This is a unitary question, requiring a unitary answer. In recognition
    thereof, the Senate has rules prohibiting dividing articles of
    impeachment.
        A presidential impeachment trial is not an appropriate forum for
    ``finding'' that a public official has committed a crime. Crime and
    punishment are issues expressly reserved by the Constitution to our
    criminal courts, where an accused is entitled to due process rights far
    in excess of the minimal procedural protections being accorded the
    President in the Senate trial. In the current case there are also
    additional complicating factors since the Senate made up its procedures
    as it went along and the specific charges against the President have
    constantly shifted.
        Impeachment is not about punishing the officeholder but about
    protecting the public. Senator George Edmunds of Vermont explained in
    1868 that ``[p]unishment by impeachment does not exist under our
    Constitution. . . . [The accused] can only be removed from the office
    he fills and prevented from holding office, not as punishment, but as a
    means merely of protection to the community. . . .'' 93 Our
    focus must be on whether the conduct with which the House has charged
    President Clinton has been proven and warrants his removal from office
    to protect the public.
        Branding the President is not the function of impeachment. On the
    contrary, a congressional finding of guilt for criminal conduct would
    be an illegitimate exercise in shaming the President and an abuse of
    the impeachment process in support of a future criminal prosecution,
    which recent leaks from prosecutor Starr's office confirm he is
    considering.
        A preliminary vote on guilt in the form of ``findings of fact''
    would set the dangerous precedent that a Senate impeachment trial could
    be used for the purpose of criticizing conduct that the
    constitutionally-required number of Senators did not believe was
    impeachable. The last protection against impeachment by an opposing
    party with majority control of Congress would be eviscerated. This
    would trivialize the constitutional impeachment process and invite
    future illegitimate impeachments.
        ``Findings of fact'' that the President committed the acts charged
    in the Articles would be tantamount to conviction on the impeachment
    Articles themselves and more accurately described as ``findings of
    guilt'' without the remedy prescribed by the Constitution. As a matter
    of constitutional law and Senate practice, such ``findings'' cannot and
    should not be separated from the vote on removal. Article II, section 4
    of the Constitution provides that, upon conviction by the Senate, the
    President ``shall be removed from Office.'' By making removal mandatory
    upon conviction, the Constitution precludes the Senate from taking the
    politically-expedient, oxymoronic route of convicting without removing.
        Proponents of the Republican proposals pointed to eighteenth
    century precedents long ago repudiated. In the first three judicial
    impeachment trials that ended in conviction, the Senate, having voted
    to convict, took a separate vote on removal from office. But in each
    case, the first vote required a two-thirds supermajority, as specified
    by the Constitution, not a simple majority as is now proposed.
    Moreover, the Senate rejected this early precedent in 1936; since then,
    it has been the understanding of the Senate that removal follows
    automatically from conviction. The lack of solid precedent for
    ``findings of fact'' speaks volumes.
        This unprecedented exit strategy was opposed by Republicans and
    Democrats who did not want to circumvent the Constitution merely to
    find a convenient end to this impeachment trial. Former Judge Robert
    Bork termed these proposals ``preposterous readings of the Constitution
    as well as utterly impractical.'' 94 Former Reagan Attorney
    General Edwin Meese cautioned that the Senate ``should not flirt with
    unconstitutional action, especially where conviction and removal of the
    President are at stake.'' 95
        Robert Frost said that the best way out is always through. In the
    end, the Senate's best way out was to fulfill its proper role in the
    impeachment process by voting on the Articles.
                 viii. effect on children and national security
        My consideration of the Articles would be incomplete without
    addressing one final point raised by the House Managers about the
    effect of our decision. They have cautioned that should this President
    be acquitted, the consequences would be dire for our children, military
    morale, and the functioning of our judicial system. I reject these
    doomsday scenarios and believe that the precedent set by conviction
    without proof and removal without constitutional justification would be
    far more dangerous for our Republic.
        For example, when he was asked whether acquitting the President
    would endanger the stability of our government, Manager Hyde responded
    that it would, because it would set a bad example for our
    children.96 I was surprised by this answer. This is hardly
    the sort of danger that the Framers of the Constitution were concerned
    with when they met in Philadelphia in 1787. They had just paid a great
    price to liberate themselves from a tyrant. They wanted to ensure that
    their new Chief Executive could not become a tyrant. They wanted to
    ensure that he could be removed if he posed a threat to the democratic
    system of government that they had fought so hard to establish. They
    were not trying to ensure that the President would be a good role model
    for the nation's children.
        More importantly, as a father and grandfather, I work hard to be a
    role model for my children and grandchild. They do not need the
    President to serve that role. They do not have to look to the Congress
    to impeach and remove this President to know the difference between
    right and wrong.
        I trust the parents of America to raise their children, to explain
    what the President did was wrong, and to point out the humiliation and
    other consequences he has brought on himself and his Presidency for an
    entire year and for as long as history books are written. I do not
    believe that the Constitution calls upon us to remove a duly elected
    President for symbolic purposes.
        The Managers have also struggled to raise the specter that a vote
    of acquittal on the Articles would risk our national security by
    undermining the morale of our military, who would appear to be held to
    a double standard. I have more faith in our military. If the Managers'
    position were correct then we would have seen ill-effects from
    President Bush's pardon of former Defense Secretary Caspar Weinberger,
    who had been indicted on several counts, including for lying before a
    grand jury. But we did not.
        In fact, at that time, Manager Hyde applauded the decision to
    pardon Mr. Weinberger, saying, ``I'm glad the president had the
    chutzpah to do it.'' Far from censuring this accused perjurer or
    deploring the bad example he had set, Mr. Hyde denounced the
    Independent Counsel who had brought this ``political'' prosecution and
    stated: ``I just wish [us] out of this mess, this six years and this
    $30-40 million that has been spent [by independent counsel Lawrence E.
    Walsh]. It's endless and it is a bottomless pit for money, with no
    accountability.'' 97
        The fact that the Constitution sets a high standard for removal of
    a President has no bearing on the standard of conduct applicable to
    military service. In addition, it does not place the President above
    the law. Indeed, all of us in Congress have special immunity under the
    speech and debate clause. That has never been argued to place us above
    the law nor undermine military morale.
         ix. deliberations on dispositive trial motions should be open
        Accustomed as we and the American people are to having our
    proceedings in the Senate open to the public and subject to press
    coverage, the most striking prescription in the ``Rules of Procedure
    and Practice in the Senate when Sitting on Impeachment Trials'' has
    been the closed deliberations required on any preliminary question or
    motion, and now on the final question whether the Articles of
    Impeachment should be sustained or rejected.
        The requirement of closed deliberation, more than any other rule,
    reflects the age in which the rules were originally adopted in 1868.
    Even in 1868, not everyone favored secrecy. During the trial of
    President Johnson, the senior Senator from Vermont, George F. Edmunds,
    moved to have the closed deliberations on the Articles transcribed and
    officially reported ``in order that the world might know, without
    diminution or exaggeration, the reasons and views upon which we proceed
    to our judgment.'' 98 The motion was tabled.
        In the 130 years that have passed since that time, the Senate has
    seen the advent of television in the Senate Chamber, instant
    communication, distribution of Senate documents over the Internet, the
    addition of 46 Senators representing 23 additional States, and the
    direct election of Senators by the people in our States.
        Opening deliberations would help further the dual purposes of our
    rules to promote fairness and political accountability in the
    impeachment process. I supported the motion by Senators Harkin,
    Wellstone and others to suspend this rule requiring closed
    deliberations and to open our deliberations on Senator Byrd's motion to
    dismiss and at other points earlier in this trial. We were
    unsuccessful. Now that the Senate has approached final deliberations on
    the Articles of Impeachment, I had hoped that this secrecy rule would
    be suspended so that the Senate's deliberations would be open and the
    American people could see them. In a matter of this historic
    importance, the American people should be able to witness their
    Senators' deliberations.
        Some have indicated objection to opening the Senate's final
    deliberations because petit juries in courts of law conduct their
    deliberations in secret. Analogies to juries in courts of law are
    misplaced. I was privileged to serve as a prosecutor for eight years
    before I was elected to the Senate. As a prosecutor, I represented the
    people of Vermont in court and before juries on numerous occasions. I
    fully appreciate the traditions and importance of allowing jurors to
    deliberate and make their decisions privately, without intrusion or
    pressure from the parties, the judge or the public. The sanctity of the
    jury deliberation room ensures the integrity and fairness of our
    judicial system.
        The Senate sitting as an impeachment court is unlike any jury in
    any civil or criminal case. A jury in a court of law is chosen
    specifically because the jurors have no connection or relation to the
    parties or their lawyers and no familiarity with the allegations.
    Keeping the deliberations of regular juries secret ensures that as they
    reach their final decision, they are free from outside influences or
    pressure.
        As the Chief Justice made clear on the third day of the impeachment
    trial, the Senate is more than a jury; it is a court. Courts are called
    upon to explain the reasons for decisions. Furthermore, to the extent
    the Senate is called upon to evaluate the evidence as is a jury, we
    stand in different shoes than any juror in a court of law. We all know
    many of the people who have been witnesses in this matter; we all know
    the Managers--indeed, one Senator is a brother of one of the Managers--
    and we were familiar with the underlying allegations in this case
    before the Managers ever began their presentation.
        Because we are a different sort of jury, we shoulder a heavier
    burden in explaining the reasons for the decisions we make here. I
    appreciate why Senators would want to have some aspects of our
    deliberations in closed session: to avoid embarrassment to and protect
    the privacy of persons who may be discussed. Yet, on the critical
    decisions we are now being called upon to make on our votes on the
    Articles themselves, allowing our deliberations to be open to the
    public helps assure the American people that the decisions we make are
    for the right reasons.
        In 1974, when the Senate was preparing itself for the anticipated
    impeachment trial of former President Richard Nixon, the Committee on
    Rules and Administration discussed the issue of allowing television
    coverage of the Senate trial. Such coverage did not become routine in
    the Senate until later in 1986. In urging such coverage of the possible
    impeachment trial of President Nixon, Senator Metcalf (D-MT),
    explained:
        ``Given the fact that the party not in control of the White House
    is the majority party in the Senate, the need for broadcast media
    access is even more compelling. Charges of a `kangaroo court,' or a
    `lynch mob proceeding' must not be given an opportunity to gain any
    credence whatsoever. Americans must be able to see for themselves what
    is occurring. An impeachment trial must not be perceived by the public
    as a mysterious process, filtered through the perceptions of third
    parties. The procedure whereby the individual elected to the most
    powerful office in the world can be lawfully removed must command the
    highest possible level of acceptance from the electorate.''
    99
        Opening deliberation would ensure complete and accurate public
    understanding of the proceedings and the reasons for the decisions we
    make here. Opening our deliberations on our votes on the Articles would
    tell the American people why each of us voted the way we did.
        The last time this issue was actually taken up and voted on by the
    Senate was more than a century ago in 1876, during the impeachment
    trial of Secretary of War William Belknap. Without debate or
    deliberation, the Senate refused then to open the deliberations of the
    Senate to the public. That was before Senators were elected directly by
    the people of their State, that was before the Freedom of Information
    Act confirmed the right of the people to see how government decisions
    are made. Keeping closed our deliberations is wholly inconsistent with
    the progress we have made over the last century to make our government
    more accountable to the people.
        Constitutional scholar Michael Gerhardt noted that ``the Senate is
    ideally suited for balancing the tasks of making policy and finding
    facts (as required in impeachment trials) with political
    accountability.'' 100 Public access to the reasons each
    Senator gives for his vote on the Articles is vital for the political
    accountability that is the hallmark of our role.
        I likewise have urged the Senate to adjust these 130-year-old rules
    to allow the Senate's votes on the Articles of Impeachment to be
    recorded for history by news photographers. This is a momentous
    official and public event in the annals of the Senate and in the
    history of the nation. This is a moment of history that should be
    documented for both its contemporary and its lasting significance.
        Open deliberation ensures complete accountability to the American
    people. Charles Black wrote that presidential impeachment ``unseats the
    person the people have deliberately chosen for the office.''
    101 The American people must be able to judge if their
    elected representatives have chosen for or against conviction for
    reasons they understand, even if they disagree. To bar the American
    people from observing the deliberations that result in these important
    decisions is unfair and undemocratic.
        The Senate should have suspended the rules so that our
    deliberations on the final question of whether to convict the President
    of these Articles of Impeachment were held in open session. After this
    impeachment trial is over, I urge the Senate to re-examine the rule on
    closed deliberations in impeachment trials and revise the rule to
    reflect the open and accountable government that is now the pride and
    hallmark of our democracy.
                                 x. conclusion
        The House Managers have warned that should the President be
    acquitted we will set a dangerous precedent and damage the ``rule of
    law.'' I strongly disagree. Instead, we will have set the following
    important precedent for the future: that partisan impeachment drives
    are doomed to failure.
        It is up to the Senate, now, to restore sanity to this process,
    exercise judgment, do justice and act in the interests of the nation.
    We all knew before the trial began that history will judge us on
    whether this case was resolved in a way that serves the good of the
    country, not the political ends of any party. I commend my colleagues
    in the Senate and in particular Majority Leader Lott and Minority
    Leader Daschle for working hard to maintain bipartisanship and fairness
    in our proceedings.
        In all the references to the first presidential impeachment trial,
    a little-known historical fact has been overlooked. After the
    unsuccessful effort to remove him from office, former President Johnson
    returned to serve this country as a United States Senator. I look
    forward to the day when the Senate has concluded the impeachment of
    President Clinton and the Senate can close its work as an impeachment
    court and turn to the other important work we face as Senators.
                                   footnotes
        1. Cong. Rec., Jan. 7, 1997, p. S5.
        2. U.S. Constitution, Art. IV, sec. 2.
        3. House Comm. on the Judiciary, Hearing before the Subcomm. on the
    Constitution, Background and History of Impeachment, 105th Cong., 2d
    Sess., Ser. No. 63, Nov. 9, 1998, p. 228 [hereinafter ``Hearing of Nov.
    9, 1998''].
        4. Cong. Rec., Jan. 21, 1999, p. S845.
        5. Robert Jackson, ``The Federal Prosecutor,'' Address Delivered at
    the Second Annual Conference of United States Attorneys, Apr. 1, 1940,
    quoted in Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J.,
    dissenting).
        6. See Michael Frisby, ``Starr is Assailed for Reportedly Probing
    Alleged Extramarital Affairs by Clinton,'' The Wall Street Journal,
    June 26, 1997, sec. B, p. 2 (quoting Sen. Patrick Leahy).
        7. House Comm. on the Judiciary, Hearing on Impeachment Inquiry:
    William Jefferson Clinton, President of the United States, Appearance
    of Independent Counsel, 105th Cong., 2d Sess., Ser. No. 66, Nov. 19,
    1998, p. 28 [hereinafter ``Hearing of Nov. 19, 1998''].
        8. Referral of Independent Counsel Kenneth W. Starr, 105th Cong.,
    2d Sess., House Doc. 105-310, Sept. 11, 1998, p. 145 [hereinafter
    ``Starr Referral''].
        9. Appendices to Starr Referral, Part 1, House Doc. 105-311, Sept.
    18, 1998, p. 710 (2/1/98 handwritten proffer by Monica Lewinsky: ``Ms.
    Linda Tripp informed Ms. L that a friend of Ms. Tripp's in the NSC . .
    . suggested to Ms. Tripp that Ms. L leave Washington, DC.''); id., p.
    824 (8/6/98 grand jury testimony of Ms. Lewinsky: ``I know I had
    discussed with Linda and either I had the thought or she had suggested
    that Vernon Jordan would be a good person who is a close friend of the
    President and who has a lot of contacts in New York, so that might be
    someone who might be able to help me secure a position in New York, if
    I didn't want to go to the U.N.''); id., p. 1393 (7/27/98 FBI interview
    of Ms. Lewinsky: ``LINDA TRIPP suggested to LEWINSKY that the President
    should be asked to ask VERNON for assistance'').
        10. Interview of Kenneth W. Starr by Diane Sawyer on ABC 20/20,
    Nov. 25, 1998, 10:00 p.m. ET.
        11. Statements by Sen. Patrick Leahy, Cong. Rec., Feb. 23, 1998, p.
    S803; Cong. Rec., Mar. 27, 1998, p. S2696; Cong. Rec., Sept. 24, 1998,
    p. S10873.
        12. 28 U.S.C. Sec. 595(c).
        13. Hearing of Nov. 9, 1998, p. 113.
        14. Hearing of Nov. 19, 1998, p. 32.
        15. Lynn Sweet, ``Starr draws bipartisan fire,'' Chicago Sun-Times,
    Feb. 1, 1999, p. 13.
        16. Hearing of Nov. 9, 1998, p. 101.
        17. ``Historians in Defense of the Constitution,'' reprinted in
    Hearing of Nov. 9, 1998, pp. 334-339; Letter from Law Professors to
    House of Representatives, reprinted in Hearing of Nov. 9, 1998, pp.
    374-385.
        18. House Comm. on the Judiciary, Report on Impeachment of Richard
    M. Nixon, President of the United States, 93rd Cong., 2d Sess., Report
    No. 93-1305, Aug. 20, 1974 [hereinafter ``Rodino Report''], pp. 8-9,
    reprinted in House Comm. on the Judiciary, Impeachment: Selected
    Materials, 105th Cong., 2d Sess., Ser. No. 10, Nov. 1998, pp. 28-29.
        19. Cong. Rec., Feb. 4, 1999, p. S1228.
        20. Cong. Rec., Sept. 11, 1998, H7594.
        21. Cong. Rec., Dec. 19, 1998, p. H12036.
        22. Cong. Rec., Oct. 8, 1998, p. H10087 (statement by Rep. Cliff
    Stearns).
        23. Cong. Rec., Jan. 15, 1999, p. S273.
        24. Cong. Rec., Jan. 15, 1999, p. S273.
        25. Cong. Rec., Jan. 22, 1999, p. S887.
        26. Hearing of Nov. 9, 1998, p. 282.
        27. Letter from Reps. Sherwood Boehlert, Michael N. Castle,
    Benjamin A. Gilman, and James C. Greenwood to Sen. Trent Lott,
    reprinted in The New York Times, Dec. 22, 1998, sec. A, p. 28 (``We
    write as Republicans who voted to impeach President Clinton. . . . We
    are not convinced, and do not want our votes interpreted to mean that
    we view removal from office as the only reasonable conclusion of this
    case'').
        28. Cong. Rec., Jan. 15, 1999, p. S279.
        29. Charles L. Black Jr., Impeachment: A Handbook 8-9 (1974).
        30. See Rodino Report, pp. 8-9.
        31. T.R. Goldman, ``Outtakes From the Final Frame: Transcripts
    Don't Tell the Whole Story,'' Legal Times, vol. XXI, No. 37, Feb. 8,
    1999, p. 10.
        32. Cong. Rec., Feb. 6, 1999, p. S1315.
        33. Cong. Rec., Feb. 6, 1999, p. S1318.
        34. E.g., United States v. Reilly, 33 F.3d 1396, 1416 (3d Cir.
    1994).
        35. Criminal Resource Manual Sec. 1746.
        36. E.g., Cong. Rec., Jan. 22, 1999, p. S872.
        37. Journal of the Senate, Apr. 18, 1933, pp. 317-318.
        38. House Comm. on the Judiciary, Impeachment Inquiry: William
    Jefferson Clinton, President of the United States--Consideration of
    Articles of Impeachment, 105th Cong., 2d Sess., Ser. No. 18, Dec. 10-
    12, 1998, p. 279.
        39. Cong. Rec., Jan. 15, 1999, p. S260.
        40. Cong. Rec., Oct. 20, 1989, p. S13787.
        41. John F. Kennedy, Profiles in Courage 138 (1956).
        42. See Proceedings of the United States Senate in the Impeachment
    Trial of Walter L. Nixon, Jr., 101st Cong., 1st Sess., S. Doc. 101-22,
    Nov. 13, 1989, pp. 457-458 (statement of Sen. Bob Dole); see also Cong.
    Rec., Nov. 7, 1989, p. S27700 (statement of Sen. Herb Kohl); Cong.
    Rec., Nov. 15, 1989, p. S29239 (statement of Sen. Joseph Biden); Cong.
    Rec., Nov. 21, 1989, p. S31652 (statement of Sen. Frank Murkowski).
        43. Michael Gerhardt, The Federal Impeachment Process: A
    Constitutional and Historical Analysis 113 (1996).
        44. Black, supra, p. 17.
        45. John R. Labovitz, Presidential Impeachment 196 (1978).
        46. Cong. Rec., Jan. 15, 1999, p. S260.
        47. Rodino Report (Minority Views), pp. 379-380.
        48. Cong. Rec., Feb. 4, 1999, p. S1213.
        49. Cong. Rec., Jan. 20, 1999, p. S817.
        50. See, e.g., 18 U.S.C. Sec. 1001(b).
        51. T.R. Goldman, `` `The Blank Stare' and Other Strange
    Evidentiary Tales from the Senate Trial,'' Legal Times, vol. XXI, No.
    36, Feb. 1, 1999, pp. 1, 18.
        52. Cong. Rec., Jan. 21, 1999, p. S846.
        53. Cong. Rec., Jan. 14, 1999, p. S64.
        54. Cong. Rec., Feb. 2, 1999, p. S1226.
        55. Cong. Rec., Jan. 14, 1999, p. S231.
        56. Cong. Rec., Feb. 4, 1999, p. S1219.
        57. Appendices to Starr Referral, Part 1, p. 954 (8/6/98 grand jury
    testimony of Monica Lewinsky).
        58. Supplemental Materials to Starr Referral, Part 1, p. 555 (1/27/
    98 grand jury testimony of Betty Currie).
        59. Appendices to Starr Referral, Part 1, p. 1187 (8/20/98 grand
    jury testimony of Monica Lewinky).
        60. Appendices to Starr Referral, Part 1, p. 901 (8/6/98 grand jury
    testimony of Monica Lewinsky).
        61. Cong. Rec., Jan. 14, 1999, p. S65.
        62. Cong. Rec., Feb. 6, 1999, p. S1293.
        63. Cong. Rec., Jan. 14, 1999, p. S65.
        64. Cong. Rec., Jan. 15, 1999, p. S277.
        65. Cong. Rec., Feb. 4, 1999, p. S1222.
        66. Appendices to Starr Referral, Part 1, p. 716.
        67. Appendices to Starr Referral, Part 1, p. 1243.
        68. Appendices to Starr Referral, Part 1, p. 710.
        69. Appendices to Starr Referral, Part 1, p. 591.
        70. Appendices to Starr Referral, Part 1, p. 591.
        71. Jim Abrams, ``GOP Senator: Congress Should Be Cautious About
    Impeachment,'' The Associated Press Political Service, Mar. 9, 1998.
        72. Eric Schmitt, ``Judiciary Chairman Asks Clinton to Admit or
    Deny 81 Findings,'' The New York Times, Nov. 6, 1998, sec. A, p. 1
    (quoting Rep. Gekas).
        73. Cong. Rec., Dec. 19, 1998, p. H12003.
        74. Cong. Rec., Jan. 22, 1999, p. S887.
        75. Cong. Rec., Jan. 22, 1999, p. S887.
        76. Cong. Rec., Jan. 15, 1999, p. S267.
        77. Cong. Rec., Feb. 4, 1999, p. S1212.
        78. Cong. Rec., Feb. 4, 1999, p. S1229.
        79. William H. Rehnquist, Grand Inquests 18 (1992).
        80. Black, supra, p. 39.
        81. House Comm. on the Judiciary, Constitutional Grounds for
    Presidential Impeachment: Report by the Staff of the Impeachment
    Inquiry, 93rd Cong., 2d Sess., Feb. 1974, p. 27.
        82. Black, supra, pp. 35-36.
        83. Burlington Free Press, Jan. 26, 1999.
        84. Cong. Rec., Jan. 22, 1999, p. S877.
        85. Cong. Rec., Jan. 23, 1999, p. S937.
        86. Cong. Rec., Jan. 22, 1999, p. S885.
        87. David G. Savage, ``Hyde View on Lying is Back Haunting Him,''
    Los Angeles Times, Dec. 4, 1998, sec. A, p. 1.
        88. Cong. Rec., Jan. 25, 1999, p. S973.
        89. Hearing of Nov. 9, 1998, p. 227.
        90. Cong. Rec., Jan. 16, 1999, p. S283.
        91. U.S. Constitution, Art. III, sec. 1.
        92. Gerhardt, supra, pp. 106-107.
        93. Cong. Globe Supp'l, Impeachment Trial of President Andrew
    Johnson, 40th Cong., 2d Sess., vol. 4, p. 426.
        94. Robert H. Bork, ``Read the Constitution: It's Removal or
    Nothing,'' The Wall Street Journal, Feb. 1, 1999, sec. A, p. 21.
        95. Edwin Meese III & Todd Gaziano, ``Two Impeachment Votes Could
    Cause Long-Term Harm,'' Roll Call, vol. 44, No. 53, Feb. 4, 1999, p. 6.
        96. Cong. Rec., Jan. 23, 1999, p. S948.
        97. ``Hyde View on Lying is Back Haunting Him,'' supra.
        98. Cong. Globe Supp'l, Impeachment Trial of President Andrew
    Johnson, 40th Cong., 2d Sess., vol. 4, p. 424.
        99. Comm. On Rules and Administration and its Subcomm. On Standing
    Rules of the Senate, Hearings on Senate Rules and Precedents Applicable
    to Impeachment Trials, 93rd Cong., 2d Sess., Aug. 5 and 6, 1974, p. 37.
        100. Gerhardt, supra, p. 174 .
        101. Black, supra, p. 17.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Charles E. Grassley

        Mr. GRASSLEY. Mr. Chief Justice, my fellow Senators, as
    this trial nears the end, we have to ask the question how we
    got here with a tragedy like this. There are many losers. There
    are no winners. There are surely no heroes. There are lots of
    lessons to be learned, and I think all of our prayers ought to
    go out to those who were ensnared in the web of controversy.
        In reflecting on this case and my role in it under the
    Constitution, the word ``sad'' comes to mind. I have not
    relished sitting in judgment of a twice-elected, popular
    President. I would prefer to make history in other ways. I also
    regret the nature of the subject of this case. It is not easy
    having our entire society suddenly thrust into an open, nonstop
    debate about things that ought to make all of us blush.
        Some say this impeachment effort is part of a right-wing
    conspiracy, it is a Republican plot to get a Democratic
    President. Let's look at how we got here and see if that
    argument holds up.
        We are here because the President did wrongful acts and he
    admits to that. We are here because of the independent counsel
    law. The President himself led the charge to reauthorize the
    Independent Counsel Act. Thirty-three of my colleagues on this
    side of the aisle were in the Senate at that particular time.
    All but one of you voted for reauthorization.
        On June 30, 1994, the President signed that reauthorization
    bill. He issued a statement and here is what he said:

        This law, originally passed in 1978, is a foundation stone for the
    trust between Government and our citizens . . .

        He says,

        Opponents called it a tool of partisan attack against Republican
    Presidents and a waste of taxpayer funds. It was neither. In fact, the
    independent counsel statute has been in the past and is today a force
    for Government integrity and public confidence.

        Those were the words of President Clinton, June 30, 1994.
        Before reauthorization, it was the President himself who
    advocated the appointment of a special prosecutor. That
    appointment was made by the President's own Attorney General.
    After reauthorization, the Attorney General supported the
    appointment of an independent counsel. The independent counsel
    was then appointed by a special three-judge panel, as required
    by law.
        Also under the law, the Attorney General can initiate the
    dismissal of an independent counsel if he oversteps his bounds
    or acts improperly. Not only was this never done by the
    President's Attorney General but, in contrast, she even agreed
    several times to expand his jurisdiction, including to cover
    the Monica Lewinsky matter.
        Also under the law, the independent counsel is obliged to
    send to the House any evidences of crimes that might be
    impeachable.
        In short, this case came about through a legitimate, legal
    process. It is a process that historically was vigorously
    defended by this side of the aisle. There are various checks
    and balances built into the process. They are designed to
    prevent abuse by the independent counsel, but they were never
    triggered, even though the President's own Attorney General
    could move for dismissal.
        No, this President is in this predicament because of his
    own private wrongdoing and because of public policy he pursued.
    There is no conspiracy.
        The President's actions are having a profound impact, of
    course, upon our society. His misdeeds have caused many to
    mistrust elected officials. Cynicism is swelling among the
    grassroots. His breach of trust has eroded the public's faith
    in the Office of the Presidency. The President's wrongdoing has
    painted all of us in Washington with a very broad brush.
        In the past 12 months, thousands of Iowans have registered
    their opinions with me. One letter from a middle school
    principal speaks volumes.
        At an assembly to mark the new school year, a video
    entitled ``Attitude is Everything'' was presented to the
    student body. The video was all about American heroes--college
    athletes, Olympic medalists, astronauts and world leaders.
        Logically, the video also included President Clinton. The
    school principal wrote to me the following. He said, when the
    President's picture appeared, the entire student body--ages 11
    to 14--snickered. He said their spontaneous reaction struck a
    chord. He wrote:

        Although they may not fully understand the adult connotations and
    political ramifications . . . they do know that if you want to be
    trusted and [if you want to be] respected, you must tell the truth. . .
    . [A]s an educator in Iowa's public schools for the past 16 years . . .
    our students' reaction to President Clinton's picture is one of the
    saddest moments I can recall. In that instant, I realized how deeply
    his conduct has affected our country.

        Mr. Chief Justice, there is that word ``sad'' again. It
    seems to come to the fore in people's minds over this case,
    over this President's conduct, and over the impact it has had
    on our country.
        The true tragedy in this case is the collapse of the
    President's moral authority. He undermined himself when he
    wagged his finger and lied to our people on national
    television, denying that relationship with Ms. Lewinsky. That
    did more damage to his credibility than any other single act.
        There was no better reason than that for the resignation of
    the President. I did not personally call for his resignation in
    August. That is something the President should decide on his
    own. But once you lose your moral authority to lead, you are a
    failure as a leader. FDR once spoke of the Presidency in this
    way:

        The Presidency is not merely an administrative office. . . . It is
    preeminently a place of moral leadership.

        Mr. Clinton should take note.
        Next, there is the issue of the abuse of power and
    authority. The President used his position to enter into an
    improper relationship with a subordinate--not just a
    subordinate, a young intern. He later used his power to find
    her a job.
        Another abuse of power: The full powers of the White House
    were on lease to stonewall the process and to attack the
    credibility of those who investigated him.
        This White House has perfected the art of stonewalling
    around the truth. I fear that future White Houses will learn
    much from these experts and will refine and improve their own
    truth-fighting arsenals. Truth and openness will be casualties.
        Last, there is the issue of the poor example the
    President's actions serve for the Nation, especially for our
    youth. Is it now OK to lie because the President does it? And
    in the same manner, by wordsmithing, by trying to figure out
    what the meaning is of the word ``is''?
        I received a call recently from a mother of a teenage son
    in Des Moines. All last year, she thought the investigation of
    the President was a wasteful, partisan witch-hunt. She was
    totally against the investigation and impeachment.
        And then her son got into some serious trouble, and it
    involved lying. She confronted him with the wrong. Her son
    responded: ``What I told you is the truth as I understood it at
    the time.''
        The mother grew furious, and she said at that moment she
    knew that we couldn't have a President like Bill Clinton. She
    knew firsthand the damage that his conduct had done to her
    family and to our country. At that point, she said she changed
    her position in favor of impeachment.
        These are all questions and issues that emerge from the
    broader contours of this case, outside the narrow charges in
    the articles.
        With respect to the impeachment charges, many of the
    President's arguments are based on contorted interpretations of
    the facts. These interpretations aren't credible. They
    represent lawyering at its best or, as some would say, at its
    worst.
        It is clear to me that the President committed serious
    crimes when he coached his secretary, Betty Currie, and when he
    misled his aides, Sidney Blumenthal and John Podesta. Each of
    these aides ended up being a witness in official court
    proceedings. I believe, based on the evidence before the
    Senate, that the President lied to these witnesses so they
    would repeat those lies before official court proceedings. That
    is obstruction of justice.
        In addition, I find it very interesting that a power lawyer
    like Vernon Jordan would be so active in the job hunt for Ms.
    Lewinsky. Regardless of what she felt or thought, I believe the
    President was arranging to get her a job. That way she wouldn't
    provide harmful testimony in the Paula Jones sexual harassment
    lawsuit. Again, obstruction of justice.
        Mr. Chief Justice, these actions weren't just outrageous,
    and, more important, morally wrong, but they were also illegal.
    They were a direct assault on the integrity of the judicial
    process. The President is guilty of the offenses charged under
    article II.
        The first article charges that the President committed
    perjury on several occasions. While I am not convinced he
    committed perjury on each occasion charged, I believe he did
    commit perjury when he lied about his efforts to obstruct
    justice. That is the fourth count.
        I don't believe the President's statement that he was
    merely trying to refresh his memory when he spoke with Betty
    Currie about his relationship with Ms. Lewinsky, and I don't
    believe the President's statement that he was only trying to
    protect himself from embarrassment when he concocted elaborate
    lies about Ms. Lewinsky and then conveyed those lies to his
    aides.
        The President was not forthright when he testified before
    the grand jury. Time and time again, he gave answers that were
    misleading and sometimes deliberately false. The American
    people have a right to expect their President to be completely
    truthful, as they can expect you and me to be completely
    truthful. And the American people have a right to expect their
    President to be truthful, especially when placed under oath. I
    will vote guilty on article I as well.
        Mr. Chief Justice, these were not easy decisions. They are
    the product of soul-searching, as it is for all of you. So they
    leave me with a good conscience. I believe my votes reflect the
    truth of what happened in this case.
        The Senate is about to close this chapter in American
    history. It may or may not be the final chapter in this story.
    Nonetheless, our decision in this impeachment trial will stand
    against the test of time. You only truly understand the present
    when it is past. In that respect, future generations will serve
    as our jury and, in the end, history will serve as the final
    judge. Thank you.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Larry E. Craig

        Mr. CRAIG. Mr. Chief Justice, I promised to share with the
    people of Idaho and the Nation what comments I made in the
    closed session of the Senate deliberating on the impeachment of
    President Clinton.
        What I told my colleagues as we deliberated was this:
        If we were in a church, the minister would admonish us from
    the pulpit to hate the sin and forgive the sinner. But we're
    not in a church.
        If we were in a court of law, the judge would tell us to
    hate the crime and punish the criminal. But we're not in a
    court of law.
        We're part of a constitutionally directed impeachment
    tribunal, and our job is to love the Constitution and protect
    the Office of the President. Our decision should not be about
    saving or rejecting William Jefferson Clinton, but about
    protecting the Office of the President and keeping our
    Constitution strong.
        I believe he committed the crimes and acts charged in the
    articles of impeachment, and I will vote to convict and remove
    him from office.
        That was my statement to the Senators in closed
    deliberations, and I stand by it today.
        But this statement was not the full explanation of my vote
    and my reasoning that I believe is owed to the people of Idaho
    and the Nation. Therefore, let me take a few moments now to
    clarify why I voted to convict President Clinton on the
    articles of impeachment.
        First, I believe the House made its case on the facts. I
    was persuaded by what I saw, read, and heard that the President
    deliberately lied under oath in the case brought by Paula Jones
    to enforce her civil rights. I was also persuaded that he
    encouraged others to lie under oath and committed other acts
    designed to obstruct justice. In reaching these conclusions, it
    was important to me that the Senate is not bound to a specific
    constitutional or statutory standard in judging the evidence;
    instead, each Senator is left to his or her own experience and
    conscience. That is both the political and judicial nature of
    the impeachment process prescribed by the Constitution.
        However, reaching this conclusion about the facts does not
    trigger automatic conviction and removal of the President. A
    Senator must still resolve two questions: whether the acts
    committed were the kind of ``high crimes and misdemeanors''
    warranting removal from office, and whether the interests of
    the Nation are served by removal. Impeachment by the House
    expresses that Chamber's opinion on those two questions, but it
    is up to the Senate to render final judgment.
        And it is these two questions that have caused the most
    perplexity in this impeachment process--not to mention the most
    furious debate, handwringing, and logical contortions.
        For example, we have heard much during these proceedings
    about proportionality--in other words, about ensuring that the
    punishment or sanction fits the crime. Some of our colleagues
    have suggested that while the crimes of perjury and obstruction
    of justice may rise to the level of impeachable offenses, that
    conclusion is not inevitable on every set of facts. More to the
    point, they argue there is something in this particular case
    that diminishes the seriousness of the offense or renders it a
    private, as opposed to public, crime: perhaps the context of
    the misdeeds, or the subject matter of the perjury, or the
    motive behind the obstruction of justice.
        Yet considerations such as these have not prevented the
    Government from prosecuting citizens who committed such crimes.
    Furthermore, while we are not bound by statutory definitions of
    crimes here, these arguments frustrate the very goal our
    founders had in mind when they established the extraordinary
    remedy of impeachment: to protect the executive office and the
    Nation from a lawless President. The framers of the
    Constitution believed that governments are established in the
    first place to protect the rights of the governed. It follows
    that the most serious breach of duty in public office--the most
    serious threat to the order of society itself--is for the
    enforcers of the law to break the law. How much more grave that
    breach becomes when it is committed by the one individual in
    the Nation who personifies the Federal Government: the
    President. How much more abhorrent it is when, in covering up
    his crimes, that President exploited the very public trust he
    betrayed.
        There is no question in my mind that perjury and
    obstruction of justice are the kind of public crimes that the
    Founders had in mind, and the House managers have demonstrated
    these crimes were committed by the President. As for the
    excuses being desperately sought by some to allow President
    Clinton to escape accountability, it seems to me that creating
    such loopholes would require tearing holes in the
    Constitution--something that cannot be justified to protect
    this President, or any President.
        This brings me to the final question: whether the public
    interest will be served by the President's removal from office.
    Let me say there are those in my State who have been seeking
    this result ever since the President was elected, because they
    simply don't agree with him. I, too, generally disagree--
    sometimes loudly--with President Clinton's approach to public
    policy.
        However, political and policy differences are emphatically
    not the focus of this question. Instead, the founders intended
    us to focus on the safety of the Nation. That is a very high
    threshold, appropriate to the serious impact of the vote we
    must case. In this case, many are arguing that our Nation is
    not at risk; we're prosperous; the Government is not
    collapsing; there is no immediate or external threat to the
    country.
        But I would submit that if a generation of young people are
    taught by our actions in this case that a lie carries no
    consequences, then the Nation is at risk. If our citizens
    conclude that lawlessness in the highest office is acceptable,
    that their elected representatives are complicit in that
    corruption, and that nothing can be done to stop it, then the
    Nation is at risk. If future Presidents think they can go
    further in lying or obstruction of justice when they apply the
    ``Clinton Indicator,'' then the Nation is at risk. If the
    Executive Office of the President is occupied by an individual
    who is generally believed to have lied and betrayed the public
    trust--if the symbol, the icon of the Presidency is
    compromised, the Nation is at risk.
        Some have suggested that removing this President from
    office would put the Nation at risk. That is false argument and
    something no one should fear. Instead, we should place our
    faith in the Constitution and the wisdom of its framers, who
    provided a roadmap for a peaceful, swift, and orderly
    transition of power to the Vice President. That transition
    poses no threat to the Nation.
        On the other hand, I believe exonerating President Clinton
    with a vote for acquittal does create a threat to our Nation.
    In short, I am convinced that the Nation is at risk today--not
    because of the possibility of the President's removal through
    the impeachment process, but because of the damage he has
    caused to the Executive Office of the President, and the damage
    that continues to be done by his remaining in office.
        For all these reasons, I believe my vote to convict and
    remove this President from office is an appropriate response, a
    necessary response, a constitutionally compelled response.
        I said at the beginning of this process that it would be my
    goal to ensure that we proceeded in a fair and constitutional
    manner. I believe we have done so--and managed along the way to
    generally rise above partisanship and the politics of the day.
    While I fundamentally disagree with many of my colleagues in
    the final result, I salute them for their sincerity and the
    seriousness of their purpose. No matter what the result, the
    Senate discharged its constitutional duty well.
        However, reluctant as I am to say it, I do not believe this
    sorry chapter in our history is closed. On the first day of
    this trial, as I watched the Chief Justice take the chair, I
    was angry--profoundly angry that this President had brought
    this Nation to this point because of his own self-
    gratification, setting what was good for himself above what was
    good for the Nation. It is unconscionable what the President
    has put the country through, continues to put the country
    through, and will continue to put the country through for his
    own personal and political ends. My differences with the
    President on this point transcend party or policy; I am
    saddened that this sorry chapter will continue, that the book
    will be open and the pages of this chapter will be turning as
    long as this President remains in office. Our young people, our
    citizens, our Constitution deserve a better end to a better
    story.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                   Statement of Senator Christopher J. Dodd*

        Mr. DODD. Mr. Chief Justice, 33 days ago, at about this
    hour, we gathered in the Old Senate Chamber in a closed session
    to begin the journey that has brought us to where we are today.
    ---------------------------------------------------------------------------
                                       * * * * *
    * Sen. Dodd submitted additional statements on February 23, see pp.
    3099 and 3100, below.
    ---------------------------------------------------------------------------
        We are only hours away from casting what Robert C. Byrd has
    appropriately described as the most important vote any of us
    have cast or are likely to cast in our service as U.S.
    Senators.
        For only the second time in our Nation's glorious history,
    we, as temporary custodians of these 100 seats, will decide
    whether to take the most extraordinary and grave action that
    could ever be asked of us as Senators. The decision to declare
    war or amend our Constitution pales in comparison to trying the
    impeachment of a popularly elected President of the United
    States.
        Unlike the House of Representatives, we did not decide to
    initiate this impeachment action. We did not seek this burden.
    It has been thrust upon us. Our responsibilities were limited
    to how to proceed in this trial and what verdict to render.
        Despite our procedural differences along the way, the
    Senate has fulfilled Alexander Hamilton's vision as a
    ``tribunal sufficiently dignified.'' The credit for that result
    belongs primarily to Tom Daschle, the Democratic leader, and
    Trent Lott, the majority leader.
        Let history record that these two leaders, saddled with
    different challenges, led us with patience, fairness, good
    humor and dignity.
        I have listened intently to those of you who have spoken on
    this matter, and I would urge all Senators to add the reasoning
    for your vote to this record. For in many respects, it will be
    our words, our thinking, our rationale that will be revisited
    in the coming millennium when and if those who succeed us in
    this Chamber are ever asked to confront the judgment that is
    upon us.
        The contemporary press will record what decisions we have
    reached. But the cold, dispassionate eye of history will also
    scrutinize why collectively and individually we reached our
    conclusion, and what impact this ordeal has had on the
    Constitution, the Congress, the courts, the Presidency and the
    maintenance of our tripartite federal system of government.
        I agree heartily with those who say we should not decide
    this matter only on the polls and the popularity of this
    President. But nor should we totally disregard the voices of
    those who elected this President or who have sent us here to
    represent them--including the voices of those who voted against
    us.
        It is not entirely insignificant that of the 13 House
    Republican managers who have presented their case, 7 were
    unopposed in the last election, and 3 were reelected with such
    significant majorities they were virtually unopposed. I find it
    disquieting that the passion for conviction of 10 of the 13
    House Republican managers may not have been tempered by the
    voices of dissent within their congressional districts.
        I sincerely hope that as we consider the facts of this
    case, the law in this case, and the impact of removing this
    President, we will give equal consideration to the impact on
    the Office of the Presidency.
        It is clear from ``The Federalist Papers'' that the framers
    wanted a strong, independent, ``energetic executive,'' and in
    the words of Alexander Hamilton, one free from ``the propensity
    of the legislative department to intrude upon the rights, and
    to absorb the powers of the other departments. . . .''
        As our presiding Chief Justice properly noted in his book
    ``Grand Inquests'':

        The constitutional convention that met in Philadelphia in 1787
    borrowed many of its ideas from existing governments and from political
    philosophers. But it did make two original contributions to the art of
    government. The first was the idea of a Presidential, as opposed to a
    parliamentary system of government. . . .

        In the introduction to his treatise on impeachment, the
    noted constitutional scholar Charles Black reminds us that
    ``the Presidency is a prime symbol of our National unity. The
    election of the President is the only political act that we
    perform together as a Nation: voting in the Presidential
    election is certainly the political choice most significant to
    the American people, and most closely attended to by them. No
    matter, then, can be of higher political importance than our
    considering whether, in any given instance, this act of choice
    is to be undone, and the chosen President dismissed from office
    in disgrace.'' Professor Black adds forebodingly, ``everyone
    must shrink from this most drastic of measures.''
        In all candor, I must say I saw little evidence of the
    House majority shrinking from the drastic measure of
    impeachment.
        I revere the Presidency and I wish all future occupants of
    the Oval Office to inherit a strong, independent and
    ``energetic'' office.
        I fear the precedent of this impeachment case will come to
    haunt us.
        Now to the specifics of this case.
        This scandal has seriously bruised every institution that
    has come in contact with it. But none has been battered more
    than the executive branch itself.
        The culpability for this damage lies first and foremost
    with President Clinton. His illicit affair with a young woman,
    a subordinate, in the West Wing of the White House has properly
    been greeted with universal condemnation. President Clinton's
    subsequent misleading and false statements to his staff, his
    Cabinet, the country and others is abhorrent. History will
    judge his actions and significant lapses of judgment harshly,
    as it should.
        If he is acquitted by this Senate, he will not as some have
    suggested ``get off scot-free.'' To stand as the only popularly
    elected President to be impeached will relegate him as the
    Hester Prynne in the pantheon of our chief executives. Do not
    allow your decision to convict this President to be influenced
    by the false and ludicrous notion that he will emerge from this
    national nightmare unscathed if we vote to acquit.
        President Ford is often quoted as having said ``the grounds
    for impeachment are whatever the House of Representatives says
    they are by a majority vote.'' I do not take issue with that
    statement except to say that it strikes me as being somewhat
    cavalier. In the Senate, the grounds for conviction and removal
    of a President must not be so loosely fashioned; the grounds
    for conviction must be restricted to the articles of
    impeachment as passed by the House. I am dismayed by the
    argument of some that conviction can be based on reasons
    totally beyond the scope of the articles before us.
        Whether we like it or not, we have a constitutional duty to
    confine our judgment to the specific accusations.
        The standard of proof we use to arrive at our decision is
    properly up to each Senator. But we do not have a similar
    luxury to decide what grounds we may use to convict. Those
    grounds are set by the House and must be proven by them.
        By very narrow margins, on nearly party-line votes, the
    House Republican managers have presented us with two articles
    of impeachment accusing the President of perjury and
    obstruction of justice.
        The House managers have very specifically charged the
    President with violation of the criminal code, insisting that
    the facts prove each and every element of the criminal charges.
        While it is certainly true that no person, including the
    President, is above the law, it is equally true that no
    President is below the law, either. By insisting that this
    President is in violation of specific crimes in the criminal
    code, have not the House managers deprived somewhat the Members
    of the Senate of the individual judgment when exercising a
    standard of proof? The standard of proof in all criminal cases
    is ``beyond a reasonable doubt.'' If those who vote to convict
    on either count use a lesser standard than would be used in the
    case of any other citizen, then a vote to take the ``drastic
    measure'' of conviction and removal of the President from
    office would be based on an unequal standard of justice.
        I found it unsettling that while the House Republican
    managers were passionately asking the Senate to convict this
    President of the criminal charges, two of the most active
    managers were simultaneously expressing their own reservations.
    First, House manager Lindsey Graham candidly told the Senate in
    response to a question that reasonable people could reasonably
    conclude to acquit this President. It appeared to me that
    Manager Graham was less than convinced this President was
    guilty beyond a reasonable doubt.
        Secondly, House manager Asa Hutchinson, in a moment of
    candor on a National television news program, conceded he would
    not be confident of a conviction in a case such as the one he
    now asks us to reach judgment of conviction beyond a reasonable
    doubt.
        Does it not also strike us as strange that when given the
    opportunity to call any of three or four witnesses, the House
    managers chose not to invite Betty Currie to testify? Other
    than the President and Monica Lewinsky, no other person was as
    involved in the allegations brought by the House managers, and
    yet they made the calculated decision not to take her
    deposition. Why?
        For these reasons and the careful, detailed distinction
    drawn between the inferences made by the House managers and the
    direct testimony of deposed witnesses, as outlined by Senator
    Carl Levin, I cannot conclude beyond a reasonable doubt that
    this President is guilty of the criminal charges enumerated in
    either article of impeachment.
        Thus, not only do I ``shrink from this most drastic of
    measures''--I positively affirm we must not remove this
    President from office.
        Some final thoughts.
        The criminalization of our political process must stop
    before irreparable damage is done to the institutions of our
    federal system.
        It is right to condemn in harsh words the behavior of the
    President. It should be equally appropriate to condemn the
    damage done by an independent counsel statute that has spawned
    runaway, brakeless prosecutors who storm the country trampling
    on our system of justice, completely unchecked by any branch of
    government.
        The damage this President has caused his office can and
    will be repaired.
        The damage done by the Office of Independent Counsel and by
    court decisions that allow unlimited discovery in civil
    lawsuits may be far more difficult to repair.
        That fragile balance between our three coequal branches of
    government is being subjected to unprecedented strains as a
    result of events that have occurred over the past several
    years.
        I would urge our leaders to include an examination of these
    issues as part of our agenda in the 106th Congress.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator James M. Jeffords

        Mr. JEFFORDS. Mr. Chief Justice, on January 7, 1999, the
    House of Representatives presented the Senate with two articles
    of impeachment against President William Jefferson Clinton. The
    articles charged the President with lying under oath before a
    Federal grand jury and with obstruction of justice. In the days
    following the House's presentation of the articles, many have
    criticized the Senate for continuing on where the House left
    off. They argue that if there are not enough votes in the
    Senate to remove the President, then the Senate should not have
    bothered proceeding with the trial. While this may seem like a
    reasonable way of disposing of an unpopular process, the Senate
    has a constitutional duty to hold an impeachment trial.
    Although the Constitution provides little guidance, one thing
    was clear: In order to fulfill this duty, we had to come
    together as a body and proceed in a manner that was judicious,
    deliberative and fair. That meant that before the Senate could
    make any decision on the articles of impeachment, each side had
    to be given the opportunity to present its case.
        Now that we have heard from the House managers, the
    President's counsel and viewed the deposition testimony of
    three key witnesses, it is the appropriate time to render
    judgment on the articles of impeachment. I must state at the
    outset that this has been one of the most difficult experiences
    that I have endured in my 23 years in Congress.
        This process has been distressing on a personal level
    because I came into it with a great deal of respect and
    admiration for President Clinton. Over the past 6 years, we
    have enjoyed a good working relationship. While we do not share
    the same party and we often approach issues from different
    points of view, the President and I have worked together on a
    number of important projects. Given my esteem for the
    President, I have been saddened and gravely disappointed by
    much of what I have learned over the last few weeks. Whatever
    the final outcome, I will leave this trial with the knowledge
    that the President has indeed committed shameful acts, misled
    the American people and brought disrepute on the Office of the
    Presidency. By his own actions, he has ensured himself a place
    in history alongside President Andrew Johnson.
        This process has been trying on a professional level
    because I recognize the enormous historical significance of my
    decisions. This trial will establish precedents to examine and
    judge the conduct of all future Presidents. While our Founding
    Fathers clearly intended impeachment for only the gravest
    offenses, confronted with a series of tawdry acts, the facts
    and circumstances do not neatly fit into the definition of
    ``other high crimes and misdemeanors.'' I am gravely concerned
    that a vote to convict the President on these articles may
    establish a low threshold that would make every President
    subject to removal for the slightest indiscretion or imperil
    every President who faces a Congress controlled by the opposing
    party. Yet, at the same time, I am concerned that a vote of
    acquittal could be mistaken by future generations to mean that
    perjury and obstruction of justice are not impeachable
    offenses.
        The Constitution provides very little guidance to the
    Senate for its trying of the impeachment of the President.
    There is absolutely no reference at all to the standard of
    proof that Senators shall use when evaluating the articles of
    impeachment. I believe the fact that the framers gave this body
    the duty to try an impeachment, but no guidance as to what
    standard of proof to use in the trial, gives each Senator the
    discretion to select the standard he or she deems appropriate.
        In making my decision, I have focused on the nature of the
    proceeding. The impeachment trial is a unique process; it is
    neither criminal nor civil. I also focused on the purpose of
    the proceeding. The Senate holds an impeachment trial to
    determine whether there is proof that the President's
    misconduct rises to the level which demonstrates that he or she
    is no longer fit to hold office.
        Given the nature and purpose of an impeachment trial, I
    have decided that the preponderance of the evidence standard
    would not be appropriate as being too low a standard. On the
    other hand, I believe that proof beyond a reasonable doubt
    would raise too high a standard. The question we must ask
    ourselves is, Do the President's actions demonstrate that he is
    unfit to serve, thus warranting his removal in order to protect
    the public? Since we are concerned with the public's
    protection, I would suggest that the clear and convincing
    standard, which lies somewhere in between, would be more
    appropriate to make the very fateful decision of removing the
    President from office.
        Accordingly, I have used the clear and convincing evidence
    standard to judge the impeachment charges against President
    Clinton. I understand that this standard is little used,
    however, I feel that in impeachment trials it is most
    appropriate to use a standard that is somewhere in between the
    extremes.
        Article I alleges that the President provided perjurious
    false and misleading testimony before the Federal grand jury.
    The House managers applied the Federal perjury statute found at
    18 U.S.C. 1623 to the President's testimony. The elements of
    perjury are met when: (1) while under oath (2) one knowingly
    (3) makes a false statement as to (4) material facts. While I
    agree that some of the President's statements before the
    Federal grand jury were false and misleading, I have concluded
    that some of the allegations simply do not rise to the level of
    perjury and that the House managers have not proven the
    remaining perjury charges by clear and convincing evidence.
        The first allegation is that the President committed
    perjury before the grand jury when he testified about the
    nature of his relationship with Monica Lewinsky. In his
    testimony before the grand jury, the President admitted that
    his relationship with Ms. Lewinsky was ongoing and that it
    involved inappropriate intimate contact. Based on the House
    managers' presentation, there is no doubt in my mind that the
    President's prepared statement to the grand jury was inaccurate
    in part. While I disagree with the House managers' conclusion
    that the President's use of the terms ``on certain occasions''
    and ``occasional'' were intentionally misleading, I agree with
    the House managers that the President lied about when and how
    his relationship with Ms. Lewinsky began. However, given that
    the President admitted to the key issue before the grand jury,
    I am not persuaded that lies about these immaterial details
    justify a charge of perjury. I also reject the related
    allegations pertaining to the President's testimony regarding
    the definition of sexual relations used in the Jones case.
        The second allegation of this article is that the President
    committed perjury in his grand jury testimony by repeating the
    perjurious answers he had given in his civil deposition. The
    House managers have certainly proven that the President lied
    about a number of issues in his civil deposition. However,
    article I concerns the President's grand jury testimony, not
    his deposition testimony, and the House managers seem to rely
    upon the President's reaffirmation of his deposition testimony
    as proof that he committed perjury. Since I do not find that
    the President reaffirmed his deposition testimony before the
    grand jury, I reject this allegation of perjury.
        The third allegation is essentially that the President
    committed perjury when he testified before the grand jury that
    he was not paying attention to Mr. Bennett's misstatement that
    the Lewinsky affidavit meant that ``there was no sex of any
    kind in any manner, shape or form.'' Although the video tape of
    the President's civil deposition does show the President
    staring in Mr. Bennett's direction, we cannot know what the
    President was actually thinking at that time. We have all had
    moments where we appear to be paying attention to a speaker,
    when we are actually lost in our own thoughts. Because the
    House managers could not possibly prove whether or not the
    President was actually paying attention to the exchange, they
    have not met the burden of proving that the President's
    testimony was false.
        The final allegation in article I is that the President
    testified falsely about his attempts to obstruct justice in the
    Jones case. I reject this perjury allegation outright because I
    believe it was improper for the House managers to include a
    restatement of the obstruction of justice allegations within
    article I. I have considered the obstruction of justice
    allegations in article II.
        The second article of impeachment charges the President
    with obstruction of justice. Article II charges that the
    President prevented, obstructed and impeded the administration
    of justice, both personally and through his subordinates and
    agents, in a Federal civil rights action. To prove a case of
    obstruction of justice under the Federal statute found at 18
    U.S.C. 1503, the House managers must prove that the President
    acted with intent and that he ``endeavored to influence,
    obstruct or impede the due administration of justice.'' After
    considering these allegations, I have concluded that the House
    managers failed to prove all but one of the obstruction of
    justice charges. My basis for this conclusion is the following:
        The first allegation in article II is that the President
    obstructed justice by having his friend Vernon Jordan assist
    Ms. Lewinsky in her New York job search in exchange for her
    silence in the Jones case. To prove this allegation, the House
    managers presented compelling circumstantial evidence that Mr.
    Jordan assisted Ms. Lewinsky with both her job search and with
    her affidavit. The House managers also pointed to the fact that
    Ms. Lewinsky received her job offer just 2 days after she
    signed a false affidavit. However, there are also
    circumstantial facts that belie the quid pro quo claim. First,
    there is evidence that the President enlisted Mr. Jordan's help
    well before Ms. Lewinsky's name appeared on the Jones witness
    list. Second, Mr. Jordan testified in his Senate deposition
    that he had ``stepped up'' the job search before he learned
    that Ms. Lewinsky was involved. On a final note, a conspiracy
    takes two willing actors. I would have a hard time convicting
    the President of this charge when both Mr. Jordan and Ms.
    Lewinsky have denied that there was any connection between the
    job search and the false affidavit.
        Another allegation is that the President obstructed justice
    by encouraging Ms. Lewinsky to file a false affidavit in the
    Jones case. The House managers have shown that when the
    President informed Ms. Lewinsky that her name had appeared on
    the Jones witness list, he suggested that she might file an
    affidavit to avoid being deposed. To find that the President
    obstructed justice, however, I must infer from the evidence
    that the President was encouraging Ms. Lewinsky to file a false
    affidavit. I cannot make this leap when Ms. Lewinsky herself
    testified that President Clinton made no connection between
    their false cover stories and the contents of the affidavit.
    Indeed, Ms. Lewinsky testified repeatedly that the President
    never discussed the contents of the affidavit with her and
    that, at the time of their conversation, she did not think that
    the affidavit necessarily had to be false.
        Article II also alleges that the President obstructed
    justice by encouraging Ms. Lewinsky to hide his gifts. The
    thrust of the House managers' claim is that the President
    instructed Ms. Currie to pick up the gifts from Monica Lewinsky
    on December 28, 1997, so Ms. Lewinsky would not have to turn
    the gifts over to Paula Jones' attorneys. I would agree that
    the circumstances of the President's secretary, Ms. Currie,
    picking up the gifts several hours after Ms. Lewinsky suggested
    to the President that Ms. Currie might hold onto them for
    safekeeping are certainly suspect. If the House managers could
    prove that Ms. Currie initiated the gift pickup, there would be
    clear and convincing evidence that the President was in fact
    encouraging Ms. Lewinsky to hide the gifts. Because there is
    conflicting evidence on this critical issue, the House managers
    did not meet their burden.
        In addition, article II alleges that the President
    obstructed justice by making false and misleading statement to
    his aides about Ms. Lewinsky. Given that the President had an
    ongoing relationship with Ms. Lewinsky, it was spurious, mean
    spirited, defamatory and morally wrong for the President to
    refer to Ms. Lewinsky as a stalker or to in any way impugn her
    reputation. The House managers and all of us have every reason
    to be incensed by the President's actions. That being said, it
    is clear that the President made these remarks in his
    continuing effort to conceal the true nature of his
    relationship with Ms. Lewinsky. There is no evidence that the
    President knew these aides would be called to testify.
    Therefore, I believe that this allegation has no merit.
        While I found the other charges alleged in article II to be
    either legally or factually deficient, there is one allegation
    of obstruction of justice which I believe that the House
    managers have proven by clear and convincing evidence; the
    President's postdeposition statements to Bettie Currie. Ms.
    Currie testified that on two occasions in the days following
    the President's deposition in the Jones case, the President
    called her into his office and made a series of remarks to her:
    ``You were always there when she was there, right? We were
    never alone. You could see and hear everything. Monica came on
    to me and I never touched her, right? She wanted to have sex
    with me and I couldn't do that.''
        I simply do not believe the President's explanation that he
    was questioning Ms. Currie in an ``effort to get as much
    information as quickly as I could'' or that he was ``trying to
    ascertain what the facts were'' or ``what Ms. Currie's
    perception was.'' I am also not persuaded by the fact that Ms.
    Currie testified that she did not feel pressured to agree with
    the President. Rather, I agree with the House managers that if
    the President was actually seeking information he would not
    have been asking rhetorical questions. I also believe that the
    President's explanation would be more plausible if his
    statements to Ms. Currie were not false.
        The fact is that the President gave false testimony in the
    Jones deposition, that during his deposition he repeatedly
    referred to Ms. Currie as someone who could back up his
    testimony, and that immediately following the deposition he
    summoned Ms. Currie into work on a Sunday and cleverly spoon-
    fed his cover stories to her. Despite the President's counsel's
    protestation, there was still a possibility that Ms. Currie
    could be called to testify in the Jones case. Accordingly, I
    believe that when the President called Ms. Currie to his office
    and repeatedly recounted these false statements he ``endeavored
    to influence, obstruct or impede the due administration of
    justice'' in violation of the Federal obstruction statute.
        The House managers have left us with the impression that
    once we conclude that the President has committed either
    perjury or obstruction of justice, we have a constitutional
    duty to vote to remove the President from office. They maintain
    that perjury and obstruction of justice must be considered high
    crimes per se because they carry the same penalties as bribery.
    I reject this premise. In fact, the severity of a bribery
    sentence is dependent on subject matter and the amount of the
    bribe. Similarly, a conclusion that the President committed
    obstruction of justice should not automatically warrant his
    removal. It is incumbent upon each of us to examine the
    underlying facts and circumstances to determine whether or not
    the President has committed a high crime.
        Now, having found that the President is guilty of
    obstructing justice in the Paula Jones case, I had to determine
    whether the violation is a ``high crime'' warranting removal
    from office. This led me to think about what justice was
    actually being obstructed and to consider the underlying
    circumstances that brought us here today.
        In the narrow legal sense, this entire impeachment trial
    rests on the independent counsel statute and the Paula Jones
    case.
        As many of my colleagues remember, Congress enacted the
    independent counsel statute in the wake of the Watergate
    scandal, after President Nixon ordered the dismissal of special
    Watergate prosecutor Archibald Cox over his refusal to drop a
    subpoena for Nixon's incriminating White House tapes. Congress
    designed the independent counsel statute to insulate and
    protect investigations of alleged criminal conduct by the
    President and other high-level Federal officials.
    Unfortunately, the statute has not worked as Congress
    envisioned it would. This well-intended statute has resulted in
    a proliferation of interminable, expensive investigations
    against public officials. It has cost our taxpayers more than
    $130 million, and considering all the time, effort and expense,
    there have been very few successful prosecutions resulting from
    the statute.
        One such investigation under the statute originated in
    August 1994, when Judge Kenneth Starr was appointed as an
    independent counsel to investigate alleged wrongful acts in the
    so-called Whitewater land deal. During the course of the next 4
    years, the Office of independent counsel (``OIC'') expanded its
    investigation of President Clinton a number of times. At the
    same time, the President was defending a civil rights action by
    Paula Jones, a former Arkansas State employee who alleged that
    President Clinton sexually harassed her during the time he
    served as Governor. Last January, the OIC was able to expand
    its investigation and redirect its D.C.-based Whitewater grand
    jury panel to investigate the President's concealment of his
    extramarital affair with White House employee Monica Lewinsky.
        We must not forget the reason that the President's
    relationship with Ms. Lewinsky was even an issue in the Jones
    suit was because Paula Jones was trying to show that the
    President's treatment of Ms. Jones was part of a pattern and
    practice of sexual harassment. Judge Wright initially ruled
    that Paula Jones was entitled to information on the so-called
    Jane Does, because that evidence might help establish the
    President's pattern of sexually harassing conduct. However,
    Judge Wright ultimately ruled that evidence about the
    President's harassment of other women would not change her
    decision to dismiss the case because Paula Jones failed to
    establish that she herself was harassed. I quote from the
    judge's April 1, 1998, decision:

        One final matter concerns alleged suppression of pattern and
    practice evidence. Whatever relevance such evidence may have to prove
    other elements of plaintiff's case, it does not have anything to do
    with the issues presented by the President's motion for summary
    judgment, i.e., whether plaintiff herself was the victim of alleged
    quid pro quo or hostile work environment sexual harassment. . . .
    Whether other woman may have been subjected to workplace harassment,
    and whether such evidence has allegedly been suppressed, does not
    change the fact that plaintiff has failed to demonstrate that she has a
    case worthy of submitting to a jury. [emphasis added]

        Why is this ruling so important in my decision? Well, we
    are essentially here today because the Whitewater investigation
    was expanded to determine whether President Clinton's efforts
    to conceal his consensual relationship with Ms. Lewinsky
    obstructed Paula Jones' right to justice. The plain fact is
    that the Jones case was thrown out because Judge Wright ruled
    that Paula Jones had no case and that even if the President had
    revealed the true nature of his consensual relationship with
    Ms. Lewinsky, it would not have changed the outcome of the
    Paula Jones case. While President's relationship with Ms.
    Lewinsky was morally wrong, there is absolutely no evidence
    that the President was sexually harassing Ms. Lewinsky.
        Although I have concluded that the President obstructed
    justice by trying to influence the testimony of Bettie Currie,
    the fact is that the President's actions did not actually
    hinder Paula Jones. Indeed, in the midst of the OIC
    investigation, Paula Jones appealed Judge Wright's ruling and
    the President agreed to pay her $850,000 in an out-of-court
    settlement. Some might even argue that as a perverse result of
    the President's obstruction of justice, Paula Jones ended up
    with greater monetary relief than she would have otherwise
    received. Therefore, while the articles of impeachment came
    about as a direct result of President Clinton's actions in the
    Jones case, it is clear that in the end the President's actions
    did not negatively affect Paula Jones' justice. In other words,
    there was no justice to obstruct in the Jones case.
        Most of us now believe the President lied about his
    relationship with Ms. Lewinsky when he testified under oath and
    that he also lied about the nature of his relationship to his
    staff, his family and the American people. I have concluded the
    President not only lied about the affair but that he took at
    least one illegal action in an attempt to conceal the truth
    from Paula Jones. However, I believe that President Clinton
    took these steps to avoid deep personal embarrassment, not to
    seize, maintain or subvert the power of the state.
        Let us not forget that the ultimate question we must each
    answer is whether on these facts arising out of these
    circumstances this President poses such a danger to the state
    that we can no longer permit him to remain in office. The
    ultimate issue here is a determination of whether the President
    is fit to serve.
        Consider our constitutional guidance: The President of the
    United States ``shall be removed from Office on Impeachment
    for, and Conviction of, Treason, Bribery, or other high Crimes
    and Misdemeanors.'' The framers intentionally set this standard
    at an extremely high level to ensure that only the most serious
    offenses would justify overturning a popular election. The
    concept of ``maladministration'' was considered and rejected.
        I believe that whether the President's misconduct occurred
    in the private sphere or in his public or official capacity is
    also an important distinction to make when deciding his fitness
    to serve. Clearly, there are those private acts which in no way
    reflect on a President's fitness for office. On the other hand,
    there are public or official acts which I think no reasonable
    person would doubt reflect poorly on a President's fitness for
    office and would warrant impeachment and removal. I think we
    can all see the difference in gravity between the offenses of
    which President Clinton stands accused and a hypothetical
    accusation that he took a bribe. While the former reflects
    poorly on his character and discretion, the latter reflects on
    his fitness to serve and describes a classic case of abuse of
    office.
        For the President to do what he did was reprehensible and
    morally wrong. I believe that the President lied to avoid
    embarrassment. However, the framers did not envision such
    behavior as being encompassed by the phrase ``other high crimes
    and misdemeanors.''
        The bottom line is that old maxim that bad facts lead to
    bad law. Such a low threshold for removal of a President from
    office would be dangerous. After careful consideration, I have
    concluded that President Clinton has not committed an offense
    that indicates the President is not fit to serve. Therefore, I
    will not vote to convict President Clinton.
        I do not want the President to come away from this trial
    thinking that he is forgiven, or that what he has done is not
    serious, because I think it was most serious. I do not want the
    people of this Nation to think that a vote of acquittal means
    that the President's conduct is acceptable because it is not
    acceptable. Lying and obstruction are wrong. I also hope that
    my vote does not lend any credence to the notion that sexual
    harassment is not that important, because it is important. A
    determination to let the President serve out his term should
    not be taken as an exoneration of his actions. At the same
    time, I think it is extremely important that we leave this
    chapter behind us and move on to the Nation's business.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Paul Wellstone

        Mr. WELLSTONE. Mr. Chief Justice, I want to explain my
    views publicly on the impeachment articles sent to us by a
    partisan vote of the House of Representatives, and on the
    removal of the President from office which they would prompt.
        First, I am shocked and saddened that our Republican
    colleagues persistently have blocked our efforts to have open
    and public debates and discussion in our deliberations in this
    matter, and most especially in our deliberations on the final
    votes on whether to remove the President. Whatever their
    motives, this is not what a free, representative, accountable
    democracy is all about. Simply publishing partial transcripts
    of our proceedings, which include only some formal statements
    made by Senators and not the deliberations themselves--and
    doing so only at the end of the trial--is, in my view, a great
    leap sideways.
        I also want to describe what I think--and frankly have
    thought for months--is a more appropriate mechanism to express
    our disapproval of the President's behavior: a tough,
    bipartisan censure resolution which makes clear our contempt
    for what he's done in lying to his family, his friends, his
    staff, and the American people about his relationship with
    Monica Lewinsky, and the disgrace which those lies have placed
    upon his Presidency for all time.
        In recent months, hundreds of constitutional scholars--
    including many respected conservatives--have argued that, in
    their view, the Constitution does allow this censure vote; the
    Senate's precedents allow it; we have done it before. It is
    true that the Constitution is silent on the question of what
    else we can do in addition to removal; it is also true that the
    Constitution in no way prevents us from moving forward on
    censure. The argument that we are somehow blocked
    constitutionally from censuring the President is contrived and
    fraught with partisan pleading.
        Even so, if we are ultimately blocked by a filibuster from
    a vote on censure, the President will not have escaped the
    judgment of Congress or the American people. Any Senator, in
    any venue they choose, can offer their own forceful, public
    censure of the President, repeatedly if they like. I certainly
    have. A corporate expression of the Senate's condemnation of
    the President's actions, while of course preferable, is not
    essential, for all of us already have made known our views.
        We all condemn the President's behavior. It has been said
    so many times, it hardly bears repeating, were it not for the
    willful, partisan attempts to mischaracterize a vote against
    removal as a vote to condone what the President has done. That
    is, of course, preposterous; the President has been impeached
    by the House. That has only happened once before in our
    history. The trial has gone forward, and every Member of this
    body has condemned the President's behavior as unacceptable,
    meriting only scorn and rebuke.
        It is clear that the President already has paid a terrible
    price in the eyes of history, not least in the shame and
    humiliation that this permanent mark on his Presidency has
    caused him, his family, his friends and supporters, and his
    administration. The message is clear, including to our young
    people: When one fails to tell the truth, there are real,
    sometimes even awful, consequences and costs. The President's
    behavior was shameful, despicable, unworthy, a disgrace to his
    office. And in this long, sordid, painful process, I believe he
    has been held accountable for what he has done.
        Pursued overzealously by Kenneth Starr and by House
    Judiciary Committee Republicans, the articles were then
    approved by the full House in a grossly unfair and partisan
    proceeding that was destructive both of our polity and our
    politics. All of us should be deeply troubled by it, and all
    should work together to put it behind us. In my view, these
    allegations should never have reached the Senate. But they
    have, and the trial has now been held. It has changed few, if
    any, minds on the basic facts, on how the law should be applied
    to those facts, or on the high bar for removal set by the
    Constitution.
        Finally we bring to a close this long, sad year of
    investigations, hearings, and speeches. It has been a painful
    year. In many ways, it has been a lost year. Think of what we
    might have done this past year, had we not done this. Think of
    the news we could have made, had not all seen this. Think of
    the good laws that we could have written, had not this stood in
    the way. Think of the opportunities lost, the hopes staved off.
    We must ask with Langston Hughes, ``What happens to a dream
    deferred?''
        Sadly, so many opportunities for better, more prudent and
    proportionate judgment fell by the wayside. First, and most
    important, the President should have avoided this sorry
    relationship. Then, a little over a year ago, the President
    could have been more forthcoming and told the whole truth,
    instead of misleading us all. The American people could have
    handled it. Then the independent counsel could have shown
    greater discretion in judging whether to bring this case
    forward. The leadership of the House of Representatives could
    have allowed a vote on censuring the President, instead of
    pushing the case forward to impeachment. They were wrong to
    thwart the will of what I expect would have been a House
    majority in so doing. And the Senate could have voted to
    dismiss the case and promptly and resolutely censured the
    President.
        Instead, against better judgment, against all indications
    of the people's will, and against any shred of charity, an
    ardent and zealous minority pressed on. They had the right.
    They had the power. But they were wrong, and I believe history
    will so judge them. It is a supreme irony that the most
    conservative forces in our politics today have for months
    wielded the most radical option made available in the
    Constitution against this President: impeachment and removal.
    Aware of its dangers, our founders designed constitutional
    protections against its abuse. This process has shown that
    those protections are not perfect; they require reasoned
    judgment in their application; judgment that has been missing
    in this process from day one.
        Let us resolve to learn the lessons of this long, sad year.
    Let us learn now, having come this far, the wisdom of the
    founders that impeachment is and must be a high barricade, not
    to be mounted lightly. Let us learn that because it requires
    the overwhelming support of the Senate to succeed, it cannot
    and should not proceed on a merely partisan basis. Let us learn
    that the desire to impeach and remove must be shared broadly,
    or it is illegitimate.
        Let us learn that the subject matter of impeachment must be
    a matter of great gravity, calling into question the
    President's very ability to lead, and endangering the Nation's
    liberty, freedom, security. Let us learn that the case against
    the President must be a strong and unambiguous one in fact and
    in law, for even a President deserves the benefit of our
    reasonable doubts.
        The charges brought against President Clinton do not rise
    to those levels. And even if they did, the case against him is
    neither strong nor unambiguous. As the White House defense team
    has made clear, there are ample grounds for doubt about both
    the facts and law surrounding each of the two articles before
    us.
        It is true that the impeachment process has further
    alienated millions of Americans from their government, and that
    is a tragic harm for which the President bears considerable
    responsibility. It is also true, as we were told by Chairman
    Hyde yesterday, that the nobility and fragility of a self-
    governing people requires hard work, every day, to get it
    right, to fight the good fight, to discern the common good. But
    I believe, unlike him, that it is the impeachment process
    itself, both here and in the other body--its partisanship, its
    meanness and unfairness, its leadership by those who want to
    win too badly--which has increased people's cynicism; not the
    prospect of the President's ``getting away'' with something.
        Our Nation was founded on the Jeffersonian principle ``that
    government is the strongest of which every man feels himself a
    part.'' What Jefferson and the other founders feared was the
    warning of their counterpart Rousseau: ``As soon as any man
    says of the affairs of state `What does it matter to me?' the
    state may be given up as lost.'' But while the many signs of
    disaffection among our people are growing, I do not think we
    have reached the point of no return; there is time in this
    Congress to recover from this episode, and to move on.
        Despite the claims of pundits that Americans have simply
    tuned out, I think a deeper reality is present in their
    reactions, and in the polls. In fact, most Americans, in their
    wisdom, have reached a subtle, sophisticated judgment in this
    case, and have already moved beyond it. As is so often the
    case, they're way ahead of Washington. It is true that they
    abhor the President's behavior but don't believe it merits his
    removal. In addition, they believe there are larger issues
    facing the Nation than the misdeeds that nearly all now concede
    the President committed: peace in the Middle East; the hunger
    of children; the health of Americans; saving our Social
    Security safety net; debating whether hundreds of billions of
    dollars of surplus should go to bolster Medicare, or to some
    combination of universal savings accounts or tax cuts. These
    are the things the people sent us here to work on. These are
    the things that I hear about when I return to my State.
        So let us now bring to a close, with our votes, this long,
    sad year of investigation and impeachment. And let us resolve
    that there shall be many a year before we have another one like
    it. It is time for our country to pull together to seek an end
    to the fractious partisanship that has defined this period, and
    to re-engage a full-throated, genuine debate about our Nation's
    future that can help us find again that common ground that
    unites us as Americans and that can serve as a firm foundation
    for resolving the many serious problems that still face our
    country--impeachment or not--today and tomorrow.
        We should, as White House attorney Charles Ruff said,
    listen to the voices not merely of the advocates who have been
    before us, but of Madison, Hamilton, and the others who met in
    Philadelphia 212 years ago; of the generations of Americans
    since then; of the American people now, and of future
    generations of Americans. And if we do, we will do the right
    thing.
        Congressman John Lewis observed in his final impeachment
    speech, in the end, we are ``one house, one family, one people;
    the American house, the American family, the American people.''
    We are called together to come to judgment on this President,
    and then to return promptly to the pressing issues that lay
    before us and that require our urgent attention. That judgment
    is by now clear: Bill Clinton should remain President; the
    censure of this body, and the historic impeachment that will
    ever attach to his name, will leave a permanent mark on his
    Presidency.
        I thank you, Mr. Chief Justice, for the fine work you have
    done, and I thank both the majority leader and the minority
    leader for their leadership. I said to Senator Lott, I think
    yesterday, I am still furious that we are in closed session and
    will say that, but I appreciate the way in which you have kept
    us together. I thank the two of you.
        I was thinking I might do something a little different,
    because even if I were to give a great speech to the best of my
    ability, I don't know that there are any more arguments that
    can be made. I was thinking like, I might agree--actually I
    have a printed statement--I might agree to just have my
    statement included in the Record and not speak any further, if
    I can get some support for some legislation. (Laughter.)
        Just on some children's legislation. Does it look like we
    are at that point? It does? Well, I like that show of support,
    and I think, Mr. Chief Justice, what I will do is give to you
    in a moment a full statement and just simply say to everybody
    here about three things in 2 minutes.
        One, I wish we had done this in open session, and I cover
    that more in my full statement.
        Second of all, I think that a decision to acquit is
    certainly not a decision to condone the President's behavior
    which I think merits scorn and rebuke.
        Third of all, I think that the standard, and I want to say
    this to Senator Domenici, talking about children, to me the
    standard is guilty beyond a reasonable doubt. I think the
    evidence has to be unambiguous and strong. I don't think it
    was. Senator Levin said that very well, so I don't need to
    repeat any of those arguments.
        Fourth of all, Tim Hutchinson, Senator Hutchinson, I like
    what you said about the polls. I actually make a different
    argument. I raised the question earlier when we were raising
    questions about popular will and does it matter. I actually
    meant about the last election, it seems to me if it ever does,
    it is on such a decision. I think before you overturn an
    election, you really have to meet a very high threshold. I
    don't think the House managers have done so.
        Finally, I think a lesson that I have learned as a
    political scientist, when I teach class again, is I do not
    think the articles work and this process works when it is
    clearly not bipartisan. I think it becomes illegitimate. It
    just doesn't work.
        You did not have broad support coming from the House, and
    you do not have it here. That is why I think it was doomed from
    the start.
        Finally, it has been a long, sad year, and I wish--I just
    wish--that those who could have really rendered decisions with
    judgment had done so, starting with the President and his sorry
    affair. He could have told the truth to the people in the
    country. The people would have appreciated that. I could also
    talk about Starr, and I could also talk about the House, and I
    could also talk about us. But I do not think I need to do so.
        Let's get on with the work of democracy. We have had some
    strong views here, but I am looking forward to working with
    you.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Ted Stevens

        Mr. STEVENS. Mr. Chief Justice, I thank our majority
    leader. Throughout this ordeal, no one has tried to poll me on
    any substantive matter or influence my vote. That, to me, means
    a great deal. I view this process as the most serious task I
    have faced as a Senator over the past 30 years, and I
    appreciate the recognition by the leadership of the solemnity
    of our duties under these circumstances and the fact that we
    each must reach our own conclusions based on the evidence.
        As Senators, each of us joined in this oath:

        I . . . do solemnly swear that I will support and defend the
    constitution of the United States against all enemies, foreign and
    domestic; that I will bear true faith and allegiance to the same; that
    I take this obligation freely, without any mental reservation or
    purpose of evasion; and that I will well and faithfully discharge my
    duties of the office on which I am about to enter. So help me God.

        And now, we took an additional oath:

        [I] solemnly swear that in all things appertaining to the trial of
    the impeachment of William Jefferson Clinton, President of the United
    States, now pending, [I] will do impartial justice according to the
    Constitution and laws, so help [me] God.

        As free citizens of the world's most successful democracy,
    we are inexorably tied to the pledges and commitments we make.
    These obligations, and the unlimited benefits they bestow on
    us, depend on our willingness to be truthful with one another.
    The President took the two most serious oaths any American ever
    encounters: the oath to faithfully execute our laws,
    administered by the Chief Justice, our Presiding Officer, on
    the steps of this building, and the oath to tell the truth, the
    whole truth, and nothing but the truth to a jury of his peers.
        I am most concerned that the action we take here today not
    denigrate the role of oaths and truth in our society. To be
    fair to the President, I feel he believed that he admitted to
    the grand jury that he had not testified truthfully under oath
    in his deposition. In fact he did not, and he did not tell the
    truth to the grand jury either.
        Both the House managers and the President's lawyers have
    seized on apparent conflicts in the evidence and recorded
    testimony before this Court of Impeachment. Nonetheless, the
    evidentiary record and the presentations of both sides, as
    supplemented by their responses to our questions, leave no
    doubt in my mind that if I were sitting as a juror in a
    criminal case I would find that the accused is guilty of
    perjury as charged in article I. Following the jury's verdict,
    it would then fall to the judge to determine appropriate
    punishment within the bounds of the Federal Sentencing
    Guidelines provided by Congress.
        But an impeachment trial is no ordinary proceeding. We sit
    as judge and jury--rulers on law and triers of fact. The
    Constitution charges us with a great responsibility. Section 4
    of article II of the Constitution requires that the President
    be removed from office upon conviction of high crimes and
    misdemeanors. No President has ever been removed under these
    circumstances. To me, that history alone should make each of us
    seriously consider whether the facts presented to us require
    that the Senate exercise this awesome power.
        The process by which our Founding Fathers determined that
    this power should be vested in the Congress is adequately
    briefed in the record. I found particularly helpful the
    testimony and scholarly papers from the hearings before the
    House Judiciary Committee on November 9, 1998.
        Remember in the House committee deliberations, the minority
    submitted a joint resolution of censure for consideration in
    lieu of the articles finally voted upon. It restated:

        Expressing the sense of Congress with respect to the censure of
    William Jefferson Clinton. Resolved by the Senate and House of
    Representatives of the United States of America in Congress assembled,
    That it is the sense of Congress that--
        (1) on January 20, 1993, William Jefferson Clinton took the oath
    prescribed by the Constitution of the United States faithfully to
    execute the office of President; implicit in that oath is the
    obligation that the President set an example of high moral standards
    and conduct himself in a manner that fosters respect for the truth; and
    William Jefferson Clinton, has egregiously failed in this obligation,
    and through his actions violated the trust of the American people,
    lessened their esteem for the office of President, and dishonored the
    office which they have entrusted to him;
        (2)(A) William Jefferson Clinton made false statements concerning
    this reprehensible conduct with a subordinate;
        (B) William Jefferson Clinton wrongly took steps to delay discovery
    of the truth; and
        (C) in as much as no person is above the law, William Jefferson
    Clinton remains subject to criminal and civil penalties; and
        (3) William Jefferson Clinton, President of the United States, by
    his conduct has brought upon himself, and fully deserves, the censure
    and condemnation of the American people and the Congress; and by his
    signature on this Joint Resolution, acknowledges this censure and
    condemnation.

        On December 19, 1998, the House minority in the full House
    offered this resolution on the House floor which stated:

        That it is the sense of the House that--
        (1) on January 20, 1993, William Jefferson Clinton took the oath
    prescribed by the Constitution of the United States faithfully to
    execute the office of President; implicit in that oath is the
    obligation that the President set an example of high moral standards
    and conduct himself in a manner that fosters respect for the truth; and
    William Jefferson Clinton, has egregiously failed in this obligation,
    and through his actions violated the trust of the American people,
    lessened their esteem for the office of President, and dishonored the
    office which they have entrusted to him:
        (2)(A) William Jefferson Clinton made false statements concerning
    his reprehensible conduct with a subordinate;
        (B) William Jefferson Clinton wrongfully took steps to delay
    discovery of the truth; and
        (C) in as much as no person is above the law, William Jefferson
    Clinton remains subject to criminal and civil penalties; and
        (3) William Jefferson Clinton, President of the United States, by
    his conduct has brought upon himself and fully deserves the censure and
    condemnation of the American people and this House.

        As a former U.S. attorney, Solicitor of the Department of
    the Interior, and defense attorney, I believe I understand the
    rule of law. The conduct which the President engaged in was
    clearly wrong, and his actions clearly warrant his impeachment,
    which the House of Representatives has done. But with regard to
    the allegations in article I, I do not believe his criminal
    activity rises to the level of ``high Crimes and Misdemeanors''
    which require his removal from office by this Senate.
        Article II, charging obstruction of justice, to me,
    involves a very different matter than the perjury charge in
    article I. Article II involves the use of Presidential powers
    to impede or imperil the impartial administration of justice in
    a civil as well as before the grand jury. We have pledged to
    ``Support and Defend the Constitution,'' and I suggest that in
    our present roles we must do so by fulfilling and reaffirming
    the freedoms and obligations of all Americans under that
    document. By micromanaging the briefing of witnesses and the
    concealment of evidence and by testifying before the grand jury
    to what he knew was not the whole truth, the President has
    obstructed justice. His oath as President requires him to
    faithfully execute laws, and by his actions he has violated
    this oath.
        In his 1992 book ``Grand Inquests,'' the Presiding Officer
    of this court (and the Chief Justice of the United States)
    wrote:

        The framers [of the United States Constitution] and the authors of
    the Federalist Papers had not envisioned political parties as we now
    know them . . . Would the dominant role played by political parties
    make the Senate a partisan tribunal which would be willing to undermine
    the fundamental principles of the Constitution in order to remove a
    political enemy from office?

        I also wonder whether the framers anticipated that in 85 of
    the 106 Congresses, the minority party has held more than the
    necessary one-third strength to prevent the removal of a
    President?
        The action of the House of Representatives was not
    partisan. But, it is obvious from the final vote that future
    generations could reach such a conclusion. In fact, it is
    obvious that many of our Democratic Senators have done so. In
    this Senate, a final vote strictly on party lines should not
    occur. The fundamental principles referenced by the Chief
    Justice--particularly the balance of power between the
    legislative and executive branches of our Federal Government--
    should not be undermined. The most basic principle at issue is
    the obligation of each branch to dedicate itself to protect the
    separation of powers of our three branches of Government.
        In my judgment, the power of the Senate to reach across to
    the executive branch and remove a President of the United
    States may be exercised only when the President's actions
    seriously threaten our Nation's security, when he violates his
    oath to ``faithfully execute the law of the United States,'' or
    does such violence to the rule of law that removal from office
    is clearly the only way to protect our Nation from the
    possibility that he might do great harm to our people.
        While I believe the President violated his oath, it does
    not necessarily follow that he must be removed. For myself, if
    I knew my vote would be the deciding vote here, I would not
    vote to remove this President, despite his unlawful acts. He
    has not brought that level of danger to the Nation which, in my
    judgment, is necessary to justify such an action.
        The President remains answerable, as all Americans should
    be, to the criminal processes of our justice system. We do not
    have the power to convict him of a crime; the Constitution
    forbids it. Instead, the Constitution provides that the Senate,
    by a two-thirds majority of those voting, may remove him from
    office. For me, that makes this more than a factual issue, so I
    do not vote as I would were I a juror in a criminal case.
        As I prepared my decision, it was apparent to me that there
    was no alternative that will dispose of this matter consistent
    with the sanctity of oaths and the importance of truth other
    than to adopt findings of fact. Not to do so and to not remove
    the President undermines the great success of a Nation based
    upon observance and loyalty to our oaths.
        Having no other alternative, I shall vote guilty on article
    II. As I previously pointed out, I would not do so if I knew
    such action would remove the President from office. I do so to
    demonstrate my firm conviction not only that the President has
    obstructed justice, but also that we should have followed the
    procedure which would establish the facts clearly and then
    determine if the President should be removed from office.
        When we had our first meetings on this issue, I told my
    colleagues we had forces in Kuwait on high alert, forces in
    Bosnia, an alarming situation in North Korea, and Asian flu
    plaguing the economies of emerging Nations, and Pakistan and
    India drawing closer and closer to conflict. President Yeltsin,
    when I saw him yesterday, was a very ill leader, a leader of a
    Nation that has the ability to threaten our freedom. NATO could
    well order an assault in Kosovo if negotiations there break
    down.
        The world has one stable superpower--the United States of
    America. Removal of the President by the Senate for the first
    time in history could destabilize our Nation--leaving him in
    office will not.
        The long National ordeal our country has undergone over the
    past year has been agonizing for all of us. Since the Senate
    convened as a Court of Impeachment, I have received thousands
    of e-mails and letters from every reach of my State, from the
    most remote Eskimo village to our largest urban center.
        I have received letters from literally every walk of life:
    from doctors, lawyers, and Indian chiefs. Many are filled with
    advice on how I should cast my vote, the most important vote I
    will ever cast as a Senator. But whether they believe the
    President should be removed from office or not, all express
    deep concerns about the future of our country and the example
    we set for future generations. I have laid awake many nights
    pondering those very questions, and I share the anguish that
    many have felt.
        When I was appointed to the Senate 30 years ago Christmas
    Eve, I had a motto that I have tried to live by. ``To hell with
    the politics. Just do what's right for Alaska.'' Today, as one
    of 100 men and women who have been chosen to exercise this
    mighty power that our Founding Fathers conveyed on us over 200
    years ago, I modify my creed: ``To hell with the politics. Just
    do what's right for the Nation.''
        There are many who will disagree with the votes I cast in
    this historic trial. But I hope all will know that I have done
    my best to live by the oaths that I took, and to do what I
    think is right for the Nation.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Joseph I. Lieberman

        Mr. LIEBERMAN. Mr. Chief Justice, throughout the history of
    this great country, we have endured trials that have strained
    the sinews of our democracy and sometimes even threatened to
    tear apart our unparalleled experiment in self-government. Each
    time the Nation has returned to the Constitution as our common
    lodestar, trusting in its vision, its values and its ultimate
    verity. Each time we have emerged from these tests stronger,
    more resilient, more certain of Daniel Webster's claim of ``one
    country, one constitution, one destiny.'' (Speech to a Whig
    Party rally in New York City, March 15, 1837.) And each time
    our awe of the Founders' genius has been renewed, as has our
    reverence for the brilliantly-calibrated instrument they
    crafted to guide their political progeny in the unending
    challenge of governing as a free people.
        At this moment, we face a test that, although not as grave
    or perilous as some before, is nevertheless unlike anything
    this Nation has ever experienced. As my colleagues well know,
    the impeachment trial of William Jefferson Clinton marks the
    first time in our history that the United States Senate has
    convened as a court of impeachment to consider removing an
    elected President from office. But what also makes this trial
    unprecedented are the underlying charges against President
    Clinton, which stem directly from his private sexual behavior.
    The facts of this case are complicated, embarrassing,
    demoralizing, and infuriating. They raise questions that
    Madison, Hamilton, and their brethren could never have
    anticipated that the Senate would have to address in the solemn
    context of impeachment.
        The public examination of these difficult questions--about
    private and public morality, about the role of the independent
    counsel, and about our expectations of Presidential conduct--
    has been a wrenching, dispiriting and at times unseemly process
    for the Nation. It has divided us as parties and as a people,
    reaching its nadir in the partisan bickering and badgering that
    unfortunately defined the impeachment vote in the House of
    Representatives and compromised the legitimacy of this process
    in the eyes of many Americans. It has set off a frenzy in the
    news media that has degraded and devalued our public discourse
    and badly eroded the traditional boundaries between public and
    private life, leaving a pornographer to assume the role of
    arbiter of our political mores. And it has so alienated the
    American people that many of them are hardly paying attention
    to a trial that could result in the most radical disruption of
    the Presidency--excepting assassination--in our Nation's
    history.
        Yet despite the significant pain this trauma has caused for
    the country, I take heart from the fact that we have once again
    reaffirmed our commitment to the Constitution and the
    fundamental principles underpinning it. The conduct of the
    trial here in the Senate has been passionate at times, but
    never uncivil, and while some votes have broken along party
    lines, they have never broken the spirit of common purpose we
    share. Indeed, throughout the past several weeks we as a body
    have grown closer as we have continually measured our actions
    with the same constitutional yardstick, and each of us has
    sought to remain faithful to the founders' vision as we
    understand it in fulfilling our responsibilities as triers of
    the President. This, I believe, is in the end a remarkable
    testament to the foresight of our forefathers, that even in
    this most unusual of crises, we could and would rely on the
    Constitution as our compass to find a peaceable and just
    resolution.
        We are about to achieve that resolution and complete our
    constitutional responsibilities by rendering a judgment, a
    profound judgment, about the conduct of President Clinton and
    the call of the House of Representatives to remove him from
    office. This is the duty we accepted when we swore to do
    ``impartial justice,'' and it is a duty that I, as each of you,
    have pondered night and day since this trial began.
        As I have stated previously on this Senate floor, I have
    been deeply disappointed and angered by this President's
    conduct--that which is covered in the articles, and the more
    personal misbehavior that is not--and like all of us here, I
    have struggled uncomfortably for more than a year with how to
    respond to it. President Clinton engaged in an extramarital
    sexual relationship with a young White House employee in the
    Oval Office, which, though consensual, was irresponsible and
    immoral, and thus raised serious questions about his judgment
    and his respect for the high office he holds. He then made
    false or misleading statements about that relationship to the
    American people, to a Federal district court judge in a civil
    deposition, and to a Federal grand jury; in so doing, he
    betrayed not only his family but the public's trust, and
    undermined his moral authority and public credibility.
        But the judgment we must now make is not about the
    rightness or wrongness of the President's relationship with
    Monica Lewinsky and his efforts to conceal it. Nor is that
    judgment about whether the President is guilty of committing a
    specific crime. That may be determined by a criminal court,
    which the Senate clearly is not, after he leaves office.
        No, the question before us now is whether the President's
    conduct--as alleged in the two articles of impeachment--makes
    his continuance in office a threat to our government, our
    people, and the National interest. That, I conclude, is the
    extraordinarily high bar the framers set for removal of a duly-
    elected President, and it is that standard we must apply to the
    facts to determine whether the President is guilty of ``high
    Crimes and Misdemeanors.''
        Each side has had ample opportunity to present its case,
    illuminating the voluminous record from the House, and we
    Senators have been able to ask wide-ranging questions of both
    parties. The House was also authorized to conduct depositions
    of the three witnesses it deemed most important to its case. I
    have listened intently throughout, watched the videotaped
    depositions, and been very impressed by both the House managers
    and the counsel for the President. The House managers, for
    their part, have presented the facts and argued the
    Constitution so effectively that they impelled me more than
    once to seriously consider voting for removal.
        But after much reflection and review of the extensive
    evidence before us, of the meaning of the term ``high Crimes
    and Misdemeanors,'' and, most importantly, of the best
    interests of the Nation, I have concluded that the facts do not
    meet the high standard the founders established for conviction
    and removal. No matter how deeply disappointed I am that our
    President, who has worked so successfully to lift up the lives
    of so many people, so lowered himself and his office, I
    conclude that his wrongdoing in this sordid saga does not
    justify making him the first President to be ousted from office
    in our history. I will therefore vote against both articles of
    impeachment.
        In reaching the judgment that President Clinton is not
    guilty of high crimes or misdemeanors, I started from the same
    premise that the founders did--the right of the people to
    choose their leaders is paramount in America, derived directly,
    as Thomas Jefferson wrote in the Declaration of Independence,
    from the equality of rights endowed to the people by our
    Creator. The supremacy of this first democratic principle was
    well described by Alexis De Tocqueville in ``Democracy in
    America'': ``The people reign in the American political world
    as the Deity does in the universe. They are the cause and the
    aim of all things; everything comes from them, and everything
    is absorbed in them.'' (Heffner ed., 1956, p. 58.)
        In debating the President's fate, we must remember that
    what we are deciding is whether to supersede the people's
    decision about who should lead them--to substitute our judgment
    for theirs. On this point, the framers of the Constitution were
    clear. They had boldly rejected the autocratic rule of a
    monarch and put in his place a President elected by, and
    accountable to, the people. Their deliberations show that they
    did not want even the legislature to exercise too much control
    over the popularly-chosen President. The framers provided
    impeachment to serve as the narrowest of escape valves in the
    most extreme of cases. As a result, they set an extraordinarily
    high bar--both procedurally and substantively--for Congress to
    overcome before we, rather than the voters, could remove a
    President from office.
        Specifically, they required a majority of the House of
    Representatives to impeach and permitted removal only upon the
    concurrence of two-thirds of the Senate--which the framers
    surely knew, and the current proceedings have demonstrated, is
    exceedingly difficult to obtain. They also established a very
    strict substantive standard, authorizing the Congress to remove
    a President from office only upon ``Impeachment for, and
    Conviction of, Treason, Bribery, or other high Crimes and
    Misdemeanors.'' (U.S. Constitution, Art. II, sec. 4.)
        The first time I read that clause, ``high Crimes and
    Misdemeanors,'' I assumed it included any criminal offense--and
    only criminal offenses--and I thought that it gave Congress
    broad latitude to impeach and remove from office a President
    who had committed any violation of the criminal code. But the
    more I studied the history, the less clear that interpretation
    became. The phrase ``high Crimes and Misdemeanors'' was a term
    of art to the framers, and it meant something very different
    from ordinary crimes, the response to which must be left to the
    criminal justice system. The framers chose the term ``high
    crimes'' to connote a very specific type of offense, like
    treason or bribery, which has a direct impact on the Government
    and undermines the chief executive's ability or will to
    continue serving without corruption and in the National
    interest. As Alexander Hamilton explained in ``The Federalist
    Papers,'' high crimes and misdemeanors are ``those offenses
    which proceed from the misconduct of public men, or, in other
    words, from the abuse or violation of some public trust. They
    are of a nature which may with peculiar propriety be
    denominated political, as they relate chiefly to injuries done
    immediately to the society itself.'' (``The Federalist Papers''
    No. 65, Rossiter ed. 1961, p. 396 (emphasis in original).)
        It is not necessary here to offer a lengthy dissertation on
    the Constitutional Convention's impeachment debates. But I
    would like to share a statement of James Madison that
    illuminates the reasons why the framers wanted to authorize
    impeachment and removal, as well as the intended scope of that
    power. In response to the suggestion that it was dangerous to
    authorize the legislature to remove the President, Madison
    argued that it was:

        indispensable that some provision should be made by defending the
    Community against the incapacity, negligence or perfidy of the chief
    Magistrate. The limitation of the period of his service, was not a
    sufficient security. He might lose his capacity after his appointment.
    He might pervert his administration into a scheme of peculation or
    oppression. He might betray his trust to foreign powers . . . In the
    case of the Executive Magistracy which was to be administered by a
    single man, loss of capacity or corruption was more within the compass
    of probable events, and either of them might be fatal to the Republic.
    (``Records of the Federal Convention of 1787,'' Vol. II, pp. 65-66
    (Farrand ed. 1888).)

        ``Loss of capacity or corruption''--that is the evil at
    which the Constitution's impeachment clauses were directed, in
    Madison's view.
        Although neither the words of the Constitution nor the
    writings of Hamilton, Madison or any of the other framers of
    the Constitution provide a precise list of those offenses that
    prove ``the abuse or violation of some public trust,'' or the
    ``loss of capacity or corruption'' that would constitute ``high
    Crimes and Misdemeanors,'' their words and our history offer
    some help in supplying a more detailed meaning to those terms.
        First, the framers saw impeachment as an extreme remedy
    meant to respond to only a limited universe of offenses. They
    took great care to ensure that their chosen substantive
    standard did not have the effect of providing Congress so much
    discretion over the President's fate that it could use its
    power to infringe on the President's independence. It was for
    this precise reason that Madison successfully argued against
    allowing for removal for ``maladministration,'' for fear that
    ``[s]o vague a term will be equivalent to a tenure during
    pleasure of the Senate.'' (``Records of the Federal Convention
    of 1787,'' Vol. II, p. 550 (Farrand ed. 1888).)
        Second, pervading the framers' discussions--and the
    constitutional language they ultimately adopted--was the view
    that impeachment was intended to protect the Nation and the
    National interest and not to provide the legislature an
    alternative to the criminal justice system for holding
    accountable the President or any other violator of the Nation's
    criminal laws. In crafting our Constitution's impeachment
    clauses, the framers specifically and consciously departed from
    the English practice, in which Parliament could use its
    impeachment power to impose criminal sanctions. Emphasizing
    that the legislative branch has no constitutional role
    whatsoever in meting out punishment, whether for the chief
    executive or any other citizen, was so important to the framers
    that they declared it not once, but twice in the Constitution--
    first when they outlawed bills of attainder (Art. I, sec. 9,
    cl. 3), and again when they emphasized that ``Judgment in Cases
    of Impeachment shall not extend further than to removal from
    Office, and disqualification to hold and enjoy any Office of
    honor, Trust or Profit under the United States: but the Party
    convicted shall nevertheless be liable and subject to
    Indictment, Trial, Judgment and Punishment, according to Law''
    (Art. I, sec. 3, cl. 7).
        It is this linguistically-driven irony--that the
    Constitution's impeachment clauses employ the language of
    criminal law to authorize a process entirely outside of and
    distinct from the criminal justice system--that has created so
    much confusion over our precise task here. The House managers
    often appear to suggest that if they show that the President
    committed a crime, then they have met their burden, because it
    is our responsibility to hold accountable a President who
    violates the law and to send a message that the President is
    not above the law.
        But as Professor Charles Black so well explained in
    ``Impeachment: A Handbook,'' criminality in and of itself is
    neither a necessary nor a sufficient basis for concluding that
    a President has committed a high crime or misdemeanor, because
    our goal is to protect the Nation's interests, not to punish a
    President for violating the criminal law. He states: ``I think
    we can say that `high Crimes or Misdemeanors,' in the
    constitutional sense, ought to be held to be those offenses
    which are rather obviously wrong, whether or not `criminal,'
    and which so seriously threaten the order of political society
    as to make pestilent and dangerous the continuance in power of
    their perpetrator. The fact that such an act is also criminal
    helps, even if it is not essential, because a general societal
    view of wrongness, and sometimes of seriousness, is, in such a
    case, publicly and authoritatively recorded.'' (1998 ed., pp.
    39-40.)
        If the purpose of impeachment was to ensure that the
    President is held accountable for violating the law, then the
    framers would have authorized Congress to impeach and remove,
    not just for high crimes but for any crimes. They did not do
    that. They gave us the power of impeachment and removal for one
    reason and one reason only: to protect the Republic from a
    chief executive who, by his acts, has demonstrated that he can
    no longer be trusted to govern in the National interest.
    Responses to all other forms of malfeasance were left to the
    other branches.
        That is why I conclude that the appropriate question for
    each of us to ask is not whether the President committed
    perjury or obstruction of justice, but whether he committed a
    high crime or misdemeanor--a term I understand from the history
    to encompass two categories of offenses. The first includes
    those that are like treason or bribery in that they represent a
    gross misuse of official power to directly injure the State or
    its people. Those guilty of such offenses must be removed from
    office because they have explicitly demonstrated, by their
    conduct, that they will place their personal interests above
    the National interest.
        The President's counsel and others suggest that we should
    stop here, arguing that Congress has no authority to remove a
    President for any offense not committed through the use of
    official power. (Trial Memorandum of President Clinton, pp. 19-
    20.) I cannot agree. Instead, Madison's argument that we must
    have an escape valve that allows the legislature to remove a
    President when the need arises to defend ``the Community
    against the incapacity, negligence, or perfidy of the chief
    Magistrate,'' coupled with Hamilton's definition of ``high
    Crimes and Misdemeanors'' as an ``abuse or violation of some
    public trust,'' convince me that it is more than just misuse of
    official power that can require the Senate to remove an office
    holder. Acts that, although in their immediate nature and
    effect differ from treason or bribery because they do not stem
    from a misuse of official power, may nevertheless undermine the
    offender's ability to discharge his duties in the interests of
    the American people. In other words, the second category of
    offenses that equal ``high Crimes and Misdemeanors'' are non-
    official acts that unequivocally demonstrate the same threat
    posed by treason or bribery: that the President can no longer
    be trusted to use his power in the best interests of the
    Nation.
        It is for this reason that I reject the contention that a
    President's giving false or misleading statements under oath or
    his impeding the discovery of evidence in a lawsuit arising out
    of his personal conduct may never constitute a high crime or
    misdemeanor. I have no doubt that under certain circumstances
    such offenses could demonstrate such a level of depravity,
    deceit and disregard for the administration of justice that we
    would have no choice but to conclude that the President could
    no longer be trusted to use the authority of his office and
    make the decisions entrusted to him as chief executive in the
    best interest of the Nation. It is because I hold this position
    that I found reaching a decision in this case such a difficult
    matter.
        Before evaluating the charges against the President, and
    determining whether his misconduct in fact meets the high
    threshold the Constitution establishes for removal, each of us
    had to resolve the important question of what standard of proof
    should be used for judging the evidence against the President.
    It is widely agreed that the House managers have the burden of
    convincing Members of the Senate that the President has
    committed a high crime or misdemeanor, but there are
    differences of opinion on the level of certainty each of us in
    the Senate must reach before we can conclude that the House has
    met its burden.
        During the impeachment trial of Judge Alcee Hastings, I
    gave a great deal of thought to this question, and after
    weighing the competing interests of preserving the integrity of
    the judiciary, maintaining the independence of the judiciary,
    and protecting the personal interests of the office holder, I
    concluded that the House had to prove its case by ``clear and
    convincing evidence.'' (135 Cong. Rec. S14359-61 (Oct. 27,
    1989).) Clear and convincing evidence is evidence that, in one
    formulation, produces in the mind ``a firm belief or conviction
    as to the matter at issue'' (U.S. Fifth Circuit District Judges
    Association, Pattern Jury Instructions Sec. 2.14 (1998 ed.))
    or, put another way, persuades the finder of fact that the
    claim ``is highly probable'' (Committee on Model Jury
    Instructions, Ninth Circuit Manual of Model Jury Instructions
    Sec. 1.12.2 (1997 ed.)).
        There are valid arguments for adopting the higher standard
    of ``beyond a reasonable doubt'' in this case, most importantly
    that the National trauma caused by the removal of a President
    so far surpasses the damage imposed by the removal of a single
    judge, that the Senate must remove a President only if it has a
    very high degree of certainty in the facts underlying its
    decision. On the other hand, just as the trauma of removing a
    President is greater than that flowing from removing a judge,
    the danger an errant President poses to the Republic far
    exceeds the threat presented by a misbehaving judge. This need
    to protect the integrity of the Republic and the welfare of its
    people argues against setting the standard of proof so high
    that it would result in leaving in power an individual whose
    fitness to continue serving in the national interest is
    seriously in doubt, remembering that no matter what the
    standard, removal still requires two-thirds of the Senators'
    support.
        In 1974, then Senate Majority Leader Mike Mansfield
    recommended that the standard of ``clear and convincing
    evidence'' was ``a logical middle ground between the burden of
    proof requirement in criminal proceedings (`beyond a reasonable
    doubt') and the burden of proof requirement in civil
    proceedings (`by a preponderance of the evidence').'' He added
    these words of insight and reason:

        An impeachment proceeding is not a criminal proceeding since the
    Court of Impeachment is barred by the Constitution from imposing any of
    the usual criminal law sanctions in the event of conviction, and it is
    not a civil proceeding because the extraordinary formality and
    complexity of the process and the serious consequences of a conviction
    and removal (in at least the case of an impeachment of the President of
    the United States) militate against accepting as adequate the low
    threshold requirement of a civil action. The burden of proof, like the
    terminology and various other requirements, must be unique because
    impeachment itself is unique. It is unique in that it is a hybrid of
    the legislative and the judicial, the political and the legal. (Senate
    Committee on Rules and Administration Executive Session Hearings on
    Senate Rules and Precedents Applicable to Impeachment Trials, Aug. 5-6,
    1974, p. 193.)

    For similar reasons, Professor Charles Black in his
    ``Impeachment: A Handbook'' (p. 17), offers the standard of
    ``overwhelming preponderance of the evidence'' as appropriate
    for impeachment trials.
        Taken together, those arguments persuaded me to adopt as
    the appropriate standard of proof the same one I chose in Judge
    Hastings' impeachment trial: clear and convincing evidence. In
    other words, to vote for either of the articles before us, I
    must conclude that there is clear and convincing evidence that
    President William Jefferson Clinton has committed a high crime
    or misdemeanor.
        This brings me to the crux of this case, where it is
    necessary to apply the standard of proof I have adopted to the
    evidence the managers have presented, in order to reach
    judgment on the articles before us.
        A number of specific allegations contained in the articles
    lack sufficient legal or evidentiary support. For example, it
    strikes me as highly doubtful that an obstruction case can be
    made from the President's statements to aides who later
    testified to the grand jury. The House asserts that these
    statements constituted obstruction because the President knew
    his aides would repeat those statements to the grand jury,
    thereby providing misleading information to the grand jury. But
    the House has not adequately explained how the President saying
    privately to his aides the same thing he was saying to the
    public could constitute obstruction, particularly when we have
    been presented no evidence showing that the President made
    those statements for the purpose of having them repeated to the
    grand jury.
        Similarly, the managers have not offered a convincing legal
    theory showing how the President obstructed justice simply by
    failing to dispute his attorney's statements about his
    relationship with Ms. Lewinsky during the President's
    deposition. And, the managers have failed to substantiate their
    allegation that the President committed perjury by misstating
    the date of his initial sexual encounter with Ms. Lewinsky when
    he told the grand jury ``When I was alone with Ms. Lewinsky on
    certain occasions in early 1996 and once in early 1997, I
    engaged in conduct that was wrong'' (Aug. 17, 1998 Grand Jury
    Testimony of President Clinton, pp. 8-9). The managers have not
    offered evidence that the President's error was intentional,
    nor did they provide a convincing explanation how such a
    misstatement was material to the grand jury's investigation.
        Although the managers offered slightly more weighty
    evidence concerning the involvement of the President and his
    friend, Vernon Jordan, in Ms. Lewinsky's job search at the same
    time she was filing a false affidavit in the Jones case, their
    case on this point leaves me suspicious but unconvinced. The
    evidence is highly circumstantial, amounting largely to an
    overlap in the timing between Ms. Lewinsky's appearance on the
    Jones' witness list and Mr. Jordan's efforts to find Ms.
    Lewinsky a job at the President's request. Both Ms. Lewinsky
    and Mr. Jordan testified that there was no connection between
    the two events. Although the fact that Ms. Lewinsky's job
    search and the drafting of her affidavit occurred
    simultaneously and that Mr. Jordan was involved with both
    raises questions, nevertheless the ultimate lack of any direct
    evidentiary connection prevents me from reaching any settled
    conclusion on the matter.
        The House has provided more persuasive evidence to support
    a number of its other allegations. For example, I am troubled
    by the President's grand jury testimony that he did not have
    sexual relations with Ms. Lewinsky within the meaning of the
    definition offered him in his Jones deposition. (Aug. 17, 1998
    Grand Jury Testimony of President Clinton, pp. 9, 109.) Ms.
    Lewinsky testified that they had several such encounters. (Aug.
    26, 1998 Grand Jury Testimony of Monica Lewinsky, pp. 6-40.)
    The President's counsel responded to this allegation by saying:
    ``This claim comes down to an oath against an oath about
    immaterial details concerning an acknowledged wrongful
    relationship.'' (Trial Memorandum of President Clinton, p. 44.)
        I disagree. The President's statement almost certainly was
    material to the grand jury's investigation. The grand jury was
    not investigating whether or not Ms. Lewinsky and the President
    had a relationship per se, but rather whether the President
    perjured himself in his Jones deposition and obstructed
    justice. Given that in his Jones deposition, the President
    specifically denied having sexual relations with Ms. Lewinsky,
    it seems not only material, but central to the grand jury's
    investigation to determine whether the President told the truth
    when he said he did not have sexual relations with her.
        The fact that Ms. Lewinsky was testifying under an immunity
    agreement and would therefore be subject to prosecution if she
    lied, and that most of her other testimony is uncontroverted,
    so much that the President's counsel relies on it at several
    key points, leads me to view her testimony about the details of
    her sexual relationship with the President as credible. The
    same is true of her consistent testimony that it was Betty
    Currie who called her and told Ms. Lewinsky she understood she
    had something for her--the gifts from the President. (Feb. 1,
    1999 Deposition of Monica Lewinsky, 145 Cong. Rec. S1225 (Feb.
    4, 1999).)
        Although it is a less central matter, I am puzzled by the
    President's including in his prepared grand jury testimony the
    statement that ``I regret that what began as a friendship came
    to include this [inappropriate] conduct.'' (Grand Jury
    Testimony of President Clinton, p. 9.) As the House managers
    pointed out, according to Ms. Lewinsky, she and the President
    engaged in ``this conduct'' on the first day they met.
        The series of questions which Betty Currie, a friendly
    witness to the President, testified that the President asked
    her on the day after his deposition in January 1998 and again a
    few days later are most troubling--both as to the credibility
    of the President's testimony to the grand jury regarding those
    statements and as to whether his intent in making those
    statements was to wrongly influence Ms. Currie's potential
    testimony. The President testified that he asked Ms. Currie
    those questions ``to refresh my memory about what the facts
    were.'' (Grand Jury Testimony of President Clinton, p. 131.) In
    their trial memorandum (pp. 52-53), the President's counsel
    assert that his statement is consistent with Ms. Currie's
    testimony that the President seemed to be trying to gather
    information. But the President did not testify that he was
    trying to gather information generally. He stated that he was
    trying to refresh his own memory. And this, unfortunately,
    seems to me to be an implausible explanation of what he was
    doing. In his testimony before the grand jury on August 17,
    1998, the President admitted that he had ``inappropriate
    intimate contact'' with Ms. Lewinsky and that the relationship
    occurred ``when I was alone with Ms. Lewinsky.'' (Grand Jury
    Testimony of President Clinton, pp. 8-9.) He therefore must
    have known in January 1998, when he asked Ms. Currie the series
    of questions, that the statements they contained, for example,
    that ``I was never alone with Monica Lewinsky,'' that Ms.
    Currie ``could see and hear everything,'' and that ``Monica
    came on to me, and I never touched her, right?'' either were
    not true or were beyond Ms. Currie's knowledge and that Ms.
    Currie could not possibly help refresh his memory.
        The President called Ms. Currie in on January 18, 1998 to
    ask her those questions after the surprise questions he was
    asked the day before in the Jones deposition about his
    relationship with Ms. Lewinsky, and after he repeatedly invoked
    Ms. Currie's name in connection with Ms. Lewinsky in response
    to those questions. (Jan. 17, 1998 Deposition of President
    Clinton, reprinted in Evidentiary Record, S. Doc. 106-3, Vol.
    XXII, pp. 17, 20, 21, 22, 23, 24, 25, 26, 27.) Certainly, if
    the Jones lawyers wanted to further investigate the President's
    relationship with Ms. Lewinsky, the President's own statements
    would have led them directly to Ms. Currie.
        In summary, although the House managers have left me
    thoroughly unconvinced of some of their allegations, the
    evidence presented on others does lead me to believe that it is
    likely that there were occasions on which the President made
    false or misleading statements and took actions which could
    have had the effect of impeding the discovery of evidence in
    judicial proceedings. Whether any of his conduct constitutes a
    criminal offense such as perjury or obstruction of justice is
    not for me to decide. That, appropriately, should and must be
    left to the criminal justice system, which will uphold the rule
    of law in President Clinton's case as it would for any other
    American. What I must do is uphold the Constitution and decide
    whether the House managers have presented clear and convincing
    evidence that the President has committed a high crime or
    misdemeanor, which is to say whether they have demonstrated
    that his misconduct has so compromised his capacity to govern
    in the national interest that he must be removed.
        I conclude that the House managers have not met that high
    burden. I am, of course, profoundly unsettled by President
    Clinton's irresponsibility in carrying on a sexual relationship
    with an intern in the Oval Office and by the disregard for the
    truth he showed in trying to conceal it from his family, his
    staff, the courts and the American people. But the managers
    have failed to convince me with the evidence they have
    presented that his misbehavior, as charged in the articles of
    impeachment, makes him a threat to the national interest, and
    that we can no longer expect the President to govern free of
    corruption in the Nation's best interests.
        Indeed, the managers have barely addressed this point of
    consequences at all, providing almost no evidence or argument
    that the republic needs protecting from this President. Rather,
    they have presented their case largely as if the Senate were a
    criminal court, as if our sole responsibility were to determine
    whether the President is guilty of the crimes of perjury and
    obstruction of justice, as if those specific crimes were the
    indisputable equivalent of high crimes or misdemeanors
    automatically warranting the President's removal. And in doing
    do, I believe, they have failed to cross the higher
    constitutional threshold of proving that the President has
    forfeited his right to fill out the term for which the people
    elected him.
        The voice of the American people, in fact, indicates that
    just the opposite is true. According to every public poll we
    have seen, a clear majority of the American people have
    continued to support the President throughout this ordeal.
    Nearly two-thirds of them say repeatedly that they approve of
    the job that President Clinton is doing in running the country,
    and that they oppose his removal. In my State of Connecticut, a
    survey done by The Hartford Courant just last week showed that
    68 percent of my constituents rate the President's job
    performance as excellent or good, and a full three-quarters of
    them believe he deserves to stay in office.
        In noting this, I recognize that it would be a dereliction
    of my duty to substitute public opinion polls for reasoned
    judgment about our national interest in resolving this
    constitutional crisis. But it would also be a serious error to
    ignore the people's voice, because in exercising our authority
    as a court of impeachment we are standing in the place of the
    voters who re-elected the President two years ago. In this
    case, the prevailing public opposition to impeachment has
    particular relevance, for it provides substantial evidence that
    the President's misconduct has not been so harmful as to
    shatter the public's faith in his ability to fulfill his
    Presidential duties and act in their interest.
        It is possible, of course, that a popular President could
    nevertheless be corrupt and pose a threat to the Nation, which
    is to say that public opinion is not the only barometer of
    fitness for office. But in this democracy it is an
    indispensable measure, and in light of the ultimately
    unconvincing evidence the managers have presented to
    demonstrate the President's loss of capacity or corruption, the
    public's opposition to removal carries weight in my
    deliberations. It carries particular weight given the
    overwhelming amount of information the news media has provided
    us about the details of the President's behavior, which
    strongly suggests that the American people have not reached
    their conclusions in ignorance of the President's flaws or
    faults.
        The public opinion polls tell us more than that the
    majority of people support his continuance in office. Those
    two-thirds who consistently give him high ratings for his job
    performance have also strongly expressed their disapproval of
    his sexual behavior and his deliberate lies to the Nation.
    Indeed, surveys have routinely shown that, as a consequence of
    this scandal, less than one-fifth of the American people claim
    that they share the President's moral and ethical values, a
    result I find stunning and which may be unparalleled in our
    history.
        How can so many Americans simultaneously hold the views
    that the President has demeaned his office and yet should not
    be evicted from it? We will be trying to answer that question
    and to weigh the consequences of those seemingly conflicting
    opinions for a long time to come. But I believe the explanation
    must have something to do with the context of the President's
    actions. As the record makes abundantly clear, the President's
    false or misleading statements under oath and his broader
    deception and coverup stemmed directly from his private sexual
    behavior, something that no other sitting American President to
    my knowledge has ever been questioned about in a legal setting.
    The President neither lied about nor was trying to conceal
    Presidential malfeasance or a heinous crime, such as murder or
    rape, but instead sought to hide a sexual relationship with an
    intern that was deeply embarrassing, shameful, even
    indefensible, yet not illegal.
        Indeed, troubled as I am by much of the evidence the
    managers presented and the arguments they made, on each
    occasion I considered voting for removal I invariably came back
    to this question of context, and I asked myself: Are these the
    kinds of offenses the founders envisioned when they entrusted
    us with the awesome power of invoking our democracy's ultimate
    sanction? Does this tawdry, tragic episode justify, for the
    first time in our proud history, ejecting from office the
    individual the American people chose to lead the country? And
    each time I had to answer no.
        To reach this conclusion, that the context matters in
    judging the President's misconduct, is in the eyes of the House
    managers and many of the President's critics an abdication of
    duty and honor. It is, they contend, to wink at any immorality,
    any transgression that is connected to sexual behavior, to
    sacrifice our most precious principles at the altar of moral
    relativism. And worse, by choosing to acquit the President,
    they argue, we are setting an awful precedent for Presidents to
    come.
        I understand and share the frustrations that lead to these
    criticisms. As I stated in the speech I made on this floor on
    September 3 of last year, I was deeply angered by the
    President's recklessness and his purposeful deceit. The conduct
    he had acknowledged at that point in his grand jury testimony
    was not only immoral but harmful. The President is, as eminent
    historian Clinton Rossiter noted, the American people's ``one
    authentic trumpet'' (Rossiter, ``The American Presidency,''
    1955, p. 23), and when the notes he sounds falter in the
    expression of our common values, it has an effect, one that
    cannot be ignored. That was made clear to me in talking with
    many parents and children about this matter over the last
    several months, hearing the dismay and distrust in their
    voices, which was powerful evidence to me that the President
    had undercut his moral authority and undermined public
    confidence in his word.
        My disappointment and anger with the President's actions
    were reawakened as I listened to the evidence the managers have
    presented. And like many of my colleagues, I am left
    dissatisfied with the all-or-nothing nature of the choice we
    have been asked to make in this proceeding, between removing
    this President from office on the one hand, or not removing him
    on the other, which could imply exoneration or even
    vindication.
        But as unsatisfying as that choice is, it is the only one
    that the founders empowered the Senate to make in this
    impeachment proceeding. Our responsibility is not to pass
    judgment on the morality of the President's behavior, or to
    find whether he committed a specific crime. Impeachment is not
    an instrument of protest, or of prosecution, but one of
    protection, of our country, its people, and our democratic
    ideals. When the roll is called on each article and I answer
    ``not guilty,'' I want it understood that I am saying ``not
    guilty of a high crime or misdemeanor,'' and that is all I can
    say.
        With that understood, I do believe the Constitution allows
    for one recourse that would provide a means for us as the
    people's representatives to register our and their disapproval,
    and would, I believe, help us to bring appropriate closure to
    this terrible chapter in our Nation's history. It is well
    within the Senate's constitutional prerogatives to adopt a
    resolution of censure expressing our contempt for the
    President's misconduct, both that which is charged in the
    articles and that which is not. Such a censure would not amount
    to a punishment, nor would it be intended to do so. What it
    would do, particularly if it united Senators across party lines
    and positions on removal, is fulfill our responsibility to our
    children and our posterity to speak to the common values the
    President has violated, and make clear what our expectations
    are for future holders of that highest office.
        And what it could do, I believe, is to help us to begin
    healing the wounds the President's misconduct and the
    impeachment process's partisanship have done to the American
    body politic, and to the soul of the Nation. I have observed
    that roughly two-thirds of the public consistently expresses
    its opposition to the President's removal. But I do not think
    we can leave this proceeding, especially those of us who have
    voted against the articles, without also noting that roughly
    one-third of the American people have consistently expressed
    their belief that this President is unfit to lead this Nation.
    That is a startlingly large percentage of our people who have
    totally lost confidence in our Nation's leader.
        This extraordinary divergence of opinion tells us that
    there is a rift in our public life that extends far beyond the
    specific circumstances of this case, a rift that the
    President's misconduct has only exacerbated. A statement of
    censure is not an antidote that will magically eliminate this
    division, but I believe it will help by demonstrating that we
    can find common moral ground and articulate our common values
    even though we Senators and our constituents have disagreed
    about impeachment. For that reason, I hope that once this trial
    is concluded, we will put aside our partisan loyalties and our
    political hesitations and overcome parliamentary obstacles to
    join together in passing a resolution that affirms our belief
    that the Presidency is and must continue to be, in the words of
    Clinton Rossiter, ``the one-man distillation of the American
    people'' (``The American Presidency,'' p. 11), the steward of
    our freedom and our values.
        In closing, Mr. Chief Justice, I would like to quote from a
    wise and compelling insight that Manager Hyde put forward in
    his final argument. The most formidable obstacle the managers
    faced in making their case, he said, was public cynicism, ``the
    widespread conviction that all politics and all politicians are
    by definition corrupt and venal.'' He went on to say, ``That
    cynicism is an acid eating away at the vital organs of American
    public life. It is a clear and present danger because it blinds
    us to the nobility and the fragility of being a self-governing
    people.''
        While I disagree with Manager Hyde's ultimate conclusion in
    this case, I could not agree more with his eloquent assessment
    of this threat to our democracy. It is a problem I addressed at
    the end of the campaign finance investigation that the
    Governmental Affairs Committee conducted in 1997, when I argued
    that the mad chase for money that dominates and distorts our
    political system gives the American people, already deeply
    skeptical of the motives of politicians, good reason to doubt
    whether they have a true and equal voice in their government.
    And it is a problem that I fear has grown significantly worse
    in the wake of this unseemly saga and the damage it has done to
    the public's esteem for and expectations of their leaders.
        The long and painful process of impeachment is about to
    come to an end, and thankfully so, but the enormous challenge
    we face in restoring the public's faith in our public
    institutions and those who serve in them is just beginning.
    This is the next great test for the President and for each of
    us, the fight against cynicism's corrosive influence and the
    loss of public trust. If we once again seek the help of our
    common creator and the counsel of our shared Constitution, and
    through our actions express their ideals and fulfill their
    expectations, I am confident we can in time renew a sense of
    common purpose and reassure the citizenry we serve that America
    is indeed, as Webster proclaimed, one country with one destiny.
    Thank you.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Sam Brownback

        Mr. BROWNBACK. Mr. Chief Justice, I find that William
    Jefferson Clinton did commit perjury and obstruct justice; that
    these offenses rise to the level of ``high Crimes and
    Misdemeanors;'' that William Jefferson Clinton should be
    convicted under the articles of impeachment; and that he must
    be removed as President of the United States.
        This is a sad chapter in our Nation's long and illustrious
    history. A man of extraordinary talent took a mistake and
    turned it into a tragedy. William Jefferson Clinton is no
    ordinary man. Gifted and charismatic, brilliant and refined, he
    took raw ability and focus and turned it into a Presidency.
    Such is the stuff of story books and heroes. Sadly for this
    tale, the hero had a habit he would not break, and, when it
    called him back to darkness, he sought to hide it at all cost.
    And there the tragedy occurred.
        President Clinton repeatedly chose to lie and obstruct
    justice rather than tell the truth and comply with court orders
    throughout this ordeal. By his words and deeds he chose to
    place himself above the law. By his words and deeds he has
    undermined the rule of law in America to the great harm of this
    Nation. By his own words and deeds, he has undermined the
    truth-finding function of the judiciary, at great harm to that
    branch of our government. By his words and deeds, he had done
    great harm to the notions of honesty and integrity that form
    the underpinnings of this great republic.
        The following represents the specific facts upon which I
    find William Jefferson Clinton is guilty of perjury before a
    Federal grand jury and obstruction of justice, and must be
    removed as the President of the United States.

                                   article i

        In his conduct while President of the United States, William
    Jefferson Clinton, in violation of his constitutional oath faithfully
    to execute the Office of President of the United States and, to the
    best of his ability, preserve, protect, and defend the Constitution of
    the United States, and in violation of his constitutional duty to take
    care that the laws be faithfully executed, has willfully corrupted and
    manipulated the judicial process of the United States for his personal
    gain and exoneration, impeding the administration of justice, in that:
        On August 17, 1998, William Jefferson Clinton swore to tell the
    truth, the whole truth, and nothing but the truth before a Federal
    grand jury of the United States. Contrary to that oath, William
    Jefferson Clinton willfully provided perjurious, false and misleading
    testimony to the grand jury concerning . . . the nature and details of
    his relationship with a subordinate Government employee[.]

        Ms. Lewinsky testified as to the extent of her sexual
    relationship with President Clinton, and her statements were
    corroborated by numerous individuals with whom she
    contemporaneously shared the details of her encounters with the
    President, including two professionals. Her testimony indicated
    direct contact by the President with certain areas of her body.
    The conduct described by Ms. Lewinsky clearly falls within the
    definition of sexual relations as President Clinton understood
    the term to be defined in the Paula Jones case and during his
    grand jury testimony.
        In his prepared statement to the grand jury, President
    Clinton stated that the sexual encounters between he and Ms.
    Lewinsky ``did not constitute sexual relations as I understood
    that term to be defined at my January 17th, 1998 deposition.''
    President Clinton acknowledged that the type of activity
    described by Ms. Lewinsky constituted sexual relations as he
    understood the term to be defined during the Paula Jones'
    deposition: ``I understood the definition to be limited to, to
    physical contact with those areas of the bodies with the
    specific intent to arouse or gratify.'' However, during
    questioning under oath, President Clinton repeatedly denied
    engaging in the activities described by Ms. Lewinsky.
        President Clinton was even asked by a grand juror whether
    ``if Monica Lewinsky says that while you were in the Oval
    Office area you touched [certain area of her body that falls
    within the definition of sexual relations as understood by the
    President in the Paula Jones case], would she be lying.''
    President Clinton responded: ``That is not my recollection. My
    recollection is that I did not have sexual relations with Ms.
    Lewinsky and I'm staying on my former statement about that.''
        If Ms. Lewinsky's testimony is true, President Clinton
    committed perjury during his grand jury testimony. I have had
    the opportunity to read the portions of grand jury testimony
    provided by both President Clinton and Ms. Lewinsky concerning
    their characterizations of their sexual relations. I also had
    the opportunity to watch Ms. Lewinsky's videotaped deposition
    in which she reaffirmed her previous grand jury testimony
    concerning the extent of their sexual relations. Based upon:
    (1) the corroboration of Ms. Lewinsky's testimony by numerous
    witnesses with whom she had spoken contemporaneously, (2) the
    detailed nature of Ms. Lewinsky's testimony, (3) the
    evasiveness of President Clinton's testimony, (4) the apparent
    sincerity of Ms. Lewinsky in her videotaped deposition before
    the Senate, and (5) the President's refusal to be deposed by
    the Senate, I find that the President provided false and
    misleading testimony before a Federal grand jury that
    constitutes perjury.
        On January 18, 1998, President Clinton met with Ms. Currie
    at the White House and told her ``there are several things you
    may want to know'' about the President's relationship with
    Monica Lewinsky. During his grand jury testimony, President
    Clinton stated that ``I was not trying to get Betty Currie to
    say something that was untruthful.'' However, as discussed
    further in the obstruction of justice charges, President
    Clinton said to Ms. Currie ``Monica came on to me, and I never
    touched her, right?'' Based upon both Ms. Lewinsky and
    President Clinton's testimony concerning their intimate
    contact, and upon Ms. Lewinsky's Senate deposition, I must
    conclude that Ms. Lewinsky's account of their intimate activity
    is accurate. As a result, I must further conclude that
    President Clinton was lying when he told Ms. Currie that he had
    not touched Ms. Lewinsky, and that the President committed
    perjury when he testified before the grand jury that he had not
    asked Ms. Currie ``to say something that was untruthful.''
        Mr. Clinton further testified that his only interest in
    speaking to Ms. Currie that day after the President was deposed
    in the Paula Jones case was to ``refresh [his] own
    recollection'' and ``not to impart instructions on how she was
    to recall things in the future.'' As will be discussed further
    below, I conclude that President Clinton made a series of
    statements to Betty Currie in an attempt to improperly persuade
    her to provide false testimony. As a result, based upon the
    evidence presented in the record, I believe that President
    Clinton's interest in talking to Ms. Currie the day after he
    was deposed by Paula Jones' attorneys was to impart
    instructions on how Ms. Currie was to recall events concerning
    the President's illicit affair and not to refresh the
    President's memory. The President's statements before the grand
    jury concerning his interest in talking to Ms. Currie would
    thus constitute perjury.
        In his grand jury testimony, President Clinton asserted in
    his conversations with Mr. Blumenthal and Mr. Podesta, that ``I
    said things that were true. They may have been misleading.''
    President Clinton further states that ``what I was trying to do
    was give them something they could--that would be true, even if
    misleading in the context of this deposition.'' Mr. Clinton
    told Sidney Blumenthal that ``Monica Lewinsky came at me and
    made a sexual demand on me'' and that the President had
    rebuffed her. Mr. Blumenthal also testified that the President
    claimed that Ms. Lewinsky threatened the President, saying
    ``that she would tell people they'd had an affair, that she was
    known as the stalker among her peers, and that she hated it and
    if she had an affair or said she had an affair then she
    wouldn't be the stalker any more.'' When Mr. Blumenthal asked
    the President whether Mr. Clinton had been alone with Ms.
    Lewinsky, the President replied ``I was within eyesight or
    earshot of someone.''
        Even President Clinton acknowledges that he was alone with
    Monica Lewinsky, and, therefore not within eyesight or earshot
    of anybody, on numerous occasions. Mr. Clinton also
    acknowledges that he and Ms. Lewinsky engaged in
    ``inappropriate intimate contact'' which, if Ms. Lewinsky's
    testimony is true, amounted to sexual relations as President
    Clinton understood the term to be defined in the Paula Jones
    case. As a result, the President lied, not simply misled Mr.
    Blumenthal, when Mr. Clinton stated that he had ``rebuffed
    her.''
        John Podesta testified that President Clinton had told Mr.
    Podesta that the President ``had never had sex with her [Ms.
    Lewinsky] in any way whatsoever.'' Mr. Podesta further
    testified that President Clinton elaborated that the President
    and Ms. Lewinsky ``had not engaged in [sexual activity that
    falls within the definition of sexual relations as President
    Clinton understood the term to be defined in the Paula Jones
    case].''
        During Mr. Clinton's grand jury testimony, he refused to
    directly contradict Mr. Podesta's characterization of their
    conversation: ``I'm not saying that anybody who had a contrary
    memory is wrong.'' President Clinton was asked ``[i]f [the
    White House aides] testified that you denied sexual relations
    or relationship with Monica Lewinsky, or if they told us that
    you denied that, do you have any reason to doubt them?'' The
    President responded ``no.''
        Based on the evidence concerning the extent of the sexual
    relationship between President Clinton and Ms. Lewinsky, and
    based on the President's own admission concerning the accuracy
    of statements made by his aides, I conclude that President
    Clinton committed perjury when he characterized the manner in
    which he conveyed false statements to Mr. Podesta and Mr.
    Blumenthal. President Clinton did not simply mislead his aides,
    he lied to them about his relationship with Ms. Lewinsky.

                                   article ii

        In his conduct while President of the United States, William
    Jefferson Clinton, in violation of his constitutional oath faithfully
    to execute the Office of President of the United States and, to the
    best of his ability, preserve, protect, and defend the Constitution of
    the United States, and in violation of his constitutional duty to take
    care that the laws be faithfully executed, has prevented, obstructed,
    and impeded the administration of justice, and has to that end engaged
    personally, and through his subordinates and agents, in a course of
    conduct or scheme designed to delay, impede, cover up, and conceal the
    existence of evidence and testimony related to a Federal civil rights
    action brought against him in a duly instituted judicial proceeding.
        The means used to implement this course of conduct or scheme
    included:
        (1) On or about December 28, 1997, William Jefferson Clinton
    corruptly engaged in, encouraged, or supported a scheme to conceal
    evidence that had been subpoenaed in a Federal civil rights action
    brought against him.

        Ms. Lewinsky testified that on December 28, 1997 she told
    President Clinton that she had been subpoenaed and that the
    subpoena required her to produce gifts given her by the
    President. According to Ms. Lewinsky, she asked the President
    ``should I--maybe I should put the gifts away outside my house
    somewhere or give them to someone maybe Betty.'' Ms. Lewinsky
    testified that President Clinton responded ``I don't know'' or
    ``Let me think about that.''
        Later that day, December 28, Ms. Lewinsky testified that
    she received a phone call from Ms. Currie, who stated ``I
    understand you have something to give me'' or ``the President
    said you have something to give me.'' Ms. Currie then retrieved
    the gifts that President Clinton had given to Ms. Lewinsky and
    hid them under her bed. Based upon the fact that Ms. Currie was
    clearly acting under instructions from President Clinton, I
    find that President Clinton obstructed justice by attempting to
    hide evidence requested in a subpoena in a Federal civil rights
    case.

        (4) Beginning on or about December 7, 1997, and continuing through
    and including January 14, 1998, William Jefferson Clinton intensified
    and succeeded in an effort to secure job assistance to a witness in a
    Federal civil rights action brought against him in order to corruptly
    prevent the truthful testimony of that witness in that proceeding at a
    time when the truthful testimony of that witness would have been
    harmful to him.

        At President Clinton's request, Vernon Jordan met with
    Monica Lewinsky in November of 1997 to discuss assistance that
    Mr. Jordan could provide Ms. Lewinsky in securing a job in New
    York. However, Mr. Jordan took no action until December 11,
    1997, five days after President Clinton learned that Monica
    Lewinsky was on the witness list in the Paula Jones case and
    that Mr. Jordan had not yet provided Ms. Lewinsky with any
    assistance in securing a job in New York. On the day that Mr.
    Clinton learned that Ms. Lewinsky was on the witness list, the
    President assured her that he would talk to Mr. Jordan to
    ensure that Mr. Jordan stepped up his efforts to secure her a
    job in New York.
        Mr. Jordan stepped up his activities on December 11, 1998,
    because, on that date, Judge Susan Webber Wright ordered that
    Paula Jones was entitled to information concerning any
    government employee with whom the President had sexual
    relations. On January 7, 1998, Ms. Lewinsky signed a false
    affidavit, stating that she had not engaged in a sexual
    relationship with the President. On January 8, 1998, after Ms.
    Lewinsky believed that her interview with MacAndrews and Forbes
    in New York had gone poorly, Mr. Jordan called the company's
    CEO, Ron Perelman, to ask his assistance with securing
    employment for Ms. Lewinsky within Mr. Perelman's company. All
    of this activity was done in order to ensure that Ms. Lewinsky
    did not provide damaging testimony against President Clinton
    and thus constituted an effort to obstruct justice in the Paula
    Jones case.

        (6) On or about January 18 and January 20-21, 1998, William
    Jefferson Clinton related a false and misleading account of events
    relevant to a Federal civil rights action brought against him to a
    potential witness in that proceeding, in order to corruptly influence
    the testimony of that witness.

        Ms. Currie was summoned to the White House on Sunday,
    January 18, 1998 for a private meeting with President Clinton.
    The President was under court order not to talk about the case
    to anyone. Nonetheless, after telling Ms. Currie that he had
    been deposed in the Paula Jones case and that Ms. Jones'
    attorneys had asked the President several questions about Ms.
    Lewinsky, President Clinton then made a series of statements to
    Ms. Currie:

        I was never really alone with Monica, right?
        You were always there when Monica was there, right?
        Monica came on to me, and I never touched her, right?
        You could see and hear everything, right?

        The testimony of Ms. Currie and President Clinton
    demonstrate that these statements were an attempt to influence
    the future testimony of Ms. Currie regarding the President's
    relationship with Monica Lewinsky. President Clinton admitted
    being alone with Ms. Lewinsky. Ms. Currie also testified that
    the President and Ms. Lewinsky had been alone. Given the fact
    that President Clinton and Ms. Lewinsky had been alone on a
    number of occasions, a fact that President Clinton would be
    unlikely to forget considering the intimate nature of their
    encounters, the President was not refreshing his memory when he
    stated to Ms. Currie that he and Ms. Lewinsky had never been
    alone. President Clinton was attempting to improperly persuade
    Ms. Currie to testify that he and Ms. Lewinsky were never
    alone.
        Ms. Currie testified that President Clinton and Ms.
    Lewinsky were alone a number of times. Despite the legal
    hairsplitting engaged in by the White House, I interpret the
    statement ``You were always there when Monica was there,
    right?'' to mean that President Clinton was attempting to
    improperly persuade Ms. Currie to testify that Ms. Lewinsky was
    always within Ms. Currie's sight during her visits to the
    President.
        Based upon Ms. Lewinsky's testimony, President Clinton's
    statement that ``Monica came on to me, and I never touched her,
    right?'' would clearly be false. In addition, because even
    President Clinton admitted to ``inappropriate intimate
    contact,'' I assume that President Clinton is at least
    admitting to having touched Ms. Lewinsky. As a result, I must
    conclude that President Clinton did touch Ms. Lewinsky. I must
    then further conclude that, because Mr. Clinton was making a
    statement to Ms. Currie that the President knew to be false, he
    could only have made such a claim in order to improperly
    persuade Ms. Currie to testify that President Clinton had never
    touched Ms. Lewinsky.
        In his grand jury testimony, President Clinton admitted
    that he did not allow Ms. Currie to ``watch whatever intimate
    activity [the President] did with Ms. Lewinsky.'' In addition,
    when asked whether he would ``not have engaged in those
    physically intimate acts if [the President] knew that Ms.
    Currie could see or hear that,'' President Clinton responded
    ``[t]hat's correct.'' However, on the Sunday after he was
    deposed in the Paula Jones case, Mr. Clinton told Ms. Currie
    ``You could see and hear everything, right?'' I find these two
    concepts to be inherently contradictory. President Clinton
    could not, on the one hand, shield Ms. Currie from seeing or
    hearing any intimate activity, while, on the other hand, be
    sincerely stating that Ms. Currie could see and hear
    everything. I must then conclude that President Clinton made
    this statement in an attempt to improperly persuade Ms. Currie
    to testify that President Clinton and Ms. Lewinsky engaged in
    no activity that Ms. Currie could neither see nor hear.

        (7) On or about January 21, 23, and 26, 1998, William Jefferson
    Clinton made false and misleading statements to potential witnesses in
    a Federal grand jury proceeding in order to corruptly influence the
    testimony of those witnesses. The false and misleading statements made
    by William Jefferson Clinton were repeated by the witnesses to the
    grand jury, causing the grand jury to receive false and misleading
    information.

        On January 21, 1998, President Clinton met with Sidney
    Blumenthal, a senior White House aide. During the course of
    their conversation, Mr. Blumenthal asked President Clinton what
    the President had done wrong. According to Mr. Blumenthal, the
    President responded ``[n]othing'' and ``I haven't done anything
    wrong.''
        Mr. Blumenthal asked the President why, if he had done
    nothing wrong, would the President want to appear on television
    and admit wrongdoing, which is what the President implied he
    wanted to do. At that point, according to Mr. Blumenthal, the
    President stated that ``Monica Lewinsky came at me and made a
    sexual demand on me'' and that the President had rebuffed her.
    Mr. Blumenthal also testified that the President claimed that
    Ms. Lewinsky threatened the President, telling him ``that she
    would tell people they'd had an affair, that she was known as
    the stalker among her peers, and that she hated it and if she
    had an affair or said she had an affair then she wouldn't be
    the stalker any more.''
        According to Mr. Blumenthal, President Clinton also stated
    that ``I feel like somebody who is surrounded by an oppressive
    force that is creating a lie about me and I can't get the truth
    out.'' When Mr. Blumenthal asked the President whether Mr.
    Clinton had been alone with Ms. Lewinsky, the President replied
    ``I was within eyesight or earshot of someone.''
        Based upon the grand jury testimony presented by Ms.
    Lewinsky and President Clinton, and upon the deposition
    provided to the Senate by Ms. Lewinsky as well as the
    President's failure to provide the Senate with a deposition, I
    have concluded that the statements made by President Clinton to
    Mr. Blumenthal are false. If the President had agreed to be
    deposed by the Senate, his testimony might have strengthened
    the credibility of the statements that he had made to Mr.
    Blumenthal. However, the credibility of such statements have no
    foundation in the evidence presented to the Senate. As a
    result, I must conclude that President Clinton had a motive
    other than an interest in conveying the truth when he made
    these statements to Mr. Blumenthal.
        President Clinton has tried to argue that the President
    made these statements to Mr. Blumenthal, not to obstruct
    justice, but merely to mislead him. However, when asked whether
    he knew that Sidney Blumenthal and John Podesta might be called
    into a grand jury, President Clinton responded ``That's
    right.'' Therefore, I must conclude that President Clinton lied
    to Sidney Blumenthal in order to plant false testimony on a
    potential grand jury witness, a witness the President himself
    admits he knew might be called.
        John Podesta testified that President Clinton had told Mr.
    Podesta that the President ``had never had sex with her [Ms.
    Lewinsky] in any way whatsoever.'' Mr. Podesta further
    testified that President Clinton elaborated that the President
    and Ms. Lewinsky ``had not engaged in [sexual activity that
    falls within the definition of sexual relations as President
    Clinton understood the term to be defined in the Paula Jones
    case].'' As stated above, Mr. Clinton acknowledges that he knew
    that Mr. Podesta might be called as a witness by the grand
    jury. As also discussed above, it is my opinion, based on the
    evidence, that President Clinton and Ms. Lewinsky did engage in
    sexual activity that falls within the definition of sexual
    relations as President Clinton understood the term to be
    defined in the Paula Jones case. As a result, Mr. Clinton lied
    to Mr. Podesta. In addition, because President Clinton knew
    that Mr. Podesta might be called as a witness by the grand
    jury, I must conclude that the President lied to Mr. Podesta,
    not simply to mislead him and his White House colleagues, but
    in order to plant false testimony on a potential grand jury
    witness.
        Perjury before a Federal grand jury and obstruction of
    justice do rise to the level of being a ``high crime or
    misdemeanor'' that is the standard set forth in the
    Constitution for impeachment. Indeed in recent years the United
    States Senate has impeached two federal judges for perjury.
    Were we not to remove the President for the same offense we
    would be breaking established precedent.
        Furthermore, would it be right to set a lower standard for
    the President than the judges he appoints? I think not. The
    President must be held to the same standard, if not a higher
    one.
        Perjury and obstruction of justice are crimes against the
    state. Perjury goes directly against the truth-finding function
    of the judicial branch of government. If the President can lie
    under oath, others will plead the same defense, sacrificing the
    truth.
        The President is the chief law enforcement officer in the
    land. He or she should be the ultimate example of a law-abiding
    citizen, not one who willfully and repeatedly violates the law
    when it serves his or her narrow interest. The unlawful actions
    by the President will have the long term effect of reducing
    compliance with the law by others if the President can get away
    with it.
        The Constitution states that impeachment and removal is to
    occur when ``the President, Vice President and all civil
    officers'' commit ``treason, bribery, or other high crimes and
    misdemeanors.''
        I find bribery and perjury to be offenses of the same
    nature. Both seek to thwart well established legal processes.
    Bribery seeks to produce an outcome different from justice by
    obscuring our priorities. Perjury seeks to produce an outcome
    different from justice by obscuring the truth.
        Obstruction of justice committed by the President
    undermines the entire judicial system and is thus a crime
    against the nation falling clearly in the category of a ``high
    crime.''
        Whether or not the vote taken today is considered a victory
    for President Clinton, it will be, in many ways, a loss for
    America. We have lost many things over the past few months:
    trust in public officials, respect for the rule of law,
    confidence in the truth of the White House's public statements.
    But perhaps the most tragic loss has been the steady erosion of
    our societal standards.
        It is hard to imagine that a generation or two ago, a
    majority of Americans would have greeted news of Presidential
    crimes and cover-ups with a shrug. We did not expect our
    leaders to be perfect, but we did expect them to provide moral
    leadership, and to obey the laws they were charged with
    upholding and executing. We expected Presidents to commit sins;
    but we would not allow them to commit crimes. We held the
    Office of the Presidency, and the honor of the Nation, in the
    highest esteem.
        We looked to the leaders of our Nation as examples to
    admire, rather than avoid. Parents would point to the President
    of the United States and tell their son or daughter that if
    they worked hard and did right, they might one day hold that
    office. That is not so today. Perhaps in the future the
    admiration of that office can be restored.
        Our loss is compounded by the manner of our response. In
    many quarters, the news of Presidential perjury and obstruction
    of justice has been greeted with a shrug, if not a wink. We are
    no longer outraged by the outrageous. We have grown comfortable
    with presidential misconduct, even as we prosecute, convict,
    and imprison the less powerful for the same crimes.
        If we are to believe the media, much of our reluctance to
    enforce the laws of our land springs from our material
    concerns. We have heard, from many quarters, the assertion that
    things are good in America, we are at peace, the stock market
    is doing well, so why rock the boat? Why shake things up?
        We seem to have forgotten that all of our prosperity would
    be impossible without the rule of law, and without a cultural
    predisposition to honor and uphold the law. Reducing the
    administration of justice to opinion polls debases our country.
    Putting pocketbook concerns over standards of right and wrong
    impoverishes our culture. If we do not sustain the moral and
    legal foundation on which our system of government and our
    prosperity is based, both will surely and steadily diminish.
        The great southern writer Walker Percy once stated that his
    greatest fear for our future was that of ``seeing America, with
    all of her great strength and beauty and freedom . . .
    gradually subside into decay through default and be defeated .
    . . from within by weariness, boredom, cynicism, greed, and in
    the end, helplessness before its great problems.''
        I am optimistic about our future, but this point is an
    important one. America is at a place in history where our great
    enemies have been defeated. Our economy is strong, our incomes
    up, our expectations high. We are the only remaining world
    superpower.
        Our future looks bright. But our continued success is not a
    historical certainty. It will be determined by the character of
    our Nation--by the condition of our culture, as much as our
    economy. The standards we hold--for ourselves, and for our
    leaders--are a good indicator of what we soon shall be.
        For all of the reasons described above, I have chosen, with
    great sadness but firm resolve to vote for the conviction and
    removal of William Jefferson Clinton as President of the United
    States of America.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Richard H. Bryan

        Mr. BRYAN. Mr. Chief Justice, we are about to embark upon a
    rollcall vote that only one other Senate in the history of our
    Republic has been called upon to cast. It is a weighty
    decision. We have taken an oath that requires us to render
    ``impartial justice according to the Constitution and the
    laws.'' By so doing each of us has undertaken a solemn
    obligation to be fair to the President, fair to the American
    people, and faithful to our constitutional responsibility.
        One hundred thirty-one years ago, the 40th Congress faced a
    similar decision. Then, as now, the Nation was divided. Then,
    as now, the passions of the day raged across the land. Then, as
    now, the critics of the President were in the majority in the
    Senate. Confounding the cynics of that day, the Senate rose
    above itself by the slenderest of margins, a single vote, and
    acquitted President Andrew Johnson. More than a century later,
    that decision has stood the test of time.
        The Senate's acquittal reaffirmed a basic constitutional
    doctrine that the executive branch and the legislative branch
    shall be separate and co-equal; and that the executive branch
    should not be subservient to the prevailing views of a
    congressional majority.
        How different the course of our constitutional history
    might have been had President Andrew Johnson been convicted.
    Our system of government today might be more like a
    parliamentary system undermining the independence of the chief
    executive.
        Future Presidents may have been forced to operate within
    the omnipresent shadow of impeachment whenever a legislative
    majority was hostile to their views or policies. I think it is
    fair to conclude the Office of the Presidency would be a
    profoundly different one had Andrew Johnson been convicted. It
    is in that historical context we meet.
        In this century, there have been five judicial impeachments
    that have reached the Senate. In each of those proceedings, the
    actions of the House and Senate were decided by a bipartisan
    vote, and all five judges were convicted, and removed from
    office.
        In the history of the Republic, there have been but two
    Presidential impeachments, that of Andrew Johnson and William
    Jefferson Clinton. Each Presidential impeachment, however, has
    come to the Senate under an ominous cloud of partisanship.
        The Constitution wisely imposes a heavy burden of proof
    upon the House of Representatives to convict and remove a duly
    elected President. And when that constitutional process is
    tainted by partisan actions, the articles of impeachment must
    be subjected to an additional measure of scrutiny.
        The Constitution provides in article II, section 4 that
    ``The President . . . shall be removed from office on
    Impeachment for the Conviction of, Treason, Bribery, or other
    high Crimes and Misdemeanors.''
        What constitutes impeachable conduct, as contemplated by
    the Constitution, is the central issue of this trial.
        The framers of the Constitution labored at some length to
    fashion an impeachment article. As their guide, they looked to
    the English experience in their parliamentary system. They
    followed that history in deciding to involve both the House of
    Representatives and the Senate giving them different roles--the
    former to charge and impeach, and the latter to convict or
    acquit.
        Unlike the British parliamentary system with its monarch,
    the framers decided impeachment would apply against its highest
    officeholders, expressly including the President. Further, the
    framers determined that impeachment would in and of itself be
    limited. Rather than including capital punishment and other
    criminal penalties as a part of impeachment as Britain did, the
    framers limited impeachment to the removal of the individual
    from office upon conviction.
        As the drafting of the Constitution's impeachment clause
    proceeded, the drafters struggled with how to characterize the
    offenses for which a President could be impeached, convicted,
    and removed from office. Initially, offenses such as
    ``malpractice'', ``neglect of duty'', and ``corruption'' were
    considered. As the Constitutional Convention drew to a close,
    the Convention's Committee of Eleven proposed ``treason or
    bribery'' as the appropriate standard.
        George Mason suggested the addition of
    ``maladministration'' due to his concern that limiting the
    offenses to only treason or bribery would still allow a
    president to commit ``many great and dangerous offences'' which
    would not be subject to impeachment. (``The Records of the
    Federal Convention of 1787.'')
        However, James Madison believed ``maladministration'' was
    ``. . . [s]o vague a term [it] will be equivalent to a tenure
    during [the] pleasure of the Senate.'' George Mason then
    proposed the addition of ``high crimes and misdemeanors against
    the State,'' which the Committee on Style modified by deleting
    ``against the State'' believing that language unnecessary.
        Alexander Hamilton in Federalist No. 65 argues that the
    Senate could convict and remove a President only for ``those
    offenses which proceed from the misconduct of public men, or in
    other words from the abuse or violation of some public trust.
    They are of a nature which may with peculiar propriety be
    denominated political, as they relate chiefly to injuries done
    immediately to the society itself.''
        Nearly two centuries later, Charles Black explained in his
    ``Impeachment: A Handbook,'' the purpose of impeachment is to
    protect the Nation, rather than to punish the individual
    holding the Office of President. Thus, the behavior at issue
    must reach a level of endangering the state.
        The House voted to impeach President Clinton on two
    articles; perjury before the grand jury and obstruction of
    justice. Two other articles accusing the President of perjury
    in a deposition in a civil case, and of abusing his power by
    not responding to the 81 requests for admission made on
    November 5, 1998, in a manner the House desired, were not
    approved.
        Article I, charging perjury, is poorly and rather vaguely
    worded. Nevertheless, it appears to contain 11 separate
    allegations. The House managers in their presentation in
    article II allege seven acts of Presidential misconduct
    constituting obstruction of justice.
        The Office of Independent Counsel was authorized by the
    Attorney General of the United States to conduct an
    investigation of the President's relationship with Ms.
    Lewinsky. Mr. Starr has 25 attorneys and 5 non-FBI
    investigators on his personal staff, and access to the
    virtually unlimited resources of the FBI. The investigation
    continued for 8 months, culminating in a record of over 60,000
    pages of materials including sworn testimony from grand jury
    appearances, depositions, and sworn statements.
        That the relationship between the President and the Office
    of Independent Counsel was a contentious one is beyond dispute.
    Mr. Starr has been an aggressive special prosecutor. Many
    believe that his prosecutorial zeal violated any reasonable
    standard of fairness. He has been no shrinking violet in his
    pursuit of the President.
        Yet even Mr. Starr and his staff, after careful analysis,
    concluded that 8 of the 11 allegations of perjury before the
    grand jury, and one of the allegations of obstruction of
    justice lacked sufficient prosecutorial merit to be submitted
    to the House. Certainly, it cannot be contended that these
    allegations can sustain the burden of proof to establish the
    President's guilt, or to rise to the level of impeachable
    conduct necessary to remove a duly elected President.
        The Constitution's impeachment process was not created to
    mete out punishment against the individual serving as
    President. Rather, the impeachment process is to protect the
    Nation from a President who has brought grave harm to the
    office and to the country. These are distinctly different
    goals.
        As is so often the case, the American people have a clear
    understanding of the circumstances that bring us together.
        The President had an improper relationship in the White
    House with a 22-year-old intern.
        The President lied to his family, his staff and the
    American people in denying the existence of the relationship.
        The President pursued a course of conduct to conceal his
    improper relationship with the White House intern.
        The President's conduct was wrong and it was immoral. It
    remains for us to determine the constitutional consequences, if
    any, to be attached to this conduct.
        The House managers rely heavily upon circumstantial
    evidence and draw from that evidence a series of inferences
    which lead them to conclude that the President is guilty of
    perjury and obstruction of justice.
        The President's counsel artfully attack the weaknesses in
    the managers' case and assert that exculpatory direct evidence
    raises sufficient doubt under the law, and therefore, the
    President is entitled to be acquitted.
        On this record, as one of the House prosecutors pointed
    out, reasonable people can differ as to the conclusions they
    reach.
        It is acknowledged that the House managers have the burden
    of proof in establishing the President's guilt under legal
    definitions. Open to question is the standard of proof to be
    applied, a mere preponderance of the evidence as in a civil
    trial, clear and convincing evidence as in alleging fraudulent
    behavior, or beyond a reasonable doubt as in a criminal case.
        The House alleges that specific crimes have been committed,
    to wit perjury and obstruction of justice as defined in law.
    Under these circumstances, I believe the appropriate standard
    is the criminal standard--proof beyond a reasonable doubt.
        But is it impeachable conduct? Does it rise to the
    constitutionally required standard of bribery, treason or other
    high crimes and misdemeanors. I think not.
        The President's conduct is boorish, indefensible, even
    reprehensible. It does not threaten the Republic. It does not
    impact our national security. It does not undermine or
    compromise our position of unchallenged leadership in
    international affairs.
        Although I conclude that the evidence presented in this
    case does not reach the standard commanded by the Constitution
    to convict and remove a President, it does not follow that we
    are precluded from registering our strong disapproval of the
    President's personal conduct.
        There is a way. After our vote on these articles of
    impeachment, and assuming, as most believe, there are not the
    votes to convict the President--the Senate should proceed
    immediately to adopt a bipartisan resolution of censure.
        It is important for us to do this. There are two reasons.
    First, the American people need to hear from us in strong and
    unambiguous language that the President's personal conduct is
    unacceptable and unworthy of the President of the United
    States.
        The record of these proceedings must also reflect that the
    acquittal of the President can in no way be construed as an
    exoneration of his conduct. A censure resolution should not be
    embarked upon lightly or for political reasons, but it should
    be used in this case.
        And finally, a response to the injunction that we have
    frequently heard over the past several weeks: that no man is
    above the law. That is a core value. It goes to the very
    essence of our beliefs as Americans. No violence is done to
    this sacred principle by pursuing the course of action I have
    chosen.
        For those who believe that the President is guilty of
    perjury and obstruction of justice--criminal offenses--there is
    a forum available for that determination. It is our criminal
    justice system and William Jefferson Clinton may be called to
    the bar of justice to respond to these criminal charges--armed
    with no greater legal protection than that accorded the most
    humble among us. And that is how it should be.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator John Ashcroft

        Mr. ASHCROFT. Mr. Chief Justice, when the impeachment trial
    began on January 7, I took an oath to render ``impartial
    justice according to the Constitution and laws: So help me
    God.'' This oath distinguishes impeachment from all my other
    responsibilities in the Senate. Although the Constitution
    requires Senators to take an oath of office and gives the
    Senate numerous powers and responsibilities, only the
    obligation to try impeachments demands the swearing of a
    special, separate oath. While many commentators have sought to
    mark this trial as a political event, the oath leaves room only
    for impartial justice. I interpret this oath as requiring that
    I decide this case based on the evidence in the record, the
    arguments of the parties, and the applicable law--and on no
    other basis.
        If I were to look beyond the evidence in the case, to
    public opinion polls, then a path to a decision would be clear.
    A large majority of Americans, for example, believe that the
    President committed perjury, but do not think that he should be
    removed from office. I am sure that those surveyed considered a
    variety of factors and did not limit themselves to the Senate
    record. More than anything else, these poll results reflect the
    American people's capacity for forgiveness. I share this desire
    to forgive the President for his admitted mistakes. However,
    the forgiveness we grant in our capacity as individuals must be
    distinguished from the Government's responsibility to remedy
    wrongdoing. We routinely ask jurors to sentence defendants in
    accordance with the law, even though they may forgive the
    defendant. That is the same responsibility that the
    Constitution and my oath impose on me in this proceeding.
        On the other hand, if I were simply to vote my conscience
    as to whether I believe the President's continued service is
    good for our country and our culture, that is a clear path as
    well. From the very outset, I have stated consistently that if
    the allegations were true concerning the President's
    relationship with Ms. Lewinsky, then the President has
    disgraced himself and his office, and should resign. In my
    view, the confessed facts of the President's conduct in the
    Oval Office make his continued presence an obstacle to the
    healing our culture. The honorable course would be for the
    President to resign, to allow the Nation to heal from the
    wounds he has inflicted.
        My oath, however, forecloses either of these paths, and
    instead forces me to undertake the far more difficult task of
    sifting through the record, weighing evidence, determining
    credibility and reaching a final, impartial judgment on the
    articles of impeachment. As a result, I cannot explain my
    judgment by resort to any grand principles or by broad
    statements about my opinion of the President as a leader. I can
    only explain my vote through a detailed examination of the
    articles of impeachment, the evidence presented and the
    relevant law.
        The first article of impeachment charges President Clinton
    with committing perjury before the grand jury when he testified
    on four subjects. Attorneys for the President complain that the
    House managers failed to specify the particular grand jury
    statements of the President that constituted perjury. I agree
    that the President deserves sufficient specificity to provide
    him the basis for a defense. However, during the course of the
    House managers' presentation it became clear that the perjury
    allegations focused on a handful of specific statements the
    President made to the grand jury.
        Perhaps the single most obvious instance of a false
    statement by the President stems from his explanation of his
    conversations with Ms. Betty Currie in the days immediately
    following his deposition testimony in Jones v. Clinton. Ms.
    Currie told the grand jury that on the evening of his
    deposition the President called her and requested that she make
    a rare Sunday appearance at the White House. When she arrived,
    the President called her in and confronted her with an unusual
    series of statements and questions, including: ``Monica came on
    to me, and I never touched her, right?''; ``You were always
    there when Monica was there, right?''; and ``I was never really
    alone with Monica, right?'' (Evidentiary Record, S. Doc. 106-3,
    Vol. IV, pp. 559-60.) When the President was asked to explain
    this conversation to the grand jury, he stated that he was
    ``trying to refresh [his] memory about what the facts were.''
    (Evidentiary Record, S. Doc. 106-3, Vol. III, p. 651.) He was
    also asked, ``[Y]ou are saying that your only interest in
    speaking with Ms. Currie in the days after your deposition was
    to refresh your own recollection?'' and answered, ``Yes.''
    (Evidentiary Record, S. Doc. 106-3, Vol. III, pp. 593-94.
        These statements are demonstrably false. A person cannot
    refresh his or her memory by repeating lies. The President's
    leading questions were falsehoods. The President knew that he
    had been alone with Ms. Lewinsky, knew that they had been
    together outside of Ms. Currie's presence, and knew that he had
    touched Ms. Lewinsky. Repeating these falsehoods to Ms. Currie
    could not have refreshed the President's memory ``about what
    the facts were.''
        What is more, Ms. Currie testified that the President
    reviewed these same statements and questions with her again 2
    or 3 days later. (Evidentiary Record, S. Doc. 106-3, Vol. IV,
    pp. 560-61.) The President does not have specific memory of
    this second conversation, but does not dispute Ms. Currie's
    recollection. If the President were trying to refresh his
    memory, he would not go through the same questions again two or
    three days later. However, if the President were trying to
    coach Ms. Currie's testimony and ensure that her version of
    events was consistent with his false deposition testimony, then
    rehearsing these questions and answers a second time would be
    helpful. Based on all the evidence, I have concluded beyond a
    reasonable doubt that the President's testimony concerning
    these conversations with Ms. Currie was false. The evidence
    clearly shows that the President gave false testimony to the
    grand jury in order to cover up his illegal effort to influence
    Ms. Currie's testimony.
        Another clear example of a false statement by the President
    in his grand jury testimony is his claim that he was truthful
    with his aides in discussing his relationship with Ms.
    Lewinsky. The exact nature of what the President said to his
    aides in the immediate aftermath of his deposition was of
    interest to the grand jury as part of its investigation of
    whether the President obstructed justice. When asked about
    these conversations, the President told the grand jury that ``I
    said to them things that were true about this relationship.''
    (Evidentiary Record, S. Doc. 106-3, Vol. III, p. 558.)
        The testimony of the President's own aides, however, makes
    it clear that the President was not truthful with his aides. He
    did not mislead them, he lied to them. For example, one
    presidential aide, John Podesta, testified that the President
    told him that he did not have sex with Ms. Lewinsky ``in any
    way whatsoever'' and provided additional, more detailed denials
    concerning the relationship. (Evidentiary Record, S. Doc. 106-
    3, Vol. IV, p. 3311.) Sidney Blumenthal, another presidential
    aide, testified that the President told him that ``Ms. Lewinsky
    came at me and made a sexual demand on me,'' that he ``rebuffed
    her,'' and that Ms. Lewinsky ``was known as the stalker.''
    (Evidentiary Record, S. Doc. 106-3, Vol. IV, p. 185.) In his
    Senate deposition Mr. Blumenthal unequivocally stated that he
    now believes the President lied to him. (Deposition testimony
    of Sidney Blumenthal, Feb. 3, 1999, 145 Congressional Record
    S1249.) As the President's closest aides have conceded, the
    President was not truthful with them. In reviewing all the
    evidence, it is clear beyond a reasonable doubt that the
    President was not truthful with his aides and that his grand
    jury testimony concerning these discussions was false.
        The first example included in the grand jury perjury
    article approved by the House focuses on the President's grand
    jury testimony concerning ``the nature and details of his
    relationship with'' Ms. Lewinsky. His testimony on this matter
    also appears to be false.
        Although some of the detailed testimony underlying this
    example of perjury is nothing short of sordid, the President's
    lack of credibility on this matter is straightforward. For a
    number of months last year, Ms. Lewinsky was on record as
    having told Federal investigators that she and the President
    had engaged in a sexual relationship. The President publicly
    and repeatedly denied the truth of these allegations. It was a
    classic ``he said, she said'' situation. Then physical evidence
    of a sexual relationship between the President and Ms. Lewinsky
    was discovered. After this physical evidence came to light, it
    ceased to be a ``he said, she said'' situation. He changed his
    story and admitted an ``inappropriate intimate relationship''
    to a federal grand jury, while she was vindicated.
        However, the President declined to follow his oath to tell
    the grand jury the whole truth and admit the true nature of the
    relationship. Instead, the President attempted to walk an
    impossibly fine line, admitting to a relationship which
    involved sufficient contact to explain the physical evidence
    but insufficient contact to make the President's earlier
    deposition statements about the relationship perjurious. The
    President's testimony on this matter, therefore, was at the
    heart of the grand jury's investigation into whether the
    President committed perjury in the Jones case. The physical
    evidence strongly suggested that the President had committed
    perjury in his deposition, and this grand jury testimony was
    the basis for his defense. The President's testimony flatly
    contradicts Ms. Lewinsky's testimony concerning the nature and
    details of their relationship. Ms. Lewinsky's testimony
    provides a much more plausible explanation of the physical
    evidence, and makes clear that the President perjured himself
    in his sworn deposition testimony.
        With respect to the nature and details of their
    relationship we are once again presented with a ``he said, she
    said'' situation. But now there are two differences. First, the
    President's implausibly contorted version of events appears to
    be tailored precisely to avoid admitting a prior perjury.
    Second, we have the benefit of a prior ``he said, she said''
    dispute between the same two people, in which subsequent
    evidence conclusively proved that she was telling the truth and
    he was lying. Under these circumstances, I am convinced beyond
    a reasonable doubt that the President lied about ``the nature
    and details of his relationship'' with Ms. Lewinsky.
        The House included two other examples of grand jury perjury
    in the first article of impeachment. The article alleges that
    the President lied to the grand jury concerning both his prior,
    perjurious deposition testimony and whether he was paying
    attention to his lawyer's statements during that same
    deposition. While there is considerable evidence that supports
    the notion that the President did lie to the grand jury
    regarding these two matters, I am not convinced beyond a
    reasonable doubt that the President's statements on these
    matters constitute perjury.
        The President began his grand jury testimony with the
    assertion that he was truthful in his deposition testimony.
    However, later in his grand jury testimony, the President
    clarified and corrected much of his false and misleading
    deposition testimony. As a result, it is clear that the
    President's claim that his deposition testimony was truthful
    was itself a false statement. However, it is equally clear that
    this false statement cannot form the basis for a perjury
    conviction for two reasons. First, when viewed in its entirety,
    the President's grand jury testimony makes this one statement
    immaterial. It is the equivalent of the statement of a murderer
    who begins his confession with the statement that ``I didn't do
    anything wrong.'' Second, in light of the House's decision to
    reject a separate article focusing on deposition perjury, I am
    uncomfortable allowing this one line to be used as a means to
    ``backdoor'' allegations that the President lied in that forum.
        The allegation that the President lied to the grand jury
    when he testified that he was not paying attention to his
    lawyer when he used Ms. Lewinsky's affidavit to deny that there
    was any sexual relationship between the President and Ms.
    Lewinsky is a closer matter. During the President's deposition
    in the Jones case, the President's lawyer, Mr. Bennett, argued
    to the court that Ms. Lewinsky's affidavit demonstrated ``there
    is absolutely no sex of any kind in any manner, shape or form''
    between the President and Ms. Lewinsky. (Evidentiary Record, S.
    Doc. 106-3, Vol. XIV, p. 23.)
        The President allowed his lawyer to make this
    representation to the court, even though the President knew
    that representation and the underlying affidavit were both
    false. When confronted with these facts before the grand jury,
    the President attempted to excuse his behavior with the claim
    that he was not paying attention and this ``whole argument just
    passed me by.'' (Evidentiary Record, S. Doc. 106-3, Vol. III,
    p. 481.) The available evidence and common sense suggest that
    the President was paying attention. I have reviewed the
    videotape of the President's deposition, and he appears to be
    paying attention to his lawyer before, during and after his
    lawyer's representation. Common sense suggests the President
    was paying attention because his lawyer made this statement in
    an effort to keep the President from answering a question the
    Jones lawyer had just directed to him. The President would have
    needed to pay attention to the question in order to answer it,
    and it is hard to believe he would have tuned out his lawyer's
    objection to the question.
        What is more, in light of the President's admitted fears
    about the true nature of his relationship with Ms. Lewinsky
    becoming public, it is implausible that he would have not paid
    attention to his lawyer's efforts to use the Lewinsky affidavit
    to prevent questioning about their relationship. The President
    does not dispute that he suggested that Ms. Lewinsky file an
    affidavit in a December 17, 1997, telephone call. The
    President's stated objective in suggesting the filing of an
    affidavit was to keep Ms. Lewinsky from becoming an issue in
    the Jones litigation. The notion that the President would not
    pay attention to his lawyer's efforts to have that suggestion
    bear fruit strains credulity. Finally, it is worth noting that
    immediately following Mr. Bennett's representation, the
    presiding judge cautioned Mr. Bennett against coaching the
    witness. That caution would not have been necessary had the
    witness, Mr. Clinton, not been paying attention to his lawyer's
    words.
        If I were applying a preponderance of the evidence or a
    clear and convincing evidence standard, I certainly would
    reject the President's claim that the ``whole argument just
    passed me by.'' However, applying a beyond a reasonable doubt
    standard, I have reached a different conclusion. The problem
    for me is that the President's statement concerns his own
    mental state. Although the evidence and common sense suggest
    the President was paying attention to Mr. Bennett, I have not
    been able to remove all doubts from my mind on this score.
        On the other hand, I am convinced beyond a reasonable doubt
    that the President made false statements to the grand jury
    concerning his conversation with Ms. Currie, his statements to
    other aides, and the nature and details of his relationship
    with Ms. Lewinsky. Moreover, in light of the legal standards
    for grand jury perjury, I am convinced the President's conduct
    satisfies every element of felony perjury under section 1623 of
    the Federal criminal code, title 18. There are five elements to
    the crime of grand jury perjury. To constitute perjury a
    statement must be made under oath, before a grand jury, with
    intent, and the statement must be both false and material.
        I have already discussed why I have concluded that these
    statements were false, and there is no question that they were
    made under oath to a grand jury. The only two remaining
    elements are intent and materiality. Neither of these standards
    is difficult to satisfy in the context of grand jury perjury.
    Congress passed a special statute, section 1623, to make it
    easier to prosecute grand jury perjury out of a recognition
    that grand jury perjury is a more serious threat to the
    administration of justice than other perjuries. As a result,
    the intent requirement is not demanding--the defendant need
    only make the statement with knowledge of its falsity. As the
    well-respected American Criminal Law Review, published by
    Georgetown University, concludes: ``Section 1623, unlike 1621
    [the general perjury statute], does not require proof that the
    allegedly false testimony was submitted willfully. Rather, it
    requires that such testimony was knowingly stated or
    subscribed. This requirement is ordinarily satisfied by proof
    that the defendant knew his testimony was false at the time he
    provided it.''
        The one thing that emerges from the presentations made by
    both the White House and the House managers is that the
    President made his grand jury statements with a great deal of
    forethought and precision. The President's false statements did
    not result from inadvertence or confusion. The President knew
    these statements were false. For example, he knew full well
    that his conversation with Ms. Currie was not designed to
    refresh his memory.
        Likewise, the materiality standard is easily satisfied in
    this case. Courts are generally quick to find grand jury
    perjury to be material in deference to the broad investigatory
    authority of a Federal grand jury. As the Second Circuit
    observed in United States v. Kross, 14 F.3d 751, 754 (2d Cir.),
    cert. denied, 513 U.S. 828 (1994): ``Because the grand jury's
    function is investigative, materiality in that context is
    broadly construed.'' The grand jury in this case was
    investigating whether the President committed perjury in his
    Jones deposition or obstructed justice in the Jones lawsuit.
    Specifically, the grand jury was concerned that the President
    may have lied in denying a sexual relationship with Ms.
    Lewinsky and obstructed justice by coaching Ms. Currie and his
    other aides. Therefore, the President's grand jury testimony
    concerning what he said to his aides and the nature of his
    relationship with Ms. Lewinsky was directly relevant to the
    grand jury's investigation. The President's statements were not
    just material--they were at the heart of the grand jury's
    inquiry.
        Lawyers for the President raised a number of legal smoke
    screens in his defense that do not change the ultimate
    conclusion that the President committed perjury. For example,
    they emphasize the so-called Bronston defense, in which a
    misleading statement does not constitute perjury if it is
    technically true. However, the Bronston defense provides no
    defense to a statement that is literally false. As United
    States Supreme Court Justice Breyer, while still on the First
    Circuit, observed: ``The Bronston Court held only that a
    defendant cannot be convicted of perjury for true but
    misleading statements, not that a defendant is immune from
    prosecution for perjury whenever some ambiguity can be found by
    an implausibly strained reading of the questions he is asked.''
    United States v. Doherty, 867 F.2d 47,69 (1st Cir.), cert.
    denied, 492 U.S. 918 (1989).
        Likewise, the White House has attempted to rely on the two-
    witness rule--i.e., the notion that a perjury prosecution
    cannot rest on an oath versus an oath. That rule of law would
    not apply here if it were a correct statement of the law
    because there is ample corroborating evidence. But the truth of
    the matter is that section 1623 expressly rejects the two-
    witness rule, stating that: ``it shall not be necessary that
    such proof be made by any particular number of witnesses.'' As
    the American Criminal Law Review puts it: ``the obvious purpose
    of this language [is] to prevent the application of the two-
    witness rule in section 1623 prosecutions.'' That view is
    supported by the Supreme Court's analysis of the purpose of
    section 1623 in Dunn v. United States, 442 U.S. 100, 108 & n.6
    (1979).
        In the end, the White House's legal arguments cannot
    obscure the fact that the President committed perjury in his
    grand jury testimony. The House managers successfully carried
    their burden. They proved the facts underlying the first
    article of impeachment beyond a reasonable doubt, and the
    evidence satisfied every element of proof for grand jury
    perjury.
        The second article of impeachment approved by the House
    alleges that the President obstructed justice and provides
    seven examples of specific conduct that obstructed justice
    either in the Jones litigation or in the Federal grand jury's
    investigation. I have examined each of these examples in detail
    and will share my analysis. As with perjury, perhaps the
    clearest example of obstruction of justice stems from the
    President's conversation with Ms. Currie the day after his
    sworn deposition testimony in the Jones case.
        As noted in the discussion of perjury, the President called
    in Ms. Currie the day after his sworn deposition testimony and
    confronted her with a series of questions and answers, such as
    ``Monica came on to me, and I never touched her, right?'';
    ``You were always there when Monica was there, right?'' and ``I
    was never really alone with Monica, right?'' (Evidentiary
    Record, S. Doc. 106-3, Vol. IV, pp. 559-60.) According to Ms.
    Currie, the President repeated this rehearsal of questions and
    answers 2 or 3 days later. As discussed earlier, the
    President's explanation for this conversation--that he was
    trying to refresh his memory--is simply not credible. The true
    purpose of these conversations becomes clear in light of the
    President's sworn deposition testimony. On several occasions
    during his deposition, the President invoked Ms. Currie's name
    in answering questions concerning his relationship with Ms.
    Lewinsky. Indeed, at one point, the President specifically
    directed the Jones lawyers to ``ask Betty whether Ms. Lewinsky
    was alone with him or with Ms. Currie between the hours of
    midnight and 6 a.m. (Evidentiary Record, S. Doc. 106-3, Vol.
    XIV, p. 35.)
        In other words, during his deposition, the President
    attempted to use Ms. Currie as an alibi witness to deny that he
    had been alone with Ms. Lewinsky. It is telling in this regard
    that in his conversation with Ms. Currie the President sought
    Ms. Currie's agreement that ``he was never alone with her,
    right?'' This was the exact point as to which the President
    directed the Jones lawyers to ``ask Betty.'' In short, having
    invoked Ms. Currie as an alibi in his deposition, the President
    wasted no time in contacting Ms. Currie and making sure her
    story would square with the President's sworn testimony.
    Indeed, the President contacted Ms. Currie and explained that
    Ms. Lewinsky's name had come up during the deposition despite
    Judge Wright's admonition not to discuss the deposition with
    anyone other than his lawyers.
        There is simply no innocent explanation for this
    conversation with Ms. Currie. It was a violation of Judge
    Wright's order. It was not an attempt to refresh the
    President's memory. Instead, the evidence shows beyond a
    reasonable doubt that this was an unlawful attempt to obstruct
    justice by altering Ms. Currie's testimony in the Jones case.
        This coaching of Ms. Currie is not the only example of
    obstruction of justice by the President. For instance, the
    first example cited in the obstruction of justice article
    alleges that the President corruptly encouraged Ms. Lewinsky to
    file a false affidavit in the Jones litigation. The President
    does not dispute that he called Ms. Lewinsky at 2:30 in the
    morning on December 17, 1997, to inform her that she was on the
    witness list in the Jones case. The President likewise does not
    dispute that he hoped Ms. Lewinsky would not have to testify
    and suggested to her that she could file an affidavit to reduce
    her chances of being deposed or called to testify in the Jones
    proceeding. (Evidentiary Record, S. Doc. 106-3, Vol. III, pp.
    567-73.) The President's defense is that although he wanted Ms.
    Lewinsky to file an affidavit to avoid testifying, he did not
    want her to file a false affidavit. As the President put in his
    grand jury testimony, ``Did I hope she'd be able to get out of
    testifying on an affidavit? Absolutely. Did I want her to
    execute a false affidavit? No, I did not.'' (Evidentiary
    Record, S. Doc. 106-3, Vol. III, p. 571.) This claim that an
    affidavit could be both truthful and result in a reduced chance
    of Ms. Lewinsky testifying is critical to the President's
    defense because it is a crime to corruptly persuade a potential
    witness to delay or prevent their testimony.
        The fundamental problem with the President's defense is
    that a truthful affidavit that disclosed the nature of his
    relationship with Ms. Lewinsky would have been inconsistent
    with the President's stated goal of reducing her chances of
    being called to testify. A truthful affidavit would have
    guaranteed that Ms. Lewinsky would have been called as a
    witness. It is folly to suggest that an affidavit that admitted
    the relationship but emphasized its consensual nature could
    have prevented Ms. Lewinsky from being called. Judge Wright had
    already approved discovery of government employees involved in
    relationships with the President without regard to whether they
    were consensual.
        Additional evidence that the President encouraged Ms.
    Lewinsky to file a false affidavit comes from the President's
    revival of previously developed cover stories in this same 2:30
    a.m. telephone conversation. Specifically, according to Ms.
    Lewinsky, the President reminded her that ``you can always say
    you were going to see Betty or that you were bringing me
    letters?'' (Evidentiary Record, S. Doc. 106-3, Vol. III, p.
    843.) To be sure, Ms. Lewinsky has testified that the ideas of
    filing an affidavit and using the cover stories were not
    explicitly linked in her mind. However, there must have been
    some implicit link, in fact, because Ms. Lewinsky's draft
    affidavit featured one of the cover stories. Although it was
    dropped in the editing process to eliminate any suggestion that
    the President and Ms. Lewinsky were alone, the draft affidavit
    suggested that Ms. Lewinsky had brought the President papers.
        In addition, the notions that the President wanted Ms.
    Lewinsky to file a false affidavit and that only a false
    affidavit would have the desired effect of keeping Ms. Lewinsky
    from being called as a witness are supported by the fact that
    the filed affidavit was false. The affidavit Ms. Lewinsky filed
    was false, in the following particulars: (1) it stated that Ms.
    Lewinsky did not ``possess any information that could possibly
    be relevant to the allegations made by Paula Jones . . .'', (2)
    it stated that on the occasions on which Ms. Lewinsky saw the
    President after she left employment at the White House in April
    1996 were official receptions and formal functions related to
    her job, and that ``there were other people present on those
    occasions,'' and (3) it stated that--contrary to the
    President's admission before the grand jury that he and Ms.
    Lewinsky had an inappropriate intimate relationship--``the
    President . . . always behaved appropriately in my presence.''
    (Evidentiary Record, S. Doc. 106-3, Vol. III, p. 1235.)
    Moreover, any doubt about the falsity of Ms. Lewinsky's
    affidavit is removed by her decision to enter into an immunity
    agreement to prevent her prosecution for perjury with respect
    to the affidavit.
        Finally, the President's claim that he did not want Ms.
    Lewinsky to file a false affidavit is belied by the fact that
    the President allowed his attorney to use the false affidavit
    in an effort to keep the Jones lawyers from questioning him
    about his relationship with Ms. Lewinsky. The President's
    attorney, Mr. Bennett, relying on the Lewinsky affidavit,
    represented to the Court that ``there is absolutely no sex of
    any kind in any manner, shape or form, with President
    Clinton.'' (Evidentiary Record, S. Doc. 106-3, Vol. XIV, p.
    23.) Mr. Bennett expressly told the court that the President
    was ``fully aware of Ms. Lewinsky's affidavit.'' (Id.) It is
    difficult to credit the President's claim that he did not want
    Ms. Lewinsky to file a false affidavit when he allowed his
    lawyer to use a false affidavit--of which he was ``fully
    aware''--to keep him from being questioned about Ms. Lewinsky.
        The House has alleged that the President's decision to
    allow Mr. Bennett to use this affidavit--knowing it to be
    false--was an additional example of obstruction of justice. I
    am not convinced that the President's failure to correct his
    attorney's representation to the Court amounts to an
    obstruction of justice. However, the President's actions in
    allowing his attorney to use a false affidavit to his
    litigation advantage undermines his claim that he never wanted
    Ms. Lewinsky to file a false affidavit. When all the evidence
    is considered, it is clear beyond a reasonable doubt that the
    President wanted Ms. Lewinsky to file a false affidavit.
        The second example cited by the House in its obstruction of
    justice article was the President's suggestion that Ms.
    Lewinsky could use cover stories to disguise the true nature of
    their relationship from the Jones lawyers. These cover stories,
    of course, were used by the President and Ms. Lewinsky long
    before her name appeared on the witness list in the Jones
    litigation. As a result, the cover stories--that she was
    visiting Ms. Currie or bringing the President papers--were
    instantly familiar to Ms. Lewinsky. But even though these cover
    stories were not criminal--only deceptive--in their origins,
    the President's revival of these cover stories after Ms.
    Lewinsky became a witness in a civil suit against the President
    stands on a very different footing.
        The President's reiteration of the cover stories in the
    same conversation that he told her she was on the witness list
    is evidence of an effort to alter her testimony. As
    demonstrated above, Ms. Lewinsky included one of the cover
    stories in her false draft affidavit. Although the President
    emphasizes that the cover stories had an element of truth to
    them, that claim is not a defense to a witness tampering or
    obstruction of justice charge. For the Federal witness
    tampering statute it is enough that the President attempted to
    influence Ms. Lewinsky's testimony through corrupt or
    misleading conduct--see 18 U.S.C. 1512--and for obstruction of
    justice it is enough that the President endeavored to influence
    the due administration of justice--see 18 U.S.C. 1503. As a
    result, the President's revival of the cover stories
    constituted obstruction of justice. His actions obstructed the
    true course of justice and denied an American citizen a fair
    hearing of her claim.
        The third example of obstruction of justice cited in the
    House article concerns the efforts to conceal the President's
    gifts to Ms. Lewinsky from the Jones lawyers. The House alleges
    that the President orchestrated a scheme by which Ms. Lewinsky
    concealed the gifts from the Jones lawyers by conveying them to
    Ms. Currie. In defending against this charge, the President
    must overcome the undisputed fact that the gifts sought by the
    Jones lawyers ended up beneath the President's personal
    secretary's bed.
        These gifts clearly were relevant evidence in the Jones
    litigation. The subpoena served on Ms. Lewinsky required the
    production of ``each and every gift including but not limited
    to, any and all dresses, accessories, and jewelry, and/or hat
    pins given to you by, or on behalf of, Defendant Clinton.''
    (Evidentiary Record, S. Doc. 106-3, Vol. III, p. 2704.) Ms.
    Lewinsky discussed this subpoena with the President on December
    28, 1997, and both expressed their concern that the subpoena
    covered the hat pin. Ms. Lewinsky testified that when the
    subject of what to do with the gifts came up the President
    responded: ``I don't know'' or ``let me think about it.''
    (Evidentiary Record, S. Doc. 106-3, Vol. III, p. 872.) The
    President, by contrast, told the grand jury that he instructed
    Ms. Lewinsky that if the Jones lawyers ``asked for the gifts,
    [Ms. Lewinsky would] have to give them whatever she had, that
    that's what the law was.'' (Evidentiary Record, S. Doc. 106-3,
    Vol. III, p. 495.)
        Ms. Lewinsky left the White House and returned home only to
    receive a call in which Ms. Currie told her, ``I understand
    that you have something to give me'' or ``the President said
    you have something to give me.'' (Evidentiary Record, S. Doc.
    106-3, Vol. III, p. 874.) Ms. Currie does not recall making
    this call, and instead suggests that Ms. Lewinsky initiated the
    gift exchange. It is uncontroverted, however, that Ms. Currie
    went to Ms. Lewinsky's apartment to pick up the gifts and that
    those gifts were stored under Ms. Currie's bed. The net result
    of these events is that the gifts that evidenced a relationship
    the President was trying to conceal in litigation against him
    were kept from the Jones lawyers. This net result makes the
    President's sworn testimony that he directed Ms. Lewinsky to
    turn over the gifts difficult to credit. It is difficult to
    believe that Ms. Lewinsky would disregard the President's
    advice on this issue.
        This evidence makes it more likely than not that the
    President obstructed justice by orchestrating the concealment
    of the gifts. However, to prove obstruction of justice, the
    House must show that the President directed Ms. Currie to pick
    up the gifts. That is the missing link in the House's case.
    Although that is the most likely explanation for the
    concealment of the gifts, both parties to that conversation--
    Ms. Currie and the President--deny that such a discussion took
    place. As a result, there is a reasonable doubt in my mind as
    to whether the President obstructed justice by concealing the
    gifts, and I find this issue in his favor.
        The next example of obstruction cited by the House is the
    job search. The evidence is clear that the President asked
    Vernon Jordan to help Ms. Lewinsky find a job in New York City.
    Mr. Jordan was unequivocal that he, not Ms. Lewinsky, was
    running the job search, and that he was finding Ms. Lewinsky a
    job at the ``behest'' of the President. (Deposition testimony
    of Vernon Jordan, Feb. 2, 1999, 145 Cong. Rec. S1245.) This
    word choice is telling. The dictionary defines ``behest'' as
    ``an authoritative order,'' or secondarily as ``an urgent
    prompting,'' and suggests ``command'' as a synonym. (Merriam-
    Webster's Collegiate Dictionary (Tenth Ed. 1993), p. 103.)
        The only remaining question is whether the President
    directed Mr. Jordan to find Ms. Lewinsky a job in order to get
    Ms. Lewinsky to ``withhold testimony, or withhold a record,
    document or other object, from an official proceeding,'' or for
    some other purpose. In evaluating this issue, the President's
    past failure to provide job assistance to Ms. Lewinsky is
    relevant. Since Ms. Lewinsky left the White House in April
    1996, she was anxious to get back and enlisted the President's
    support. He never helped her return to the White House.
    Eventually, Ms. Lewinsky despaired of ever receiving any job
    assistance from the President to help her return to the White
    House and turned her sights to a job in New York. Once again,
    the President's level of job assistance was underwhelming until
    Ms. Lewinsky's name appeared on the witness list in the Jones
    case. At that point, Mr. Jordan, at the ``behest'' of the
    President, put the job search into full gear.
        However, Mr. Jordan's involvement with Ms. Lewinsky was not
    limited to finding her a job. He also found her a lawyer, a
    lawyer who oversaw the filing of an affidavit that turned out
    to be false. The same affidavit the President suggested Ms.
    Lewinsky could file in their late night telephone call. The
    same affidavit that the President's lawyer attempted to use to
    keep the Jones lawyers from questioning the President about Ms.
    Lewinsky.
        Mr. Jordan also shared a breakfast with Ms. Lewinsky in
    which they discussed draft notes between Ms. Lewinsky and the
    President. Mr. Jordan initially denied that this breakfast
    meeting had taken place. However, when confronted with a
    receipt for breakfast, Mr. Jordan conceded the meeting took
    place and that the subject of the notes came up. Ms. Lewinsky
    testified that Mr. Jordan told her to make sure that those
    incriminating notes were destroyed. Mr. Jordan denies that he
    gave her that advice. Ms. Lewinsky's testimony on this subject
    is certainly entitled to great weight because she has
    consistently remembered the breakfast and what transpired,
    while Mr. Jordan previously denied that the breakfast had
    occurred. But this conflict in the testimony need not be
    resolved. Mr. Jordan is not on trial. The President is, and the
    fact that the person he designated to get Ms. Lewinsky a job
    was also discussing incriminating notes relevant to the Jones
    litigation and finding her a lawyer to file an affidavit in
    that case undermine the President's claim that the job search
    and the Jones litigation were unrelated.
        Although Ms. Lewinsky has testified that the President
    never expressly conditioned her job assistance on her continued
    cooperation in the Jones litigation, her conduct shows an
    implicit connection between the job search and the Jones
    litigation. When she received a subpoena from the Jones lawyers
    she went to her job counselor. When she had concerns about what
    to do with incriminating notes, she discussed the matter with
    her job counselor.
        The evidence demonstrates that the motivation for the job
    search was not to enhance Ms. Lewinsky's career or to find her
    a ``dream job.'' The President had the opportunity to give her
    a ``dream job'' at the White House and declined. Instead, the
    evidence shows beyond a reasonable doubt that the job search
    was intimately tied to the Jones litigation and designed to
    ensure Ms. Lewinsky's continuing cooperation.
        The next example of obstruction of justice is the
    President's decision to stand mute while his attorney used an
    affidavit the President knew to be false to make
    representations to a Federal judge that the President knew to
    be false. As I have noted, I do not think the President's act
    of omission constitutes a separate act of obstruction. However,
    I do think the President's failure to object to the use of this
    false affidavit sheds light on many of the President's acts of
    commission that do constitute obstruction of justice and
    witness tampering, such as his suggestion that Ms. Lewinsky
    file an affidavit to avoid testifying in the Jones case.
        The final example of obstruction cited by the House
    involves the President's false statements to aides who were
    potential grand jury witnesses. Most of the evidence on this
    point is not in dispute. The President insisted before the
    grand jury that he was truthful with his aides. However, the
    President's own aides now admit that he lied to them. There is
    no dispute that those lies were repeated to the grand jury. The
    only remaining question is whether the President told these
    lies to his aides with the expectation that they would
    resurface in the grand jury.
        The White House's principal defense on this point is that
    the President's lies to his aides were no different than the
    lies he had told the entire American people. This is a strange
    defense. Essentially, it attempts to make a virtue out of the
    fact that the President lied to every American, without respect
    to whether they were potential witnesses. The legal point
    appears to be that the President's aides could not obstruct the
    due administration of justice because the grand jurors already
    were exposed to the President's false denials.
        There are several problems with this argument, not the
    least of which is that it is based on a false premise. The
    President did not merely repeat the same denials he made to the
    public at large. The President's denials to his aides were
    embellished and substantially more detailed. The President did
    not tell the American people that Ms. Lewinsky was a stalker or
    categorically state that there was no sex ``in any way
    whatsoever,'' though he labored hard to leave that false
    misimpression. He did share these details with his aides, and
    they repeated them to the grand jury. These details, moreover,
    were not immaterial to the grand jury's investigation. These
    details, such as the characterization of Ms. Lewinsky as a
    stalker, directly attack the credibility of the principal
    witness against the President in the grand jury proceeding. As
    a result, I am convinced beyond a reasonable doubt that the
    President obstructed justice when he lied to his aides.
        The President's conduct clearly violates the Federal
    criminal statutes against obstruction of justice and witness
    tampering. The Federal obstruction of justice statute requires
    the government to prove three elements: ``(1) there was a
    pending Federal judicial proceeding; (2) the defendant knew of
    the proceeding; and (3) the defendant acted corruptly with the
    specific intent to obstruct or interfere with the proceeding or
    due administration of justice.'' (American Criminal Law Review,
    Vol. 35, pp. 989, 992 (1998).) There is no real dispute in this
    case that the President knew that the Jones suit was pending
    when he engaged in the conduct covered by the obstruction of
    justice article. The only relevant legal question is whether he
    intended to obstruct justice in the Jones case.
        There is ample evidence in the record to suggest that
    obstructing justice in the Jones case was the President's
    precise intent. Indeed, the President's own testimony makes
    clear that he viewed the Jones litigation as illegitimate. He
    stated that he ``deplored'' the Jones lawsuit and felt it was
    only going forward ``because of the funding they had from my
    political enemies.'' (Evidentiary Record, S. Doc. 106-3, Vol.
    III, p. 532.) As a result, the President concedes that, in his
    words, he was ``not trying to be particularly helpful'' to the
    Jones lawyers. (Evidentiary Record, S. Doc. 106-3, Vol. III, p.
    480.) Moreover, the discussion of the specific examples of
    obstruction of justice make clear that the President's advice
    that Ms. Lewinsky file a false affidavit, the President's
    coaching of witnesses, and the job search were all done with
    the object of obstructing justice in the Jones litigation.
        The Victim and Witness Protection Act of 1982 criminalized
    a particular form of obstruction of justice, witness tampering.
    Part of that act, section 1512(b) of the Federal criminal code,
    sets out the four elements of witness tampering. ``Under
    section 1512(b), the government must prove that the defendant:
    (1) knowingly (2) engaged in intimidation, physical force,
    threats, misleading conduct or corrupt persuasion, (3) with
    intent to influence, delay or prevent testimony or cause any
    person to withhold a record, object or document (4) from an
    official proceeding.'' (American Criminal Law Review, Vol. 35,
    pp. 989, 1004 (1998).) Each of these elements is satisfied in
    this case.
        The President's attorneys have emphasized that the
    President never physically threatened any potential witness. In
    particular, they point to Ms. Currie's testimony that she never
    felt threatened or intimidated in her conversations with the
    President. However, that is simply not relevant under the
    Federal witness tampering statute, which criminalizes not just
    physical intimidation, but corrupt persuasion and misleading
    conduct as well. What is more, the statute makes clear that it
    applies to any witness in any official proceeding, and the
    statute specifies in subsection (e) that ``an official
    proceeding need not be pending or about to be instituted at the
    time of the offense.'' As with the perjury counts, the
    President's legal defenses misstate the applicable law. Just as
    Federal law does not require two witnesses to support a
    conviction for grand jury perjury, the assertion that witness
    tampering requires actual intimidation simply misstates the
    law.
        My careful examination of the evidence, legal precedent and
    arguments made by both sides convinces me that the President
    committed perjury, obstructed justice and violated the Federal
    witness tampering statutes. Having reached this conclusion, the
    remaining step in my analysis of the cases to examine whether
    these criminal acts require the President's removal from
    office. In other words, do perjury and obstruction of justice
    constitute high crimes and misdemeanors? The precedents of the
    Senate provide an unequivocal answer: the Senate has repeatedly
    treated perjury as a high crime and misdemeanor that
    justifies--indeed, necessitates--removal.
        Three times in the last 15 years the House has impeached
    and the Senate has removed a Federal judge for perjury or
    related crimes. In two of the three cases, moreover, the judge
    was removed for lies that had nothing to do with his official
    duties. Judge Harry Claiborne was removed for filing false tax
    returns under penalty of perjury. Judge Walter Nixon was
    removed for lying to a Federal grand jury about his efforts to
    influence a state judicial proceeding. The Senate's precedents
    on perjury as an impeachable offense are clear. Moreover, there
    is simply no basis in the Constitution to apply a less
    demanding standard of the President than has been traditionally
    applied to Federal judges. A single provision of the
    Constitution creates a single standard of impeachment for all
    ``Officers of the United States,'' judges and the President
    alike. To be sure, the Constitution specifies that Federal
    judges ``shall hold their offices during good behavior.'' (Art.
    III, sec. 1.) However, this clause has always been understood
    as establishing life tenure, as opposed to a relaxed standard
    for impeachment, and no judge has ever been impeached or
    removed for ``bad behavior.'' In sum, the notion that the
    President--with his infinitely greater effect on the culture,
    for good or ill--would be held to a lesser standard than one of
    800 Federal judges has as little basis in common sense as it
    has in the Constitution's text.
        Of course, even if we did not have the benefit of the
    Senate's precedents treating perjury as a high crime, and had
    to consider this issue as an original matter, I would have
    little difficulty concluding that perjury and obstruction of
    justice qualify as high crimes and misdemeanors. The
    Constitution's use of the adjective ``high'' to modify the
    phrase ``crimes and misdemeanors'' suggests that there may be
    some crimes and misdemeanors that do not form the basis for
    impeachment. However, those crimes, such as perjury and
    obstruction of justice, that undermine public confidence in
    government and strike at the integrity of our systems of
    government and justice surely must be covered by the phrase
    ``high crimes and misdemeanors.''
        In addition, the scope of ``high crimes and misdemeanors''
    is informed by the two crimes specifically enumerated in the
    Constitution as a basis for impeachment, treason and bribery.
    Both these crimes, in common with perjury and obstruction of
    justice, threaten the proper functioning of government--either
    directly in the case of treason, or indirectly, by undermining
    the government's integrity, in the case of bribery. Perjury is
    bribery's twin. Perhaps the clearest illustration of this point
    is that the President could have accomplished the same result
    in this case--interfering with the Jones litigation--by bribing
    a witness or the Judge. Perjury, like bribery, has been grouped
    among the most serious crimes at least since the founding of
    our Nation.
        John Jay, one of the three authors of ``The Federalist
    Papers'' and our Nation's first Chief Justice, provides a
    glimpse of the framers' views on the seriousness of perjury.
    When riding circuit in Bennington, Vermont in the summer of
    1792, Chief Justice Jay instructed the grand jury in a perjury
    persecution. His instruction is worth quoting at length:

        Independent of the abominable insult which perjury offers to the
    divine Being, there is no crime more extensively pernicious to Society.
    It discolours and poisons the streams of justice, and by substituting
    falsehood for truth, saps the Foundation of personal and public rights.
    Controversies of various kinds exist at all times, and in all
    communities. To decide them, Courts of justice are instituted. Their
    decisions must be regulated by evidence, and the greater part of the
    evidence will always consist of the testimony of witnesses. This
    testimony is given under those solemn obligations which an appeal to
    the God of Truth impose; and if oaths should cease to be held sacred,
    our dearest and most valuable rights would become insecure.

        There is ample evidence to support Chief Justice Jay's view
    that, of all crimes, perjury is among the most pernicious to
    society, and one that has always been thought to rise to the
    level of ``high crimes and misdemeanors.'' It is not surprising
    then, that the Kentucky Constitution of 1792 directed that:
    ``Laws shall be made to exclude from office and from suffrage
    those who thereafter be convicted of bribery, perjury, forgery
    or other high crimes or misdemeanors.'' (Art. VIII, cl. 2.)
    Moreover, the belief that perjury is an impeachable high crime
    is not limited to the framers. Less than a decade ago in a law
    review article, Chief Justice Rehnquist, the presiding officer
    in this impeachment trial, summed up our national experience
    with impeachment by noting that ``impeachment has been confined
    to flagrant abuse of office--perjury, bribery, and the like.''
    (William Rehnquist, ``The Impeachment Clause: A Wild Card in
    the Constitution,'' Northwestern University Law Review, Vol.
    85, pp. 903, 910 (1991).)
        The point has also been raised that the President's conduct
    does not rise to the same levels as President Nixon's conduct
    in Watergate. That may well be true, but it is also irrelevant.
    Not every high crime and misdemeanor is created equal, but all
    require removal under the express terms of the Constitution.
    However, whatever differences exist between President Clinton's
    conduct and Watergate, the reaction of Watergate Special
    Prosecutor Leon Jaworski to President Nixon's misconduct is
    telling. Of all the misconduct portrayed on the famous Nixon
    tapes, Jaworski found one strip of dialogue ``the most
    repulsive on the tape. In that strip the President--a lawyer--
    coached [his aide] to testify untruthfully and yet not commit
    perjury. It amounted to subornation of perjury. For the number-
    one law enforcement officer of the country it was, in my
    opinion, as demeaning an act as could be imagined.'' (Leon
    Jaworski, ``The Right and the Power--The Prosecution of
    Watergate,'' p. 47 (1976).)
        That is perjury. The Nation's first Chief Justice stated
    that ``there is no crime more extensively pernicious to
    Society.'' Our current Chief Justice described it as a
    ``flagrant abuse of office.'' And the Watergate special
    prosecutor thought subornation of perjury by the President ``as
    demeaning an act as could be imagined.'' There is no doubt in
    my mind that perjury and the closely related crime of
    obstruction of justice are high crimes and misdemeanors.
    Moreover, having concluded that the President committed these
    high crimes, the Constitution leaves me with no further
    discretion--it states that the President ``shall be removed
    from office for impeachment for, and conviction of, treason,
    bribery, or other high crimes and misdemeanors.''
        Some have argued that the Senate retains some discretion
    not to remove a President even if the evidence shows that he
    committed acts that constitute high crimes or misdemeanors.
    This simply misreads the Constitution. The Constitution is
    unequivocal that the President shall be removed upon conviction
    of a high crime. As Justice Story observed in his Commentaries
    on the Constitution, ``the Senate, on the conviction, [is]
    bound, in all cases, to enter a judgment of removal from
    office.'' The Senate recognized this constitutional imperative
    in the trial of Judge Halsted Ritter in 1936, when it expressly
    rejected the need for a second vote on the question of removal,
    after the Senate had convicted him of high crimes. Conviction
    without removal would be a direct affront to the Constitution.
    It is no less an affront to refuse to convict despite facts
    that support conviction for a high crime because of an
    unwillingness to trigger the consequences demanded by the
    Constitution. Such an action subverts both the Constitution and
    the rule of law. It abrogates to Senators the authority to
    second guess the Constitution and conclude that although the
    President has committed crimes for which others should be
    removed, in this case the President should be permitted to
    remain in office. It is a brazen act of jury nullification.
        The Constitution empowers the Senate to conclude that the
    facts do not support the crimes alleged in the articles of
    impeachment. Likewise, the Senate may conclude that the crimes
    alleged in the articles do not rise to the level of high crimes
    and misdemeanors. But nothing in the Constitution allows the
    Senate to refuse to convict if it finds that the facts support
    the articles, and the articles allege high crimes. There has
    been much talk in this case about the rule of law. A power to
    refuse to convict in the face of evidence of a high crime is
    the antithesis of the rule of law. It is the rule of whim. Such
    an action would go beyond repudiating the value of the Senate
    precedents that perjury is an impeachable offense, it would
    destroy the value of all Senate precedents. As Justice Story
    warned while riding circuit over 160 years ago, if jury
    nullification were permitted, ``it would be almost
    impracticable to ascertain, what the law . . . actually is.''
    United States v. Battiste, 24 F. Cas. 1042 (Cir. Ct. D. Mass.
    1835).
        Any discretion that exists in the constitutional framework
    to refuse to act in the face of impeachable offenses lies in
    the House of Representatives. The law has long recognized the
    legitimacy of prosecutorial discretion. But the law has also
    long criticized jury nullification. Unlike a normal jury, the
    Senate has the power to determine both law and facts. What it
    lacks is the raw power to refuse to convict in the face of law
    and facts that both support conviction.
        I cannot leave this discussion of perjury and obstruction
    of justice as high crimes and misdemeanors without a comment on
    the consequences of failing to remedy perjury and obstruction
    of justice by the number-one law enforcement officer in the
    nation. Chief Justice Jay warned of the dangers of diluting the
    importance of oaths: ``[I]f oaths should cease to be held
    sacred, our dearest and most valuable rights would become
    insecure.'' If the President of the United States--our Nation's
    leader and the man surveys still identify as the most admired
    in America even after all this--can commit perjury and obstruct
    justice without any immediate consequence, it is difficult to
    see how oaths will continue to be held sacred. We can either
    abandon all perjury prosecutions or acknowledge that the
    President is above the law. Those are the choices: lawlessness
    or hypocrisy. Either option carries grave risks that oaths will
    ``cease to be held sacred.''
        Removing the President, by contrast, will not only
    reinforce the importance of oaths; it will demonstrate the
    importance of personal responsibility and accountability.
    Rather than signaling that some in society are too talented or
    important for the normal rules to apply, removing the President
    will teach that actions have consequences, no matter who you
    are. We have an opportunity either to set a good example for
    our children or to enshrine the ``Clinton defense'' and the
    ``Clinton exception'' to the importance of telling the truth.
    We need to send a message that the grand words that grace the
    Supreme Court--equal justice under law--mean what they say.
        After sifting through the evidence presented by both sides,
    all relevant legal precedents, and all the arguments by
    counsel, it is plain that the President committed perjury and
    obstructed justice. The prosecutors have done more than show
    that the President lied and tampered with witnesses. They have
    proven the elements of these crimes beyond a reasonable doubt.
    These Federal crimes are not technical violations of an obscure
    law. They are crimes as old as the Nation. They strike at the
    heart of the integrity of our government. Not surprisingly,
    Congress always has treated them as high crimes and
    misdemeanors that require the removal of a guilty party. In
    light of the President's criminal misconduct, I will vote to
    convict the President on both articles of impeachment.
        This is the only conclusion consistent with my oath to do
    impartial justice. In large measure, this case is all about the
    importance of oaths. The President's failure to honor his oath
    has necessitated this entire proceeding. Although some might
    see a vote to acquit as expedient, I will not further damage
    the sacredness and vitality of oaths by disregarding my own.
        I have not relished the responsibility of serving as a
    finder of fact and determiner of law in an impeachment trial. I
    am eager to return to a legislative agenda to provide Americans
    and Missourians with tax cuts, retirement security, educational
    opportunity and greater safety from drugs and crime. It is
    regrettable that the President's misconduct forced Congress to
    consider this matter. I hope the unprecedented time that
    Senators have spent together in this work will enable us to
    make strong progress on the people's business when we return to
    the Senate.
        Finally, while I have not relished this duty, and sincerely
    wish the President would have spared the Nation this ordeal,
    this responsibility is among the most important assigned to the
    Senate under our Constitution. It has been my goal to do my
    very best to do my duty as prescribed by the Constitution.
    While the Constitution calls upon the Senate to remove an unfit
    President, it does not charge the Senate with punishing the
    President. Indeed, the Constitution specifically limits the
    Senate's remedies and leaves the President ``subject to . . .
    punishment, according to law'' through the courts. The
    Constitution requires a clear choice: acquit the President and
    leave him in office, or convict him and remove him. The framers
    deemed it wise not to allow the Senate to leave a President in
    place, but wound him with punishments short of removal. Thus,
    once we discharge our impeachment responsibilities, the Senate
    should move energetically to its legislative agenda. To
    accomplish legislative goals for the nation, it will be
    necessary for Congress and the President to work together. If
    Senators wish to condemn the President's conduct, they should
    do so on their own, and should not tie up the Senate and divert
    energy from doing the people's work.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Strom Thurmond

        Mr. THURMOND. Mr. Chief Justice, the vote I cast on the
    articles of impeachment was one of the hardest votes that I
    have had to make in all my years in the United States Senate--
    not that I do not think I made the correct decision. While I am
    saddened that we had to make the judgment we made in this
    impeachment trial, each of us had a duty to undertake this
    task, and I do not shirk from duties.
        The House managers performed their duty admirably, making a
    comprehensive, coherent, and eloquent presentation. The White
    House attorneys presented a spirited defense. Similarly, due in
    part to the outstanding leadership of the Senate majority
    leader, I am confident that history will record that we in the
    Senate exercised our duty to conduct the trial appropriately
    and fairly. I believe the Founding Fathers would be pleased
    with the process and procedure.
        The purpose of impeachment is not to punish a man. It is
    not a way to express displeasure or disagreement with a
    President or his policies. Impeachment is a mechanism designed
    to preserve, protect, and defend the Constitution, the country,
    and Office of the Presidency. My primary concern, from the
    first day of this scandal, was the impact it would have on the
    Office of the Presidency.
        This case is not about illicit conduct or even about not
    telling the truth about illicit conduct. Instead, the case is
    about two activities. The first is whether the President
    intentionally made false statements under oath to a Federal
    grand jury, to the judiciary of the United States. The second
    is whether the President obstructed justice before a United
    States district court and a Federal grand jury, again to the
    judiciary of the United States.
        A Senator's role in an impeachment trial is a mix of roles
    from our judicial system, including being part judge and part
    jury. At least in reviewing the evidence, we do act as jurors,
    and we should view evidence the way the courts expect jurors to
    view it. We use our common sense and our knowledge of human
    behavior based on our everyday experiences in life. In this
    case, the defense has attempted to take each act, separate it
    out, and artificially place it in isolation. I cannot view the
    evidence in this fashion. I cannot ignore common sense.
        As to perjury, I have no doubt that the evidence presented
    to the Senate proves that the President did not tell the truth
    to the Federal grand jury. He made numerous false statements to
    make his illicit conduct seem more benign; to make his efforts
    at witness tampering with his secretary seem innocuous; and to
    make his testimony in the Paula Jones case appear truthful.
        As to obstruction of justice, in my mind there can be no
    dispute but that the President intentionally interfered with
    the judiciary. When the President spoke to Monica Lewinsky
    about her being a witness in the Paula Jones case, he did not
    discuss the contents of her affidavit because he did not have
    to. Based on their previous conversations and the pattern of
    their relationship, she knew exactly what he meant; he meant
    for her to file a false and misleading affidavit with the
    Federal court. When the President spoke to his secretary and
    suggested to her an explanation for his relationship with
    Monica Lewinsky that he knew was not true, he was engaged in
    classic witness tampering. There can be no other acceptable
    explanation. When the President failed to reveal to the Federal
    judge during his Paula Jones deposition that the Monica
    Lewinsky affidavit was false, he was obstructing the fact-
    finding process of the district court. I can accept no other
    explanation.
        The President has violated his sacred oath to faithfully
    execute the laws of the United States. Regardless of the bounds
    of private conduct and of the importance of allowing people to
    keep their private lives private, those bounds are broken when
    someone violates an oath to tell the truth in a court of law.
    Those bounds are also broken when someone interferes with a
    court of law in its efforts to find the facts and find the
    truth.
        The President's conduct in this matter was an egregious
    affront to the judicial system. We have a Chief Executive who
    has intentionally decided not to take care that the laws be
    faithfully executed. Indeed, he intentionally interfered with
    the lawful duties of a co-equal branch of Government. This
    should not be tolerated.
        No one is above the law. I cannot accept the argument that
    a different legal standard applies to judges than to the
    President. The Congress has never accepted that argument
    before. There is no support for it in the words of the
    Constitution, which establishes one standard of impeachment for
    ``the President, Vice President and all civil Officers of the
    United States.'' There is no support for it in the debates at
    the Constitutional Convention or in ``The Federalist Papers.''
    Is it reasonable to conclude that our standards for removal
    from office for criminal conduct is less for the chief law
    enforcement officer than it is for civil officers who are
    appointed to apply the law?
        Because the President is the Commander in Chief, I must
    think about our men and women in uniform. I do not suggest that
    the President should be strictly subject to the Uniform Code of
    Military Justice during his term in office. However, if we vote
    not guilty on the articles on these facts, what message do we
    send to our soldiers about duty, honor, and country? Given that
    the President is the chief law enforcement officer, if we vote
    not guilty, what message do we send American citizens about
    respect for the rule of law? For that matter, what message do
    we send our children and grandchildren for generations to come
    about the consequences of not telling the truth?
        We have been told that we should not remove the President
    from office because doing so would ``overturn the results of an
    election.'' The Senate does not have this power. Our power
    extends no further than removal of the President, and the law
    provides that his running mate, the Vice President, takes the
    oath of office. If the President is removed, the Administration
    does not change from one party to another. The Constitution
    wisely provides for continuity. The impeachment process only
    provides for the removal of the current occupant.
        Indeed, we are not engaged in a constitutional crisis. The
    Constitution provides the roadmap for what we are doing. We are
    simply following our constitutional duty. We did not ask for
    this burden. It was thrust upon us by the misconduct of the
    current occupant of the Office of the Presidency.
        Before today, perjury and obstruction of justice were
    clearly high crimes and misdemeanors under the Constitution, My
    vote is consistent with this. The President is not above the
    law. The constitutional standard is no different for him than
    for anyone else. It is for these reasons that I voted guilty on
    both articles of impeachment.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Mike Crapo

        Mr. CRAPO. Mr. Chief Justice, very soon we will all cast
    what is clearly among the most serious votes any Members of
    Congress could ever be asked to make. I will vote to convict
    President William Jefferson Clinton on both of the two articles
    of impeachment before the U.S. Senate--perjury before a grand
    jury and obstruction of justice. To me, the evidence presented
    over the previous 4 weeks is not reasonably subject to any
    conclusion other than that the President did commit the crimes
    alleged against him.
        From the very beginning of this matter, I have been
    circumspect about commenting on President Clinton's conduct. As
    a newly elected Senator, I was inundated with interview
    requests from national media. I chose not to appear on these
    programs and restricted my comments to a discussion of the
    process. I felt it was incumbent upon me as a member of the
    impeachment court to avoid commenting on the evidence until the
    trial has concluded.
        At the outset, each Senator was administered a separate
    oath by the Chief Justice of the Supreme Court. This special
    oath was separate and distinct from the oath of office that
    each Senator takes when sworn into office. To my knowledge,
    this is the only other occasion in which our Founding Fathers
    required a separate and distinct oath of U.S. Senators to
    perform a constitutional responsibility.
        Once again, the incredible wisdom of our Founding Fathers
    was evident. As each Senator took the oath to provide impartial
    justice, a realization fell over us that we had just embarked
    on a very solemn duty. No longer was the Senate a legislative
    body, it was a court of impeachment. A unique court, to be
    sure, not identical to traditional civil and criminal courts,
    but a court nonetheless.
        This oath to render ``impartial justice'' was a promise to
    God under our Constitution. It also represented a duty to all
    Idahoans to represent them impartially. I committed that I
    would conduct myself in a fashion so that at any time I could
    affirm that I fully honored this commitment. I was present at
    all the Senate proceedings, and fully reviewed the evidence
    presented before the Senate. I was ready to vote either to
    acquit or to convict, depending on the evidence, argument, and
    law presented to the Senate.
        In approaching this decision, several questions must be
    answered. Did the President commit the crimes alleged? And if
    so, are these crimes ``high crimes and misdemeanors'' requiring
    the removal of the President from office under the impeachment
    provisions of the U.S. Constitution? After carefully weighing
    the evidence and the law presented to the Senate, I have
    concluded after many sleepless nights and troubling days that
    the evidence shows that President Clinton committed the crimes
    alleged in the articles of impeachment. These crimes involve
    perjury and obstruction of justice in Federal criminal grand
    jury proceedings and in a Federal civil rights action. Although
    the ``beyond a reasonable doubt'' standard of traditional
    criminal trials is not applicable in impeachment proceedings, I
    am convinced the evidence presented in this case meets even
    this high standard.
        Notwithstanding the impression created by some of the media
    and talk shows, there seems to be general consensus that the
    President committed the acts alleged against him. The core
    debate is whether these acts rise to the level of high crimes
    and misdemeanors as required to impeach and remove the
    President from office under the Constitution.
        Some argue that this entire matter is just an effort to
    impeach the President for ``private'' conduct and that
    impeachment is proper only for ``public'' conduct that violates
    the public trust. But it is important to clarify that these
    proceedings are not about sex or even lying about sex. Both the
    President's counsel and the House managers correctly made the
    point that private conduct by the President is a matter
    properly left between the President and his wife and family.
    The allegations in this case, however, relate to public acts
    that go to the heart of the rule of law in America--perjury and
    obstruction of justice in a civil rights case and before
    criminal grand jury proceedings. I am deeply concerned that we
    will do great damage to our system of law and the freedom it
    defends if we diminish the seriousness of these crimes and
    thereby suggest to future offenders that they can commit these
    crimes with little to fear.
        It is telling that on three separate occasions the U.S.
    Senate has removed Federal judges from office for perjury.
    Judges are tried under the same Constitutional provision
    requiring proof of treason, bribery or high crimes and
    misdemeanors as are presidents. Judge Claiborne was removed
    from office for lying on his income tax returns. Judge Hastings
    was removed for lying under oath in a trial. Judge Nixon was
    removed for making false statements to a grand jury. Clearly,
    under prior Senate precedent, perjury is a ``high crime and
    misdemeanor.''
        In America, our freedom is assured by the rule of law. Our
    law seeks to provide equal and impartial justice to all. All
    Americans--the poor, the rich, the weak, the powerful--are
    entitled to the same protection under the law. And even, the
    most powerful among us must be subject to those laws. Tampering
    with the truth-seeking functions of the law undermines our
    justice system and the foundations on which our freedoms lie.
    All Americans must abide by the rule of law, including the
    President of the United States, who is the highest official in
    the land and who has the additional duty to ensure that the
    laws are faithfully executed.
        The primacy of the rule of law over the rule of individuals
    is one of the most important safeguards of freedom in our
    Constitution. Our entire legal system is dependent on our
    ability to find the truth. That is why perjury and obstruction
    of justice are crimes. Federal sentencing guidelines place
    perjury, witness tampering, and obstruction of justice in the
    same realm of seriousness as bribery. Commission of these
    crimes is a direct effort to prevent our legal system from
    performing one of its core functions--finding the truth.
        The offenses are even worse when committed against the poor
    or powerless by the wealthy or powerful. Our Constitution
    guarantees, fortunately, that the most ordinary person has the
    right to her day in court even if she is not well liked by the
    public or has become characterized in a bad light by her
    opponents. And even if the person from whom she seeks justice
    is the President.
        In 1792, Chief Justice John Jay gave one of the best
    historical explanations of the reason crimes against the truth-
    seeking process in our system of justice are so dangerous to
    our freedom:

        Independent of the abominable Insult which Perjury offers to the
    divine Being, there is no Crime more Pernicious to Society. It
    discolors and poisons the Streams of Justice, and by substituting
    Falsehood for Truth, saps the Foundations of personal and public Right.
    . . . Testimony is given under those solemn obligations which an appeal
    to the God of Truth impose; and if oaths should cease to be held
    sacred, our dearest and most valuable Rights would become insecure.--
    Chief Justice John Jay, Charge to a Grand Jury of the Circuit Court of
    the District of Vermont, June 25, 1792.

        Perjury and obstruction of justice are public crimes that
    strike at the heart of the rule of law--and therefore our
    freedom--in America. I conclude that these acts do constitute
    high crimes and misdemeanors under the impeachment provisions
    of the U.S. Constitution. Therefore, I will vote to convict
    President Clinton on both of the impeachment articles.
        Fortunately, this trial is over and I now can direct my
    full attention to fulfilling the other oath I took when I was
    sworn in as a United States Senator. Many challenges and
    opportunities face Idahoans and all Americans. I will, as I
    always have, give all my energy to working on a bipartisan
    basis to solve problems, strengthen America and protect our
    future.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Byron L. Dorgan

        Mr. DORGAN. Mr. Chief Justice. Thank you, Senator Lott,
    Senator Daschle, and the Chief Justice for the skill and
    dignity you have given these proceedings.
        I wish every American could see and hear the Senate in
    these deliberations.
        There is a kind of majesty to see the Senate Chamber filled
    with Senators listening to each other in debate and
    deliberation.
        We are different people, coming from different regions with
    different philosophies, and that is what creates the unique
    character of this wonderful institution.
        I want to tell you briefly today about Teddy Roosevelt.
        Over a century ago, Teddy Roosevelt was consumed with grief
    following the death of his wife and mother who died on the same
    day. He decided to change his life and move out west. When he
    stepped off the train in the Badlands of North Dakota, he was
    wearing a cowboy suit hand-tailored from Brooks Brothers,
    rimless glasses, a Bowie knife with ``Tiffanys'' engraved on
    the handle, and Sterling silver spurs with his initials on each
    rowel.
        The local cowboys thought he was a joke. One unlucky cowboy
    picked a fight with Teddy in a Badlands saloon in Medora. In
    minutes, the cowboy was punched senseless by this funny looking
    easterner.
        And then Teddy Roosevelt was accepted. Being different,
    looking different didn't much matter to the folks in the
    Badlands after that.
        Here in the Senate we're very different people, too. No
    saloon fights here, though. We engage in verbal battles. And
    the Senate works because we accept each other, and we share a
    common purpose.
        The discussion we are having today reminds me again of the
    unique skills and passion for our country possessed by each and
    every Member of the Senate.
        How do we apply these skills and that passion here and now?
        Mark Twain once said, with tongue in cheek, that ``the next
    best thing to a lie, is a true story no one will believe.''
        Well, this sorry chapter in our rich history embraces both.
    Lies, yes! And truth that is almost unbelievable.
        We meet here as Senators to consider whether to remove from
    office a President elected by the American people. In the
    entire history of our country, the Senate has never voted to
    remove a President. In fact, it has been tried only once. The
    framers of our Constitution made it very hard to do; and they
    made it, with a two-thirds vote required in the Senate,
    impossible to do on a ``partisan'' basis.
        The matter that calls us to this duty is a sordid one.
        It is truly a scandal and a drama without heroes and
    without winners.
        It is about a President who should be, and I'm sure is,
    ashamed of his behavior. Is there anyone here in the Senate who
    had a sexual relationship with one of their interns? Of course
    not! The President did. He had a sexual relationship with an
    intern, and he lied about it, to the country, to all of us, to
    try to conceal it.
        This President has betrayed our trust and I have expressed
    to him personally how profoundly disappointed I am with his
    actions.
        This matter is also about an independent counsel who you
    and I know has leaked confidential information from secret
    proceedings of a grand jury, and whose actions in detaining
    Monica Lewinsky should be troubling to every Senator. And an
    independent counsel who came to Congress with such
    prosecutorial passion that his ethics advisor resigned in
    protest.
        And it is about many others as well. Major figures and bit
    players, some who conspired in disgraceful ways, and others who
    were innocently swept into the maelstrom of a sensational
    scandal.
        But, for all of the intrigue, the matter here is less
    complicated than some would have us believe.
        Here is a short chronology.
        Several years after the day she claims that then-Governor
    Bill Clinton made unwanted sexual advances toward her, Paula
    Jones appeared at a conservative political gathering to
    announce she was filing suit against the President.
        Some while later, following the Supreme Court ruling that
    the case could go forward, the President was called to a
    deposition in the Jones case.
        In that deposition, which the Judge later determined to be
    immaterial, and in a case that was later dismissed, Bill
    Clinton denied having a sexual relationship with Monica
    Lewinsky. That was a lie. Oh, I know about the convoluted
    definition of sex that was used, but I think he lied. But
    that's not a matter before us. The impeachment article about
    that deposition was defeated in the U.S. House.
        Following the President's testimony in the Jones case, the
    independent counsel, appointed 3 years earlier to investigate a
    Whitewater land deal, and controversies called Travelgate and
    Filegate, swung into action to investigate this sex scandal.
    Linda Tripp was wired, Monica Lewinsky was detained by the
    Independent Counsel and the FBI, and they told her she
    shouldn't call her lawyer. A grand jury began hearing witnesses
    and after many months the President appeared before that grand
    jury to answer questions.
        Then, one-and-a-half months before the 1998 general
    election, the U.S. House, with cooperation from the independent
    counsel, released to the American public all of their
    investigative material and the secret proceedings of the grand
    jury.
        Following the election, the U.S. House Judiciary Committee
    began their impeachment hearings. The independent counsel, in a
    virtual footnote to his presentation before the House on the
    sex scandal, admitted he had not been able to implicate the
    President on Whitewater, Travelgate or Filegate--but he got him
    on the sex matter. And so the House managers and the
    independent counsel used the President's bad behavior to weave
    their charges of perjury and obstruction of justice.
        And finally the U.S. House on a partisan vote sent to the
    Senate the two articles of impeachment.
        That's the chronology as I see it.
        And so we gather--conducting a trial of this sordid mess.
        What are we to do? What is our duty? What is, as Lincoln
    said, ``our last full measure of devotion'' to this country.
        I am deeply troubled by this President's behavior. But I am
    also troubled by the constitutional gravity of removing a
    President. Some, with a mere wave of the hand seem to say that
    ``it's not such a big deal.'' But they are wrong. This decision
    affects the very roots of our democracy.
        The selection of the head of government by the governed in
    a free election is rare. It is still the case in too many
    countries that power shifts through the barrel of a gun--
    through raw, naked power and violence.
        In our country, the American people choose their President
    by the simple, elegant act of voting. It is through voting--not
    fighting--that power shifts. Our governments change without an
    army marching. With no shots being fired. What a remarkable
    thing to behold.
        The Constitution does contain a very special provision
    allowing for the removal of a President ``for treason, bribery,
    and other high crimes and misdemeanors.'' It does that because
    the framers wanted to provide a method to remove a President
    who was acting in a manner that threatens the country.
        But the framers worried that a partisan majority could try
    to remove a President for political gain.
        Hamilton, in Federalist No. 65 said, ``the greatest danger
    . . . that the decision will be regulated more by the
    comparative strength of the parties than by the real
    demonstration of innocence or guilt.''
        Mason said that the President should be removed for ``great
    and dangerous offenses'' that amount to ``attempts to subvert
    the Constitution.'' Hamilton wrote that impeachable offenses
    result from a ``violation of public trust'' and ``relate
    chiefly to injuries done to society itself.''
        It is also clear that the impeachment process was not meant
    to punish a transgressor. In fact, the Constitution provides
    that any such ``crimes'' would still be punishable in the
    criminal justice system.
        In short, impeachment is a device to prevent grave danger
    to the Nation.
        I believe that the framers of the Constitution would be
    startled by this impeachment effort.
        That this impeachment process was passionately partisan in
    its birth in the U.S. House is not in question. In fact, two of
    the House managers who brought these articles of impeachment to
    us called for the impeachment of President Clinton long before
    they had ever heard of Monica Lewinsky. Seventeen Republican
    Congressmen had called for impeachment hearings long ago.
    Theirs was a cause searching for a reason.
        Nearly 2 years ago, before Linda Tripp, before Monica
    Lewinsky, before Betty Currie, before knowledge of sex with an
    intern, before a stained dress, before the deposition in the
    Jones case, before the testimony to the grand jury, two of the
    House managers who argued for these impeachment articles had
    introduced an impeachment inquiry resolution. Representative
    Bob Barr and Representative Lindsey Graham said then that it
    was about ``the rule of law.'' They were asking for the
    nullification of an election before they knew the existence of
    a Monica Lewinsky and before the action that led to the two
    articles of impeachment now before us.
        Isn't there room to wonder then, that maybe this is exactly
    the partisan passion that persuaded our framers to place the
    impeachment bar just above the vertical leap of those Members
    of Congress who would carry ``fill in the blank'' impeachment
    papers for every reason and every season.
        Take the partisan flavor away. I don't think the case has
    been made that the President's behavior, while reprehensible,
    poses a grave danger to the Nation. Therefore I cannot vote to
    nullify the results of the last election. The people chose Bill
    Clinton and I do not believe the case made against the
    President meets the constitutional threshold for removing a
    President.
        I respect those here who differ. I do not allege that your
    guilty vote is partisan. You have reached a different
    conclusion charge than I did, and I respect you for that.
        But I cannot vote for these articles of impeachment. This
    is not a case of high crimes and misdemeanors. It's a case of
    bad behavior by a President who has shamed himself.
        But let us not respond to his bad behavior by hurting our
    country.
        Let us not aim at Bill Clinton and hit the Constitution.
        I do not vote to support our President. I vote against
    these articles of impeachment to support our Constitution.
        In the final analysis, however, the President should take
    no solace in this vote. I and others in the Senate have joined
    in a censure resolution that expresses a harsh judgement about
    the President's actions.
        Now, it is time for the country to move on.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator John F. Kerry

        Mr. KERRY. Mr. Chief Justice, my colleagues, I want to
    thank the Chief Justice for his important stewardship of these
    proceedings. And I thank Senator Lott and Senator Daschle for
    their patient leadership in helping to bridge the divide of
    partisan votes so that these are not partisan deliberations.
        There is a special spirit in this Chamber. No matter all
    the easy criticisms directed our way, this is a great
    institution and in our own way we are witnessing--living out--
    the remarkable judgment of the Founding Fathers.
        Let me turn to the question of removing President William
    Jefferson Clinton.
        Many times the House managers have argued to us that if you
    find the facts as you argue them, you must vote to convict and
    thereby remove. But of course, that, like a number of things
    that they said, is really not true. You can, of course, find
    the facts and still acquit, because you don't want to remove on
    a constitutional basis or, frankly, on any other balance that a
    Senator decides to make in the interest of the Nation.
        Now, I agree that perjury and obstruction of justice can be
    grounds for removal or grounds for impeachment. The question
    is: Are they in this case? I will not dissect the facts any
    further because I don't have the time but also because I
    believe there are issues of greater significance than the facts
    of this case.
        Let's assume you take the facts as the House managers want
    you to do. I would like to talk about some of the things in the
    arena outside of the mere recitation of facts--critical
    considerations in this matter.
        I have listened to all of the arguments for removal, and I
    must say that even as I understand what many have said, there
    seems to be a gap between the words and the reality of what is
    happening in this country.
        Some have said it sets a double standard for judges,
    despite the fact that the vast majority of scholars say there
    is a difference between impeachment of judges and the
    President, despite a difference clearly spelled out in the
    Constitution, and despite all of the distinguishing facts of
    each one of those cases involving judges.
        Some have said we will have a negative impact on kids, on
    the military, and on the fabric of our country.
        And while I agree that this is absolutely not about polls
    and popularity, some are making a judgment that clearly the
    country itself does not agree with. The country does not
    believe the fiber of our Nation is unraveling over the
    President's egregious behavior, because most people have a
    sense of proportion about this case that seems totally lacking
    in the House managers' presentation.
        No parent or school in America is teaching kids that lying
    or abusing the justice system is now OK. In fact, the
    President's predicament, I argue, does not make it harder to do
    so. If anything, there may now be a greater appreciation for
    the trouble you can get into for certain behavior. More parents
    are teaching their children about lying, about humiliation,
    about family hurt, about public responsibility, than before we
    ever heard the name of Monica Lewinsky.
        The clear answer to children who write letters about the
    President is that since being discovered he has been in a lot
    of trouble, may even be criminally liable, has suffered public
    humiliation, and all of history will not erase the fact of this
    impeachment, this trial, or the lessons of this case.
        But the bottom line for us is our constitutional duty, our
    responsibility to balance based on common sense and sense of
    honor.
        There is a simple question but a question of enormous
    consequence: Do we really want to remove a President of the
    United States because he tried to avoid discovery in a civil
    case of a private, consensual affair with a woman who was
    subsequently determined to be irrelevant to the case, which
    case itself was thrown out as wholly without merit under the
    law? That is the question.
        Let me be clear about the President's behavior so no one
    misinterprets. I am as deeply disturbed by it as all of us are
    here in the Senate. But I am not sure we need additional
    moralizing about something that the whole Nation has already
    condemned and digested. The President lied to his countrymen,
    to family, friends, to all of us. And if one is not enormously
    concerned by gifts not surrendered, conversations which can't
    refresh recollection, jobs produced with uncommon referral and
    speed, certainly one must be unsettled by the mere lack of easy
    compliance with judicial inquiry by a President. That is of
    grave concern to all. It deserves our censure.
        But let me say as directly as I can that no amount of
    inflated rhetoric, or ideological or moral hyperextension can
    lift the personal, venial aspects of the President's actions to
    the kind of threat to the fabric of the country contemplated by
    the Founding Fathers. I must say that I am truly somewhat
    surprised to see so many strict constructionists of the
    Constitution giving such new and free interpretation to the
    clear intent of the framers.
        And I have, frankly, been stunned by the overreach, the
    moral righteousness, even the zealotry of arguments presented
    by the House managers.
        No matter the words about not hating Bill Clinton, no
    matter the disclaimers about partisanship, I truly sensed at
    times not just a scorn but a snarling, trembling venom that
    told us the President is a criminal and that ``we need to know
    who our President is.''
        Well, the President is certainly a sinner. We all are. And
    he may even have committed a crime. But just plain and simply
    measured against the test of history so eloquently articulated
    by the Senator from New York this morning and by the Senator
    from Delaware yesterday, just plain and simply, this is not in
    any measure on the order of a high crime and misdemeanor so
    clearly contemplated by the Founding Fathers.
        Unlike President Nixon's impeachment case, no government
    power or agency was unleashed or abused for a goal directly
    affecting public policy. No election was interfered with. No
    FBI or IRS power was wrongfully employed. At worst, this
    President lied about his private, consensual affair and tried
    wrongfully, but on a human level--understandable to most
    Americans, at least as to the Paula Jones case--to cover it up.
    I think, in fact, that most Americans in this country
    understood there was in that inquiry a violation of a zone of
    privacy that is as precious to Americans as the Constitution
    itself.
        The fact that the House dropped the Paula Jones deposition
    count underscores the underlying weakness on which all of this
    is based. So I ask my colleagues, are we really incapable of at
    least measuring the real human dimensions of what took place
    here and contrasting it properly with the constitutional
    standards we are presented by precedent and history?
        We have heard some discussion of proportionality. It is an
    important principle within our justice system and in life
    itself. The consequences of a crime should not be out of
    proportion to the crime itself. As the dictionary tells us, it
    should correspond in size, degree or intensity.
        I must say that no one yet who will vote to remove has
    fully addressed that proportionality issue.
        If you want to find perjury because you believe Monica
    about where the President touched her, and you believe that
    adopting the definition given to him by a judge and by Paula
    Jones' own lawyers, and you can reach into the President's mind
    to determine his intent, then that is your right. But having
    done that, if you think a President of the United States should
    be removed, an election reversed, because of such a thin
    evidentiary thread, I think you give new meaning to the concept
    of proportionality. If you do that, you turn away from the
    central fact that the President opened his grand jury testimony
    by acknowledging ``inappropriate, intimate contact'' with
    Monica Lewinsky.
        Enough said, you would think. But no, not enough for this
    independent prosecutor. While not one more question really
    needed to be asked, a torrent of questions followed. Every
    question thereafter calculated to either elicit an admission of
    a lie in a case found to be without merit, or to create a new
    lie which could bring us here.
        With the President's acknowledgment of intimate contact,
    everyone in this Chamber understood what had happened. Everyone
    in America understood what had happened. For what reason did we
    need 80 percent of the questions asked about sexual relations?
    For the simple reason that the Presidential jugular instinct of
    the so-called independent counsel was primed by what all of us
    have come to know--he had colluded with Paula Jones' attorneys
    and Linda Tripp to set the Monica trap in the January
    deposition, and now he was going to set the perjury trap in the
    grand jury. Mr. Bennett's own comments in the deposition
    underscore this:

        ``I mean, this is not what a deposition is for, Your Honor. He can
    ask the President, What did he do? He can ask him specifically in
    certain instances what he did, and isn't that what this deposition is
    for? It is not to sort of lay a trap for him.''

        I wonder if there is no former district attorney, now
    Senator; no former attorney general, now Senator; no former
    U.S. attorney, now Senator; former officer of the court, now
    Senator, who is not deeply disturbed by a so-called independent
    counsel grilling a sitting President of the United States of
    America about his personal sex life, based on information from
    illegal phone recordings?
        Is there no one finding a countervailing proportionality in
    this case when confronted by our own congressionally created
    Javert who is not just pursuing a crime but who is at the
    center of creating the crime which we are deliberating on now?
        Think about it. When Mr. Starr was appointed, when we
    authorized an independent counsel, when the grand jury was
    convened, the crime on trial before us now had not even been
    committed, let alone contemplated.
        I wonder also if there is no one even concerned about Linda
    Tripp--who now gives definition to the meaning of friendship--
    working with Paula Jones' attorneys even as she was in the
    guidance and control of Mr. Starr as a Federal witness. Some of
    you may want to turn away from these facts. Secondly, the House
    managers never even acknowledged them in their presentations. I
    raise them, my colleagues, not for ideological or political
    purposes, but fundamental fairness demands that we balance all
    of the forces at play in this case.
        Now, much has also been made in this trial of the rights of
    Paula Jones and her civil rights case--that we must protect
    Paula Jones' rights against the President of the United States.
        My fellow colleagues--please let us have the decency to
    call this case what it was. This was no ordinary civil rights
    case. It was an assault on the Presidency and on the President
    personally, and the average American's understanding of that is
    one of the principal reasons our fellow citizens figured this
    case out long ago.
        But there is more to it than that:
        Mr. Starr became involved in the Paula Jones suit before he
    became independent counsel.
        He had contacts with Paula Jones' attorneys before his
    jurisdiction was expanded.
        He wired Linda Tripp before his jurisdiction was expanded.
        Many sources documented that without any expansion of
    jurisdiction, in 1997, he had FBI agents interrogating Arkansas
    State troopers, asking about Governor Clinton's private life--
    especially inquiring into Paula Jones.
        After Paula Jones filed her suit in 1994, announcing it at
    a conservative political convention, and with new counsel
    affiliated with the Rutherford Institute, her spokesperson
    said, ``I will never deny that when I first heard about this
    case, I said, `OK, good. We're gonna get that little slime
    ball.' ''
        She later said, ``Unless Clinton wants to be terribly
    embarrassed, he'd better cough up what Paula needs. Anybody
    that comes out and testifies against Paula better have the past
    of a Mother Teresa, because our investigators will investigate
    their morality.''
        Even Steve Jones, Paula Jones' husband, was part of an
    operation to poison the President's public reputation by
    divulging the secrets of his personal life--threatening even to
    employ subpoena power to depose, under oath, every State
    trooper in Arkansas who may have worked for the Governor. Steve
    Jones pledged that: ``We're going to get names; we're going to
    get dates; we're going to do the job that the press wouldn't
    do. We're going to go after Clinton's medical records, the raw
    documents, not just opinions from doctors . . . we're going to
    find out everything.''
        Into all of this came Ken Starr, and the police power of
    our Nation.
        This was not a civil rights suit in the context most of us
    would recognize. Indeed, there existed an extended and secret
    Jones legal team of outside lawyers--including George Conway
    and Jerome Marcus, experts on sexual harassment and
    Presidential immunity, who ghostwrote almost every substantive
    argument leveled by Paula Jones' lawyers; Ken Starr's friend
    Theodore Olson, and Robert Bork, the former Supreme Court
    nominee, who together advised the Jones team; Richard Porter, a
    law partner of Ken Starr and former Bush-Quayle opposition
    research guru, who also wrote briefs for the Jones team; and
    the conservative pundit and longtime Clinton opponent Ann
    Coulter, who worked on Paula Jones' response to President
    Clinton's motion for a dismissal. The connections between this
    crack--and covert--legal team, and Ken Starr's staff and his
    witnesses--including Paul Rosenzweig, Jackie Bennett, and Linda
    Tripp--as well as familiar figures including Lucianne Goldberg,
    add up to something far more than a twisted and disturbing game
    of six degrees of separation.
        I do not suggest that this was the right wing conspiracy
    bandied about on the talk shows. But I ask you--are we not able
    to acknowledge that this was a legal and political war of
    personal destruction--not just a civil rights case?
        And we cannot simply dismiss the fact that all of this
    turmoil--these entire proceedings--arise out of this deeply
    conflicted, highly partisan, ideologically driven, political
    civil rights case with incredible tentacles into and out of the
    Office of the Independent Counsel.
        Moreover, I remind my colleagues, Mr. Starr is supposed to
    be independent counsel--not independent prosecutor. He was and
    is supposed to represent all of the Congress and nowhere do I
    remember voting for him to make a referral of impeachment--a
    report of facts, yes--a referral of impeachment, no.
        Now there is a rejoinder to all of this. Nothing wipes away
    what the President did or failed to do.
        So, some of you may say, So what? The President lied. The
    President obstructed justice. No one made him behave as he did.
    And yes, you're right. The President behaved without common
    sense, without courage, and without honor, but we are required
    to measure the totality of this case. We must measure how
    political this may have been; whether process was absurd;
    whether the totality of what the President did meets the
    constitutional threshold set by the Founding Fathers.
        We must decide whether the removal of the President is
    proportional to the offense and we must remember that
    proportionality, fairness, rule of law--they must be applied
    not just to convict, but also to defend--to balance the
    equities.
        I was here during Iran-contra and I remember the
    extraordinary care Senator Rudman, Senator Inouye, and Senator
    Sarbanes exerted to avoid partisanship and maintain
    proportionality. I wish I did not conclude that their example
    frankly is in stark contrast to the experience we are now
    living.
        The House managers often spoke to us of principle and duty.
    And equally frequently we were challenged to stand up for the
    rule of law.
        Well, we all believe in rule of law. But we also believe in
    the law being applied fairly, evenly--that the rule of law is
    not something to cite when it serves your purposes, only to be
    shunted aside when it encumbers.
        But where was the managers' duty to their colleagues in the
    House--in the committee--on the floor; where was the same self-
    conscious sense of pain for what they were going through, when
    they denied a bipartisan process for impeachment; where was
    their commitment to rule of law in denying the President's
    attorneys access to the exculpatory evidence which due process
    affords any citizen?
        Rule of law is a process in a democratic institution, and
    there is a duty to honor process.
        I believe the Senate has distinguished itself in that
    effort and I want to express my deep respect for the strongly
    held views of all my colleagues. Reasonable people can differ
    and we do, but we can still come together in an affirmation of
    the strength of our Constitution.
        Chairman Hyde says ``let it be done''--I hope it will be.
    Right requires we be proportional as to all aspects of this
    case. I hope what we do here will apply the law in a way that
    gives confidence to all our citizens, that everyone can look at
    the final result of our deliberations and say justice was done.
    And we have called an end to the process by which we savage
    each other, and are beginning to heal our country.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Mike DeWine

        Mr. DeWINE. Mr. Chief Justice, my friends in the Senate,
    each of the articles before us contains numerous examples of
    conduct, any of which as alleged would constitute grounds for
    the President's removal from office. I have determined that
    most of these allegations have not been proven by clear and
    convincing evidence.
        Let me now turn to the three, at least for me, remaining
    allegations. First is the allegation that the President
    obstructed justice. When? After his Paula Jones deposition, he
    had his two, by now very famous, conversations with Betty
    Currie. The facts are familiar, but they are telling. On
    January 17, 1998, the President gave his deposition in the
    Paula Jones case. The Jones lawyers zeroed in on the
    relationship between Monica Lewinsky and the President. It was
    clear that the Jones lawyers had specific knowledge of the
    details of this relationship. In the President's answers, he
    referred repeatedly to Betty Currie. Further, counsel for Ms.
    Jones questioned the President in detail about Betty Currie,
    about her job, her hours at work, et cetera.
        I submit that any first year law school student who
    attended that deposition would know that Paula Jones was a
    prospective witness or would know that Betty Currie was a
    prospective witness. In fact, 5 days after the deposition Betty
    Currie was subpoenaed by the Jones lawyers. When the President
    returned to the White House after the deposition, he knew Betty
    Currie was a prospective witness.
        Sure enough, within 3 hours of the conclusion of the
    deposition, the President called Betty Currie at home on a
    Saturday night and asked her to come to the White House the
    next afternoon, Sunday. During the course of that Sunday
    afternoon meeting, the President informed Betty Currie that
    Monica's name came up during the deposition. According to Betty
    Currie's testimony, the President said to her--and we are all,
    of course, familiar with this--``You were always there when
    Monica was there, right?'' ``We were never really alone,
    right?'' ``Monica came on to me and I never touched her,
    right?'' ``You could see and hear everything, right?'' ``She
    wanted to have sex with me and I couldn't do that.''
        We are all familiar with that, but I think most
    significantly, and to me the most telling thing, is that 2 or 3
    days later the President again spoke to Betty Currie and again
    made the same statements and used the same demeanor.
        The President does not dispute that he made these
    statements to Betty Currie. He explained he was just trying to
    refresh his memory about what the facts were. The President's
    explanation is simply not credible. It defies logic. Why would
    the President make five declarative statements to Betty Currie
    to ``refresh his memory'' when he knew that Betty Currie could
    not possibly know whether most of these statements were true?
    In fact, we know and the President knew that the statements
    were false.
        Betty Currie was a key potential witness who could
    contradict the President's sworn testimony in the Paula Jones
    deposition. She was also the President's subordinate. On two
    separate occasions the President made blatantly false
    statements to her to try to corrupt the due process of justice
    and with the intent to corruptly persuade her with the
    intention to influence her testimony. This charge of
    obstruction of justice, I believe, has been proven by clear and
    convincing evidence, and I might add it has been proven beyond
    a reasonable doubt.
        Let me now turn to the second allegation, the allegation
    that the President committed perjury on August 17, 1998, when
    he testified about these two postdeposition meetings with Betty
    Currie. I know there may be some who are still struggling with
    the perjury charge. I simply say this: If you believe, as I do,
    that the obstruction of justice charge is made based on the
    statements made to Betty Currie, then any fair reading of the
    grand jury testimony will indicate to you that you also have to
    find he committed perjury.
        Here is what he said:

        What I was trying to determine is whether my recollection was right
    and she [Betty Currie] was always in the office complex when Monica was
    there and whether they thought she could hear any conversation we had,
    or did she hear any. I thought what would happen is it would break in
    the press, and I was trying to get the facts down. I was trying to
    understand what the facts were.

        He also says, the President:

        I was not trying to get Betty Currie to say something that was
    untruthful. I was trying to get as much information as quickly as I
    could.

        I submit if the President is guilty of obstruction of
    justice in his statements to Betty Currie, then clearly,
    clearly, he also must be guilty of perjury in his account of
    these events to the grand jury. The two findings are
    inextricably connected. One cannot reach the first conclusion
    without reaching the second. I believe it has been proven by
    clear and convincing evidence that the President committed
    perjury. And I might also add, I believe it has been proven
    beyond a reasonable doubt. The evidence clearly shows that the
    President obstructed justice and then lied under oath about
    this obstruction in his grand jury testimony.
        Now, on the third charge, I believe the evidence shows that
    the President further perjured himself in the grand jury to
    avoid a perjury charge in his prior deposition. This perjury
    had to do with the nature and details of his relationship with
    Monica Lewinsky.
        I know many people have come to the well and have expressed
    concern about how we got here, what brings us here today. I
    share some of those concerns. Congresses, beginning with this
    one, will have to deal with the aftermath of this sorry affair:
    court cases that have weakened the Presidency, a discredited
    independent counsel law.
        You will forgive me if I point out that I was one of the
    80-some Members of the House who voted against the independent
    counsel law when it came up--please forgive me for that aside.
    I voted against it because I share some of the same concerns we
    have heard expressed here today and yesterday. We also will
    have to deal with the Secret Service that is now vulnerable to
    subpoenas and Presidents who are vulnerable to civil rights
    suits while in office.
        These are important issues, but I submit they are issues
    not for today but rather for another day. None of us wanted to
    be here, but we are where we are, the facts are what they are,
    and we know what we know. What we know is that the President
    obstructed justice and committed perjury. What must we do with
    this President who has obstructed justice and then committed
    perjury?
        Obstruction of justice and perjury strike at the very heart
    of our system of justice. By obstructing justice and committing
    perjury, the President has directly, illegally, and corruptly
    attacked a coequal branch of Government, the judiciary. It has
    been proven by clear and convincing evidence that the President
    of the United States has committed serious crimes.
        But while I have found specific violations of law, it is
    not insignificant, in my final decision, that these specific
    criminal acts were committed within a larger context, a larger
    context of a documented pattern of indefensible behavior--
    behavior that shows a reckless disregard for the law and for
    the rights of others.
        I have concluded that the President is guilty of behaving
    in a manner grossly incompatible with the proper function and
    purpose of his office. In 1974, the House Judiciary Committee
    used those precise words to define an impeachable offense.
        I have also concluded that the President is guilty of the
    abuse or violation of a public trust. Alexander Hamilton, in
    Federalist No. 65, used those precise words to define an
    impeachable offense. What the President did is a serious
    offense against our system of government. It undermines the
    integrity of his office and it undermines the rule of law.
        Here is what Thomas Paine said about the rule of law:

        Let a crown be placed on the law by which the world may know that,
    so far as we approve of monarchy, in America the law is king.

        The law is indeed king in America. There isn't one law for
    the powerful and one for the meek. That is what we mean when we
    say we are a ``nation of laws.'' We elect a President to
    enforce these laws. In fact, the Constitution commands that the
    President ``take care that the laws be faithfully executed.''
        How can we allow a man who has obstructed justice and
    committed perjury to remain as the chief law enforcement
    officer of our country? How can we call ourselves a nation of
    laws and leave a man in office who has flouted those laws? We
    define ourselves as a people not just by what we hold up, not
    just by what we revere, but we also define ourselves by what we
    tolerate. I submit that this is something we simply, as a
    people, cannot tolerate.
        Mr. Chief Justice, I will vote to convict the President on
    both counts and to remove him from office.
        I ask unanimous consent that my full statement be included
    in the Record immediately following these remarks.
        The CHIEF JUSTICE. Without objection, it is so ordered.

                 Supplemental Statement of Senator Mike DeWine

        Mr. Chief Justice, Members of the Senate, the President has been
    impeached on two separate articles by the House of Representatives.
        Article I charges that the President willfully provided perjurious,
    false and misleading testimony to the grand jury.
        Article II charges that the President obstructed justice (1).
        Each article contains numerous examples of conduct, any of which,
    it is alleged, would constitute grounds for the President's removal
    from office.
        I have examined each of these separate grounds or allegations.
        I have determined that most of these allegations have not been
    proven by clear and convincing evidence (2).
        I now turn to the three allegations that I believe have the most
    merit.
        I. I examine first the allegation that the President obstructed
    justice when on January 18 and January 20 or 21, 1998, he related a
    false and misleading account of events relevant to a Federal civil
    rights action brought against him to a potential witness in the
    proceeding--Betty Currie--in order to corruptly influence her
    testimony.
        These are the essential facts: On January 17, 1998, the President
    gave his deposition in the Paula Jones case. Jones' lawyers zeroed in
    on the relationship between Monica Lewinsky and the President. It was
    clear that the Jones lawyers had specific knowledge of the details of
    this relationship. In the President's answers, he referred--
    repeatedly--to Betty Currie. For example, when asked whether he walked
    with Ms. Lewinsky down the hallway from the Oval Office to his private
    kitchen in the White House, the President said Ms. Lewinsky was not
    there alone or that Betty was there (3); when asked about the last time
    he spoke with Monica Lewinsky, he falsely testified that he only
    recalled that she was only there to see Betty (4); when asked whether
    he prompted Vernon Jordan to speak to Monica Lewinsky, he stated that
    he thought Betty asked Vernon Jordan to meet with Monica (5); and he
    said that Monica asked Betty to ask someone to talk to Ambassador
    Richardson about a job at the United Nations (6). Further, counsel for
    Ms. Jones questioned the President in detail about Betty Currie, her
    job, and her hours of work (7).
        Anyone reading the transcript would have to expect that Jones was
    the President's subordinate. On two separate occasions, the President
    made blatantly false statements to her to try to corruptly influence
    the due administration of justice and to attempt to corruptly persuade
    her with the intent to influence her testimony (8).
        This charge of obstruction of justice has been proven by clear and
    convincing evidence. (Let me state for the record it has also been
    proven beyond a reasonable doubt.)
        II. Let me now turn to the second allegation--that the President
    committed perjury on August 17, 1998, when he testified about these two
    postdeposition meetings with Betty Currie.
        Here is what the President said to the grand jury about these
    meetings. He first testified that ``what I was trying to determine was
    whether my recollection was right and that she [Betty Currie] was
    always in the office complex when Monica was there, and whether she
    thought she could hear any conversations we had, or did she hear any. .
    . . I thought what would happen is that it would break in the press,
    and I was trying to get the facts down. I was trying to understand what
    the facts were'' (9).
        The President also testified that ``I was not trying to get Betty
    Currie to say something that was untruthful. I was trying to get as
    much information as quickly as I could'' (10).
        When asked again about these statements, the President said: ``I
    was trying to refresh my memory about what the facts were. . . . And I
    believe that this was part of a series of questions I asked her to try
    to quickly refresh my memory. So, I wasn't trying to get her to say
    something that wasn't so'' (11).
        He was asked this specific question: ``If I understand your current
    line of testimony, you are saying that your only interest in speaking
    with Ms. Currie in the days after you deposition was to refresh your
    own recollection?'' The President responded: ``Yes'' (12).
        If the President is guilty of obstruction of justice in his
    statements to Betty Currie, then clearly, he must also be guilty of
    perjury in his account of these events to the grand jury. The two
    findings are inextricably connected--one cannot reach the first
    conclusion without also reaching the second.
        It has been proven by clear and convincing evidence that the
    President committed perjury (13). (Let me state for the record that it
    has also been proven beyond a reasonable doubt.)
        III. The last allegation I would like to discuss is the charge that
    the President committed perjury on August 17, 1998, before a Federal
    grand jury when he testified concerning the nature and the details of
    his relationship with Monica Lewinsky. Specifically, it is alleged that
    the President committed perjury when he denied kissing or touching
    certain body parts of Ms. Lewinsky. The President's denials were quite
    specific on this point (14).
        Monica Lewinsky's testimony is just as unequivocal. She describes,
    in graphic detail, 10 separate encounters where such intimate
    activities occurred (15). Ms. Lewinsky's story is corroborated by
    numerous consistent contemporaneous statements she made to her friends
    and counselors. Her testimony is further corroborated by phone logs and
    White House exit and entry logs.
        Counsel for the President have failed to show any motive for Monica
    Lewinsky to lie about these details.
        Conversely, the President clearly had a motive to lie. He could
    not, in his grand jury testimony, admit such sexual activity without
    directly contradicting his deposition testimony in the Paula Jones
    case. Such a contradiction would have subjected him to a perjury charge
    in that case. To avoid a perjury charge concerning the Jones
    deposition, the President had to carefully craft an explanation so it
    was clear he did not touch Monica Lewinsky. He had to do this to avoid
    falling within the definition of ``sexual relations'' that had been
    given him in the Jones deposition.
        The President's story defies common sense and human experience.
    This is particularly true if you consider the number of times the
    President and Monica Lewinsky were alone and, in the President's words,
    engaged in ``inappropriate behavior.'' It is also probative that the
    President's DNA was found on Monica Lewinsky's dress.
        The charge of perjury has been proven by clear and convincing
    evidence. (Let me state for the record that it has also been proven
    beyond a reasonable doubt.)
        That concludes my findings of fact. The evidence clearly shows that
    the President obstructed justice and then lied under oath about this
    obstruction in his grand jury testimony. He further perjured himself in
    the grand jury to avoid a perjury charge in his prior deposition.
        I wish this were not true. When I began my examination of this
    case, I assumed that I would vote not guilty. I assumed that the
    evidence simply would not be sufficient to convict.
        Unfortunately, the facts are otherwise.
        Many people, including myself, are deeply concerned about how we
    got here. Congresses--beginning with this one--will have to deal with
    the aftermath of this sorry affair: court cases that have weakened the
    Presidency; a discredited independent counsel law; a Secret Service
    vulnerable to subpoenas; and Presidents who are subjects to civil suits
    while in office.
        These are important issues. But they are issues for another day.
        None of us wanted to be here. But we are where we are. The facts of
    the President's misconduct are what they are. We know what we know. And
    although each of us may find some of the acts more offensive than
    others, all of them are disturbing, all are very serious, and all lead
    to the same conclusion: The President obstructed justice and committed
    perjury.
        What must we do with this President who has obstructed justice, and
    then committed perjury about that obstruction?
        Obstruction of justice and perjury strike at the very heart of our
    system of justice. By obstructing justice and committing perjury, the
    President has directly, illegally, and corruptly attacked a coequal
    branch of Government, the judiciary.
        The requirement to obey the law applies to us all, in all cases. To
    say a President can obstruct justice is to put the President above the
    law, and above the Constitution.
        Perjury is also a very serious crime. The Constitution gives every
    defendant a choice: Testify truthfully, or remain silent. No one can be
    forced to testify in a manner that involves self-incrimination. But a
    decision to place one's hand on the Bible and invoke God's witness--and
    then lie--threatens the judiciary. The judiciary is designed to be a
    mechanism for finding the truth--so that justice can be done. Perjury
    perverts the judiciary, turning it into a mechanism that accepts lies--
    so that injustice may prevail.
        It has been proven by clear and convincing evidence that the
    President of the United States has committed serious crimes. But
    although I have found specific violations of law, it is not
    insignificant in my final decision that these specific criminal acts
    were committed within a larger context of a documented pattern of
    indefensible behavior--behavior that shows a reckless disregard for the
    law and for the rights of others.
        I have concluded that the President is guilty of ``behaving in a
    manner grossly incompatible with the proper function and purpose of
    (his) office.'' In 1974, the House Judiciary Committee used those
    precise words to define an impeachable offense (16).
        I have also concluded that the President is guilty of ``the abuse
    or violation of (a) public trust.'' Alexander Hamilton, in the
    Federalist No. 65, used those precise words to define an impeachable
    offense.
        What the President did is a serious offense against the system of
    government. It undermines the integrity of his office. And it
    undermines the rule of law.
        Here's what Thomas Paine said about the rule of law: ``Let a crown
    be placed (on the law), by which the world may know, that so far as we
    approve of monarchy, that in America the law is king'' (17).
        The law is indeed king in America. There isn't one law for the
    powerful and one for the meek. That's what we mean when we say we are a
    nation of laws. We elect a President to enforce these laws. The
    Constitution commands that he ``take care that the laws be faithfully
    executed.''
        How can we allow a man who has obstructed justice and committed
    perjury to remain as the chief law enforcement officer of our country?
        How can we call ourselves a nation of laws and tolerate a man in
    office who has flouted those laws?
        We define ourselves as a people not just by what we revere, but by
    what we tolerate. This, in my view, is simply not tolerable. I will
    vote to convict the President on both counts and to remove him from
    office.
        I wish to acknowledge the assistance of many talented individuals
    who have helped me address these difficult questions of fact, law, and
    policy. I have been given able counsel by Karla Carpenter, Helen Rhee,
    Louis DuPart, Robert Hoffman, Laurel Pressler, and Michael Potemra on
    my Senate staff; my good friends William F. Schenck, Curt Hartman,
    Nicholas Wise, and Charles Wise; and my son and valued adviser Patrick
    DeWine. All deserve my sincere thanks; of course, the responsibility
    for the conclusions remains mine alone.
                                     notes
        1. Specifically, the article charges that ``the President has
    prevented, obstructed, and impeded the administration of justice and
    has to that end engaged personally, and through his subordinates and
    agents, in a course of conduct or scheme designed to delay, impede,
    coverup, and conceal the existence of evidence and testimony related to
    a Federal civil rights action brought against him in a duly instituted
    judicial proceeding.''
        2. Each Senator must determine the standard of proof to be applied
    in judging an impeachment case. In weighing the facts of this
    impeachment, I have used the standard of proof of ``clear and
    convincing evidence.'' The Modern Federal Jury Instruction describes
    clear and convincing evidence as ``proof (that) leaves no substantial
    doubt in your kind . . . that establishes in your mind, not only the
    proposition at issue is probable, but also that it is highly probable.
    It is enough if the party with the burden of proof establishes his
    claim beyond any `substantial doubt he does not have to dispel every
    `reasonable doubt'.'' Modern Federal Jury Instructions, section 73.01
    (1998). I have rejected the standard of proof ``beyond a reasonable
    doubt,'' which applies to criminal cases. This standard is not
    applicable to a case in which the defendant is threatened not with loss
    of liberty but with loss of office. I have also rejected the standard
    of ``preponderance of the evidence.'' This standard, which would
    provide for conviction if the scales of evidence were tipped ever so
    slightly against the President, would not treat removal from office
    with the seriousness and gravity it deserves.
        3. Question: Do you recall ever walking with Jane Doe 6 Lewinsky
    down the hallway from the Oval Office to your private kitchen there in
    the White House?
        Answer: . . . Now, to go back to your question, my recollection is
    that, that at some point during the government shutdown, when Ms.
    Lewinsky was still an intern but was working the chief of staff's
    office because all the employees had to go home, that she was back
    there with a pizza that she brought to me and to others. I do not
    believe she was there alone, however. I don't think she was. And my
    recollection is that on a couple of occasions after that she was there
    but my secretary Berry Currie was there with her. She and Betty are
    friends. That's my, that's my recollection. And I have no other
    recollection of that.
        4. Question: When was the last time you spoke with Monica Lewinsky?
        Answer: I'm trying to remember. Probably sometime before Christmas.
    She came by to see Betty sometime before Christmas. And she was there
    talking to her, and I stuck my head out, said hello to her.
        Question: Stuck your head out of the Oval Office?
        Answer: Uh-huh, Betty said she was coming by and talked to her, and
    I said hello to her.
        Question: I believe I was starting to ask you a question a moment
    ago and we got sidetracked. Have you ever talked to Monica Lewinsky
    about the possibility that she might be asked to testify in this
    lawsuit?
        Answer. I'm not sure, and let me tell you why I'm not sure. It
    seems to me the, the--I want to be as accurate as I can here. Seems to
    me the last time she was there to see Betty before Christmas we were
    joking about how you-all, with the help of the Rutherford Institute,
    were going to call every woman I'd ever talked to, and I said, you
    know----
        Mr. Bennett: We can't hear you, Mr. President.
        Answer: and I said that you-all might call every woman I ever
    talked to and ask them that, and so I said you would qualify, or
    something like that . . .
        Question: Was anyone else present when you said something like
    that?
        Answer: Betty, Betty was present, for sure. Somebody else might
    have been there, too, but I said that to a lot of people. I mean that
    was just something I said.
        5. Question: You know a man named Vernon Jordan?
        Answer: I know him well.
        Question: You've known him for a long time.
        Answer: A long time.
        Question: Has it ever been reported to you that he met with Monica
    Lewinsky and talked about this case?
        Answer: I knew that he met with her. I think Betty suggested that
    he meet with her. Anyway, he met with her. I, I thought that he talked
    to her about something else. I didn't know that--I thought he had given
    her some advice about her move to New York. Seems like that's what
    Betty said.
        Question: So Betty, Betty Currie suggested that Vernon Jordan meet
    with Monica Lewinsky?
        Answer: I don't know that.
        Question: I thought you just said that. I'm sorry.
        Answer: No, I think, I think, I think Betty told me that Vernon
    talked to her, but I, but my impression was that Vernon was talking to
    her about her moving to New York. I think that's what Betty said to me.
        Question: Did you do anything, sir, to prompt this conversation to
    take place between Vernon Jordan and Monica Lewinsky?
        Answer: I can tell you what my memory is. My memory is that Vernon
    said something to me about her coming in, Betty had called and asked if
    he would see her and he said he would, he said he would, and then she
    called him and then he said something to me about it . . .
        Question: My question, though, is focused on the time before the
    conversation occurred, and the question is whether you did anything to
    cause the conversation to occur.
        Answer: I think in the mean--I'm not sure how you mean the
    question. I think the way you mean the question, the answer to that is
    no, I've already testified. What my memory of this is, if you're asking
    did I set the meeting up, I do not believe that I did. I believe that
    Betty did that, and she may have mentioned, asked me if I thought it
    was all right if she did it, and if she did ask me I would have said
    yes, and so if that happened, then I did something to cause the
    conversation to occur. If that's what you mean, yes. I didn't think
    there was anything wrong with it. It seemed like a natural thing to do
    to me, But I don't believe that I actually was the precipitating force.
    I think that she and Betty were close, and I think Betty did it. That's
    my memory of it.
        6. Question: Have you ever asked anyone to talk to Bill Richardson
    about Monica Lewinsky?
        Answer: I believe that, I believe that Monica, what I know about
    that is I believe Monica asked Betty Currie to ask someone to talk to
    him, and she, and she talked to him and went to an interview with him.
    That's what I believe happened.
        Question: And the source of that information is who?
        Answer: Betty. I think that's what Betty--I think Betty did that. I
    think Monica talked to Betty about moving to New York, and I, my
    recollection is that that was the chain of events.
        Question: Did you say or do anything whatsoever to create a
    possibility of Monica Lewinsky getting a job at the U.N.?
        Answer: To my knowledge, no, although I must say I wouldn't have
    thought there was anything wrong with it. You know, she was a--she had
    worked in the White House, she had worked in the Defense Department,
    and she was moving to New York. She was a friend of Betty. I certainly
    wouldn't have been opposed to it, based on anything I knew, anyway.
        7. Question: How long has Betty Currie been your secretary?
        Answer: Since I've been president.
        Question: How is her work schedule arranged? Does she have a
    certain shift that she works, or do you ask her to work certain hours
    the following day? Please explain how her schedule is determined.
        Answer: She works, she comes to work early in the morning and
    normally stays there until I leave at night. She works very long hours,
    and then when I come in on the weekend, or on Saturday, if I work on
    Saturday, she's there, and normally if I'm, if I'm working on Sunday
    and I'm having a schedule of meetings, either she or Nancy Hernreich
    will be there. One of them is always there on the weekend. Sometimes if
    I come over just with paperwork and work for a couple of hours, she's
    not there, but otherwise she's always there when I'm there.
        Question: Have you ever met with Monica Lewinsky in the White House
    between the hours of midnight and six a.m.?
        Answer: I certainly don't think so.
        Question: Have you ever met----
        Answer: Now, let me just say, when she was working here, during,
    there may have been a time when we were all--we were up working late.
    There are lots of, on any given night, when the Congress is in session,
    there are always several people around until later in the night, but I
    don't have any memory of that. I just can't say that there could have
    been a time when that occurred, I just--but I don't remember it.
        Question: Certainly if it happened, nothing remarkable would have
    occurred?
        Answer: No, nothing remarkable. I don't remember it.
        Question: It would be extraordinary, wouldn't it, for Betty Currie
    to be in the White House between midnight and six a.m., wouldn't it?
        Answer: I don't know what the facts were. I meant I don't know.
    She's an extraordinary woman.
        Question: Does that happen all the time, sir, or rarely?
        Answer: Well, I don't know, because normally I'm not there between
    midnight and six, so I wouldn't know how many times she's there. Those
    are questions you'd have to ask her. I just can't say.
        8. There are two statutes regarding obstruction of justice that are
    relevant to the facts of this case: 18 U.S.C. 1503 which provides
    ``Whoever corruptly . . . influences, obstructs, or impedes, or
    endeavors to influence, obstruct, or impede, the due administration of
    justice . . .'' shall be guilty of the crime of obstruction of justice
    and 18 U.S.C. 1512 which provides ``Whoever knowingly . . . corruptly
    persuades another person, or attempts to do so, or engages in
    misleading conduct toward another person, with intent to--(1)
    influence, delay or prevent the testimony of any person in an official
    proceeding . . .'' shall be guilty of the crime of witness tampering.
        9. President's Grand Jury testimony, August 17, 1998, pp. 55-56.
        10. Ibid., p. 56.
        11. Ibid., pp. 131-2.
        12. There are two federal perjury statutes relevant to the facts of
    this case: 18 U.S.C. 1621 which provides that ``Whoever--having taken
    an oath before a competent tribunal, . . . or person, in any case, in
    which a law of the United States authorizes an oath to be administered,
    that he will testify, declare, depose, or certify truly, . . .
    willfully and contrary to such oath states or subscribes any material
    matter which he does not believe to be true . . .'' shall be guilty of
    an offense against the United States; and 18 U.S.C. 1623 which provides
    that ``Whoever under oath . . . in any proceeding before . . . any . .
    . court or grand jury of the United States knowingly makes any false
    material declaration . . .'' shall be guilty of an offense against the
    United States. A statement is material ``if it has a natural tendency
    to influence, or is capable of influencing, the decision of the
    decisionmaking body to whom it is addressed.'' A statement is no less
    material because it did not or could not confuse or distract the
    decision maker. In this case, the President made false statements to a
    grand jury investigating ``whether Monica Lewinsky or others suborned
    perjury, obstructed justice, intimidated witnesses or otherwise
    violated federal law other than a Class B or C misdemeanor or
    infraction in dealing with witnesses, potential witnesses, attorneys,
    or others concerning the civil case Jones v. Clinton.'' [January 16,
    1998 Order of the Special Division of the United States Court of
    Appeals for the District of Columbia Circuit to expand the jurisdiction
    of independent counsel Kenneth W. Starr.] The President's false
    statements strike at the very heart of what the grand jury was
    investigating--perjury and obstruction of justice--and are material.
        13. Grand Jury Testimony, President Clinton, 8/17/98, pp. 593-94.
        14. Question: So, touching, in your view then and now--the person
    being deposed touching or kissing the breast of another person would
    fall within the definition?
        Answer: That's correct sir.
        Question: And you testified that you didn't have sexual relations
    with Monica Lewinsky in the Jones deposition, under that definition,
    correct?
        Answer: That's correct, sir.
        Question: If the person being deposed touched the genitalia of
    another person, would that be and with the intent to arouse the sexual
    desire, arouse or gratify, as defined in definition (1), would that be,
    under your understanding then and now----
        Answer: Yes, sir.
        Question: --Sexual relations?
        Answer: Yes, sir.
        Question: Yes, it would?
        Answer: Yes, it would. If you had direct contact with any of these
    places in the body, if you had direct contact with intent to arouse or
    gratify, that would fall within the definition.
        Question: So, you didn't do any of those three things----
        Answer: You----
        Question: --With Monica Lewinsky?
        Answer: You are free to infer that my testimony is that I did not
    have sexual relations, as I understood this term to be defined.
        Question: Including touching her breast, kissing her breast, or
    touching her genitalia?
        Answer: That's correct.
        Grand Jury Testimony, President Clinton, 8/17/98, p. 94-95.
        15. These incidents occurred on November 15th, 1995 (Deposition
    Testimony, Monica Lewinsky, 8/26/98, p. 6, lines 22-25; p. 7, 11.1-21);
    November 17th, 1995 (Ibid., p. 10, 11.20-25; p. 11, 11.1-25); December
    31st, 1995 (Ibid., p. 16, 11.2-10); January 7th, 1996 (Ibid., p. 18,
    11.15-19); January 21st, 1996 (Ibid., p. 24, 11.11-23); February 4th,
    1996 (Ibid., p. 28, 11.23-25; p. 29, 11.1-20); March 31st, 1996 (Ibid.,
    p. 36, 11.2-24); April 7th, 1996 (Ibid., p. 39, 11.19-25; p. 40, 11.1-
    6); February 28th, 1997 (Ibid., p. 45, 11.23-25; p. 46, 11.1-15); and
    March 29th, 1997 (Ibid., p. 49, 11.5-14).
        16. See House Comm. on the Judiciary, 93rd Cong., Constitutional
    Grounds for Presidential Impeachment 18 (Comm. Print 1974).
        17. Quoted in Maxwell Taylor Kennedy, ed., Make Gentle the Life of
    This World: The Vision of Robert F. Kennedy. p. 106.

                                     ______

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Blanche L. Lincoln

        Mrs. LINCOLN. Mr. Chief Justice, I thank you for your
    thoughtfulness and patience in these proceedings. I apologize
    that my back is to you.
        I would also like to thank the majority leader and the
    minority leader. I have been awed by their patience--just as
    Job had the patience--to deal with all of us on our particulars
    that we have wanted to express here and the time constraints we
    have all felt. They have done a wonderful job in accommodating
    all of us and certainly giving these proceedings the dignity
    that I think all Americans have expected. I do appreciate that.
        As the youngest female Senator in the history of our
    country, as a farmer's daughter raised by the salt of the earth
    with basic Christian values, and as a young mother whose first
    priority in life is my family and the well-being of the world
    they live in, I regret that my first opportunity to speak on
    the floor of this historic Chamber is under these
    circumstances. And I am reluctant to speak here today. I had
    intended to wait until I had more experience under my belt
    before I addressed my esteemed colleagues here. You will find
    that I am not quite as eloquent, or as lengthy, as my
    predecessor; but I will work on that. But because of the
    historical aspects of this proceeding, I feel it is important
    that my thoughts and my judgments are expressed here today.
        I, like President Clinton and my colleague, Senator
    Hutchinson, grew up in a small town in Arkansas, the oldest
    city in Arkansas. My colleague expressed regret that the black
    and white of right and wrong is not as easy as it was growing
    up in that small rural community. I am reminded of the wisdom
    that my grandmother shared with me as a younger woman returning
    home from college. I sat on our back porch and I expressed to
    her my agony over what difficult times I was growing up in, and
    that she could not possibly know or understand because right
    and wrong were so much easier in her day. She quickly corrected
    me. Right and wrong becomes more difficult for each of us as we
    grow older, because the older we get the more we know
    personally about our own human frailties.
        I will not discuss the historical or the legal aspects
    about what we are doing here today and what we have been doing
    in these past weeks. I am not a lawyer; neither am I a
    historian. But I do want to thank each of you for your legal
    and your historical aspects, and the heartfelt wisdom and
    guidance that you have shared with me and with all of us as
    colleagues.
        I want desperately to cast the right vote for the people
    that I represent in Arkansas and for all the people of this
    great country. My heart has been heavy and I have deliberated
    within my own conscience, knowing that my decision should not
    come out of my initial emotion of anger toward the President
    for such reckless behavior, but should be based on the facts. I
    have approached this both as a parent and as a public servant,
    with the ultimate goal of doing what is right for our country.
    Since hearing of the President's misconduct, I have in no way
    tried to make excuses for the President or to defend such
    dishonorable behavior. I have tried to determine how we should
    communicate to our children and our Nation that this very
    visible misconduct is unacceptable.
        I have sought to reconcile in my mind what is appropriate
    condemnation of such action and what is the best course of
    action for the future of the Presidency and for this country.
    In my efforts to reach a fair conclusion, I have listened to
    the presentation of evidence from both sides. I have examined
    the historical intent of our Founding Fathers with regard to
    impeachment and my constitutional responsibility as a Senator--
    however young I may be. I have sought the counsel of
    colleagues, family, friends and constituents; and, of course, I
    have prayed for guidance for myself and for our country.
        My home State of Arkansas has been under the scrutiny of a
    powerful microscope these past 6 years and, yes, regardless of
    how closely we may be viewed, any of us, character does count
    in each and every one of us. But who of us in this Chamber does
    not have a chapter in our individual books of life that we
    might be ashamed of or might regret--a chapter that might be
    revealed under such a powerful microscope, something we might
    be so ashamed of that we might mislead others to spare our
    families, our very children, the pain and sorrow?
        Many have referenced what they would do if another
    President of their own party were in this situation, and they
    have indicated that they would still vote the same.
        But the true test, I say, is what each of us would want
    done if we were in this President's position. How would we want
    to be treated? And who of us would not go to great lengths to
    protect our children and our families from the pain and
    embarrassment that we have seen over the course of these years?
        I have also heard many people say that the President should
    be removed from office because he set a poor example for our
    children. It is all of our responsibility to set an example for
    our children. It is not just the President's. Ultimately, my
    husband and I have the responsibility to teach our children.
    And we will teach our children that misconduct is unacceptable.
    The President's conduct, however troubling, does not take away
    my responsibility to teach what is right to my children. Future
    generations depend on each of us--not just the President--to
    teach and to lead.
        Many are amazed that the general public, although they
    believe that the President's behavior was wrong, does not want
    him removed from office. I am not so amazed by this as I find
    it reassuring. This expression of humanity and forgiveness from
    the real-life people of this Nation who we represent reassures
    us that in our highly technical, fast-paced and somewhat
    impersonal society, we as a country but, more importantly, we
    as human beings, are still equipped to handle this or any other
    situation.
        It is striking to me that we are at a crossroads in our
    Nation at this entrance into the 21st century. We are being
    tested--not by war or by pestilence--but by conflict that is
    our own trouble from within. This requires us to reflect on not
    only the lessons we have learned but, more importantly, those
    that we want to leave. These lessons should not only
    demonstrate how we as a country prosper, or how our people
    advance, but how we treat and relate to one another as
    individuals.
        So today, after much careful thought and deliberation, I
    have come to the conclusion that the President's actions, while
    dishonorable, do not rise to the level of an impeachable
    offense warranting his removal from office. Impeachment was
    never intended to be a vehicle or a means of punishment. And
    the standard to prove high crimes and misdemeanors has not been
    met by the disjointed facts strung together by a thread of
    inferences and assumptions that were presented here.
        I have and will support a strong bipartisan censure
    resolution that tells the President and this Nation that the
    President's misconduct with a subordinate White House employee
    was deplorable, and that future generations must know that such
    conduct will lead to a profound loss of trust, integrity and
    respect. I believe there has to be consequences here not only
    to demonstrate that something wrong has been done but to
    finally bring closure to this ordeal, not just for us but also
    for the American people.
        Above all else, I believe we have been entrusted not only
    to be judges and jurors in this trial, but we have also been
    entrusted with the last word. Senator Kerrey from Nebraska
    spoke strongly to this--that the last word from this body's
    collective voice should be a chorus, loud and clear, of how
    great this land and our people are.
        The President, actually in his own words from his 1993
    inaugural address, aptly replied. He said, ``There is nothing
    wrong with this country that cannot be fixed by what is right
    with this country.''
        The most important thing we can do in the last days of this
    trial is to present the good in the U.S. Senate, in our
    Government, and in our Nation for the sake of our children and
    future generations. I hope and pray that in the following weeks
    this body will grasp the leadership role and to begin the
    process of healing our Nation, restoring pride in our
    Government, and inspiring faith in our leaders once again.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Jesse Helms

        Mr. HELMS. Mr. Chief Justice, 26 years ago this past
    November, I was first elected to serve as a U.S. Senator from
    North Carolina. I had not believed it possible that I would be
    the first Republican directly elected to the U.S. Senate by the
    people of North Carolina.
        I have often told many of the thousands of young people
    with whom I have visited during the past 26 years that one of
    three commitments I made to myself on that election night in
    November 1972 was that I would never fail to see a young
    person, or a group of young people, who want to see me.
        That was one of the most meaningful decisions I ever made.
    I am told that I have met with something in the neighborhood of
    almost 70,000 young people according to our records for the
    past 26 years.
        These are wonderful young Americans and I am persuaded that
    they are by all odds the most valuable treasure held by our
    country.
        For the better part of the past year, these young people
    have almost without fail asked me about what they described as
    ``the problems'' of President Clinton. The vast majority of the
    time, the young people have talked about the moral and
    spiritual principles so deeply etched in the hearts of those
    patriots whom we today call our Founding Fathers--or the
    framers of our Constitution--or both--when America was created.
        So in the first few weeks of this new year, 1999, I have
    begun my remarks to the young visitors with the recitation of
    two statements that I sincerely believe have much to do with
    whether--and how--this blessed Nation can and will survive.
        The first statement: ``A President cannot faithfully
    execute the laws if he himself is breaking them.''
        The second statement: ``The foundations of this country
    were not laid by politicians running for something--but by
    statesmen standing for something.''
        The first statement was voiced by a former distinguished
    Democratic U.S. Attorney General of the United States, the
    Honorable Griffin Bell.
        The second was sent to me at Christmastime by a friend
    whose name and voice I suspect is familiar to most if not all
    Senators, my dear friend, George Beverly Shea, who for so many
    years has thrilled and inspired millions as he stood beside
    Billy Graham and singing, with that remarkably deep voice,
    ``How Great Thou Art.''
        Our trouble today is that the American people every day
    must choose between what is popular and what is right. There is
    a constant deluge of public opinion polls telling us which way
    to go, almost without fail showing the popular way.
        But I must put it to you that we will, at our own peril,
    look to opinion polls to decide how we vote, when the real need
    is to look to our hearts, to our consciences and to our soul.
    So many decisions are made in the Senate--be it on the fate of
    treaties, or legislation, or even Presidents--decisions having
    implications, not merely for today, but for generations to
    come, reminding that if we don't stand for something, the very
    foundations of our Republic will crumble.
        Perjury and obstruction of justice are serious charges, as
    nobody knows better than you, Mr. Chief Justice, charges that
    have been proved during the course of this trial. Therefore,
    the outcome of this trial may determine whether America is
    becoming a fundamentally unprincipled nation, bereft of the
    mandates by the Creator who blessed America 210 years ago with
    more abundance, more freedom than any other nation in history
    has ever known.
        There is certainly evidence fearfully suggesting that the
    Senate may this week fail to convict the President of charges
    of which he is obviously guilty. What else can be made of the
    behavior of many in the news media whose eyes are constantly on
    ratings instead of the survival of America?
        This trial has been dramatized as if it were a Hollywood
    movie trivializing what should be respected as our solemn duty.
        The new media technology is creating an explosion of media
    outlets and 24-hour news channels--and a brand new set of
    challenges.
        A friend back home called me after an impressive
    presentation by one of the House managers and said, ``You know,
    Jesse, I found Asa Hutchinson persuasive. But I had to tune
    into CNN to see whether it was effective--because I knew
    without the media's immediate stamp of approval, it wouldn't
    make a damn bit of difference.''
        He had a valid point. Mr. Chief Justice, the awesome power
    of the media with its instant analysis is frightening. A
    political event occurs. The TV commentators immediately offer
    their lofty opinions; overnight surveys are taken and many
    politicians are all too often cowed into submission by poll
    results.
        In these proceedings, the House managers of course provided
    a forest of evidence clearly indicating that the President of
    the United States perjured himself before a Federal grand jury
    and obstructed justice. The imaginative White House attorneys
    of course chopped down a few trees here and there--and then
    proclaimed that the whole forest had burned down. The press
    gallery bought that whole concept.
        Some years ago, there was a western movie starring Jimmy
    Stewart and John Wayne called ``The Man Who Shot Liberty
    Valance.'' Jimmy Stewart portrayed a tender-footed young lawyer
    who ran afoul of the local outlaw, Liberty Valance.
        Through a twist of fate, the character played by Jimmy
    Stewart received credit for ridding the county of the outlaw,
    even though it was John Wayne's gun that brought Liberty
    Valance down. Yet it was Stewart who rode public acclaim into a
    political career in the U.S. Senate, while Wayne's character
    faded into obscurity.
        Late in life, Stewart's character, still a Senator,
    returned from Washington to attend John Wayne's funeral.
    Stewart felt guilty, of course, that the truth of Wayne's
    heroism remained untold. He related the entire story to the
    local newspaper, only to find the editor totally disinterested.
        ``When the legend becomes fact,'' the editor said, ``print
    the legend.''
        With its vote on articles of impeachment, the U.S. Senate
    is preparing to add to the legend of this whole sordid episode,
    Mr. Chief Justice. We have the facts before us and we should
    heed those facts because truth must become the legend.
        We must not permit a lie to become the truth.
        A couple of weeks ago, a Falls Church Episcopal minister,
    the Reverend John Yates, delivered a remarkable sermon to his
    parishioners. The Reverend Dr. Yates had this to say about
    lying--and liars:

        . . . if a person will lie, and develops a pattern of lying as a
    way of life, that person will do anything. Someone who becomes good at
    lying loses his fear of being discovered and will move on to any number
    of evil actions. He becomes arrogant and self-assured. He comes to
    believe he is above the law. You should fear people like this. If such
    a person is caught red-handed in a lie and confronted with the
    evidence, that sort of man or woman will be forced to admit it, but he
    won't like it. It will make him angry and vengeful. He will do all he
    can to move and leave it behind. It's what the Bible calls evidence of
    a seared conscience, not a sensitive conscience, but a seared
    conscience.

        If we allow the lies of the President of the United States
    of America to stand, Mr. Chief Justice, then I genuinely fear
    for America's survival.
        Shortly before his death, Senator Hubert Humphrey visited
    this Chamber for the last time. He knew it was the last time;
    we knew it was the last time. Hubert's frail body was wracked
    with cancer, his steps were halting, his voice feeble. But as
    he walked down the aisle, Hubert saw me standing at my desk
    over there. He walked over to me, arms outstretched. Tears
    welled up in my eyes as Hubert hugged me softly saying, ``I
    love you.''
        I loved Hubert Humphrey too, Mr. Chief Justice, and I told
    him so.
        Hubert and I disagreed on almost all policy matters, large
    and small. Often Hubert got the better of me in debates, a few
    times I did it to him. But I loved Hubert Humphrey because we
    agreed on so much more--duty, honor, patriotism, faith and
    justice, the very essence of America.
        But we are obliged to ponder: What is the essence of
    America now? Public life once was about honest debate on the
    merits, but it is now often a debate on the merits of honesty.
    And it was the President of the United States who brought us
    where we are today.
        In November of 1955, a young editor named William F.
    Buckley undertook an ambitious mission, now completed. Bill had
    decided to start a conservative journal of ideas that would
    fuel an entire political movement.
        In his ``Publisher's Statement,'' printed in the very first
    edition of National Review, he declared that his magazine
    ``stands athwart history yelling `Stop!' ''
        Mr. Chief Justice, I plead with Senators to look around and
    see what Bill Clinton's scandal has wrought. National debate is
    now a national joke. Children tell their parents and teachers
    that it's OK to lie, because the President does it. Our
    citizens tune out in droves, preferring the daily distractions
    of everyday life to an honest appraisal of the depths to which
    the Presidency of the United States has sunk.
        If this is progress and if this is the path history is
    taking, the Senate does have an acceptable alternative.
        We simply must summon our courage and yell, ``Stop
    tampering with the soul of America.''
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Ernest F. Hollings

        Mr. HOLLINGS. Mr. Chief Justice, I shall vote with a clear
    conscience not to convict; rather, to acquit. I have no better
    authority, of course, than my own Congressman, the manager,
    Lindsey Graham, when asked--and I will never forget it--by the
    Senators from North Carolina and Wisconsin: ``Under the law and
    the facts as then submitted at the end of the presentation,
    could reasonable people find differently with respect to
    guilt?'' and Congressman Graham said, ``Why, of course,'' that
    reasonable people could differ. And when the manager says there
    is reasonable doubt, that ends the case.
        But let's remember that the impeachment clause is not
    intended to punish the President, but to protect the Republic.
    And the mistake in this entire presentation on both sides, in
    my judgment, has been that they have been trying a criminal
    case rather than a political case. What is really for the good
    of the country? I go to the understanding of the impeachment
    clause with respect to the author himself, George Mason, who
    said, ``must be guilty of high crimes and misdemeanors against
    the State.'' And Justice Story, in the midcentury, said that
    you could only impeach a President for conduct that only the
    President could engage in.''
        I will never forget, when they gave us the booklet, in the
    Nixon impeachment, by the eminent professor of constitutional
    law, Charles Black, he said that ``an impeachable offense must
    constitute a deep wrong to the country, an abuse of
    Presidential power.'' Everybody is talking about the polls and
    I think they are significant. When 80 percent of the people
    believe the President lied, and I believe he did--not on the
    perjury charge, and not on the obstruction of justice, of
    course, but I believe he lied--and 80 percent of the people
    believe he lied, but 70 percent of the people said keep him
    there. Why? Because there wasn't a deep wrong to the country.
        Let's get to it. Fooling around--that was what Monica
    Lewinsky called it--seen as sex or not, is not a crime. In
    fact, actual intercourse constitutes adultery, a crime with
    which the managers, I would say, are very familiar.
        We must remember that the fooling around was between
    consenting adults, both of them sexually experienced.
    Incidentally, in private both of them are admitted liars. The
    President said he lied. Monica said that she grew up lying, was
    taught to lie.
        But the managers said, ``Oh, this isn't about sex, this is
    about crime.'' Really? I have been at the law too long. A sues
    B for the crime of adultery, sexual misconduct. A and B both
    swear under oath and through their pleadings and their
    testimony and not before a halfway grand jury. I always
    wondered, what if prosecutors went under oath before a grand
    jury? We would have to build new courthouses. But be that as it
    may, they swear under oath in testimony before the judge who is
    trying the case on its merits, and A or B loses--whoever the
    loser--are they taken over to criminal court and charged for
    lying under oath and obstruction of justice?
        I called a prosecutor in Congressman Graham's district, an
    18-year experienced prosecutor, a Republican, George Duckworth.
    I said, ``George, have you ever taken lying under oath and
    obstruction of justice for sexual misconduct--have you ever
    taken that to criminal court?'' He said, ``It's never
    happened.''
        I then went to the chief of all the State prosecutors, John
    Justice, who happens to be from my State, and he said he had
    never heard of it.
        So we are beginning to get to really what is going on, and
    that is not to say, whoopee, everybody lies about sex and we
    can go ahead and do that. We are not saying that at all,
    because the President can be charged with it, as anybody can.
    It might be a rare case, but we ought to remember, rather than
    that one witness that they found--and I guess they will find
    another one--but the Republican district attorneys who
    testified on the House side, the deputy attorney general in
    charge of the Criminal Division, William Weld, they said they
    would never bring the case.
        This case never should have been brought. Any respectable
    prosecutor would have been embarrassed actually to so charge.
        I will never forget when this commenced, David Pryor, the
    Senator from Arkansas almost 4 years ago, said: Wait a minute,
    41 TDY FBI agents coming from one side of Arkansas to the
    other, 81 support personnel, asking, Did you ever sleep with
    Bill Clinton? Do you know anybody who slept with him? I heard
    you know. We're going to take you before the grand jury.
    Locking up witnesses who did not testify to what they wanted
    attested to, paying off others and securing them and hiding the
    witnesses, and on and on; and thereafter subpoenaing the mother
    in tears; the Secret Service, the White House steward, the
    bookstore; some 4\1/2\, 5 years and $50 million. And they come
    up with private sexual misconduct, in privacy. I know it is a
    public office. It is a public office, but we operate in private
    in our own offices. To make this thing public after all of that
    expense and effort, I would be embarrassed as a prosecutor to
    bring it.
        But not Kenneth Starr. He wasn't embarrassed. He should
    never have taken it. A member of the Kirkland & Ellis law firm
    that had an interest in the case, the Jones case, was
    participating at the time. Instead of recusing himself, he
    immediately started pursuing that case with the official hand
    of government.
        Three years ago, seven former independent prosecutors
    expressed dismay at Starr's ethics. He was representing private
    clients inimical to the defendant, our President. The New York
    Times and other newspapers editorialized that he ought to step
    aside. But instead of removing himself, he continued to talk to
    political groups, all the time leaking information and, yes,
    holding up his findings after 4\1/2\ years until after the
    election and saying he found nothing with respect to Filegate,
    Travelgate, Whitewater, or any of the other cases for which he
    was commissioned--no embarrassment at all.
        He injected himself so in the House proceedings to where
    finally his ethics advisor, Sam Dash--who, of course, had been
    the principal participant in Watergate--had to resign. Then he
    injected himself over here on the Senate side, and last
    weekend, during a key moment, of course, he said he was going
    to bring a criminal indictment. He leaked that information.
        So now we have the Justice Department investigating the
    independent prosecutor for his misconduct in the way he treated
    the main witness with respect to her access to counsel. And you
    have an 8-1 vote in the American Bar Association, which has
    been inserted; they say let this independent prosecutor thing
    die.
        Yes, we have, like Bryant said, broad overreaching of
    power. Not by Clinton. He got into an elicit affair, and he
    tried like everybody else to cover it up. They sought to
    characterize it as lying, lying, lying, lying under oath. We
    had the chief of the managers; he lied not just from January
    until August, but 30 years--and others over there. The
    hypocrisy of that crowd.
        Yes, we had broad overreaching of powers, mindful, of
    course, of the reason that we declared our independence 223
    years ago--``sending hither swarms of officers to harass our
    people and seek out their substance.'' We have it now, and we
    have a chance to try it. We have an impeachment case, but we
    are trying to impeach the wrong person. That is why the
    American people are as concerned as they are. That is what you
    find in the polls that we keep talking about.
        Let's understand, of course, that President Clinton debased
    the Office of the Presidency, but let's say once and for all
    that we are not going to have the political hijacking of the
    Office of the Presidency. Let's be certain when we vote this
    week that we don't debase the Constitution.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                         Statement of Senator Ron Wyden

        Mr. WYDEN. Mr. Chief Justice, our leaders, Senators Lott
    and Daschle, my colleagues, my friends, I doubt that I will
    ever know what the President of the United States was up to
    when he lied to Betty Currie about the nature of his
    relationship with Monica Lewinsky. Did the President lie to Ms.
    Currie because he didn't want her to know the truth about the
    affair? Did the President lie because he wanted her to defend
    him to the White House staff? Did the President lie because he
    wanted her to repeat those lies under oath? I doubt that I am
    ever going to get the real answer to those questions.
        But I believe I do know why it has been excruciatingly
    difficult for the U.S. Senate to get to the bottom of the
    Currie controversy and several others that we have been
    wrestling with for weeks now. If I might paraphrase a legal
    doctrine, this impeachment has become the fruit of a poisonous
    tree. This impeachment is a deadly plant that has flowered in
    the toxic soil of partisanship.
        Given the highly contentious nature of the charges against
    the President, there is no question in my mind that the
    congressional leadership should have first established a
    bipartisan process for investigating the serious allegations.
        It is my view that had the Founding Fathers decided that
    the first step in the impeachment process would be taken by the
    U.S. Senate, Senator Lott and Senator Daschle would have
    produced a truly bipartisan inquiry, and we would have been
    able to find common ground on several of the key issues. I
    don't think it would have produced a string of 100-0 votes, but
    I believe that we would have had a more bipartisan result than
    what we are going to see at the end of these deliberations. But
    this process began elsewhere. And I only want to make one
    comment about the House.
        In my view, the House didn't even try to locate the common
    ground. And I use that word ``try'' specifically because it is
    one thing to work your head off and not be able to bring people
    together. We have all been there. But that is not what went on
    in the House. They didn't even try to come together. It has
    been well documented, for example, that the Speaker of the
    House and the House minority leader went for months at a time
    without even talking to each other. I am not going to assign
    fault to one or the other, but the fact is that by the end of
    last year, our two major political parties were at war with
    each other over the allegations against the President.
        This toxic partisanship is not, in my view, what public
    service is all about. I am a Democrat, for good reasons; and
    there are sincere, important differences of philosophy on
    issues between Senators on the respective sides. But I have
    always felt doing what is right is more important than adhering
    to party dogma, and that is what I wanted to do in this matter.
        The framers of the Constitution tried to give us a heads-
    up, a warning about how the impeachment process could become
    unduly partisan.
        Alexander Hamilton, in Federalist No. 65, said that the
    types of crimes for which impeachment is the appropriate remedy
    are ``political.'' And he added, ``the prosecution of them, for
    this reason, will seldom fail to agitate the passions of the
    whole community, and to divide it into parties, more or less
    friendly, or inimical, to the accused.''
        Thomas Jefferson, after almost having been kept from office
    in a partisan maneuver to replace him with Aaron Burr, set a
    deeply moving tone for looking beyond partisan confrontation in
    his first inaugural address.
        My colleagues and friends, it doesn't have to be all
    partisan all the time. There is an alternative to slash-and-
    burn government. And it is a topic, I regret to say, about
    which I know a fair amount.
        I won a very, very bitter Senate campaign against a man I
    am proud to call my friend, my colleague, Senator Gordon Smith.
    Our part of the country had never seen a campaign so
    relentlessly negative. The whole country was watching the race
    to succeed Bob Packwood, but our campaign didn't enlighten very
    many people. It brought out the worst in us. I was so disgusted
    with it and what I had become, that with only a few short weeks
    to go in the campaign I got rid of all my ads and basically
    started over.
        Shortly after Senator Smith won his election, we got
    together and talked about how we regretted the bitter nature of
    the campaign and what we had become. We decided from that point
    on we would put the greater good, that of the people of Oregon,
    before any differences we might have. The New York Times has
    started to call us the ``odd couple''--a Jew from the city, a
    Mormon from the country. What kind of odds would you have given
    for that kind of relationship? But it works.
        The votes that we are going to cast now are in little
    doubt. So I wish to express my concern that as the Senate
    completes its work on impeachment that we have the ability to
    come back and tackle our other constitutional responsibilities
    in a bipartisan fashion.
        The public is tired of us being at each other's throats.
    They are tired of beltway politics that places toxic
    partisanship over the public interest. Gordon Smith and I found
    out the hard way, and they are right.
        Perhaps even at this late hour we can find our way to a
    little miracle and wrap up this impeachment debate through a
    bipartisan statement that makes it clear that each of us finds
    the President's conduct repugnant. If we miss that chance,
    let's keep looking for every possible opportunity to come
    together.
        Senator Frist and I have a bipartisan education bill. No
    speeches about that now, but every Governor in the country is
    for it. My point is that this impeachment process has brought
    us to a critical moment in our history. We can either rise to
    the occasion by forging new and healthier ways to deal with our
    differences, or we can sink from the collective weight of a
    partisan mess that we have all helped to create.
        In arriving at my decision in this case, I kept coming back
    to the reality that Congress has not once removed a President,
    not once in 211 years. The Constitution places the burden for
    such a grave step very high. Such a showing is not only to
    protect our Nation from partisan prosecution, but also to
    impose safeguards that are necessary, given the severity of the
    potential punishment--a political death penalty, as House
    Manager Lindsey Graham said.
        When I say ``punishment,'' I am not only referring to the
    punishment imposed on the President, but in particular to the
    destructive impact of such an action to our Nation as a whole.
    The House managers did not, in my view, prove their case beyond
    a reasonable doubt. In my opinion, they didn't get particularly
    close.
        As stated earlier, I do find the President's lying to Betty
    Currie about his relationship with Monica Lewinsky to be very,
    very disturbing. The House managers have a hunch that the
    President's intent was criminal. To borrow from House Manager
    Graham, they think it is likely he was up to no good. My
    friends, hunches are not impeachable, nor should they be. If
    the evidence required to convict a President of the United
    States in an impeachment trial is allowed to be less than that
    required in a shoplifting trial, the constitutional foundation
    for the Presidency will disintegrate before our very eyes. That
    is something that a few future Presidents in this body ought to
    consider for just a moment.
        Today I am going to vote to acquit on both counts. But I
    don't want that to be my final contribution today.
        I had a lot of farfetched dreams as a boy, but never once
    did I dream that I could serve with all of you on the floor of
    the U.S. Senate. My parents fled Nazi Germany, and not all of
    my family got out. We lost family in Hitler's brutal
    Kristallnacht. So you might understand how I grew up revering
    the greatness of America and the institutions of our democracy.
        I will tell you, I never, ever believed that some skinny
    fellow with modest oratorical skills and a face for radio--
    [laughter]--could have a chance to serve in the U.S. Senate.
        What I want to be able to tell my grandchildren is that
    this was the point in American history where we drew a line in
    the sand and said ``no more'' to the excessive partisanship. A
    time when we said ``no more'' to a brand of politics that each
    of us knows is bringing out the worst in good people. We have
    good leaders in the U.S. Senate--in Trent Lott, in Tom
    Daschle--who have shown, in the last month, just how hard they
    are willing to work to bring us together.
        My friends, let the toxic partisanship end. Let it end
    here, and let it end now.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                       Statement of Senator Gordon Smith

        Mr. SMITH of Oregon. Mr. Chief Justice, colleagues, first
    let me thank the Chief Justice for the dignity he has lent to
    this trial. I have so appreciated the keenness of his intellect
    and the fairness of his spirit.
        I also join the Senator from Mississippi in thanking these
    two magnificent men who lead this Chamber. I express to you, my
    colleagues, the genuine affection that I feel for each of you.
    I am often asked the question, who do you like and who do you
    dislike? The ones I especially like are very easy to name; and
    then when it comes to those I dislike, I cannot name one. I
    genuinely thank you for allowing me to participate with you in
    this difficult and historic time.
        I want to also thank my colleague, Ron Wyden, for his
    comments about me yesterday. When Ron and I ran for the
    Packwood seat, I think America--and certainly Oregon--saw one
    of the most difficult and mean elections in the history of our
    State. Yet since that time, when I won the Hatfield seat, Ron
    and I have become friends. It was a remarkable thing to both of
    us that by doing something as simple as having a joint town
    hall meeting, Republican and a Democrat from the same State, it
    led to a full-page story in the New York Times. That is a sad
    commentary.
        The truth is that if Ron Wyden and I can become friends and
    do things to the credit and benefit of our State, so can you
    all. I actually believe this trial will bring us closer
    together over time, and I hope will lay a foundation for some
    very good work in the 106th Congress.
        Today, as Oregon's other Senator, I will cast two votes to
    convict and remove the President of the United States. Reaching
    this verdict has been a very difficult ordeal for me, and I
    would like to tell you why. This Mr. Smith did not come to
    Washington, DC, to oppose President Clinton. Indeed, over the
    last 2 years there have been many issues, ranging from the
    expansion of NATO to the promotion of free trade and the fight
    against big tobacco, in which I have supported him and worked
    closely with him. As I have met with President Clinton in his
    office, traveled with him aboard Air Force One, he has
    consistently treated me with great civility and has often
    inspired me with his eloquence.
        To be in his presence is to experience the magic of his
    enormous personal and political talents. It is the magnitude of
    his talents that makes the magnitude of his misdeeds so
    disappointing. There can be no doubt that President Clinton's
    conduct has made a mockery of most of his words, or that his
    example has been corrosive beyond calculation to our culture
    and to our children. These personal conclusions, however, do
    not provide a constitutional basis for his removal. Only his
    high crimes could justify such a vote.
        As you know, the House of Representatives argued two
    articles of impeachment to us. Article I alleged four instances
    of perjury before a grand jury; article II alleged seven
    instances of obstruction of justice.
        The House managers presented us with volumes of direct and
    circumstantial evidence, and the White House lawyers worked
    skillfully to plant the seeds of reasonable doubt. But as the
    trial progressed, I found that these seeds of doubt could only
    grow in proportion to my ability to suspend common sense. I
    struggled throughout the trial to find a way to acquit the
    President, if possible, on both or at least one of the
    articles. But in the end, the facts kept getting in my way: the
    stained blue dress; the Dick Morris poll asking whether the
    President could get away with perjury; Monica in tears in the
    Oval Office being told she could not come back to the White
    House; and then being threatened that it is a crime to pressure
    the President in that way.
        These facts and so many, many more led me to the logical,
    inescapable conclusion that what began as private indiscretions
    became public felonies. It is even more ironic to me that I had
    not made up my mind on article I until Mr. Ruff was in his
    closing arguments. We had just seen a videotape of Mr.
    Blumenthal saying that what he had been told was a lie, and we
    saw Mr. Ruff play the videotape of Mr. Clinton's grand jury
    testimony in which he said, ``What I told him was truthful but
    misleading.'' That was a lie. And it was to a grand jury. It
    revealed the calculations of his mind to obstruct justice. So
    common sense caught up with this juror.
        Having concluded that the President did, indeed, commit
    perjury and attempt to obstruct justice, I had to ask if these
    offenses were high crimes and misdemeanors as contemplated by
    the founders of this Nation. Like many of you, I found answers
    and comfort in the Federalist No. 65 written by Alexander
    Hamilton speaking directly to the ultimate power of
    impeachment. You remember his words; I won't repeat them. They
    will be in the Record many times.
        When Senator Moynihan speaks, he is kind of like E.F.
    Hutton to me--I listen. He had a wonderful statement yesterday
    about the kinds of impeachable offenses. He cited the example
    of Justice Chase and President Johnson.
        Senator Moynihan said that they were nearly impeached for
    their opinions, and to have done so would have been wrong. But
    it is not Bill Clinton's opinions that affect my vote, it is
    his conduct.
        Now, what is his conduct here? Last night, I think we all
    saw a brilliant statement by Senator Edwards. I think we saw
    firsthand why he has made so much money talking to jurors. We
    are seeing right now why I had to make my money selling frozen
    peas. I went through the same calculations as Senator Edwards,
    but I want to point out to you some very different reasoning
    that led me to come down on the other side. See, Senator
    Edwards is talking about what you do when you talk to a jury
    about taking someone's life or their liberty. That is not what
    we are doing here. We are talking about protecting the public
    trust, protecting the Constitution. So the arguments that he
    made ultimately aren't the ones that we ought to be using to
    decide whether to remove President Clinton from office.
        Now, what was so bad about President Clinton's conduct? The
    scales that Senator Edwards spoke to us about, the fulcrum of
    justice, won't work if President Clinton's conduct is
    sanctioned by this body or by any court. What President Clinton
    did was an attack on the Government, and specifically on the
    judicial branch of Government. You see, the courts aren't
    supposed to write law, though, Mr. Chief Justice; they do too
    much of that. The courts don't have any power to raise taxes or
    appropriate money, and they can't raise an army or send a navy.
    They can find the truth and act upon the truth. And if what
    Bill Clinton did is OK, then we have weakened the weakest of
    the branches of our Government, and that is a high crime under
    the Constitution.
        I mentioned Mr. Hamilton. I think it is worth noting again
    that after the publication of Federalist No. 65, he became the
    Secretary of the Treasury for President George Washington. He
    also became involved in an adulterous relationship with a woman
    named Maria Reynolds. Her husband, upon learning of the affair,
    demanded of Mr. Hamilton a job at the Treasury Department in
    exchange for keeping his silence and keeping Mr. Hamilton from
    personal humiliation and political scandal. Hamilton refused
    Mr. Reynolds a position on the public payroll, but he agreed to
    pay him blackmail from his personal funds. News of this
    arrangement soon found its way to Mr. Hamilton's opponents.
    When confronted, without being under oath, Hamilton confessed
    the truth and the whole truth. He knew and respected the
    boundaries between the public and the private. He wrote them
    down for our country, and he lived his life within those
    boundaries, never veering recklessly over the line of
    impeachability.
        Consider the painful contrast this creates when measured
    against the public life of President Clinton. When his
    scandalous conduct with a subordinate female became entwined
    with another woman's civil rights action against him, which a
    unanimous Supreme Court ruled that she had the right to bring,
    President Clinton set about to cover himself by lying to his
    staff, to his Cabinet, to the Congress, and to the country. And
    then, as the evidence so clearly shows, it demonstrates that
    when brought to court--the weakest of our branches of
    Government--and placed under oath, he lied again and again and
    again.
        In the end I suspect this place is going to divide pretty
    much down the middle. I simply sound a warning note to raise
    your awareness to the fact that, ultimately, history and
    biographies and accounts yet to be revealed, facts yet to be
    uncovered, shoes yet to drop, will determine which of us voted
    right. But we have to decide on the evidence today, and the
    evidence to me is clear. Soldiers and sailors are discharged
    and punished for far less than what the President did. And
    judges are impeached by the House and removed by the Senate for
    far less than this. Indeed, we have to ask, is the President to
    be held to a lower standard than those he sends to war or those
    he appoints to dispense justice? I cannot and I never will
    agree to such a low standard for the Presidency of the United
    States.
        Pollsters tell me how strongly Americans and Oregonians
    feel about this case and how conflicted their feelings. Large
    majorities have concluded that the President is guilty of the
    felonies charged. Yet large majorities have also concluded that
    they do not want him to be removed from office. These numbers
    remind me that the demands of justice are sometimes hard. I
    hope, however, that we remember obedience to the law will
    protect our liberties as nothing else can.
        You see, political prisoners around the world look to the
    United States for hope, not because we have a popular
    President, but because we have laws to protect us from a
    popular President. If the President of the United States is
    allowed to break our laws when they prove embarrassing to him
    or conflict with his political interests, then truly some
    public trust has been violated, a trust which, as Hamilton
    says, ``relates chiefly to injuries done immediately to society
    itself.''
        These felonies are impeachable offenses, and the
    Constitution makes our duty clear, even though it appears harsh
    and difficult. When the Chief Justice calls my name, ``Senator,
    how say ye?'' I will say ``guilty'' twice because I refuse to
    say that high political polls and soaring Wall Street indexes
    give license to those in high places to act in low and illegal
    ways. Perjury and obstruction of justice are high crimes, and
    they are utterly inconsistent with any Federal office--ours as
    well, but especially with the office of the President of the
    United States.
        I harbor no illusions that two-thirds of the Senate will
    vote as I will. Therefore, I hope the President will spend the
    balance of his office repairing the damage done to his family,
    our democratic institutions, and our country. I will continue
    to support his proposals when I believe they are right, and I
    will oppose them when I believe them to be wrong.
        The other man in this Chamber that I deeply regard--and
    because I am so junior I do it from a distance--is Senator
    Robert Byrd. I have appreciated his public struggle with this
    issue because it has validated my own struggle. When he said
    this last week on ``This Week with Sam Donaldson and Cokie
    Roberts,'' he could have been speaking my words: ``We have to
    live with the Constitution. We have to live with our
    consciences.'' And so do I.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                        Statement of Senator Chuck Hagel

        Mr. HAGEL. Mr. Chief Justice, I write this statement at my
    desk on the floor of the U.S. Senate. After weeks of listening,
    reading, reviewing, reflection, analysis and contemplation, I
    have come to the conclusion that I will vote to convict the
    President on both articles of impeachment.
        The Constitution is very clear. It requires Members of the
    U.S. Senate to vote for or against each article of impeachment.
    No improvising. No substitutions. No censures. No findings of
    fact. The completeness of the charges against the President is
    powerful. The issue is abuse of power. Did the President abuse
    his power and therefore violate the Nation's trust in him? We
    must remember that trust is the only true currency elected
    officials have.
        Perjury and obstruction of justice are not just Federal
    crimes. When committed by an elected official they are abuses
    of power. When committed by a President, they constitute an
    abuse of the highest power. The standards and expectations for
    America's elected officials cannot be calibrated. When elected
    officials bring down those standards and expectations and
    violate the people's trust . . . they rip the very fabric of
    our Nation. There is then a dishonoring of the spirit that is
    the guardian of American justice.
        There can be no shading of right and wrong. The complicated
    currents that have coursed through this impeachment process are
    many. But after stripping away the underbrush of legal
    technicalities and nuance, I find that the President abused his
    sacred power by lying and obstructing justice. How can parents
    instill values and morality in their children? How can
    educators teach our children? How can the rule of law for every
    American be applied equally if we have two standards of justice
    in America--one for the powerful and the other for the rest of
    us?
        What holds this Nation, this society, this culture,
    together? Yes, laws are part of it. But it is really the strong
    moral foundation anchored by values and standards--the
    individual sense of right and wrong, personal responsibility,
    accountability for one's actions. This is what holds a free
    people together. Respect for each other--not because a law
    dictates that action--but rather because it's the right thing
    to do.
        The President violated his constitutional oath and he broke
    the law. His crimes do rise to the level of high crimes and
    misdemeanors prescribed in the Constitution. The President's
    actions cannot be defended by dancing on the pinhead of legal
    technicality. Every American must know actions have
    consequences. Even for Presidents. All Americans must have
    faith in our laws and know that there is equal justice for all.
    The core of our judicial process is the rule of law.
        Americans deserve to always expect the highest standard of
    conduct from their elected officials. If that expectation is
    defined down over time, it will erode the very base of our
    democracy and put our Republic in peril. That is the point of
    the impeachment clause of our Constitution . . . to protect the
    Republic. The impeachment clause of our Constitution is there
    to ensure the fitness of an individual to hold high office.
    President Clinton's conduct has debased his office and violated
    the soul of justice--truth. He has thereby debased and violated
    the American people. I have no other course to follow than to
    vote to convict President William Jefferson Clinton on both
    articles of impeachment.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                  Statement of Senator John D. Rockefeller IV

        Mr. ROCKEFELLER. Mr. Chief Justice, I rise today to
    announce, or simply declare, that I will vote not guilty on
    both articles of impeachment and to urge my colleagues to spare
    the country the injustice of removing a President who has been
    twice elected to his office by the American people, and whom
    they continue to trust to lead them.
        As a Senator, I have taken my trial oath very, very
    seriously. For my part, I have listened intently to the
    presentations, carefully considered the evidence, read
    everything that I could get my hands on, and thought about
    those matters carefully. I have read, and reread, the key
    language of our Constitution, and thought long and hard about
    the words of our Founding Fathers. In fact, the Constitution,
    in many ways, came alive for me for the first time.
        I am humbled by the wisdom and foresight of our founders as
    I struggle through some of the most profound questions that our
    democracy can present to us. What is the balance of power
    between the three branches of Government? How do we measure
    public trust, and under what circumstances may the Senate
    exercise its most devastating power--the power to overturn a
    popular election, and a power, therefore, to remove a President
    from office?
        As I confront these questions, I am acutely conscious of
    the terrible disappointment of our Nation in the personal and
    public behavior of our President. No one of us would defend his
    actions. No one of us would say that he is free of serious
    fault.
        I have condemned in the strongest possible terms that I
    know how to do--and I have done it to him directly--the conduct
    of the President in the Lewinsky matter. And I share the sense
    of outrage that so many of my constituents from West Virginia
    have shared with me.
        When first confronted with this shameful affair, the
    President deliberately misled his family, his friends, and his
    staff. He went on national television, and, as far as I am
    concerned, lied to the American people, and he walked a
    troubling line between truth and deception in his sworn
    testimony, all in an effort to keep this scandal out of the
    humiliating glare of public scrutiny.
        It is without question a very serious moral matter. But the
    ultimate power of the U.S. Senate--the power to convict and
    remove the President for high crimes and misdemeanors--is not a
    power to pass moral judgment or render moral punishment. It is
    not even a power to render a judicial conviction or judicial
    punishment. The power of the Senate is drawn carefully and
    narrowly by the Constitution of the United States, and it is a
    power to sit in judgment of a President only as a means of
    protecting our Nation from great harm. It is a power to remove
    a President only if he has committed treason, bribery or other
    high crimes and misdemeanors against the state.
        As U.S. Senators, the Constitution must be our predominant
    guidepost. It must be the compass we come back to at every
    point of hesitation or ambiguity or doubt. ``Treason, bribery,
    or other high crimes and misdemeanors''--these words are
    powerful, extraordinary, and carefully crafted. We know how
    very grave treason and bribery are, and we know that they
    involve a fundamental corruption of public office. But what
    about high crimes and misdemeanors? The words ``or other high
    crimes and misdemeanors'' on its face means high crimes and
    high misdemeanors.
        Borrowing from my good friend, Senator Biden, the word
    ``treason'' was defined in the Constitution itself. The word
    ``bribery'' was not. It was a definition fixed at common law.
    These are both relatively definite terms. But ``high crimes and
    misdemeanors'' are indefinite.
        In this setting, two rules of construction led us to add
    the words--Madison and Mason to add the words--``or other'' in
    their famous colloquy. The word ``other'' is, to me,
    fascinating, because what it does is essentially return us to
    the previous clause, which is ``treason and bribery.'' It says
    that ``high crimes and misdemeanors'' must necessarily be
    interpreted at the same level of, even though less definite
    than, ``bribery and treason.''
        I think that is clear. I think that is uncontested.
        As U.S. Senators, the Constitution must be, as I said, our
    guidepost. We know from the statements of our founders that the
    phrase was intended in a very careful way--``high crimes and
    misdemeanors''--to cover only very grave and threatening abuses
    of Presidential duty and public office.
        The House managers contend, as did Independent Counsel Ken
    Starr before them, that in the course of hiding his illicit
    affair from the world, the President committed perjury,
    obstruction of justice, and those crimes are so serious that
    they constitute, by definition, high crimes and misdemeanors,
    demanding conviction and immediate removal from office,
    something that has never happened before in the history of our
    Nation.
        Most of this body are lawyers. And I think that most would
    agree--all of us would agree--the questions that must be
    answered by all of us in this Senate are:
        First, did the President commit perjury or obstruction of
    justice as charged by the articles of impeachment?
        Second, did the President's conduct rise to the level of
    high crimes and misdemeanors requiring removal?
        The answer to both of these questions must be yes in order
    for the President to be removed from office. If either one of
    these questions fails, then by definition the Constitution
    demands that the President be acquitted.
        On the basis of the case presented over the last several
    weeks, on the basis of the evidence and the deposition
    testimony, which I reviewed carefully and in full, and on the
    basis of the constitutional arguments made by each side, I have
    concluded unequivocally that the answer to both questions is
    no, and that the articles of impeachment are not well founded
    and must be rejected.
        First and foremost, the House managers have utterly failed
    to prove beyond a reasonable doubt that the President committed
    perjury or obstructed justice. Their case is speculative,
    circumstantial, and contradicted by facts.
        Admittedly, the burden of proof on the House managers is a
    very heavy one.
        We have a presumption in this country of innocence until
    proven guilty. And we have a presumption that national
    elections should be upheld.
        With the fate of a twice-elected President before us in
    this Senate, I believe that the evidence must be the
    universally accepted standard of proof that is applied to other
    criminal cases. It must be proven beyond a reasonable doubt.
        What does that mean, to prove a case beyond reasonable
    doubt? It means that it is proven to a moral certainty, that
    the case is clear, that the case is concise. It means if there
    are doubts about the evidence, about the case, then he must be
    acquitted.
        In the case presented by the House managers in the
    managers' version of the Clinton-Lewinsky story, there are
    many, many reasonable doubts.
        There are the doubts about the articles themselves, which
    are ambiguous, and what conduct actually purported to be
    criminal. There are serious doubts about the perjury charge in
    which the President openly acknowledges his inappropriate
    behavior--and his effort to keep it secret from the Nation.
    There are doubts about the obstruction charges in which the
    President is accused of a vast conspiratorial scheme to
    influence witnesses and testimony, even though everyone
    involved has denied that any such effort occurred. No person,
    regardless of the stature or position, could, or should be,
    convicted on evidence that is so ambiguous and so questionable,
    and to my way of thinking ultimately, weak.
        Second, and equally important, no matter how deplorable the
    President's conduct, the charges clearly do not meet the
    constitutional test for conviction. They simply do not rise to
    the level of treason, bribery or other high crimes and high
    misdemeanors, as I would put it. Any other conduct, any other
    charges, are left to the judgment of the people in the casting
    of their votes, and to the judgment of the courts once the
    President has left office.
        Despite the anger that we feel at the President, despite
    misgivings that we have about his honesty, despite his lies to
    the American people, we cannot allow emotions--or, I might say,
    homilies--or partisanship to interfere with our judgment. The
    Constitution alone puts us in the box from which we dare not
    venture.
        On impeachment, our constitutional history is well
    established. And we in the Senate and across the Nation must
    abide by it, and abide by it strictly. We may remove a
    President only for using his great office to commit high crimes
    against the Nation, against the state, and against the people.
    There is no question in my mind that the President has not done
    this. We would be derelict in our duties as Senators if we
    removed him for anything less.
        So given the weakness of the evidence supporting the
    charges made by the House, given the serious doubt in the
    Senate that the charges rise to the level of demanding removal
    from office, how do we find ourselves so far down this
    dangerous constitutional path?
        How do we in the Senate find ourselves so close to the
    brink of removing a President from office without clear and
    compelling evidence that crimes against the state were
    committed?
        How was an independent counsel investigation allowed to
    turn into a 5-year, $50 million crusade against the President?
        And why have we not been able to debate the real issues for
    the future of our Nation--strengthening Medicare, reforming
    Social Security, ending the steel import crisis so West
    Virginia steelworkers can get their jobs back?
        It is clear, in the end, justice will be done, and the
    Constitution will have protected the Nation. I have been
    dismayed by growing partisanship, but the bottom line is that
    the President should not be removed from office, and he will
    not be removed from office.
        With the greatest respect for each of my colleagues, I must
    say there is something very wrong with the fact that we have
    been forced to take this so far, and that the Senate has been
    rendered impotent for so long. Even in the face of unceasing
    calls to end this investigation--from people in every State,
    from every background and political party--it has marched on
    relentlessly.
        I do not believe that it was ever the will of the House of
    Representatives or the Senate to pursue these charges against
    the President to such great and absurd lengths. Yet we have--
    and in the process, a growing crack in the civil and moral
    foundation of our government has been revealed.
        It has become clear to me that a destructive momentum has
    taken hold, and supplanted the better judgement of some in this
    Congress and in this country.
        From the start, there has been a core of political
    interests that has sought every opportunity and pursued every
    tactic to attack this Presidency. Every President faces critics
    who will go to great lengths to fight his policies. But this
    President has faced unprecedented and unyielding attempts by a
    small group of determined activists to destroy him, his family,
    and his work.
        Unfortunately, these efforts at destruction have been aided
    by a media inside the beltway that has accepted nearly every
    rumor--proven or unproven--and splashed it across the front
    page or put it at the top of the evening newscast. Ratings and
    revenues too often have taken priority over sound and judicious
    coverage of the news. Far from serving the public interest,
    this has only fueled the efforts of those who have sought to
    undermine the reasoned pursuit of truth and justice.
        As I made clear earlier, none of this diminishes my belief
    that the President's actions were wrong and indefensible. His
    personal failures in this matter deserve our condemnation.
        But his failures do not deserve--and have never deserved--
    the relentless attempts at political and personal destruction
    to which he has been subjected. His failures do not deserve--
    and have never deserved--the triggering of a constitutional
    process that our Founding Fathers reserved for the most serious
    crimes against the Nation.
        I do not say this to fan the flames of partisan division.
    After all, each of us--Republican or Democrat--has and will
    make mistakes, and each of us must be held accountable for our
    mistakes. But no Member of the Senate, no Member of the House,
    no elected official who serves this country to his or her best
    ability deserves the sort of insidious venom that has become
    such a common part of our political discourse.
        Let me also be clear that I say this not solely in defense
    of President Clinton--but principally in defense of civility
    and fairness in our political society. I say this with sincere
    hope that we can bring to an end the destructive momentum that
    has gripped this Nation and this city. Because, as disturbing
    as the President's actions are, I am far more concerned by the
    fanaticism of those who have driven our great Nation so close
    to the precipice.
        For our system of democracy to be successful for another
    two centuries, it must be driven by people's best instincts--
    not their worst. It must be founded in moral strength and
    guided by civil discourse. We must, as Minority Leader Gephardt
    has so eloquently stated, end the politics of personal
    destruction.
        I have great hope that we can do this, because as I look
    around, I see a vast majority of Americans who are tired of
    good leaders being destroyed by a vindictive minority. I see a
    majority of Americans who understand clearly that President
    Clinton should not be removed from office for his deep personal
    failings. I see a majority of Americans who know better than to
    believe everything and anything they hear in the media.
        The American people want us to seek the truth--they, in
    fact, demand it. But with equal vigor, they demand that we cast
    fair judgement; and they demand that in seeking the truth, we
    do not seek to destroy lives and careers.
        I believe that this Senate is prepared to cast a fair
    judgment on the President. We have been through a trying time
    in our Nation's history--a time from which not one of us has
    relished or gained the least bit of satisfaction. We have all
    done our best to seek impartial justice, and I am certain that
    history will judge us well in this pursuit.
        But history will cast a very severe judgement if we do not
    go forward with the purpose of healing the wounds that this
    episode has caused, and restoring the moral and civil
    foundation of our political society.
        I leave my colleagues with the wisdom of James Madison in
    Federalist No. 62 when he addressed the important role of the
    Senate in tempering the actions of the House. ``. . . [A]
    senate,'' he wrote, ``as a second branch of the legislative
    assembly, distinct from, and dividing the power with, a first,
    must be in all cases a salutary check on the government.''
        By dismissing these charges against the President, we will
    have done our duty to provide that salutary check, and we will
    have taken the first step in restoring the trust and faith of
    the people of this Nation. It is time to do as the American
    people have asked: end this sad episode and get back to work.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                    Statement of Senator Frank H. Murkowski

        Mr. MURKOWSKI. Mr. Chief Justice, it seems to be a
    prerequisite to speak today for Senators to indicate the number
    of grandchildren each has. I am proud to say Nancy and I have
    11, but I won't indulge you with naming each of them.
        I, along with all of you, will soon cast our votes on the
    articles of impeachment that have been presented against
    President Clinton. With the exception of voting on a
    declaration of war, I can think of no more serious vote that a
    Senator will cast in his or her lifetime than on removing a
    President from office. History may or may not tell which vote
    is correct.
        We have deliberated more than 67 hours. Five weeks ago, we
    met in the Old Senate Chamber and on a 100-0 vote departed on a
    course of action to resolve this matter. The House managers
    presented the case against the President. White House counsel
    presented their defense and then Senators spent 2 days
    submitting questions to both sides. We then resolved the
    question of witnesses by allowing the use of videotapes, and
    heard final arguments from both sides on Monday. For the past 2
    days, Senators have offered their statements on this matter and
    we are on target to reach a final vote on the two articles in
    less than 48 hours. That's our constitutional duty. I am proud
    and honored to have participated in this historical
    deliberation and respect each of you and your words.
        There are several recollections about the facts in this
    case that trouble me. Perhaps it is because I am not a lawyer.
        In Ms. Lewinsky's testimony, she indicated that on the
    first day she met the President, she was wearing a pink
    identification tag which provides limited access to the White
    House. The President reached out and held it and said: ``Well,
    this could be a problem,'' or words to that effect. That tells
    us something about the President's character.
        Furthermore, after the Lewinsky story broke in the press,
    the President had Dick Morris conduct a poll and when Morris
    told the President that the public would forgive him for
    adultery but not for perjury or obstruction of justice, the
    President responded: ``We will just have to win then.'' That
    tells me something else about the President.
        It should also be noted that we would not be here if Ms.
    Lewinsky had not kept the blue dress which contained the DNA
    evidence implicating the President beyond a doubt. Without that
    dress, it would be an old story of ``He said/She said.'' Think
    about that.
        Finally, we are all held accountable for our actions. But
    the President refuses to be held accountable. And I have a
    problem with the repeated reference from the First Lady that
    the President ministers to troubled people, suggesting that
    Monica Lewinsky was such a person.
        What has been happening, not just here in Washington, but
    all around the country, is something far more disturbing than
    the trial of a President. What we have been witnessing is a
    contest for the very moral soul of the United States of
    America--and that the great casualty so far of the national
    scandal is the notion of truth.
        Truth has been shown to us as an elastic commodity.
        It has been said that this trial is not about the partisan
    political gamesmanship between the President's Democratic
    supporters and the Republican forces on the other side, as the
    media would have you think.
        Indeed, one pundit said that more Americans get their ideas
    and reactions of the impeachment process from Jay Leno than
    they do from CNN.
        The polls show Americans favoring leaving the President in
    office while they say Republicans appear bent on political
    suicide.
        It has been said that Republicans see accountability,
    discipline and punishment as fundamental to the very structure
    of American society and that the President ought to be the
    ``stern father'' image and a figure of moral authority.
        Clinton's liberal supporters model American society on the
    ``nurturing parent'' concept. To them, the Presidency is less a
    figure of moral authority than a helpful and powerful friend
    capable of doing good.
        Where were you when former President Nixon resigned? I
    wondered at the time whether the Republic would survive
    Watergate. We did survive and many believe we are a stronger
    Nation because of that process.
        In reaching a judgment in this case, I have reviewed the
    evidence presented by the House managers and the able defense
    offered by the President's counsel. I have concluded that the
    President is guilty on both articles and that the two articles
    more than satisfy the constitutional standard of high crimes
    and misdemeanors.
        I believe the President should be removed from office not
    because he engaged in irresponsible, reckless, and
    reprehensible conduct in the Oval Office with a White House
    intern. He should be removed from office because he engaged in
    conduct designed to undermine the foundation, the very bedrock,
    of the concept of due process of law and, by extension, the
    very notion of the rule of law.
        There is no question in my mind that President Clinton
    intentionally provided false and misleading testimony and
    committed perjury before the grand jury when he told the grand
    jury he was ``trying to figure out what the facts were'' when
    he made the following statements to his secretary, Betty
    Currie, the day after his civil deposition testimony:
        ``I was never really alone with Monica, right?''
        ``You were always there when Monica was there, right?''
        ``Monica came on to me, and I never touched her, right?''
        ``She wanted to have sex with me, and I cannot do that.''
        Mr. Chief Justice, it is just not credible to believe that
    these statements were designed to help the President elicit
    facts since he, and not Betty Currie, knew precisely the type
    of indiscreet activities he and Monica Lewinsky had engaged in.
    To believe his testimony, one would have to assume the
    unbelievable--that the President engaged in these acts with Ms.
    Lewinsky in the full expectation that Ms. Currie witnessed
    them.
        It is only reasonable to assume that the President's
    statements to Ms. Currie, made on more than one occasion--
    twice--were designed for one, and only one, simple purpose: to
    coach and influence her future testimony. He was clearly
    seeking to undermine judicial proceedings by encouraging her to
    lie under oath for the single purpose of protecting him. His
    conduct not only amounts to false testimony, but provides a
    clear basis to conclude that the President sought to obstruct
    justice.
        Moreover, it is undisputed that gifts the President gave to
    Monica Lewinsky, gifts that were subpoenaed in the civil suit
    against the President, were removed from Ms. Lewinsky's
    possession and hidden under Betty Currie's bed. There is no
    rational reason that Ms. Currie, on her own, decided to seek
    the return of the gifts. The only inference that a reasonable
    person could conclude is that the President asked Ms. Currie to
    retrieve the gifts in an effort to conceal evidence from the
    court; evidence that was clearly relevant in the civil case.
        The House managers have presented a credible case showing
    that the President increased the pressure on his friend, Vernon
    Jordan, to obtain a private sector job for Ms. Lewinsky when
    she was named as a potential witness in the civil case brought
    against the President. It was not a coincidence of events, but
    rather a concerted effort by the President to secure employment
    for Ms. Lewinsky to ensure an affidavit that did not harm his
    interests. Mr. Jordan is not at fault; he was merely a pawn in
    the President's strategy to obstruct justice by encouraging the
    submission of a false affidavit from Ms. Lewinsky.
        The charges against the President concern perjury, witness
    tampering, and concealing of evidence. These offenses clearly
    rise to the level of obstructing justice in the same sense that
    bribing a witness to testify falsely or destroying evidence
    amount to obstruction of justice.
        Today, there are 115 people incarcerated in Federal prisons
    because they were convicted of perjury. On Saturday, we heard
    the videotape testimony of Dr. Barbara Battalino who had been
    an attorney and a VA doctor. Her crime? She lied about sex
    under oath in a civil proceeding. Her penalty? She lost her
    medical license. She lost her right to practice law. She was
    fired from her job. The Clinton Justice Department prosecuted
    her for perjury and she was sentenced to 6 months of
    imprisonment under electronic monitoring and paid a $3,500
    fine.
        Should not the standard applied to Dr. Battalino apply to
    the President of the United States who swore an oath to
    ``preserve, protect and defend the Constitution,'' when he
    entered office and who swore an oath to tell the truth when he
    testified before the grand jury? Or should we condone the
    standard the President suggested in his grand jury testimony,
    when he testified that he ``said things that were true, that
    may have been misleading?'' Think about that statement.
        The foundation of our Republic is that we are a nation
    governed by laws, not by men. For the rule of law to be
    maintained, there must be a credible system of justice. Any
    effort to undermine the integrity of the judicial system
    subverts the principle of a nation of laws. And that system of
    justice depends for its very survival on maintaining the
    integrity of the oath that a person swears to tell the truth.
    Otherwise, if we turn a blind eye and allow people to lie under
    oath, destroy or hide evidence, or conspire to present false
    and misleading testimony, the entire notion of justice and
    truth become meaningless.
        The President's counsel on Monday asked the question:
    ``Would it put at risk the liberty of the people to retain the
    President in office?'' Unfortunately, I believe the answer is
    yes. The right of an individual to a fair trial is endangered
    when the President of the United States remains in office
    having undermined the rule of law by obstructing justice and
    committing perjury.
        Why should a citizen tell the truth in a courtroom when it
    does not serve his interest if the President is allowed to
    perjure himself because it does not serve his interest?
        Why should an individual not try to influence the testimony
    of a witness when the President suffers no adverse consequences
    when he seeks to influence the testimony of a witness?
        Does anyone in this Chamber believe that obstruction of
    justice is not a high crime and misdemeanor? Does anyone in
    this Chamber believe that President Clinton did not attempt to
    obstruct justice? If your answer to those questions is in the
    affirmative, I believe you must, I repeat, you must vote to
    convict and remove the President. That is the mandate of the
    Constitution.
        Article II, section 4 of the Constitution provides that
    ``the President . . . shall be removed from Office on
    Impeachment for, and Conviction of, Treason, Bribery, or other
    high Crimes and Misdemeanors.''
        There is nothing in the Constitution that says that a
    President with a high popularity rating shall not be removed if
    convicted. The framers believed that it was so important to rid
    the Government of officials convicted for such offenses that
    the framers gave us no latitude on the question of removal from
    office.
        Mr. Chief Justice, the Nation has endured more than a year
    of what started as a scandal and turned into an obstruction of
    justice and an impeachment. Again, had there been no DNA
    evidence, Ms. Lewinsky would have been smeared in the press as
    a stalker and this case would be closed.
        I hope my colleagues in good conscience can put party aside
    and uphold the oath we took a month ago to be impartial in our
    judgment of President Clinton. This is a sad day for our
    contemporary country but a magnificent day for the founders who
    recognized that no man is above the law and gave us the tools
    to remove those who violate the public trust.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator Robert C. Byrd

        Mr. BYRD. Mr. Chief Justice:

    I think my country sinks beneath the yoke,
    It weeps, it bleeds,
    And each new day,
    A gash is added to her wounds.

        I am the only remaining Member of Congress who was here in
    1954 when we added the words ``under God'' to the Pledge of
    Allegiance. That was on June 7, 1954. One year from that day we
    added the words ``In God We Trust'' to the currency and coin of
    this country. Those words were already on some of the coins.
    But I shall always be proud to have voted to add those words,
    ``under God'' and ``In God We Trust.'' They mean much to us
    today as we meet here.
        This is my 47th year in Congress. I never dreamed that this
    day would ever come. And, until 6 months ago I couldn't place
    myself in this position. I couldn't imagine that, really, an
    American President was about to be impeached.
        A few years ago, when my youngest grandson, who now is a
    Ph.D. in physics, was just a little tot, he came up to my den
    and looked around and said, ``Papa, who made this mess?''
        Now, Senators, who made this mess? The mess was created at
    the other end of Pennsylvania Avenue. The House of
    Representatives didn't make it. The U.S. Senate didn't make it.
    But, nevertheless, we sit here today in judgment of a
    President.
        Mr. Chief Justice, I thank you for presiding over this
    gathering with such grace and dignity. But the Chief Justice is
    not here because he wanted to be. He is not here because we
    asked him to come. He is here because the Constitution
    commanded that he be here. Senators are not here because you
    wanted to be here today. We are here because the Constitution
    said that the Senate shall have the sole power to try all
    impeachments.
        Soon we will vote and, hopefully, end this nightmarish time
    for the Nation. Like so many Americans, I have been deeply torn
    on the matter of impeachment. I have been angry at the
    President, sickened that his behavior has hurt us all and led
    to this spectacle. I am sad for all of the actors in this
    national tragedy. His family and even the loyal people around
    him whom he betrayed--all have been hurt. All of the
    institutions of government--the Presidency, the House of
    Representatives, the Senate, the system of justice and law,
    yes, even the media--all have been damaged by this unhappy and
    sorry chapter in our Nation's history.
        The events of this last year have engendered so much
    disillusionment, distrust, bitter division and discord among
    the people of the United States. There can be, I fear, no happy
    ending, no final act that leads to a curtain call in which all
    the actors link hands and bow together amid great applause from
    the audience. No matter what happens here, many, many people
    will be left tasting only the bitter dregs of discontent.
        I was proud of this Senate when, early last month, we
    gathered in the Old Senate Chamber to choose a path on which to
    proceed. We agreed on a constitutional roadmap to follow during
    the early days of this trial. We followed that roadmap to the
    letter, considering a motion to dismiss the proceedings as well
    as one to provide for the deposition of witnesses. When there
    was a question or conflict, we decided the answer together. I
    commend Senator Daschle and Senator Lott for their untiring
    efforts to maintain bipartisanship.
        Hamilton observed that impeachable offenses ``are those
    offenses which proceed from the misconduct of public men, or,
    in other words, from the abuse or violation of some public
    trust . . . to injuries done immediately to the society
    itself.'' Hamilton also observed that the impeachment court
    could not be ``tied down'' by strict rules, ``either in the
    delineation of the offense by the prosecutors [the House of
    Representatives] or in the construction of it by the judges
    [the Senate].''
        Supreme Court Justice Joseph Story said: ``The jurisdiction
    is to be exercised over offenses, which are committed by public
    men in violation of their public trust and duties . . .
    injuries to the society in its political character,'' . . .
    ``such kind of misdeeds . . . as peculiarly injure the
    commonwealth by the abuse of high offices of trust.''
        Story observed that ``no previous statute is necessary to
    authorize an impeachment for any official misconduct,'' . . .
    because ``political offenses are so various and complex . . .
    so utterly incapable of being defined, or classified, that the
    task of positive legislation would be impracticable, if it were
    not almost absurd to attempt it.''
        There are those--without my repeating the sordid details of
    what we have all heard over and over and over again--there are
    those who say that the President lied to protect his family. We
    all understand that. I have a feeling for that. But I can never
    forget his standing before the television cameras and saying to
    the American people, what he said: ``Now I want you to listen
    to me. . . .'' Don't you Senators think that that was a bit
    overdone if the purpose was to protect his family?
        ``O, what a tangled web we weave when first we practice to
    deceive.''
        Impeachment is a sword of Damocles that hangs over the
    heads of Presidents, Vice Presidents, and all civil officers,
    always ready to drop should it become necessary. But, the
    impeachment of a President is uniquely and especially grave. We
    must recognize the gravity and awesomeness of it, and act in
    accordance with the oath we took to do ``impartial justice.''
    We are the wielders of this weapon, responsible for using it
    sparingly and with prudence and wisdom.
        This is only the second time that this Nation has ever
    impeached a President. President Nixon resigned when it was
    made clear to him that, if impeached and tried, he would be
    convicted and removed from office. In that instance, both the
    country and the Congress were of the same mind that the
    President's offenses merited his removal. It was not a partisan
    political impeachment; it was a bipartisan act. But where
    political partisanship becomes such an overwhelming factor as
    to put the country and the Congress at odds, as it has with
    this impeachment, something draws us back. We must be careful
    of the precedent we set. One political party, alone, should not
    be enough to bring Goliath's great sword out of the Temple.
        Regrettably, this process has become so partisan on both
    sides of the aisle and particularly in the House and was so
    tainted from the outset, that the American people have rebelled
    against it. The President lied to the American people, and,
    while a great majority of the people believe, as I do, that the
    President made false and misleading statements under oath,
    still, some two-thirds of the American people do not want the
    President removed from office. I do not think that this is just
    a reflection of the American people's traditional bias for the
    underdog, but rather, of the much more basic American dislike
    of unfairness. Many people, perhaps even most people, do not
    believe that this process has been a fair process. They are
    further supported in their viewpoint by the polarization and
    partisanship so regrettably displayed in Congress.
        Indeed, the atmosphere in Washington has become poisoned by
    politics and even by personal vendettas. As a result,
    perspective and a clear sense of proportion and balance have
    been lost by all too many people. As a byproduct of the venom,
    a process intended to be serious and sober has, instead,
    devolved into a virulent, off-color soap opera event, watched
    by an incredulous people grown weary of its content.
        We have known for weeks that the votes were not here to
    convict this President. And yet some wanted to press on, in a
    desperate attempt to bring witnesses onto the Senate floor.
    What a dreadful national spectacle that would have been. That
    is one reason why I offered a motion to dismiss the
    proceedings. Both the House managers and the White House
    defense team had presented their case and had presented it
    well. We had gotten into the 16 hours of questioning by
    Senators, while all went along swimmingly for a while, the
    proceedings began to degenerate into a dueling press conference
    on both sides of the aisle. Moreover, the House managers had
    already taken steps to begin the deposition of Monica Lewinsky,
    and the fact that they were doing this before the Senate had
    even voted to depose witnesses, led me to believe that it was
    time to call the whole thing off before the Senate slipped into
    the snake pit of bitter partisanship like the House of
    Representatives had done. Always with a weather eye open
    concerning the image of the Senate and its place in history, I
    made the motion to dismiss which had been provided for in the
    original agreement by 100 Senators on January 8, following the
    great bipartisan meeting we had all attended in the Old Senate
    Chamber. Many people all around the country, as well as here
    within the beltway, misunderstood my reasons for moving to
    dismiss. I didn't do that to protect Mr. Clinton, as some
    people have so mistakenly surmised. I knew that the votes were
    not here then to convict him, and we all know they are not here
    now. I just didn't want the Senate to sink further into the
    mire. I did not want this body to damage its own quotient of
    public trust the way the House and the White House have
    diminished theirs.
        I called for these proceedings to be dismissed, out of
    genuine concern for the divisive effect that an ultimately
    futile trial would have on the Senate and on the Nation.
        The House articles charged the President with having
    committed perjury. This word ``perjury''--lawyers can dance all
    around the head of a pin on that word. I won't attempt to dance
    all around on the head of the pin on the word ``perjury.'' The
    President plainly lied to the American people. Of course, that
    is not impeachable, but he also lied under oath in judicial
    proceedings.
        Mr. Clinton's offenses do, in my judgment, constitute an
    ``abuse or violation of some public trust.'' Reasonable men and
    women can, of course, differ with my viewpoint. Even though the
    House of Representatives rejected the second article that came
    out of the Judiciary Committee, the evidence against Mr.
    Clinton shows that he willfully and knowingly and repeatedly
    gave false testimony under oath in judicial proceedings.
        When the President of the United States, who has sworn to
    protect and defend the Constitution of the United States, and
    to see to it that the laws be faithfully executed, breaks the
    law himself by lying under oath, he undermines the system of
    justice and law on which this Republic--not this
    ``democracy''--this Republic has its foundation.
        In so doing, has the President not committed an offense in
    violation of the public trust? Does not this misconduct
    constitute an injury to the society and its political
    character? Does not such injury to the institutions of
    government constitute an impeachable offense, a political high
    crime or high misdemeanor against the state? How would
    Washington vote? How would Hamilton vote? How would Madison or
    Mason or Gerry vote? My head and my heart tell me that their
    answer to these questions would be, ``Yes.''
        The matter does not end there. The Constitution states,
    without equivocation, that the President, Vice President or any
    civil officer, when impeached and convicted, shall be removed
    from office. Hence, one cannot convict the President without
    removing him from office.
        Should Mr. Clinton be removed from office for these
    impeachable offenses? This question gives me great pause. The
    answer is, as it was intended to be by the framers, a difficult
    calculus. This is without question the most difficult,
    wrenching and soul-searching vote that I have ever, ever cast
    in my 46 years in Congress. A vote to convict carries with it
    an automatic removal of the President from office. It is not a
    two-step process. Senators can't vote maybe. The only vote that
    the Senator can cast, under the rules, as written, is a vote
    either to convict and remove or a vote to acquit.
        So should I vote ``Guilty'' when my name is called,
    believing that President Clinton's offenses constitute high
    misdemeanors? Should I vote guilty and vote to remove him from
    office? Some critics may say--some of my colleagues may say--
    they may ask, if you believe he is guilty, how can you not vote
    to remove him from office?
        There is some logic to the question, but simple logic can
    point one way while wisdom may be in quite a different
    direction. It is not a popularity contest, of course. But
    remember our English forbears, who, on June 20, 1604, submitted
    to King James I the Apology of the Commons, in which they
    declared that their rights were not derived from kings, and
    that, ``The voice of the people in things of their knowledge is
    [as] the voice of God.'' ``Vox populi, vox Dei.''
        The American people deeply believe in fairness, and they
    have come to view the President as having ``been put upon'' for
    politically partisan reasons. They think that the House
    proceedings were unfair. History, too, will see it that way.
    The people believe that the independent counsel, Mr. Starr, had
    motivations which went beyond the duties strictly assigned to
    him.
        In the end, the people's perception of this entire matter
    as being driven by political agendas all around, and the
    resulting lack of support for the President's removal, tip the
    scales for allowing this President to serve out the remaining
    22 months of his term, as he was elected to do. When the people
    believe that we who have been entrusted with their proxies,
    have been motivated mostly or solely by political partisanship
    on a matter of such momentous import as the removal from office
    of a twice-elected President, wisdom dictates that we turn away
    from that dramatic step. To drop the sword of Damocles now,
    given the bitter political partisanship surrounding this entire
    matter, would only serve to further undermine a public trust
    that is too much damaged already. Therefore, I will reluctantly
    vote to acquit.
        In 399 B.C., Socrates was convicted and sentenced by the
    Athenian jury to die. If only 30 votes on that Athenian jury
    had switched, Socrates would not have been convicted. If only
    20 Senators--or less--on my side of the aisle who are expected
    to acquit, were to switch their votes, President Clinton would
    be convicted, and before this coming Sabbath day, he would be
    removed from the Oval Office. President Clinton will be
    acquitted by the Senate; yet he will not be vindicated.
        The crowds will still cheer the President of the United
    States, but the American people have been deeply hurt and,
    while they may forgive, they will not forget. The pages of
    history will not be expunged--ever.
        Be assured that there will be no winners on this vote. The
    vote cast by every Senator will be criticized harshly by
    various individuals and sundry interest groups. Yet it is well
    for the critics to remember that each Senator has not only
    taken a solemn oath to support and defend the Constitution, but
    also to do ``impartial justice'' to Mr. Clinton and to the
    Nation, ``So help me, God.'' The critics and the cynics have
    not taken that oath; only Senators have done so. Carrying out
    that oath has not been easy. That oath does not say anything
    about political party; politics should have nothing to do with
    it.
        The frenzy of pro-and-con opinions on every aspect of this
    case emanating from every conceivable source in the land has
    made coming to any sort of ``impartial'' conclusion akin to
    performing brain surgery in a noisy, rowdy football stadium. It
    will be easy for the cynics and the critics who do not have to
    vote, to stand on the sidelines and berate us. But only those
    of us who have to cast the votes will bear the judgment of
    history.
        None of us knows whether the attitudes of the American
    people will take a different turn after this trial is over and
    this drab chapter is closed. ``Fame is a vapor; popularity an
    accident; riches take wings; those who cheer today may curse
    tomorrow; only one thing endures--character!'' It is the
    character of the Senate that will count. And while the politics
    of destruction may be satisfying to some, the rubble of
    political ruin provides a dangerous and unstable foundation for
    the Nation.
        And yet we must move ahead. The Nation is faced with
    potential dangers abroad. No one can foresee what will happen
    in Russia or in North Korea or in Kosovo or in Iraq. To remove
    Mr. Clinton at this time could create an unstable condition for
    our Nation in the face of unforeseen and potentially dangerous
    happenings overseas.
        Preceding Senators have sounded the clarion note of
    separation of powers. I have sounded that same trumpet many
    times when the line item veto was before the Senate, but to no
    avail. Some of the voices that have rung throughout this
    Chamber in these deliberations, were curiously still on that
    occasion. The Supreme Court of the United States saved the
    Constitution and struck that law down. But the Supreme Court
    has no voice in the decision that confronts the Senate at this
    hour. It is for the Senate alone to make. When these Senate
    doors are flung open, we must hope that the vote that follows
    will strengthen, not weaken, our Nation.
        Let there be no preening and posturing and gloating on the
    White House lawn this time when the voting is over and done.
    The House of Representatives has already inflicted upon the
    President the greatest censure, the greatest condemnation, that
    the House can inflict upon any President. And it is called
    impeachment. That was an indelible judgment which can never be
    withdrawn. It will run throughout the pages of history and its
    deep stain can never be eradicated from the eyes and memories
    of man. God can forgive us all, but history may not.
        Within a few hours, the mechanics of this matter will
    finally be concluded. But it will not yet be over. For the
    Nation must still digest the unpleasant residue of these
    events. Mr. Chief Justice, hatred is an ugly thing. It can
    seize the psyche and twist sound reasoning. I have seen it
    unleashed in all its mindless fury too many times in my own
    life. In a charged political atmosphere, it can destroy all in
    its path with the blind fury of a whirlwind. I hear its ominous
    rumble and see its destructive funnel on the horizon in our
    land today. I fear for our Nation if its turbulent winds are
    not calmed and its storm clouds somehow dispersed. In the days
    to come, we must do all that we can to stop the feeding of its
    vengeful fires. Let us heap no more coals to fan the flames.
    Public passion has been aroused to a fever pitch, and we as
    leaders must come together to heal the open wounds, bind up the
    damaged trust, and, by our example, again unite our people. We
    would all be wise to cool the rhetoric.
        For the common good, we must now put aside the bitterness
    that has infected our Nation, and take up a new mantle. We have
    to work with this President and with each other, and with the
    Members of the House of Representatives in dealing with the
    many pressing issues which face the Nation. We must, each of
    us, resolve through our efforts to rebuild the lost confidence
    in our government institutions. We can begin by putting behind
    us the distrust and bitterness caused by this sorry episode,
    and search for common ground instead of shoring up the
    divisions that have eroded decency and good will and dimmed our
    collective vision. We must seek out our better natures and
    aspire to higher things. I hope that with the end of these
    proceedings, we can, together, crush the seeds of ugliness and
    enmity which have taken root in the sacred soil of our
    Republic, and, instead, sow new respect for honestly differing
    views, bipartisanship, and simple kindness towards each other.
    We have much important work to do. And, in truth, it is long
    past time for us to move on.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                      Statement of Senator James M. Inhofe

        Mr. INHOFE. Mr. Chief Justice, now that the vote to impeach
    William Jefferson Clinton has been taken, and before I discuss
    my vote, let me say first that this whole thing could have been
    avoided had President Clinton resigned months ago. I say this
    because I called for his resignation last September. Rather
    than explain my reasoning for calling for President Clinton's
    resignation, I believe it is better explained by an eighth
    grade school teacher from Tulsa, OK, Mr. Terrence Hogan. I ask
    unanimous consent that Mr. Hogan's letter to the President
    dated September 26, 1998, be printed in the Record.
        There being no objection, the letter was ordered to be
    printed in the Record, as follows:
                                                    September 26, 1998.
    The President,
    The White House,
    Washington, DC.
        Dear Mr. President: It is in the early morning hours. The infamous
    Starr report has been made public for less than twenty-four hours and I
    am unable to sleep. I don't imagine you've had much of a restful night
    either. As you no doubt are troubled, so am I.
        As the forty-eight year old father of five and a teacher of eighth
    grade Civics these past twenty-two years I am greatly concerned about
    the moral direction of our nation. It is as if we have lost our compass
    and know not what we as a nation wish to be. I am fearful, for I do not
    wish us to become a nation that is only concerned about the economy and
    has lost the will to be a nation of admirable principles. I do not want
    us to dissolve into a people who are more influenced by the spin of the
    facts than the facts themselves. I am concerned about the effects the
    next six months of a legal nit picking debate over whether or not you
    committed an impeachable offense will have on our nation. I am also
    concerned that the debate will not ask what I believe to be the two
    paramount questions. First, are you capable of leading this nation for
    the next 30 months in the directions that we want and need to go? And
    secondly, do you deserve to be allowed to lead this country?
        There is no question in my mind that you have the will to lead. The
    sad conclusion I have drawn is that you no longer have the moral
    authority to lead for you have violated the main foundation upon which
    all relationships are built, that being the existence of mutual trust.
    In the elections of 1992 and 1996 the American voters forgave you for
    your one admitted transgression with Ms. Flowers. Then, however, you
    chose to repeat that transgression in the confines of the Oval office.
    After which, when confronted with your choices you chose to repeatedly
    lie to your wife, daughter, supporters and the American people. You
    chose to continually lie about your choices rather than to frame the
    debate around the issue that this was a private matter between you and
    your wife and therefore no business of the American public. It is my
    heartfelt belief that your choice to lie was designed not so much to
    save your wife and daughter certain pain but to save yourself and your
    presidency, an understandable choice but not an acceptable one. Your
    willful and repeated lying has given the people of this country an
    insight into the character and integrity of their leader.
        With this in mind I am asking you to resign your position as
    President of these United States for if we are even to pretend to be a
    nation of principles we cannot tolerate from our president actions and
    choices that we would not tolerate from the principal of our
    neighborhood school.
        In the last few days you have begun to ask the forgiveness of the
    American people. If your contrition is heartfelt you deserve the
    forgiveness of all those individuals whose trust you have violated. I
    for one forgive you. But as a member of the body politic I must also
    hold you accountable for your public choices and demand that certain
    natural consequences be allowed to occur. You no longer possess the
    trust of the majority of the American people and can therefore no
    longer lead that people and must therefore give up your position of
    leadership.
        No doubt you share my belief that God our creator calls each of us
    to be all we can be and that we are also called to sacrifice ourselves
    for what is in the ultimate best interest of our neighbors, I am asking
    you now, Mr. President, to do both of those things. Please set aside
    your personal pride and ambitions, take full responsibility for the
    choices you have made, accept the natural consequences of those choices
    and step down as our president and save this nation from the turmoil
    that the debate over your choices will undoubtedly cause. Let this
    nation heal and get on with those issues you believe need to be dealt
    with. Please remember that in making this personal sacrifice that your
    true legacy will not be determined by what kind of president you were
    but by what kind of man you became.
        Please know that my prayers are with you and your family in this
    time of trial for you, your family and this country.
                With sincerity,
                                                        Terrence Hogan.

        Mr. INHOFE. Today I voted to convict William Jefferson
    Clinton on each of the two articles of impeachment presented by
    the House of Representatives.
        I find the President guilty, as charged, of high crimes and
    misdemeanors: lying under oath and obstructing justice. The
    President engaged in a deliberate and selfish pattern of
    conduct designed to thwart the civil rights of a fellow
    citizen. This conduct represents a serious breach of faith and
    trust. This conduct is incompatible with the solemn duties and
    moral responsibilities of the high office of President of the
    United States.
        Similar conduct by others results in consequences:
    perjurers, witness tamperers and obstructors of justice go to
    jail; supervisors lose their jobs; military officers are court-
    martialed, imprisoned or forced out of the Armed Forces; judges
    are impeached and removed from office. Shall we embrace a lower
    standard for this President under these circumstances? I think
    not. I believe that the President of the United States should
    be held to the very highest of standards.
        I believe that conviction and removal from office is
    justified in order: (1) to preserve the integrity, honor and
    trust of the Presidency; (2) to protect the sanctity of the
    witness oath in judicial proceedings; and (3) to uphold the
    fundamental principle of ``equal justice under law.''
        In accord with my sworn oath to do ``impartial justice
    according to the Constitution and the laws,'' I have approached
    the trial of William Jefferson Clinton as a solemn
    constitutional duty. Voting on the articles of impeachment may
    be the most historically significant thing I will do in my
    entire career in public service. I have taken this obligation
    seriously, without concern for public opinion polls or for any
    partisan political advantage of consequence. This is a moment
    when one must put the longer-term interests of the country
    first.
        As a political opponent of this President, I have made an
    extra effort to weigh the evidence and the arguments on both
    sides with a sense of detachment and fairness. Having served on
    a jury in a criminal trial some 24 years ago, I learned how
    important it is to listen and to exercise impartial judgment.
    During jury selection in a local murder trial, I found myself
    assigned to a murder case about which I had expressed a
    definite opinion. From press reports, I was already convinced
    the defendant was guilty. With that and since I was the author
    of the capital punishment bill in the legislature, I thought
    for sure they would never qualify me for the jury, but somehow
    they did. Five days later, I surprised even myself when I
    became the foreman of the jury that acquitted that very
    defendant.
        I have approached the trial of the President with that
    experience in mind. I have also considered whether in good
    conscience, I would apply the same judgment I made here equally
    to a similar set of facts and circumstances if they applied to
    a Republican--and not a Democratic--President.
        In 1990, I did not hesitate to publicly condemn a
    Republican President, George Bush, when he violated his ``read
    my lips'' campaign pledge. Politicians who deliberately violate
    public trust undermine good government and increase the level
    of cynicism in society.
        Today, I have a clear conscience in rendering the judgment
    I believe is just and in the best interests of the future of
    the country.
        I have concluded that the President engaged in a deliberate
    and premeditated pattern of conduct which was corruptly
    designed to undermine the rights of a fellow citizen. That
    citizen was entitled under the law to obtain truth and justice
    in a duly constituted legal proceeding.
        The President had a legal obligation, as a citizen, to
    comply with ordinary and proper legal procedure and to
    faithfully abide by the standard oath to ``tell the truth, the
    whole truth, and nothing but the truth.''
        I believe the President also had a moral obligation, as
    President, to refrain from engaging in any conduct which would,
    by example, undermine respect for the rule of law, the witness
    oath, or the dignity, honor, or public trust embodied in the
    Presidency.
        The President failed to fulfill these obligations. He lied
    under oath, obstructed justice and tampered with witnesses. He
    sought to undermine the judicial system for his own personal
    gain. In so doing, he set a perverse example for every
    schoolchild, parent, teacher, employer, supervisor and citizen
    in America. He brought dishonor upon himself and his office.
        White House lawyers went to great lengths to try to deny
    the specific charges, but common sense and the weight of the
    evidence leave no reasonable doubt in my mind that the charges
    are true. I believe there are few, if any, Members of the
    Senate who do not believe the President lied under oath and
    obstructed justice. Even many of the President's most ardent
    supporters in and out of the Senate have openly stated their
    belief that the essential facts of the case are not in dispute.
        Senator Robert Byrd pretty well summed it up in a recent TV
    appearance. He said of the President: ``I have no doubt that he
    has given false testimony under oath and . . . there are
    indications that he did indeed obstruct justice. . . . It
    undermined the system of justice when he gave false testimony
    under oath. He lied under oath.''
        I have often said that one of the qualifications I have for
    the U.S. Senate is that I am not an attorney. So, when I read
    the Constitution, I know what it says. When I read the law, I
    know what it says. When I look at the evidence and apply common
    sense from a nonlawyer perspective, I know what it says. In
    this case, it says--without question--the President is guilty
    as charged.
        The President's attorneys kept arguing that the President's
    conduct does not amount to the technical crimes of perjury or
    obstruction of justice, but that even if it does, it should not
    warrant his removal from office.
        I have concluded the President's conduct does amount to the
    crimes of perjury and obstruction, but that even if it does
    not, it still warrants his removal from office because it is
    unacceptable behavior, incompatible with his duties and
    responsibilities as President.
        I was not persuaded by the hairsplitting argument that the
    President did not lie under oath. The President's lawyers claim
    he did not lie or commit perjury before the grand jury and they
    imply that his conduct there should be deemed acceptable. As a
    nonlawyer, I find their arguments preposterous and an insult to
    the intelligence and moral sensibilities of the Members of the
    Senate of both parties, not to mention the American people.
        The President was afforded every opportunity to treat the
    grand jury with the respect it deserved. He was not blindsided,
    tricked or trapped. He could anticipate all the key questions
    in advance. He had plenty of time to prepare. He was warned on
    numerous occasion by Members of both parties in the Congress of
    the serious consequences of untruthful testimony. Yet he
    deliberately sought to continue weaving a self-serving and
    misleading web of deception and falsehood.
        Similarly, I reject the argument that the President did not
    commit obstruction of justice in an improper and illegal effort
    to undermine the legitimate search for truth in the Paula Jones
    civil suit. To believe the President's defense is to stand
    common sense on its head.
        Does anyone seriously believe the Lewinsky job search would
    have proceeded to a successful conclusion in early January
    1998--a critical moment in the Jones case--had her name not
    appeared on the Jones case witness list?
        Does anyone seriously believe the President was suggesting
    to Ms. Lewinsky that she file a truthful affidavit?
        Does anyone seriously believe that the decision to conceal
    the gifts--evidence--was not blessed and ordered by the
    President?
        Does anyone seriously believe the President was seeking to
    ``refresh his memory'' while planting false stories with Ms.
    Currie when his conversations took place after he had testified
    that the Jones lawyers should talk to Ms. Currie?
        Does anyone seriously believe the President did not want
    and expect Mr. Blumenthal and other aides to repeat false
    stories to the grand jury?
        I do not believe any of these things. I believe--and I
    suspect most Senators believe--the President is guilty as
    charged of obstruction of justice.
        The President's efforts to cover up his relationship with
    Ms. Lewinsky, however understandable in a nonlegal context,
    became textbook examples of obstruction of justice once her
    name appeared on a witness list and in a duly constituted legal
    proceeding.
        The President, after all, is himself a lawyer. He was well
    aware that--orchestrating a job search to silence a potential
    hostile witness, suggesting the filing of a false affidavit,
    concealing relevant evidence, and coaching potential witnesses
    to give false testimony--all are improper and illegal.
        Yet he chose to take these actions, not in some contorted
    belief that they were proper, but in the calculation that if
    successful, he could thwart the legal search for truth and
    justice in the Jones case.
        To accept this behavior by the President without
    constitutional consequence is to permit the setting of a
    precedent which will reverberate negatively for years
    throughout our legal justice system and beyond.
        I am amazed that there is any debate whatsoever over
    whether lying under oath before a grand jury is an impeachable
    offense. The precedent is clear: Judge Walter Nixon and others
    have been rightly convicted and removed from office for lying
    under oath. Is there to be a different standard for a
    President, or for this particular President, or for this
    particular set of circumstances? Are we to make exceptions for
    lying under oath so long as it is lying about some things but
    not others? If so, what precedent will that set?
        Our legal system depends of the sanctity of the witness
    oath. There can be no exceptions to the obligation every
    citizen incurs when he solemnly swears ``to tell the truth, the
    whole truth and nothing but the truth.'' Setting any other
    precedent would totally disrupt our system of jurisprudence by
    breeding disrespect for the rule of law.
        The White House lawyers argued that since the President is
    elected and judges are appointed a different standard should
    apply. The only conceivable way they might be right is if the
    President is held to a higher--not a lower--standard.
        Important as each of a thousand judges is to our legal
    system, it is the President alone who stands at the pinnacle of
    our system of law and justice. He alone is constitutionally
    charged to ``take care that the laws be faithfully executed.''
    He appointed the judges. He embodies the public trust to a
    degree far and above anyone else. He sets the example for the
    entire Nation. His public conduct in abiding by the oath must
    be above reproach.
        In speaking about President Richard Nixon in 1974, a young
    Arkansas congressional candidate spoke to the need for high
    standards:

        Yes, the President should resign. He has lied to the American
    people, time and time again, and betrayed their trust. Since he has
    admitted guilt, there is no reason to put the American people through
    an impeachment. He will serve absolutely no purpose in finishing out
    his term; the only possible solution is for the president to save some
    dignity and resign.

        The candidate, Bill Clinton, set his own perfectly
    understandable standard: ``If a President of the United States
    ever lied to the American people, he should resign.'' (Arkansas
    Democrat Gazette, Aug. 6, 1974.)
        Recently, one of my Democrat colleagues, in a television
    interview, explained his standard for perjury as an impeachable
    offense: ``Perjury could be an impeachable offense,'' he said.
    ``If he lied about the national security interest of the United
    States, or if he did something else that had serious
    consequence for the country, or performing improperly in his
    official capacity, that's impeachable.'' But if he's ``not
    acting in his official capacity'' and only ``as an
    individual,'' that's different. That's not impeachable, he
    says.
        I believe this kind of making exceptions for lies about
    certain subjects, and not others, is a dangerous and slippery
    slope. I believe any lying before a grand jury by a sitting
    President will have ``serious consequences for the country'' if
    it is deemed to be in some way acceptable.
        Indeed, part of the reason this is so important is that if
    the President is capable of lying under oath about one thing,
    it reveals a predisposition and capability to lie about other
    more important things, while not under oath. For example, we
    already know this President has lied about the national
    security interest of the United States on numerous occasions.
    He lied to Congress in 1995 in pledging U.S. troops would not
    remain in Bosnia beyond 1 year. He lied or misled audiences
    over 130 times in 1995 and 1996 in asserting that no nuclear
    missiles were aimed at American children. People know he has
    lied on numerous other public occasions. Such behavior eats
    away the public trust and the moral authority of the
    Presidency, which are so vital to the national security.
        In addition, it should not go unremarked that the
    President's underlying conduct in this matter showed
    astonishingly bad judgment and disregard for the national
    security implications of his own behavior. In the modern world,
    the President is always a potential target of foreign intrigue,
    blackmail and salacious propaganda.
        Ms. Lewinsky testified before the grand jury that the
    President himself speculated that his phone calls to her may
    have been monitored by a foreign embassy. In essence, he was
    admitting that he had exposed himself to potential blackmail.
    Such behavior by any President is not merely inappropriate. It
    is clearly dangerous and unacceptable.
        Economic-driven ``popularity'' polls are masking an
    unprecedented erosion of public trust in this President which
    has already caused serious damage to his ability to rally the
    country in time of national threat or crisis. His consistent
    and long-term pattern of untruthful and deceptive behavior, as
    exemplified in the articles of impeachment, has undermined his
    credibility to such an extent that he can no longer be afforded
    the benefit of any public doubt about virtually any topic.
        When the President took military action against overseas
    terrorist targets in August and when he ordered airstrikes
    against Iraq in December, popular majorities--in the polls--
    questioned his timing and motives--and rightly so. Suspicions
    about both of these actions linger to this day, draining the
    small reserves of trust the President may have left.
        What happens if and when there is a much more serious
    international or domestic crisis, requiring timely public
    sacrifice mobilized through Presidential leadership? Will the
    President be believed--even if he is telling the truth? In a
    world of many lurking dangers of which much of the public is
    only vaguely aware--from information warfare to weapons of mass
    destruction--such questions raise very serious concerns.
        If we do not hold the President accountable in this case,
    what do we say to the over 100 people who are serving time in
    Federal prison for committing perjury in legal proceedings?
    What do we say to Ms. Barbara Battalino, who was convicted of
    perjury, sentenced, and lost her right to practice her
    profession because she lied under oath about sex in a civil
    case that was eventually dismissed by the judge? What do we say
    to others in similar situations? I was waiting for the
    President's lawyers to address these issues. But they never did
    in any remotely satisfactory way.
        What do we say to the military officers whose careers and
    lives have been ruined over misconduct similar to the
    President's, including sexual misconduct, lying and obstructing
    justice?
        Capt. Derrick Robinson, an Army officer caught up in the
    Aberdeen sex misconduct case, is serving time in Leavenworth
    prison for admitting to consensual sex with an enlisted person
    who was not his wife.
        Drill Sgt. Delmar Simpson is serving 25 years in a military
    prison because a court-martial found that, even though his
    relationship with a female recruit was consensual, the power
    granted him by his rank made such consensual sex with a
    subordinate unacceptable and--in the military--illegal.
        Lt. Kelly Flinn was forced out of the Air Force for lying
    about an adulterous affair.
        Sgt. Maj. Gene McKinney, the Army's top enlisted man, was
    tried for perjury, adultery and obstruction of justice
    concerning sexual misconduct. He was convicted of obstruction
    of justice, but not before his attorney asserted at trial how
    people in uniform rightly ask: How can you hold an enlisted man
    to a higher standard than the President of the United States,
    the Commander in Chief?
        When we establish a glaring double standard in the law, we
    diminish respect for all law. This is why we must uphold the
    highest of standards for officials in public office.
        I will oppose any censure resolution that may be offered
    after the trial, as I opposed any so-called finding of fact
    during the trial because it is little more than a thinly veiled
    effort to give people political cover. I believe some who might
    otherwise vote to convict look to censure as a way to justify
    or politically cover a vote to acquit. There is no precedent
    for censure in the Constitution or in an impeachment context.
    It would be dangerous and wrong to set such a precedent now. I
    believe it could threaten the separation of powers between the
    branches of Government as Congresses start censuring Supreme
    Courts and Presidents for all manner of perceived misconduct.
        Senators should vote on the articles of impeachment,
    explain their reasons, and live with the consequences.
        I am struck that some of my colleagues who agree that the
    President did commit the serious offenses charged in the
    articles of impeachment still believe Congress can render some
    effective consequence short of removal such as censure, which
    will uphold the Presidency, the rule of law, and the sanctity
    of the oath. I believe they are wrong.
        I fear that they are not properly considering the precedent
    they would establish. Never mind what we think of this
    particular President. A thoroughly corrupt President in the
    future will not be inhibited by the empty words of a nonbinding
    sense-of-the-Senate resolution. However, such a corrupt
    President will think twice about certain conduct, if he knows
    without doubt, by precedent, that such conduct is removable.
        If perjury, obstruction of justice, and witness tampering
    are deemed--as a result of this trial--to be nonremoval
    offenses in certain circumstances, then a corrupt future
    President may calculate them to be acceptable. We should not
    set that precedent.
        From the beginning, I strongly supported efforts to allow
    both the House managers and the White House lawyers to call
    whatever live witnesses they deemed necessary to make their
    case. I favored a full and complete trial, believing that it
    was more important to ensure fairness to both sides than it was
    to get the trial over by some arbitrary date. This was in
    keeping with normal procedures in all previous impeachment
    trials. It also seemed to me to be essential to fundamental
    fairness and a full airing of the facts and issues in dispute.
    A hundred years from now no one will care whether the trial
    lasted 2 weeks or 6 months. They will care, we must hope, about
    the extent to which justice was done. Overall, I was
    disappointed in the unnecessarily tight procedural restrictions
    imposed on this trial, including the limits on witnesses. I
    fear that a bad precedent has been unnecessarily set for the
    future.
        Throughout the trial, I opposed efforts to waive the time-
    honored rules of procedure which require that deliberations
    among Senators be closed to the public. I am convinced this was
    the right decision. The closed meetings allowed for a more
    colleagial atmosphere among Senators, limiting much of the
    posturing and grandstanding that often goes on before the
    cameras. The closed sessions also helped enhance a greater
    spirit of duty and cooperation concerning the tasks at hand. As
    with all jury trials going back for more than 2,000 years in
    history, closed deliberations constitute proper procedure, and
    I believe this tradition should be maintained.
        This need not, and does not, diminish the accountability of
    Senators to their constituents and the public at large. All
    rollcall votes remain open and I believe every Member maintains
    an obligation to inform his constituents of the reason for his
    votes.
        I received a letter from Mr. Terrence Hogan of Owasso, OK,
    an eighth-grade civics teacher at the Cascia Hall Middle School
    in Tulsa for the past 22 years. He wrote last September saying
    he ``was greatly concerned about the moral direction of our
    Nation'' in light of the President's ``willful and repeated
    lying.'' He said the Nation ``cannot tolerate from our
    President actions and choices that we would not tolerate from
    the principal of our neighborhood school.''
        And this is exactly the point that people across America
    are asking: Is the President subject to the same moral
    accountability as every other responsible citizen in the
    workplace, or in any other position of public trust? And what
    do we say to the kids about truth and justice, about honesty
    and integrity, about the political and governmental heritage
    they should admire and emulate?
        These acts, which were committed willfully and
    premeditatedly by the President, are serious offenses which I
    believe clearly rise to the level of impeachable offenses.
        I reject the White House lawyers' argument that the
    President's conduct does not amount to the technical ``crimes''
    of perjury and obstruction, but I'm content to allow a regular
    court of law to settle the issue. I also reject their argument
    that the President's conduct does not rise to the level of
    impeachable offenses.
        I believe the President's conduct, however it is ultimately
    labeled, constitutes absolutely unacceptable behavior on the
    part of the President of the United States, the Nation's chief
    law enforcement officer who is constitutionally charged to
    ``faithfully execute the laws,'' and who, by word and deed,
    sets an example for every citizen.
        In finding the President guilty on both articles of
    impeachment, I believe the constitutional consequence of
    removal from office is warranted in order to uphold for future
    generations:
        The integrity, honor, and trust which are indispensable to
    the moral authority of the Presidency;
        The sanctity of the oath which every citizen must take in
    any legal proceeding to tell ``the truth, the whole truth, and
    nothing but the truth;'' and
        The viability of our judicial system, the rule of law, and
    the principle of ``equal justice under law.''
        Holding public office is a special privilege and I am
    continually grateful to the people of Oklahoma for the
    opportunity to serve in the U.S. Senate.
        During the past weeks and months, I have received thousands
    of letters, e-mails, faxes, phone calls and other
    communications relative to the impeachment trial and all of the
    subject matters surrounding it. Many have expressed strongly
    held views on one side or the other, often urging me to vote in
    accord with their wishes and thinking. My overworked staff and
    I have done our best to digest and respond to these inquiries
    and comments as best we could. To those who may have not yet
    received a personal response, I wish to express my appreciation
    for sharing your thoughts, your ideas, and your concerns.
        Whether you agree or disagree, I want you to know that my
    votes for conviction on the two articles of impeachment
    represent my best judgment, based on my analysis of the facts,
    the law, the Constitution and what I believe is best for our
    country. They do not represent the results of any poll or
    political calculation about what may be popular, either in
    Oklahoma or elsewhere.
        I have viewed the trial as a serious constitutional duty
    and have listened and deliberated with profound sense of
    history and patriotism. I have sought to respect the process
    and preserve for future generations those wise procedural
    precedents, including the rule of law, that have served this
    Nation so well for over 200 years.
        I have stated my views and I accept the result of the
    trial. I harbor no personal bitterness or hatred toward the
    President. It is time to look to the future. I hope all of us
    on all sides of these issues can unite in a prayer for the
    future of our country and for the ideals of freedom and justice
    it stands for in the world. God Bless America.
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Patrick J. Leahy

        Mr. LEAHY. Mr. Chief Justice, no matter how each of us
    viewed the evidence in this case and no matter how each of us
    voted, we all share common relief that the impeachment trial of
    William Jefferson Clinton is concluding. In many respects, this
    was uncharted territory for us. We all felt the weight of
    history and precedent as we made our decisions on how to
    proceed.
        With this in mind, the procedures developed and followed
    for the three depositions taken during the course of this trial
    should be made a part of the record of this impeachment trial.
    Unfortunately, the complete depositions were not introduced
    into evidence and made a part of the Senate trial record until
    after the vote on the articles themselves. Instead, at the
    request of the House managers, the only parts introduced into
    evidence before then were those ``from the point that each
    witness is sworn to testify under oath to the end of any direct
    response to the last question posed by a party.''
    (Congressional Record S1209, Jan. 4, 1999.)
        I served as one of the six presiding officers at the
    depositions and attended all of them. In particular, I wish to
    thank Senators Dodd and Edwards for serving with me, and
    Senator DeWine with whom I jointly presided.
        The decisions made during those depositions may provide
    guidance in the future should any other Senate be confronted
    with challenges similar to those that we have confronted. For
    that reason, I have described below the manner in which we
    reached our decisions and summarize the issues we resolved both
    before and during the depositions of Monica S. Lewinsky, Vernon
    Jordan, and Sidney Blumenthal.
        I thank Thomas Griffith, Morgan Frankel and Chris Bryant in
    the Senate legal counsel's office for their assistance during
    the depositions and in preparing this summary of the rules and
    procedures.
        I ask unanimous consent that this summary be printed in the
    Record.
        There being no objection, the material was ordered to be
    printed in the Record, as follows:

      Summary of Rulings and Procedures of the Presiding Officers During
                    Depositions in Senate Impeachment Trial

                               a. the procedures
        Selection. An equal number of Presiding Officers from each party
    were selected by the Minority and Majority Leaders.
        Presiding. One Presiding Officer from each party presided jointly
    over each deposition at all times. The Presiding Officers rotated from
    deposition to deposition and the Democratic Presiding Officers chose to
    rotate during the deposition of Ms. Lewinsky, with Senator Leahy
    presiding over the first part and Senator Edwards presiding over the
    latter part of that deposition.
        Attendance. All Presiding Officers were permitted to attend each
    deposition in order to provide continuity in the proceedings and ensure
    familiarity with both substantive and procedural decisions made in each
    deposition.
        Consultation. All Presiding Officers present, whether or not
    actually presiding over a specific deposition, were invited to and did
    participate in discussions among Presiding Officers about certain
    rulings.
        Opening Script. The first Presiding Officer to speak was from the
    majority party. He used an opening script that summarized Senate
    Resolution 30 authorizing the depositions and set forth the ground
    rules for the timing of lunch and other breaks, the overall time
    allotted for the deposition, the scope of the examination, basic
    guidelines for objections, an explanation of the confidentiality
    requirements, and the oath required to be administered to the witness.
    (Lewinsky Depo. Tr., pp. 5-8). Senator DeWine reiterated the
    confidentiality requirement at the close of the Lewinsky deposition.
    (Id., p. 174, ln. 10--p. 175, ln. 7).
        Senator Leahy made an opening statement at the Lewinsky deposition
    to advise the witness of her rights, including that she could correct
    the transcript, was free to consult with her attorneys, and notified
    her of the criminal liability she risked if she failed to tell the
    truth. (Lewinsky Depo. Tr., pp. 9-11).
        Senator Dodd stressed the confidentiality requirement before the
    Jordan deposition (Jordan Depo. Tr., p. 9, lns. 6-13).
        Senator Edwards stressed the confidentiality requirement again
    before the Blumenthal deposition (Blumenthal Depo. Tr., p. 8, lns. 8-
    10).
        Oath. The Presiding Officer from the majority party administered
    the oath to the witness.
        Advise of Rights. Senator Leahy in his opening remarks at the
    Lewinsky deposition informed the witness that should she fail to tell
    the truth, she would risk violating a federal law (18 U.S.C. Section
    1001), prohibiting a person from making any materially false statement
    in any investigation or review by Congress (Lewinsky Depo. Tr., p. 9,
    Ins. 4-13).
        Breaks. Senator DeWine called for 5-minute breaks on the hour, and
    Senator Leahy made clear that the witness should just ask should she
    want a break. At the conclusion of each break, Senator DeWine informed
    counsel of the time remaining for questioning. (See, e.g., 145 Cong.
    Rec. S1218, S1222 (Lewinsky)). Senator Thompson did likewise. (Id. at
    S1233, S1238 (Jordan)). Senator Specter also called for 5-minute breaks
    on the hour. (Id. at S1249, S1253; Blumenthal Depo. Tr., p. 86, Ins. 6-
    7, 15). Senators Thompson and Dodd called for a lunch break, even
    though Mr. Jordan asked to proceed through lunch. (145 Cong. Rec.
    S1243). Brief breaks were also taken when required to change the tapes,
    see, e.g., id. at S1227, and during a power outage in the Jordan
    deposition. (Id. at S1234).
        Reserving Time for Re-direct and Re-Cross Examinations. The parties
    were allowed to reserve time out of their four hours for re-direct and
    re-cross examination, with the understanding, however, that should the
    President's counsel fail to cross-examine, the Managers would have no
    opportunity to re-direct. Likewise, should the Managers fail to re-
    direct following cross-examination, the President's counsel would have
    no opportunity to re-cross.
        During the Lewinsky deposition, the President's counsel chose to
    ask no questions, which meant that the Managers could ask no further
    questions. (Lewinsky Depo. Tr., p. 173, Ins. 16-17). The President's
    counsel made a short apology to the witness on behalf of the President,
    to which no objection was made. (Id., p. 173, Ins. 18-20).
        During the Jordan deposition, the President's counsel asked very
    few questions on cross-examination, and the Managers asked no questions
    on re-direct examination. (145 Cong. Rec. S1245).
        During the Blumethal deposition, the President's counsel asked no
    questions on cross-examination, but the House Managers were allowed to
    ask questions on a limited scope of inquiry that had been the subject
    of an earlier objection raised by the President's counsel. (Id. at
    S1253). Senators Specter and Edwards had ruled that the Managers could
    develop this line of inquiry at the conclusion of the deposition so
    that should the objection be sustained, that portion of the deposition
    could be easily excised (145 Cong. Rec. S1253). Following the Managers'
    last line of inquiry, the President's counsel was given the opportunity
    to ask, but had no questions for Mr. Blumenthal. (Blumenthal Depo. Tr.,
    p. 86, Ins. 15-18).
        Recalling the Witness. At the completion of the Managers' direct
    examination of Ms. Lewinsky, Senator Edwards asked Manager Bryant
    whether he had concluded his direct examination. Manager Bryant said he
    had. When the President's counsel determined not to ask any questions,
    Senators DeWine and Edwards ruled that the deposition was completed,
    meaning that the deponent could not be compelled to testify again
    unless the Senate voted to issue another subpoena. (Lewinsky Depo. Tr.,
    p. 173, In. 24). In so doing, they expressly rejected a request from
    Managers Bryant and Rogan to retain jurisdiction over the witness
    should she be called as a witness before the Senate. (Id., p. 176, lns.
    4-8).
        Off the Record. The Presiding Officers determined when to go off
    the record. For example, Senator DeWine asked to go off the record when
    conferring on a ruling with Senator Leahy. (145 Cong. Rec. S1219
    (Lewinsky)). Senator Edwards also asked to go off the record to confer
    with Senator Specter on a ruling. (Id. at S1250 (Blumenthal)). The
    parties were also permitted to request that discussion take place off
    the record. For example, upon Manager Bryant's request, Senators DeWine
    and Leahy allowed discussion to take place off the record. (Id. at
    S1229 (Lewinsky)). Similarly, upon President's Counsel's request,
    Senators Specter and Edwards allowed discussion to take place off the
    record. (Id. at S1253 (Blumenthal)).
        Videotape. Senator Leahy advised Ms. Lewinsky at the outset for her
    deposition of how the videotape of the deposition might be used,
    including admitted into evidence in the impeachment trial and used in a
    way that it becomes public. (Lewinsky Depo. Tr., p. 10, lns. 10-12).
    Her attorney noted for the record that the witness objected to the
    videotaping of the deposition, and to any subsequent public release of
    the videotape of Ms. Lewinsky's testimony (Id. p. 12; lns. 19-22).
                                 b. the witness
        Counsel May Not Coach the Witness. Senator DeWine instructed Ms.
    Lewinsky's counsel not to coach or prompt the witness in her answers.
    He stated that she was free to ask for a break to confer with her
    counsel, but they should not whisper responses to her while a question
    was pending. (145 Cong. Rec. S1215).
        Relying on Prior Grand Jury Testimony. Ms. Lewinsky objected to
    certain questions, answers to which were already in the record. After
    conferring, Senators DeWine and Leahy instructed Ms. Lewinsky to answer
    a Manager's question even though the question might have been covered
    in her grand jury testimony, though she ``certainly can reference
    previous testimony if she wishes to do that.'' Senator Leahy
    particularly noted that there may be ``some nuances different,'' and
    that she could ``correct her testimony.'' (145 Cong. Rec. S1213).
        Transcript Corrections. Senator Leahy made clear when he presided
    at the Lewinsky deposition that the witness would be given an
    opportunity to examine the transcript to make any necessary
    corrections. By letter dated February 2, 1999, her attorney provided a
    list of corrections to the deposition (145 Cong. Res. S1229).
                   c. objections to questions and statements
        Procedures for Resolving Scope Objections. Section 204 of S. Res.
    30 limited the examination of the witness to ``the subject matters
    reflected in the Senate record.'' Prior to the Lewinsky deposition,
    Senators DeWine and Leahy determined that if objection was made to a
    question on the ground that it exceeded the scope of the Senate record,
    the proponent of the question would be allowed to identify where in the
    Senate record the subject matter of the question was reflected. If the
    proponent could satisfy the Presiding Officers that the subject matter
    of the question was reflected in the Senate record, the witness would
    be instructed to answer the question.
        In the Blumenthal deposition, a scope objection arose about
    questions regarding White House strategy discussions of Kathleen
    Willey. (145 Cong. Rec. S1249). Senators Specter and Edwards decided to
    reserve that line of questioning until the end of the deposition. When
    the issue arose again, after consultation off the record, Senators
    Specter and Edwards decided that questions regarding Kathleen Willey
    were within the scope, but not questions regarding strategy sessions on
    any other women. (Id. at S1253). Senators Specter and Edwards also
    overruled Mr. Blumenthal's attorney's scope objection to another area
    of questions after Manager Graham had offered proof to support the
    scope of the question, and the attorney had withdrawn his objection.
    (Id. at S1251).
        Limitation on Scope. While S. Res. 30 broadly defined the
    permissible scope of the deposition to cover subject matter reflected
    in the Senate record, the Managers were reminded of their
    representations to the Senate limiting the areas about which they would
    examine the witnesses. For example, Senator Leahy reminded Manager
    Bryant of his promise to the Senate that he would not ask Ms. Lewinsky
    about her explicit sexual relationship with the President. (145 Cong.
    Rec. 1213).
        Objections by Counsel for the Witness. Senators DeWine and Leahy
    ruled that counsel for the witness were allowed to interpose objections
    to a question. (Id. at S1219 (Lewinsky)).
        Answering the Question Subject to an Objection. Section 203 of S.
    Res. 30 required that ``the witness shall answer'' all questions unless
    asserting a ``legally-recognized privilege, or constitutional right.''
    Senators DeWine and Leahy noted all non-privilege objections and
    instructed the witness to answer questions subject to the objection.
    (See, e.g., 145 Cong. Rec. S1221 (Lewinsky)). The attorney-client
    privilege was asserted by Ms. Lewinsky's counsel in response to one
    line of questioning. Senators DeWine and Leahy instructed Manager
    Bryant to postpone that line of questioning until after Ms. Lewinsky's
    counsel could determine whether prior grand jury testimony had waived
    the privilege for that subject matter. (Id. at S1223). Her counsel
    later withdrew the objection, and Manager Bryant resumed his line of
    questioning. (Id. at S1224).
        When Manager Graham asked about Mr. Blumenthal's prior use of
    executive privilege, his attorney, Mr. McDaniel, objected that the
    question was misleading because Mr. Blumenthal had not raised the
    privilege, but the White House had. Senators Specter and Edwards
    overruled the objection, and asked Mr. Blumenthal to answer the
    question, which was rephrased. (Id. at S1249).
        Compound or Ambiguous Questions. During the depositions, there were
    numerous objections that the questions were compound and/or ambiguous.
    In each instance, the Presiding Officers invited the manager to
    rephrase the question and allowed the questioning to proceed. (See,
    e.g., id. at S1214-15 (Lewinsky), S1228 (Lewinsky), S1252
    (Blumenthal)). At one point in the Blumenthal deposition, Senators
    Specter and Edwards ruled that Mr. Blumenthal could answer a question
    to which Mr. McDaniel objected as confusing, if the witness understood
    it. (Id. at S1250).
        Open-ended Question. On cross-examination, Mr. Kendall asked Mr.
    Jordan if he had anything to add to the testimony he had given during
    his direct examination. That question drew an objection from Manager
    Hutchinson that it was too broad. Senator Thompson asked Mr. Kendall to
    rephrase the question, which he did. (Id. at S1245).
        Witness Statement. At the conclusion of his examination, Mr. Jordan
    asked the Presiding Officers if he could make a statement. (Jordan
    Depo. Tr., p. 157, lnc. 6-7). Manager Hutchinson reserved the right to
    object if the statement exceeded the scope of the inquiry. (Id. at ln.
    18). Mr. Jordan then offered a statement defending his integrity, which
    the Presiding Officers allowed. (Id. at ln. 24--p. 158, ln. 23).
    Manager Hutchinson did not assert an objection following the statement.
        Leading Questions. Senator Thompson allowed Manager Hutchinson to
    ask a leading question of Mr. Jordan, since according to S. Res. 30
    these witnesses were to be treated as adverse to the Managers. (145
    Cong. Rec. S1238).
        Questions Assuming Facts Not in Evidence. Senator Edwards, with
    Senator Specter's concurrence, sustained an objection to a Manager's
    question that contained premises and characterized events not in the
    record, and Manager Graham rephrased the question. (Id. S1252).
        Speculation. Senators DeWine and Leahy asked Manager Bryant to
    rephrase questions after objection was made that the questions called
    for speculation about another person's state of mind. (Id. at S1219,
    S1221 (Lewinsky)). Senators Specter and Edwards asked Manager Graham to
    rephrase questions calling for Mr. Blumenthal's speculation about
    other's thoughts. (Id. at S1250, S1254).
                               d. use of exhibits
        Prior Production of Exhibits. Section 204 of S. Res. 30 requires
    ``[t]he party taking a deposition . . . [to] present to the other
    party, at least 18 hours in advance of the deposition, copies of all
    exhibits which the deposing party intends to enter into the
    deposition.'' Following objection from the President's counsel that the
    Managers had failed to comply with this requirement and had largely
    supplied only general descriptions of exhibits without copies of
    specific documents, Senators DeWine and Leahy ruled that this provision
    required production to the witness, the other party, and the Presiding
    Officers of a copy of any document that would be used during the
    deposition. A general description of the exhibit document did not
    comply with the resolution. (Lewinsky Depo. Tr., p. 14, ln. 16--p. 19,
    ln. 5). The President's counsel lodged an objection to the tardy
    production of deposition exhibits by the Managers prior to the Lewinsky
    deposition and again prior to the Jordan deposition, but agreed to
    proceed after the Presiding Officers assured them they would have an
    adequate opportunity to review any documents used in the deposition.
    (Jordan Depo. Tr., p. 13, lns. 22-25). Senators Thompson and Dodd put
    the Managers on notice that failure to comply with the Presiding
    Officers' ruling would preclude the use of documents not provided in a
    timely fashion at the Blumenthal deposition scheduled for the next day.
    (Id. at p. 13, ln. 22-p. 14, lns. 6, 16-23).
        Referring to Exhibits. Senators DeWine and Leahy ruled that
    exhibits should be referred to according to their location in the
    Senate record. (145 Cong. Rec. S1214, S1226 (Lewinsky)). Senator
    Thompson reiterated that ruling in the Jordan deposition. (Id. at
    S1236). Senator Thompson also ruled that grand jury exhibits in the
    Senate record used as deposition exhibits should not be referred to by
    their grand jury exhibit number, but rather by an exhibit number for
    this impeachment trial deposition. (Id.) Senators Thompson and Dodd
    numbered the exhibits as they were presented, rather than as they were
    admitted into evidence. (Id. at S1245).
        Admitting Exhibits into Evidence. S. Res. 16, the agreement which
    emerged from the Senate's January 8, 1999 bipartisan caucus in the Old
    Senate Chamber, provides that the material the House filed with the
    Senate on January 13, 1999 ``will be admitted into evidence.'' Those
    materials were printed, bound, and distributed to Senators. (See S.
    Doc. No. 106-3, vols. I-XXIV (1999)). Thus, any documents in that
    Senate record were already admitted into evidence by the time the
    depositions were taken. S. Res. 30, which governs the conduct of these
    depositions, provides that ``[n]o exhibits outside of the Senate record
    shall be employed, except for articles and materials in the press,
    including electronic media.'' When a party used a document during a
    deposition that was in the Senate record, there was no need to seek
    admission of that document into evidence. The only non-record documents
    that could be used in these depositions were ``articles and materials
    in the press, including electronic media.'' A party needed to seek the
    admission of those documents into evidence before they could become
    part of the record.
        During the Jordan deposition, Manager Hutchinson attempted to use
    as an exhibit a summary of telephone records, a redacted form of which
    was in the Senate record. Mr. Kendall objected to the use of the
    exhibit because it had not been properly authenticated. Senators
    Thompson and Dodd sustained the objection. (145 Cong. Rec. S1241).
        After the Manager's examination of Mr. Blumenthal, the President's
    counsel, Lanny Breuer, presented various news articles that were
    admitted into evidence. (Blumenthal Depo. Tr., p. 81, ln. 8-p. 82, ln.
    2). Manager Graham also submitted articles into evidence, including
    those not referred to by Mr. Blumenthal, and they were admitted after
    Mr. Breuer withdrew his objection that no reference had been made to
    the articles during the examination. (Id. at p. 82, lns. 16-25, p. 83,
    ln. 15-p. 85, ln. 25).
                                    ------

           [From the Congressional Record--Senate, February 12, 1999]

                     Statement of Senator Olympia J. Snowe

        Ms. SNOWE. Mr. Chief Justice, distinguished colleagues, let
    me begin by expressing my appreciation to the Chief Justice for
    his wisdom, for his infinite patience, and for conferring upon
    this body the judicial temperament envisioned by the framers.
        I would also like to commend both the Senate majority and
    minority leaders for upholding the dignity of this body, by
    preserving judiciousness and fairness, and maintaining
    bipartisanship and civility.
        Colleagues, we have arrived at a juncture in our public
    lives that will largely define our place before the judgment of
    history, and I think it will be said that justice and the
    Constitution were well served.
        Indeed, the consequences of our decision are manifest in
    the words of Alexander Hamilton, who wrote of ``the awful
    discretion which a court of impeachment must necessarily have,
    to doom to honor or to infamy the most confidential and the
    most distinguished characters of the community.''
        Those words should weigh heavily upon us. But while the
    gravity of our task is humbling, the genius of our Constitution
    is ennobling; for we deliberate not under the imposing shadow
    cast by the exceptional men who framed this Nation, but in the
    illuminating light of their wisdom.
        Impeachment was designed by the framers to be a circuit
    breaker to protect the Republic when ``checks and balances''
    would not contain the darker vagaries of human nature.
    Impeachment empowers the Senate--under the most extraordinary
    of circumstances--to step outside its legislative role, reach
    into the executive branch, and remove a popularly elected
    President.
        Impeachment was not, however, devised as an adjunct or
    independent arm of prosecution. It is not for the U.S. Senate
    to find solely whether the President committed statutory
    violations. Rather, we have a larger question--whether there is
    evidence that persuades us, in my view beyond a reasonable
    doubt, that the President's offenses constitute high crimes and
    misdemeanors that require his removal.
        Here is the precise point of our challenge--to give
    particular meaning to the elusive phrase, ``high crimes and
    misdemeanors.'' This task is critical, because impeachment is
    not so much a definition, as it is a judgment in a particular
    case--a judgment based not upon an exact or universal moral
    standard--but upon a contemporary and historical assessment of
    interest and need.
        ``High crimes and misdemeanors'' speak to offenses that go
    to the heart of matters of governance, social authority, and
    institutional power--offenses that, in Hamilton's words,
    ``relate chiefly to injuries done immediately to the society
    itself.''
        These crimes must be of such magnitude that the American
    people need protection, not by the traditional means of civil
    or criminal law--but by the extraordinary act of removing their
    duly elected President.
        For removal is not intended simply to be a remedy; it is
    intended to be the remedy. The only remedy by which the
    people--whose core interests are meaningfully threatened by the
    President's conduct--can be effectively protected.
        This, to me, is what President Woodrow Wilson meant when he
    referred to ``nothing short of the grossest offenses against
    the plain law of the land.'' This, to me, is what framer George
    Mason meant when he emphasized ``great and dangerous
    offenses.''
        So in determining whether this President has committed a
    ``great and dangerous offense'' requiring removal, we must
    first weigh all of the credible evidence to identify which acts
    were actually committed. Then, we must assess the gravity or
    degree of the misconduct. This process requires that we review
    the acts from their origin and the circumstances in their
    totality.
        The allegations in article I do not paint a pretty picture.
    Indeed, we are all struggling with having to reconcile the
    President's lowly conduct with the Constitution's high
    standards. We should all be concerned with the minimal
    threshold that he has set and the poor example he has created
    for leadership in this country.
        The President himself admits he gave evasive and incomplete
    testimony. He admits he worked hard to evade the truth. He
    admits he misled advisers, Congress, and the Nation. And he
    looked all of America in the eye--wagging his finger in mock
    moral indignation when he did it.
        The fact is, the truth is not our servant. The truth does
    not exist to be summoned only when expedient. I find his
    attempts to contort the truth profoundly disturbing. A
    President should inspire our most noble aspirations.
    Unfortunately, he has fueled our darkest cynicisms.
        I resent the ordeal he has put this country through--and we
    should make no mistake about it--whatever else may be said, we
    are here today because of the President's actions. I resent the
    shadow he has cast on what should be--and I feel still is--an
    honorable profession: public service. And I think all of us who
    take our oaths to heart should resent it.
        Finally, as a woman who has fought long and hard for sexual
    harassment laws, I resent that the President has undermined our
    progress. No matter how consensual this relationship was, it
    involved a man in a position of tremendous power, with
    authority over a 21-year-old female subordinate, in the
    workplace--and not just any workplace. He has shaken the
    principles of these laws to their core and it saddens me
    deeply.
        But as I work my way through my distaste, my dismay, and my
    disappointment, I return to the discipline that the
    Constitution imposes upon us as triers of fact. My job here is
    to review the evidence, and to measure that evidence against my
    standard of proof, and the constitutional standard of high
    crimes and misdemeanors.
        So let's look at the evidence. Article I does not go to
    perjury about the underlying relationship--that charge was
    dismissed by the House. Instead, the article before us alleges
    perjury based on statements about statements about conduct.
    Unfortunately, what this comes down to is a case of ``perjury
    once removed''--an inherently tenuous charge.
        As triers of fact, we are asked under article I not to find
    whether the President lied, but whether he committed the
    specifically defined act of perjury. Here, the law is clear
    that there must be proof that an untruth was told; that it was
    told willfully; and that it was told about a subject matter
    material to the case. These are the hard rules of the statute.
        In this instance, article I alleges perjury in statements
    the President made explaining the nature and details of the
    relationship. Significantly, the underlying subject matter of
    most of these statements was ruled irrelevant and inadmissable
    in the underlying civil case that was itself dismissed and
    settled. To me, these facts undermine the materiality of these
    statements.
        Article I also alleges perjury in the President's
    statements explaining his concealment of that relationship.
    Here, I find insufficient evidence of the requisite untruth and
    the requisite intent. Given, again, that we are talking here
    about ``perjury once removed,'' I cannot conclude that the
    President is guilty on article I.
        As I look at article II, I have similar concerns and
    conflicts. Are there any among us who can look at the
    disturbing pattern that has been laid out for us and not be
    deeply troubled?
        Just look at the allegations. The President may have
    influenced the filing of an affidavit. The President may have
    initiated the concealment of potential evidence. And the
    President may have accelerated a job search, in hopes of
    influencing a witness. But for all of this, there is only
    circumstantial evidence. Despite a 64,000-page record and
    countless hours of argument and testimony, there is no direct
    evidence supporting any of these allegations.
        To the contrary, where there is direct evidence, the
    testimony is against the allegations. Indeed, not one witness
    with firsthand knowledge has come forward since the beginning
    of this matter to corroborate the charges. So while I can draw
    inferences from the evidence, I cannot draw conclusions beyond
    a reasonable doubt.
        The framers clearly prescribed caution when measuring high
    crimes, and such caution is all the more important when a case
    rests on purely circumstantial evidence. Mindful of this
    caution, I still find that one allegation stands out from the
    rest; the President's attempt to influence the potential
    testimony of his personal assistant.
        Let's look at the facts. In the President's civil
    deposition, the President suggested, at least three times, that
    the attorneys should ask questions of his personal assistant.
    At the end of the deposition, the judge reminded him of the
    confidentiality order not to discuss the testimony with others.
        Within 2\1/2\ hours, the President called his personal
    assistant to arrange a rare Sunday meeting. At that meeting,
    the President disclosed to her the contents of his deposition.
    In a manner that all but reveals the President's motives, he
    included in his discussion with her false statements about the
    circumstances of his relationship. Indeed, she would later
    testify that she believed the President sought her agreement
    with those statements he was posing.
        Consider this critical exchange in the testimony of the
    President's assistant:
        She was asked, ``Would it be fair to say then--based on the
    way he stated it and the demeanor he was using at the time he
    stated it to you--that he wished you to agree to that
    statement?'' The President's assistant nodded. She was then
    asked, ``And you're nodding your head yes, is that correct?''
    And she answered, ``That's correct.''
        And he again violated the gag order when he revisited these
    statements with her several days later.
        As an experienced lawyer, the President knew that, by the
    force of his own testimony, he made his assistant a potential
    witness.
        As a former State attorney general, the President knew he
    was violating the confidentiality order when he spoke with her.
        As a defendant who repeatedly named his assistant, the
    President knew that his assistant would be subpoenaed.
        And she was subpoenaed just 3 days later. But even if she
    hadn't, the President did not need absolute or direct knowledge
    that his assistant would testify. Under the law of obstruction,
    which, unlike perjury, does not expressly require materiality,
    he only had to know that she could offer relevant facts.
        Make no mistake about it, I find the President's behavior
    deplorable and indefensible.
        If I were a supporter, I would abandon him. If I were a
    newspaper editor, I would denounce him. If I were a historian,
    I would condemn him. If I were a criminal prosecutor, I would
    charge him. If I were a grand juror, I would indict him. And if
    I were a juror in a standard criminal case, I would convict him
    of attempting to unlawfully influence a potential witness under
    title 18 of the United States Code.
        However, I stand here today as a U.S. Senator, in an
    impeachment trial, with but one decision--does the President's
    misconduct, even if deplorable, represent such an egregious and
    immediate threat to the very structure of our government that
    the Constitution requires his removal?
        To answer this broad question, we need to ask several finer
    questions:
        Do the people believe their liberties are so threatened
    that he should not serve his remaining 23 months? Is the
    President's violation on par with treason and bribery? What are
    the inescapable and unprecedented effects of removing a duly
    elected President? And can the President's wrongdoing be more
    effectively remedied by criminal prosecution, in a standard
    court of law, after he leaves office?
        These are the questions which drive our consideration of
    the ``gravity'' and ``degree'' of the President's conduct. To
    this end, I return to the words of another Maine Senator,
    William Pitt Fessenden, who during the Andrew Johnson trial
    said that removal must ``be exercised with extreme caution''
    and in ``extreme cases.'' It must, he said, ``address itself to
    the country and the civilized world as a measure justly called
    for by the gravity of the crime. . . .''
        In this case, I understand how reasonable minds could
    differ, for I have struggled long and hard with my own
    decision.
        But the Constitution tempers our passion and measures our
    judgment. The Constitution requires each of us to determine not
    just whether the President violated a statute. For had the
    framers intended the offenses charged in this case to require
    removal in any and all circumstances, they would have
    specifically included them in the impeachment provisions of the
    Constitution.
        Because they did not, we are compelled to ask ourselves
    whether the nature and circumstances of his conduct are such
    that we have no choice but to inflict upon him what one of the
    House managers called ``the political equivalent of the death
    penalty.''
        If I could conclude that this President's conduct is of
    that nature, I would vote to remove him. Because if there is
    one thing I've learned throughout my 25 years in elective
    office, it is that the really tough decisions leave us with but
    one choice--doing what we know to be right and true.
        In this instance, among the seven allegations charged in
    article II, I have only been persuaded beyond a reasonable
    doubt that the President committed one of them. After due
    consideration of all the factual circumstances relating to this
    one finding, and the constitutional dictates and implications
    of this matter as a whole, I am persuaded that the President's
    wrongdoing can and should be effectively addressed by the
    additional remedy expressly provided by the framers in the
    Constitution--namely, trial before a standard criminal court.
    And I am further persuaded that future Presidents, and future
    generations can be effectively deterred from such wrongdoing by
    this impeachment and a potential prosecution.
        The President's behavior has damaged the Office of the
    Presidency, the Nation, and everyone involved in this matter.
    There are only two potential victims left--the Senate and the
    Constitution--and I am firmly resolved to allow neither to join
    the ranks of the aggrieved.
        From the day I swore my oath of impartiality, I determined
    that the only way I could approach this case was to ask myself
    one question, ``If I were the deciding vote in this case, could
    I remove this President under these circumstances?'' The
    answer, I have concluded, is no--and therefore, I will vote
    against both articles of impeachment.
        Mr. Chief Justice, I came to this process with an open
    notebook and an open mind, determined to honor my oath to do
    impartial justice and serve the best interests of the
    Presidency, the American people, and the Nation. I stand
    confident that in doing so, my manner has been impartial and my
    judgment has been measured. Therefore, in my mind and in my
    heart, I believe to a moral certainty that my verdict is just.
        As men and women of honor, that is the highest expectation
    to which we can aspire. For we are writing history with
    indelible ink, but imperfect pens.
        In the end, when future generations dust off the record of
    what we have done here, may they say we validated the framers'
    faith in the Senate. May they say we reached within ourselves
    to discover our most noble intentions. And may they say we
    achieved a conclusion worthy not just of our time, but of all
    time.
                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                        Statement of Senator Don Nickles

        Mr. NICKLES. Mr. Chief Justice, the U.S. Senate has nearly
    concluded only the second impeachment trial of a President in
    history. We fulfilled our promise to conclude the process in an
    expeditious and responsible manner in accordance to the
    Constitution.
        Americans understand there is really only one person to
    blame for this ordeal: Bill Clinton. He could have prevented
    the entire impeachment process if he had chosen the truth
    instead of lies and obstruction and the well-being of the
    Nation instead of his own personal and political needs. He
    squandered his opportunity to provide trustworthy leadership on
    the important issues facing America.
        The President's actions left the Attorney General with no
    choice but to ask the independent counsel to investigate. They
    left the independent counsel with no choice but to refer
    charges to the House of Representatives. They left the House
    with no choice but to impeach him.
        The day Senators took that impeachment oath was one of the
    most serious, solemn times that I have experienced during my 18
    years in the Senate. Our oath was to do impartial justice, and
    that oath was in my mind as I weighed the facts, the law, and
    the Constitution.
        The President took an oath, too. He took an oath to tell
    the truth, the whole truth, and nothing but the truth.
        I believe that clear and convincing evidence presented to
    the Senate demonstrates that President Clinton did indeed
    commit multiple acts of perjury, as alleged in article I, and
    multiple acts of obstruction of justice, as alleged in article
    II, and deserves to be found guilty on both articles of
    impeachment.
        The President made a serious, serious mistake when he went
    to his Paula Jones deposition, raised his right hand and swore
    to tell the truth, the whole truth, and nothing but the truth,
    and then lied repeatedly. Following that, he committed more
    acts of obstruction and more lies, culminating in his testimony
    before the grand jury where he lied time and time again. He had
    obstructed justice and he had perjured himself in the Jones
    case, and he wanted to be consistent, so he perjured himself
    again.
        One of many specifics, concerning his ``conversations''
    with Betty Currie: ``I was trying to get the facts down. I was
    trying to understand what the facts were.'' He wasn't trying to
    understand the facts. He knew what the facts were. He was
    trying to mislead a witness, and then he lied under oath after
    being begged, ``Don't do it again, Mr. President.''
        I believe the public deserves, and the Constitution
    permits, that the Senate demand a high standard of conduct in
    its President. Rather than find a loophole to excuse the
    President's behavior, the Senate ought to find him guilty.
        The President's counsel have attempted to frame the
    question before the Senate as ``[a]re we at that horrific
    moment in our history when our Union could be preserved only by
    taking the step that the framers saw as the last resort?'' \1\
    His lawyers are asking the wrong question. In fact, as Manager
    Canady pointed out, under this standard even the deeds of
    Richard Nixon may not have been worthy of impeachment.\2\ The
    proper question is not whether America would survive President
    Clinton remaining in office: that answer is yes. The proper
    question before the Senate is whether, knowing what we now know
    about his conduct, America should have to do so.
    ---------------------------------------------------------------------------
                                       * * * * *
    \1\ 145 Cong. Rec. S495 (January 19, 1999) (statement of counsel Ruff).
                                       * * * * *
    \2\ 145 Cong. Rec. S963 (January 20, 1999) (statement of Manager
    Canady).
    ---------------------------------------------------------------------------
        Another of the President's lawyers argued that ``[i]f you
    convict and remove President Clinton on the basis of these
    allegations, no President will ever be safe from impeachment
    again[.]'' \3\ I, for one, have a little more confidence that
    our future leaders will not commit felonies, but if a future
    President commits the same crimes as President Clinton, I hope
    that President will face the same constitutional response.
    ---------------------------------------------------------------------------
                                       * * * * *
    \3\ 145 Cong. Rec. S823 (January 20, 1999) (statement of counsel
    Craig).
    ---------------------------------------------------------------------------
        In fact, one familiar lawyer recognized that there is ``no
    question that an admission of making false statements to
    government officials and interfering with the FBI is an
    impeachable offense.'' \4\ That lawyer was William Clinton,
    speaking in 1974.
    ---------------------------------------------------------------------------
                                       * * * * *
    \4\ Arkansas Democrat, August 6, 1974.
    ---------------------------------------------------------------------------
        The President's defenders have argued that his errors were
    ``private acts'' which are irrelevant to the constitutional
    standards of public behavior. But this was not about adultery.
    These charges would be just as valid even if he were never
    married. Let's also consider a few other facts.
        The President utilized his secretary to conceal evidence;
        The President went out of his way to lie to his most senior
    aides, knowing they would repeat those lies to the grand jury;
        The President supervised a massive and coordinated effort
    to have his staff, on government time, repeatedly lie to the
    public on his behalf;
        The President asserted one of his most precious powers,
    that of executive privilege, to keep government employees from
    cooperating with a Federal grand jury; and
        There is evidence that official White House personnel
    attempted to smear Ms. Lewinsky and other witnesses to bolster
    his bogus defense.
        If this conduct is so private, why has the President
    dragged so many public servants into his web of deceit and
    lies?
        If the Senate were going to pass a censure resolution,
    perhaps it should include language rebuking his private
    behavior which even his staunchest defenders have recognized as
    reprehensible, reckless, and indefensible. However, we are
    sitting not as a court of morality, but as a Court of
    Impeachment which must decide whether the rule of law, as
    Manager Hyde so eloquently explained, is a value so worthy of
    protection that it requires removal of a twice-elected
    President.\5\
    ---------------------------------------------------------------------------
                                       * * * * *
    \5\ See Cong. Rec. S299 (January 16, 1999) (statement of Manager Hyde).
    ---------------------------------------------------------------------------
        Even more importantly, the President's conduct was not
    simply a personal matter, but rather an attack on our system of
    government. Our system of justice, both civil and criminal,
    would collapse if lying under oath was tolerated, tampering
    with witness' testimony was permitted or hiding of evidence was
    customary. Think of all of the plaintiffs, defendants, and
    witnesses who are involved in difficult or embarrassing
    situations involving bad investments, physical altercations,
    substance abuse, or adultery. How can we expect all of them to
    tell the truth, produce the evidence, and abide by society's
    legal standards about these matters when our President refused
    to do so?
        Recognizing that the President still may face the criminal
    justice system, I believe it is entirely appropriate for the
    Senate to consider how our judicial system reacts to perjury.
    Remember the 1998 quote from a Federal judge which Manager
    Buyer recounted:

    [Congress does not] want people lying to grand juries. They
    particularly don't want people lying to grand juries about criminal
    offenses. They particularly don't want people lying to grand juries
    about criminal offenses that are being investigated. They don't like
    that. And Congress has said we as a people are going to tell you if you
    do that, you're going to jail and you're going to jail for a long time.
    And if you don't get the message, we'll send you to jail again. Maybe
    others will. But we're not going to have people coming to grand juries
    and telling lies because of their children or their mothers or fathers
    or themselves. It's just not acceptable. The system can't work that
    way.\6\
    ---------------------------------------------------------------------------
                                       * * * * *
    \6\ 145 Cong. Rec. S283 (January 16, 1999) (statement of Manager
    Buyer).

        Of all of the powers trusted to the President, possibly the
    most important is his role as Commander in Chief. His ability
    to lead the military in times of war, and during every day of
    preparation, training, and planning which precedes violent
    conflict, depends in large part in the trust and confidence he
    can inspire in the approximately 1.2 million men and women he
    commands. These men and women are subject to the Uniform Code
    of Military Justice: the President should be grateful he is
    not, for he likely would be facing court-martial for his
    actions. At a minimum, he likely would be found guilty of the
    following offenses:
        False official statements--article 107;
        Perjury--article 131;
        Conduct unbecoming an officer and gentleman--article 133;
        False swearing--article 134;
        Obstruction of justice--article 134; and
        Subornation of perjury--article 134.

        As Manager Buyer reminded us:

        In every warship, every squadbay, and every headquarters building
    throughout the U.S. military, those of you who have traveled to
    military bases have seen the picture of the Commander in Chief that
    hangs in the apex of the pyramid that is the military chain of command.
    You should also know that all over the world military personnel look at
    the current picture and know that, if accused of the same offenses as
    their Commander in Chief, they would no longer be deserving of the
    privilege of serving in the military.\7\
    ---------------------------------------------------------------------------
                                       * * * * *
    \7\ 145 Cong. Rec. S286 (January 16, 1999) (statement of Manager
    Buyer).

        We all remember the publicity surrounding the case of Kelly
    Flynn, forced to resign from the Air Force for adultery and
    false statements. But there are many others, including the
    pending case of Air Force Captain Joseph Belli. Captain Belli
    is currently awaiting trial, and faces up to 27 years in
    military prison, for having an adulterous affair with a female
    airman on the base at Diego Garcia, then asking both his wife
    and his lover to lie about it. Although Captain Belli asked to
    resign and although his wife asked that the charges, which she
    first raised, be dropped, the prosecution goes on. What do you
    think Captain Belli would think of an acquittal of President
    Clinton?
        One of the bedrock principles of our system of justice is
    stare decisis, that is following precedent. One question before
    us is whether making false statements under oath merits
    conviction and removal. The Senate has clear and recent
    precedent that answers this exact question. In 1986, Judge
    Harry Claiborne was convicted by votes of 90-7 and 89-8 for
    making false statements under oath on his tax returns. In 1989,
    Judge Walter Nixon was convicted by votes of 89-8 and 78-19 for
    making false statements to a Federal grand jury. Also in 1989,
    Judge Alcee Hastings was convicted by a votes of 68-27, 69-26,
    67-28, 67-28, 69-26, 68-27, and 70-25 for making false
    statements under oath. The Senate has spoken decisively,
    repeatedly, and recently on this question: making false
    statements under oath is an offense worthy of impeachment and
    conviction.
        As Manager Hyde noted, ``This country can survive with a
    few bad judges, a few corrupt judges; we can make it; but a
    corrupt President, survival is a little tougher there.'' \8\
    Legal commentator Stuart Taylor phrased it well: ``While
    removing him would be uniquely traumatic, his alleged crimes .
    . . are uniquely visible, and thus uniquely menacing to the
    rule of law, to trust in government, and to the national
    culture.'' \9\
    ---------------------------------------------------------------------------
                                       * * * * *
    \8\ 145 Cong. Rec. S887 (January 22, 1999) (statement of Manager Hyde).
                                       * * * * *
    \9\ Legal Times, January 18, 1999, at 26.
    ---------------------------------------------------------------------------
        Moreover, we know what the founders thought of perjury: the
    very first Congress enacted ``An Act for the Punishment of
    Certain Crimes Against the United States'' which made perjury a
    Federal crime. Rather than creating a lower standard of conduct
    for the President, I believe the Senate should hold the
    President to the same or even a higher standard.
        We should ask the President, if he discovered that a person
    he was considering for a judicial nomination had committed the
    acts which have been proven in this case, would he still
    nominate that individual? I think we know the answer.
        I believe the evidence shows a pattern of perjury which
    deserves conviction. In describing how the lies were not few in
    number or in importance, Manager McCollum captured the essence
    of the President's grand jury testimony: ``This is about a
    pattern. This is about a lot of lies.'' \10\
    ---------------------------------------------------------------------------
                                       * * * * *
    \10\ 145 Cong. Rec. S266 (January 15, 1999) (statement of Manager
    McCollum).
    ---------------------------------------------------------------------------
        In the weeks leading up to the President's grand jury
    testimony, Americans of all political persuasions offered
    unsolicited advice to the President to ``come clean'' before
    the grand jury, to admit any embarrassing conduct, and, above
    all, to tell the truth. They advised him that testimony which
    was ``evasive, incomplete, misleading--even maddening,'' as the
    President's own lawyer described his deposition testimony,
    would not suffice before the grand jury.\11\ Rather than heed
    this advice, however, the President decided to ignore his oath
    ``to tell the truth, the whole truth, and nothing but the
    truth,'' and instead, to paraphrase Manager Rogan, decided to
    tell the evasive truth, the incomplete truth, and nothing but
    the misleading truth.\12\
    ---------------------------------------------------------------------------
                                       * * * * *
    \11\ House Serial 68, at 11.
                                       * * * * *
    \12\ See 145 Cong. Rec. S879 (January 22, 1999) (statement of Manager
    Rogan).
    ---------------------------------------------------------------------------
        It is true, as counsel for the President argued, that the
    President did make many admissions during his appearance which
    no doubt were painful: that he had had an affair with a
    subordinate employee not even half his age, and that he had
    misled the American people, his family, and aides. Sprinkled
    amidst these admissions, however, were numerous lies and half-
    truths. These statements were obviously under oath, they were
    material to the grand jury's investigation, and they were
    intentional. Thus, they constitute perjury. The claim by the
    President's counsel that ``he told the truth, the whole truth,
    and nothing but the truth for 4 long hours'' is complete
    nonsense.\13\
    ---------------------------------------------------------------------------
                                       * * * * *
    \13\ 145 Cong. Rec. S812 (January 20, 1999) (statement of counsel
    Craig).
    ---------------------------------------------------------------------------
        Simply put, the President decided that his personal and
    political needs were more important than the rights of the
    grand jury to receive truthful testimony or his obligation to
    comply with Federal law. For these statements, which deceived a
    legitimately constituted Federal grand jury investigating
    criminal conduct not only of the President, but of others, the
    President deserves to be convicted on article I.
        For instance, I believe the President lied when he claimed
    his goal during the deposition ``was to be truthful'' and again
    when he said ``I was determined to work through the minefield
    of this deposition without violating the law, and I believe I
    did.'' \14\ No person who has read or seen the President's
    deposition can really believe that he was trying to be
    truthful.
    ---------------------------------------------------------------------------
                                       * * * * *
    \14\ House Doc. 105-311, at 532.
    ---------------------------------------------------------------------------
        For example, when asked during the deposition, ``At any
    time have you and Monica Lewinsky ever been alone together in
    any room in the White House?'' the President replied ``. . . it
    seems to me that she was on duty on a couple of occasions
    working for the legislative affairs office and brought me some
    things to sign, something on the weekend.'' \15\ No reasonable
    person could believe that his goal in responding this question
    was to be truthful. The President, a lawyer, a former law
    professor, and a former attorney general of his State, could
    not have believed that he had not violated the law when he
    answered questions in this manner.
    ---------------------------------------------------------------------------
                                       * * * * *
    \15\ Clinton Jones deposition at 58.
    ---------------------------------------------------------------------------
        I need to address briefly the defense argument that the
    Senate is forbidden from considering the Jones deposition
    because the specific article alleging perjury was defeated on
    the House floor--remember Ms. Seligman's claim that the
    deposition ``answers are not before you and the managers'
    sleight of hand cannot now put them back into article I.'' \16\
    ---------------------------------------------------------------------------
                                       * * * * *
    \16\ 145 Cong. Rec. S969 (January 25, 1999) (statement of counsel
    Seligman).
    ---------------------------------------------------------------------------
        On December 11, 1998, when the House Judiciary Committee
    considered the articles of impeachment against the President,
    subsection (2) of article I read exactly as it does today
    alleging perjury in the grand jury about the ``prior
    perjurious, false and misleading testimony he gave in a Federal
    civil rights action brought against him.'' No member of the
    committee offered a motion to strike or amend this provision.
    The subarticle remained unchanged when it was debated on the
    House floor. All 435 Members of the House were on notice that
    this section of article I clearly charged the President with
    lying before the grand jury about his Jones deposition
    testimony. The fact that a separate article of impeachment
    dealing solely with the deposition was defeated on the House
    floor has absolutely no impact on the contents of article I.
        Moving to the remainder of article I, I believe the
    evidence tends to show that the President was lying when he
    stated to the grand jury that ``I was not paying a great deal
    of attention to this exchange'' when his attorney, Robert
    Bennett, argued for a lengthy period of time that the President
    should not have to answer questions about Monica Lewinsky
    because of her affidavit, known by the President to be
    false.\17\ The videotape of the deposition clearly shows
    President Clinton staring directly at his attorney when these
    misrepresentations were made, and then closely following the
    back-and-forth between Bennett, Judge Wright, and Jones'
    counsel.
    ---------------------------------------------------------------------------
                                       * * * * *
    \17\ House Doc. 105-311, at 511.
    ---------------------------------------------------------------------------
        I also believe the evidence demonstrates clearly that the
    President perjured himself during his testimony concerning his
    relationship with Ms. Lewinsky.
        Subsection (4) of article I concerns the President's grand
    jury testimony concerning the various allegations of
    obstruction of justice contained in article II. I discuss my
    views on the substantive obstruction counts below, but I also
    conclude that the President committed multiple acts of perjury
    in discussing and denying his role in these events. For those
    who argue that the allegations of perjury only deal with sex, I
    invite you to read the President's answers to the questions
    about the alleged obstruction: some defy common sense, most
    conflict with more credible accounts provided by other
    witnesses, and many are perjurious, false, and misleading.
        The evidence concerning certain of the allegations of
    obstruction is strong and would meet the legal requirements of
    title 18 were this a criminal trial. While the White House
    defense would urge us to consider the President's ``record on
    civil rights, on women's rights[,]'' \18\ I would urge all
    Senators to remember that it is easy to talk a good game, but
    when another American citizen sought to exercise her rights,
    the President played a different one. To use a phrase, the
    President wanted to win too badly.
    ---------------------------------------------------------------------------
                                       * * * * *
    \18\ 145 Cong. Rec. S830 (January 20, 1999) (statement of counsel
    Mills).
    ---------------------------------------------------------------------------
        For instance, the evidence that the President tampered with
    a potential witness, Betty Currie, is convincing. As Manager
    McCollum pointed out, Ms. Currie's testimony in this matter is
    undisputed.\19\ Just hours after he fed the Jones lawyers
    numerous lies, the President called Currie and demanded that
    she come to the Oval Office on a Sunday. He then accosted her
    with a list of falsehoods, such as: ``You were always there
    when she was there, right?'' \20\ The President clearly knew
    Currie was a potential witness in the Jones case, not only
    because he had mentioned her repeatedly during the deposition,
    but also because he knew that the Jones lawyers obviously knew
    there was some relationship between he and Lewinsky and that
    they would continue to follow that lead.
    ---------------------------------------------------------------------------
                                       * * * * *
    \19\ See 145 Cong. Rec. S994 (January 26, 1999) (statement of Manager
    McCollum).
                                       * * * * *
    \20\ House Doc. 105-316, at 559.
    ---------------------------------------------------------------------------
        Even worse, according to Currie's testimony and evidence in
    the record, when it was known that the Office of Independent
    Counsel was investigating, the President saw Currie again and
    repeated his coaching. By this time, Currie was clearly a
    witness to a grand jury investigating Federal crimes. Both of
    these conversations constituted witness tampering under title
    18 and warrant conviction.
        Moreover, in attempting to explain away his crime during
    his appearance before the grand jury, the President clearly
    perjured himself. His answers, which included the hilarious
    claims that he was trying to ``refresh my memory'' and ``I was
    trying to get the facts down. I was trying to understand what
    the facts were'' are perjury.\21\ The fact that Ms. Currie was
    willing to recount these encounters to the grand jury does not
    diminish in the slightest the fact that the President illegally
    tried to coach her.
    ---------------------------------------------------------------------------
                                       * * * * *
    \21\ House Doc. 105-310 at 507-508, 583.
    ---------------------------------------------------------------------------
        But this episode of obstruction was only part of a
    continuing pattern. Clear circumstantial evidence proves that
    the President participated in a scheme to hide evidence under
    subpoena by Paula Jones. The evidence shows that Lewinsky
    suggested that she make sure that the many gifts the President
    had given her were not at her residence, specifically
    suggesting to the President that Betty Currie could hide them
    from the Jones attorneys. Lo and behold, hours later, Currie,
    having no idea that Lewinsky was under subpoena to turn over
    gifts, called Lewinsky after having seen the President at the
    White House and said something to the effect of ``I know you
    have something for me or the President said you have something
    for me.'' \22\ The two arranged to meet, Lewinsky sealed the
    gifts in a taped box, handed the box over to Currie, who hid it
    under her bed.
    ---------------------------------------------------------------------------
                                       * * * * *
    \22\ 145 Cong. Doc. S1225 (February 4, 1999) (deposition of Monica
    Lewinsky).
    ---------------------------------------------------------------------------
        There are two explanations for how this obstruction
    happened. One, Betty Currie suddenly had a vision that she
    should call Lewinsky to see if she needed help in her plans to
    obstruct justice. Or two, the President communicated,
    explicitly or obliquely, that Currie should call Lewinsky to
    execute her scheme. Deciding which of these scenarios is more
    plausible is not difficult. Moreover, the idea, advanced by the
    President's defense, that he did not care if Lewinsky produced
    to the Jones attorneys all 24 gifts he had given her, is
    ridiculous. Can anybody really think that the Jones attorneys
    would have taken a look at the pile of gifts and said, Well,
    there are only 24 gifts--I guess there was nothing going on
    there?
        I also believe Ms. Lewinsky's testimony that the President
    suggested to her that she could supply the Jones attorneys
    their long-standing ``cover stories''--that she was delivering
    papers or visiting Currie when in fact she was coming to visit
    the President. The President's counsel have done their best to
    confuse this issue by linking it with the events surrounding
    Ms. Lewinsky's affidavit. But her deposition testimony is clear
    that the President reminded her during a 2 a.m. phone call,
    after she was on the Jones witness list, that if she ended up
    testifying--that is, if the affidavit was unsuccessful--that
    she should use the cover stories they had developed:

        Q: . . . did you talk about cover story that night (December 17,
    1997)?
        A: Yes, sir.
        Q: And what was said?
        A: Uh, I believe that, uh, the President said something--you can
    always say you were coming to see Betty (Currie) or bringing me papers.
        Q: . . . You are sure he said that that night?
        A: Yes.\23\
    ---------------------------------------------------------------------------
                                       * * * * *
    \23\ 145 Cong. Rec. S1219 (February 4, 1999) (deposition of Monica
    Lewinsky).

        As the managers pointed out, this scheme, which was ``not
    illegal in its inception--simply trying to keep the
    relationship private--did in fact deteriorate into illegality
    once it left the realm of private life and entered that of
    public obstruction.'' \24\
    ---------------------------------------------------------------------------
                                       * * * * *
    \24\ 145 Cong. Rec. S275 (January 15, 1999) (statement of Manager
    Barr).
    ---------------------------------------------------------------------------
        On the issue of making false statements to top aides,
    knowing these lies would be repeated to the grand jury, the
    President is guilty both of obstruction and perjury. The fact
    that the President was also lying to the American people is
    irrelevant to this charge. The facts are that the President was
    denying this workplace relationship, that he knew the
    independent counsel was attempting to prove it was true, and he
    knew his top aides working in his close proximity would be
    called before the grand jury to find out whether they had seen
    or heard of the relationship. The false information he passed
    to them, including much more than just false denials, clearly
    obstructed the grand jury's investigation.
        I also believe the evidence concerning unusual job
    assistance provided to Monica Lewinsky through the President's
    close friend, Vernon Jordan, and the President's blatant
    failure to interrupt his attorney's unknowing attempt to
    utilize Ms. Lewinsky's false affidavit bolsters the managers'
    charges of obstruction.
        The Senate has never faced the question whether obstruction
    of justice is an offense worthy of conviction and removal from
    office. Luckily, this is not a difficult question. No less than
    perjury, obstruction of justice and witness tampering interfere
    with the gathering of truthful evidence and testimony that is
    the lifeblood of our civil and criminal courts. Our Federal
    Sentencing Guidelines recognize the detrimental effects of
    these acts, providing for tougher sentences for obstruction
    than for general acts of bribery.
        In conclusion, consider whether instead of lying and
    obstructing in the Jones case, the President had paid bribes to
    Lewinsky and Judge Wright. Would the President's defenders
    still claim that this was private conduct? No, they could not,
    and the effect of the perjury and obstruction is the same.
        Throughout these proceedings, the President's counsel and
    defenders have cited his popularity as a new type of legal
    defense to the charges. Senator Bumpers said, ``The people are
    saying `Please don't protect us from this man.' '' \25\ In
    fact, I believe his popularity, largely a result of economic
    factors not of his making means the Senate should give even
    closer scrutiny to the charges. I would argue, as did Manager
    Canady, that a President able to get away with crimes because
    of his popularity is the greatest danger to our system of
    government, exactly the type of danger that the framers
    envisioned when trusting the Senate with the power of
    removal.\26\ Remember how Alexander Hamilton spoke of the
    Senate's role:
    ---------------------------------------------------------------------------
                                       * * * * *
    \25\ 145 Cong. Rec. S846 (January 21, 1999) (statement of counsel
    Bumpers).
                                       * * * * *
    \26\ See 145 Cong. Rec. S295 (January 16, 1999) (statement of Manager
    Canady).

        Where else, than in the Senate could have been found a tribunal
    sufficiently dignified, or sufficiently independent? What other body
    would be likely to feel confidence enough in its own situation, to
    preserve unawed and uninfluenced the necessary impartiality between an
    individual accused, and the representatives of the people, his
    accusers? \27\
    ---------------------------------------------------------------------------
                                       * * * * *
    \27\ 145 Cong. Rec. S296 (January 16, 1999) (statement of Manager
    Canady) (quoting The Federalist No. 65).

        As Manager Graham pointed out, a Senator voting to convict
    the President for his actions is placing a ``burden on every
    future occupant'' of the Office of the President to avoid this
    type of conduct.\28\ Asking our Presidents to obey the law and
    to respect the judicial process are burdens that I am willing
    to place on future Presidents.
    ---------------------------------------------------------------------------
                                       * * * * *
    \28\ 145 Cong. Rec. S289 (January 16, 1999) (statement of Manager
    Graham).
    ---------------------------------------------------------------------------
        President Clinton is guilty of perjury. He is guilty of
    obstruction of justice. He must be removed from office.
        The House and its managers admirably fulfilled their
    constitutional and moral responsibilities. I can say
    confidently that Senate Republicans kept their promises to
    conduct a fair and expeditious trial and to protect the
    Constitution. The just cause of impeachment is nearly over.
        Congress will then be able to focus on its full-time job:
    securing a better quality of life for all Americans. During the
    coming months, Congress will move forward with an aggressive
    agenda to provide an across-the-board tax cut, improve
    educational opportunities for our children, strengthen our
    national security, and ensure a sound Social Security and
    retirement system that provides Americans with the best
    possible return on their investments.
        I am anxious to roll up my sleeves, get to work, and make
    the most of the opportunities ahead in the 106th Congress.
                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                     Statement of Senator Mary L. Landrieu

        Ms. LANDRIEU. Mr. Chief Justice, as I begin, as so many of
    my colleagues have, I would like to thank our leaders for their
    tremendous patience--Tom Daschle, for your steady hand, and
    Trent Lott, for your good sense of humor.
        Before I get into the core of my remarks, I would like to
    say that this ordeal has been, indeed, trying for all of us,
    but I believe it has strengthened us individually and as a
    body. We have come to know each other far better. We have
    gained a deeper appreciation of our individual strengths and
    gifts. I am more than satisfied, particularly in listening to
    my colleague, Olympia Snowe, that this country is in good hands
    with the men and women here in this Chamber.
        Besides gaining a deeper appreciation for each other and
    for the Senate itself, we have also shared a great history
    lesson. For some of us, it has been our first in-depth study of
    these portions of our history; for others, it has been a timely
    refresher course; and to one among us, Senator Robert C. Byrd,
    I trust a rewarding experience as your words and writings on
    this important constitutional question have brought calm and
    clarity to our deliberations.
        So many excellent points have been made in these last days.
    I don't want you all to repeat this outside--and I know you
    can't--because people would say I am crazy, but I have enjoyed
    every single moment of these last 3 days. There has been a lot
    of talk about our Constitution and the framers' intent
    regarding the impeachment clause. Many have been mentioned. I
    will only venture to offer one that has to my knowledge not
    been mentioned yet because it strikes me as particularly
    timely, important and ironic. That is the argument of the anti-
    Federalist faction who fought vigorously for an impeachment
    provision because they believed according to Madison ``. . .
    that the limitations of the period of service''--and they were
    speaking about an Executive--``was not sufficient security.''
        They believed that in creating a Federal Government it
    would quickly get out of control and out of step with the
    sentiments of the American people. Their fears were palpable.
    According to some scholars, as outlined in Senator Biden's
    brief, this charge of possible ``corruption, intrigue, tyranny
    and arrogance'' between elections by the Chief Executive was so
    strong that it was almost fatal to the ratification of the
    Constitution by the States.
        It is, indeed, ironic that we are in the process of
    conducting an impeachment against a President that seems by all
    impartial and objective analysis--despite his personal
    failings--to be in step with the American people, in step with
    their wishes and their hopes for this country, in step with
    their ideas for a domestic and an international agenda.
        The latest independent analysis by the New York Times and
    CNN published today shows that 70 percent of the American
    people--a clear majority--believe the President should not be
    removed from office. I know that people have rejected talk of
    analysis and polling. When I was writing this, I felt some
    hesitation of even bringing it up because I come from a family
    that wears as a badge of honor the ability to stand alone
    against great odds. In the 1950s, 1960s, and 1970s, as one of
    nine siblings born to parents who were civil rights leaders, it
    is the only way I knew. I grew up listening to my father tell
    stories about his lone vote against the Jim Crow laws in the
    Louisiana Legislature. I grew up thinking that was the right
    thing to do. I believe at this time it still is.
        But as the Bible would imply, there is a time to lead and
    there is a time to listen. For those who are still struggling
    at this last hour with your decision, regardless of how
    strongly you might feel about what the President did, I
    respectfully suggest that you can find comfort in the wisdom of
    the people.
        Should we make all of our decisions based on polls and
    public opinion surveys? Absolutely not. However, this
    particular situation is different. Let me point out two
    important distinctions.
        One, this is not a regular issue. The people know a lot
    about this case. They have a clear high-tech, 20th century view
    of the currents and events shaping it. All of them: the good,
    the bad, and the ugly. It has been the most publicized and
    analyzed political/legal case of this century and perhaps all
    of history.
        Two, this is the greatest and most admired democracy on the
    face of the Earth. As Patrick Moynihan so eloquently pointed
    out: One so rare and precious, it is truly a treasure. In such
    a democracy, the people's voices should count.
        Thomas Jefferson said, ``Democracy is cumbersome, slow and
    inefficient.'' Over the last 12 months, we can certainly attest
    to that. ``But,'' he said, ``in due time, the voice of the
    people will be heard and their latent wisdom will prevail.''
        As for me, I voted to dismiss both articles at the first
    appropriate opportunity. I did so after careful review of the
    facts, the evidence and a reading of the relevant parts of the
    Constitution and the other appropriate historical
    documentation. My colleague, Olympia Snowe, and others have
    eloquently gone through many of the details of the case, and I
    will not take time to repeat them now.
        I concluded that the charges of perjury and obstruction of
    justice, while serious indeed, overlaid an immoral but not a
    criminal act against the state, one that is essentially private
    and not a public act. Therefore, in my judgment the charges did
    not rise to the level of high crimes and misdemeanors, a high
    constitutional bar which has served us exceedingly well over
    the last 223 years.
        So today for those same reasons, and in respect for the
    people of this democracy, I will vote to acquit the President
    on both charges.
        As I said in an earlier statement, which at this time I ask
    unanimous consent to have printed in the Record, this vote
    should not be interpreted as approval of the President's
    actions which were reckless, irresponsible and showed a serious
    lack of judgment. A sexual dalliance with a White House intern
    and the subsequent breach of the public trust will cast a deep
    shadow over his other notable accomplishments and will forever
    tarnish his Presidential legacy.
        I cast this vote and find my comfort in a clear conscience,
    in the Constitution, and in the will of the people.
        In closing, let me make one last appeal. Let us put forth a
    strong censure resolution. One that doesn't attempt to provide
    cover for either political party or to make us feel better or
    worse about our votes. We can all defend our votes, and
    certainly we will be called on to do so. Let us, rather, craft
    a resolution which could receive a majority support of both
    parties. The wording should condemn the President's actions in
    the strongest terms and call for a national reconciliation.
        There being no objection, the statement was ordered printed
    in the Record, as follows:

            Upholding the Constitution, by Senator Mary L. Landrieu

        Several weeks ago the Senate took up the somber constitutional task
    of sitting in judgment of a President in an impeachment trial.
    Throughout the trial, I have limited public comment to underscore the
    impartiality I have brought to this process. Both sides have now spoken
    and I have reviewed all of the evidence as required by the
    Constitution. My decision has been made: the actions of President
    Clinton, while wrong, indefensible and reckless, do not meet the
    constitutional standards for removal from office. Therefore I have
    voted to dismiss the articles of impeachment against the President.
        From the start, I have tried to focus on what the framers of the
    Constitution had in mind when they carefully crafted the impeachment
    clause. It is important to remember that for more than 100 years the
    colonies suffered under the thumb of the tyrannical kings of the
    English monarchy. A principal goal of the framers was to have a
    mechanism to protect the populace from corrupt and oppressive leaders.
        In the Federalist Papers, Alexander Hamilton and James Madison
    argued that impeachment be used only for ``distinctly political
    offenses against the state.'' Our founders were trying to guard against
    tyranny and oppression, and not personal actions no matter how
    reprehensible. More than 700 noted legal and historical scholars, both
    conservative and liberal, agree with this constitutional interpretation
    of the impeachment clause.
        The founders were also rightly concerned that impeachment might be
    employed as a partisan tool to undermine, even destroy, high ranking
    government officials--especially the President. They worried a
    ``powerful partisan majority'' might misuse it for public gain. The
    House impeachment vote, which essentially fell along party lines, is
    troubling. Such partisanship was absent during the Watergate
    proceedings. At that time Republicans and Democrats on the House
    Judiciary Committee joined together to vote for impeachment because the
    evidence showed crimes were committed against the government.
        I also voted against calling witnesses because it is clear that a
    complete and fair trial can and should be conducted on this voluminous
    and well-publicized record. Our Nation deserves to be spared this
    protracted spectacle, particularly at a time when public
    disillusionment of government is at an all-time high and issues like
    Social Security, education and international crises demand our
    immediate attention.
        Critics of this position will somehow believe that President
    Clinton has avoided punishment. On that issue, let me make two points.
    First, the power of impeachment was never meant to punish the
    President, but to protect the Nation. Second, the President has already
    suffered by his reckless behavior and, unfortunately, so has his
    family. In addition, criminal charges could be brought against him once
    he leaves office, and he is still subject to civil charges. Worst of
    all, his inappropriate and reckless behavior and the subsequent breach
    of public trust will cast a permanent shadow over his other notable
    accomplishments and will forever tarnish his Presidential legacy.
        In 1868, James G. Blaine voted to convict and remove Andrew
    Johnson, the only other President to be impeached. Twenty years later
    he said he had made a ``bad mistake'' and recanted. Upon further
    reflection he realized that the charges did not warrant the ``chaos and
    confusion'' of removing President Johnson from office. Likewise, these
    charges do not warrant the ``chaos and confusion'' that could occur
    should our last Presidential election be overturned.
        At the conclusion of this trial, I plan to cosponsor a strong
    censure resolution of President Clinton concluding that his conduct in
    this matter has brought shame and dishonor to himself and the Office of
    the President. In my opinion, it would bring a sensible end to this
    regrettable chapter in American political history. Finally, the
    ultimate political judgments will be made by the people in future
    elections. And the lasting judgment will be made by the only One who
    can.
                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                         Statement of Senator Bob Smith

        Mr. SMITH of New Hampshire. Mr. Chief Justice, thank you
    very much. I would certainly give more than a penny for your
    thoughts on this matter. But I am afraid we will probably never
    know.
        Mr. Chief Justice, I have been proud to be a U.S. Senator
    ever since that day over 8 years ago when I took the oath of
    office and my colleague, Senator Byrd, told me that I was the
    1,794th person to serve in the U.S. Senate.
        During my tenure in the Senate, I have learned to respect
    my colleagues even when I strongly disagree with them on the
    issues of the day. I have challenged colleagues on issues and
    maybe at times even criticized their votes. But I have never
    challenged a colleague's motives and I never will. I respect
    each and every one of you and the high office you hold.
        I consider it a great honor to serve in this body, and
    serve with some giants here--Senator Helms, Senator Thurmond,
    Senator Byrd, to name a few.
        I remember when I came to the floor of the Senate and
    signed that book as No. 1,794. Senator Byrd reminded me of the
    significance of that. I have never forgotten it.
        I also sit at the desk of Daniel Webster. It is a constant
    reminder that I am just a temporary steward occupying this seat
    in the U.S. Senate. It is also a reminder that we will move on.
    But the Constitution will not move on. The Constitution will
    endure forever. Our role here in this proceeding is to preserve
    the Constitution and the Presidency. Yes--even if it means we
    have to remove the President.
        Mr. Chief Justice, when the rollcall is called tomorrow, I
    will be voting guilty on both of the articles that are now
    before the Senate. It is clear that the Senate will not be
    finding President Clinton guilty on either article. But I just
    want to say regarding censure that my vote is my censure. I
    think anyone who votes to find him guilty does not need to be
    concerned about censure.
        As I contemplate my vote, I am reminded of a prayer offered
    in 1947 by a former Chaplain of the Senate, Rev. Peter
    Marshall. Reverend Marshall prayed: ``Our Father in Heaven . .
    . help us to see that it is better to fail in the cause that
    will ultimately succeed than to succeed in a cause that will
    ultimately fail.''
        I have faith that the cause in which I believe will
    ultimately prevail, because I believe that history will judge
    that President Clinton is, in fact, guilty of high crimes and
    misdemeanors that warrant his removal from office. I know
    others respectfully disagree. And believe me, I respect that
    disagreement.
        Many of my colleagues have spoken on the instability a
    guilty verdict would cause for the Nation. We should never
    remove a President unless there is clear and present danger to
    the Nation, they say. With respect, colleagues, I submit to you
    that the double standard that we have set for our leader will
    ignite a cynicism directed against all of us. A cynicism is a
    clear and present danger to society.
        With a not guilty verdict, you will tell the American
    people that perjury and obstruction of justice for the
    President are acceptable; that those who put their lives on the
    line for our Nation every day in our Armed Forces have a higher
    standard than the Commander in Chief; and that for everyone
    else in America who lose their jobs because of perjury and
    obstruction, that is not acceptable.
        We reap what we sow. In my view, respectfully, history will
    judge us harshly for this. And I say that in great humbleness.
    It is my view. A not guilty verdict is a short-term victory for
    the President. It is a long-term defeat for truth, for honor,
    for integrity, for the Presidency, and, in my view, for the
    Constitution.
        As Peter Marshall intimated in his prayer, with a not
    guilty verdict we have succeeded in a cause which I believe
    will ultimately fail.
        My colleagues, we are all elected officials. I want to
    comment about this partisanship. I say it in the spirit of
    bipartisanship. We have all been through the same ordeal
    together here. The nasty fundraising, the ad wars, dirty
    campaign tactics, thousands of miles of travel, neglecting our
    families, hours and hours away from home, much to the detriment
    of our own health and financial well-being. We do it all the
    time. And for anyone inside or outside this institution to
    suggest that my vote, or your vote, or anyone's vote in here is
    based on partisanship not only makes me sick, it makes me
    bristle with anger.
        What are my colleagues really saying when they invoke the
    word ``partisanship''? Do you really believe that the
    impeachment of the President of the United States by a majority
    of the Members of the House of Representatives, the body that
    is elected every 2 years, gives closure to the people, and the
    body elected by the same voters who elect one-third of us every
    2 years would impeach the President of the United States
    because he is a Democrat? Even to imply that is unworthy, it is
    arrogant, and it is below the dignity of this very seat that
    you now hold. Have you forgotten the ``war'' that James
    Carville declared on Ken Starr a year or so ago, and on the
    Republicans, to protect the innocent Bill Clinton?
        Was that partisan? Was the President totally innocent?
    Partisanship has no place in this Senate, especially when it
    sits as a Court of Impeachment. We are here to do impartial
    justice, to be unbiased triers of fact. Yet we have allowed
    that runaway partisan train of White House apologists, I might
    say, to rumble into the Senate with no brakes.
        One of my colleagues mentioned the courage of Republicans
    who voted against impeachment in the House. How about the
    Democrats who voted to impeach? Are they, by implication,
    cowards?
        Alexander Hamilton would be appalled at the notion of
    partisanship in an impeachment trial. Indeed, writing in the
    Federalist Papers, Hamilton said that the impeachment of the
    President ``will seldom fail to agitate the passion of the
    whole community, and to divide it into parties more or less
    friendly to the accused.''
        ``There will always be the greatest danger,'' Hamilton
    warned, ``that the decision will be regulated more by the
    comparative strength of the parties, than by the real
    demonstrations of innocence or guilt.''
        Mr. Chief Justice, there was a hero of the Revolutionary
    War era, Dr. Joseph Warren. He was a doctor. He didn't have to
    serve; he was 34 years old. His colleagues begged him not to
    go. But he picked up arms at Bunker Hill at 34 years old and he
    said, ``Our country is in danger. On you depend the fortunes of
    America. You are to decide the important questions upon which
    rest the happiness and the liberty of millions yet unborn. Act
    worthy of yourselves.'' He was killed at the Battle of Bunker
    Hill.
        We don't act worthy of ourselves when we let partisanship
    enter into this trial, or even accuse one another of it. Why is
    it, when Democrats march in lockstep on a vote, that we
    Republicans are the only ones being accused of partisanship?
        Why are the House Republicans partisan because they vote
    out the articles, yet the Democrats who vote to block them are
    not partisan?
        I have served with Henry Hyde in the U.S. House of
    Representatives, and so have many of you. There is not even a
    remote chance--and every single one of you knows it--not even a
    remote chance that Henry Hyde would bring articles of
    impeachment against the President of the United States of any
    party if he didn't believe they were justified.
        Honorable men and women can disagree on these articles, but
    leave your politics at the door. Act worthy of yourselves.
        If the articles were so outrageous, so political, so
    partisan, so vindictive, and it is nothing more than a private
    sexual matter, then why do those of you who say those things
    want to censure this President using such terms to describe his
    actions as ``shameful,'' ``disgraceful,'' ``reprehensible,''
    ``false'' and ``misleading,'' and so forth?
        Before I leave the matter of partisanship, let me say a few
    words about the case of our former colleague, Senator Packwood.
    My colleagues know I was a member of the Ethics Committee, and
    I supported the expulsion of Senator Packwood. I lost a
    colleague, and I lost a friend over that.
        That case, too, was ``about sex.'' My colleagues and I
    didn't shrink from doing our duty in the Packwood case because
    this outrageous behavior was about sex.
        In addition, those organizations advocating that the Senate
    take strong action against Senator Packwood were, by and large,
    liberal feminist groups, which I disagree with on nearly every
    issue.
        That, however, did not matter. Instead of being partisan or
    being deterred because the case was about sex, those of us on
    the Ethics Committee painstakingly investigated that case in
    all of its sordid and unpleasant detail. We considered the
    shameful behavior in which Packwood engaged. We considered how
    his behavior reflected on his fitness to serve. We considered
    his obstruction of the investigation with respect to his
    diaries.
        In the end, the committee, Republicans and Democrats alike,
    voted to recommend to the full Senate that he be expelled. In
    doing our duty as we saw fit, we were not deterred by the
    argument that we were ``overturning an election,'' nor were the
    Republican Members of the Ethics Committee--at the time,
    Senators McConnell, Craig and myself--deterred by the fact that
    Senator Packwood was a Member of our own party, nor were we
    deterred because liberal feminist groups were aggressively
    supporting many of the women accusers of Senator Packwood. The
    heart of the issue is not who Paula Jones' lawyers are, my
    colleagues, but, rather, did Bill Clinton expose himself in the
    presence of Paula Jones against her wishes? That is at best
    sexual misconduct, and at worst it is sexual harassment. Right
    wing groups did not find Paula Jones. Bill Clinton did. He says
    he didn't do it. Do you really believe him? The women accusers
    of Senator Packwood received justice in spite of those who
    promoted their cause. Paula Jones deserves the same treatment.
    The Supreme Court agreed 9 to 0. It is outrageous to say, as
    some have on this floor, that it is acceptable to expel Senator
    Packwood and acquit the President. That kind of debate should
    not take place on the floor of the Senate. How can you say that
    Senator Packwood is equal under the law, and yet the President
    is above the law?
        Today, I ask my colleagues in the Senate to do in the
    impeachment case of President Clinton what we did in the ethics
    case of Senator Packwood. Put aside your political affiliation.
    Put aside your friendship or your personal disdain for
    President Clinton. Put all of that aside and do the right
    thing.
        The House managers have established, I believe, beyond a
    reasonable doubt that President Clinton perjured himself and
    obstructed justice. As such, I don't believe we have any option
    other than to remove him from office and replace him with the
    Vice President--a fine, decent man, as many of his predecessors
    who have assumed the Office of the Presidency during difficult
    times, and the Nation has persevered.
        As I have listened to my colleagues in these final
    deliberations, I have heard time and again that the House
    managers did not prove their obstruction of justice charge
    because of conflicts in testimony. We heard about all these
    conflicts--conflicts in testimony about the hiding of the
    gifts, conflicts in testimony about the job search, conflicts
    in testimony about the President's coaching of Betty Currie.
        Well, let me ask you, colleagues, if you believed that
    these conflicts needed to be resolved, then why didn't you join
    some of us who signed a letter to call for the President of the
    United States to come here to the Senate and tell the truth?
    What were you afraid of?
        We could have called President Clinton here to a closed
    session of the Senate. It need not have been a media spectacle.
    It can and should have been a closed session--just the Senate
    and the President.
        Time and again, I have heard my colleagues say that there
    should be a higher standard for removing a President of the
    United States than for removing a Federal judge or expelling a
    Senator Packwood. If there is such a higher standard for the
    law, then why not insist on a higher standard for the man?
        One of my colleagues mentioned the Iran-contra matter. At
    an earlier time, not too many years ago, when impeachment talk
    was in the air, President Ronald Reagan walked to the
    microphone, and he said, ``I take full responsibility for my
    own actions and for those of my administration. As angry as I
    may be about activities undertaken without my knowledge, I am
    still accountable for those activities. As disappointed as I
    may be in some who served me, I'm still the one who must answer
    to the American people for this behavior. And as personally
    distasteful as I find secret bank accounts and diverted funds--
    well, well, as the Navy would say, this happened on my watch.''
        Oh, what a little honesty and candor can do for the soul of
    the Nation. Why didn't we call the President? Why didn't every
    Member of this Senate sign that letter? What would be wrong
    with having him come, either in deposition or in person? I will
    always regret that we failed to do so. We will never know
    whether the President's own testimony here before us could have
    better enabled us to do our constitutional duty. We will never
    know. The President testified before the grand jury. He
    testified before the Paula Jones case. He should have testified
    at his own impeachment trial so we could get the truth, so
    those of you who want to know whether or not he obstructed
    justice or committed perjury could have heard from him, not his
    lawyers. It is a permanent black mark on this trial, and I
    believe historians will ask for a long, long time: Why didn't
    the President testify? It could have changed the outcome of the
    trial.
        Speaking of constitutional duty, I am reminded of the
    President's oath. Article II, section 1, clause 7, of the
    Constitution provides that:

        Before he enter on the Execution of his Office, he shall take the
    following Oath or Affirmation: ``I do solemnly swear (or affirm) that I
    will faithfully execute the Office of President of the United States,
    and will to the best of my Ability, preserve, protect and defend the
    Constitution of the United States.''

        The Constitution considers the oath so important that it
    requires the man or woman who is elected President to take it.
    So given the importance of an oath--it is so important that no
    one elected can serve unless they take it--how can we say that
    willful violation of that oath, being perjury and obstruction,
    doesn't rise to the level of impeachment?
        President Clinton has discredited the oath that the chief
    law enforcement officer of the Nation must take. We have
    compounded that discredit by not holding him accountable.
        Manager Lindsey Graham said that ``we could leap boldly
    into the 21st century by ignoring the rule of law.''
    Unfortunately, the Senate opted to crawl.
        My colleagues, we all in politics know what a user is. With
    all due respect, Bill Clinton is a user. He used Monica
    Lewinsky; he used his friends; he used his Cabinet; he used the
    American people; and now he is using the Senate.
        The President has never been held accountable. He wasn't
    held accountable for not telling the truth about the draft; he
    was not held accountable for not telling the truth about
    marijuana; he was not held accountable for lying about his
    relationship with Gennifer Flowers; he was not held accountable
    for his actions towards Paula Jones; he was not held
    accountable for lying about Monica Lewinsky. He will walk away
    from this trial with an acquittal, and yet again he will avoid
    accountability for his actions. He will avoid being held
    accountable for the actions that every American citizen, every
    teacher, every CEO, every military man and woman, would have
    lost his or her job over, and we let it happen. We did. With
    the greatest respect, that is not a profile in courage.
        After the acquittal, I hope we will not be a party to the
    party. The champagne corks will pop; cigars will be lit; maybe
    even the bongo drums will be played. I implore you, colleagues,
    don't go to the party. There is nothing to celebrate. Act
    worthy of yourselves.
        In 1880, when Dostoevsky, the great Russian author, wrote
    ``The Brothers Karamazov,'' he could not even have dreamed that
    there would ever be a Bill Clinton, but here is what he says,
    and it goes right to the heart of this entire case:

        The important thing is to stop lying to yourself. A man who lies to
    himself and believes his own lies becomes unable to recognize the
    truth, either in himself or anyone else, and he ends up losing respect
    for himself as well as for others.
        When he has no respect for anyone, he can no longer love. And in
    order to divert himself, having no love in him, he yields to his
    impulses, indulges in the lowest form of pleasure, and behaves in the
    end like an animal in satisfying his vices. And it all comes from
    lying, lying to others and to yourself.

        The rule of law and the President's constitutional oath
    must pass the test of truth. President Clinton, regrettably,
    failed that test.
        Mr. Chief Justice, I am satisfied beyond a reasonable doubt
    that William Jefferson Clinton is guilty of perjury, is guilty
    of obstruction of justice, and must be removed from office. I
    have only to answer to my conscience, to the Constitution, and
    the judgment of history, and I stand ready for that judgment.

                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                       Statement of Senator Jeff Bingaman

        Mr. BINGAMAN. Mr. Chief Justice, colleagues, I will vote to
    acquit the President on the two articles of impeachment. I will
    vote no for two reasons. First, the House has failed to allege
    acts by this President which in the context of this case
    constitute high crimes and misdemeanors. And, second, the House
    managers allege that the President committed crimes, but they
    have failed to establish the elements of those crimes.
        The illicit sexual affair which the President engaged in,
    and the President's efforts to conceal that affair, are
    permanent black marks on his Presidency. His actions were
    deplorable, indefensible, and immoral.
        But however reprehensible these acts were, they are not
    impeachable offenses. They did not endanger the government.
    They were not the ``stuff'' which the writers of the
    Constitution had in mind when they used the phrase ``high
    crimes and misdemeanors.''
        I think we should act accordingly. Our duty, as I see it,
    is to look at the record, look at the arguments, judge our own
    authority as it has been given to us in the Constitution, and
    then vote either to remove the President or to acquit the
    President.
        I want to spend just a minute on this issue of our own
    authority. As I hear some of the discussion, it seems to me we
    have lost sight of our own authority. Some have argued that if
    a university president were to have engaged in these acts,
    clearly the board of regents of the university would fire that
    president. Some have said if a chief executive officer of a
    corporation were to engage in a course of conduct such as this,
    the board of directors of the corporation would fire the chief
    executive officer.
        I was visiting the United Parcel Service facility in
    Albuquerque right before Christmas, and I was talking to
    various people there. One of the men said, ``I hope you throw
    the President out of office because if I did what he has done
    my boss would sure fire me.'' That is the way a lot of us tend
    to think about this issue. And the discussion here this
    afternoon has been consistent with that. So I think it is worth
    focusing on what is wrong with that argument.
        What is wrong with that argument is that we are not the
    President's boss. We did not hire the President. The American
    people hired the President, just like the American people hired
    each one of us. We have very limited authority under the
    Constitution to step in and interfere with the decision of the
    American people in that regard. I do not believe the
    Constitution intended that we would set ourselves up as the
    judge of the President's character, or to determine whether we
    believe this President is trustworthy enough to remain in
    office. That issue is not for us to decide. That was decided by
    the American people. They have not delegated that decision to
    us.
        I am reminded of a story from New Mexico politics. We had a
    mayor in Albuquerque many years ago named Clyde Tingley. He was
    very proud of the city zoo, which he had built with city funds.
    He was showing the zoo to a high official in the Catholic
    Church one day. The official at one point said, ``Well, Mr.
    Mayor, this is an amazing project here. The people of
    Albuquerque ought to canonize you for this.'' The mayor shot
    back, ``A bunch of them tried during the last election. But
    they didn't get away with it.''
        I think a bunch of people tried to throw this President out
    of the White House in the last election because of questions
    about his character, but they didn't get away with it. These
    are not new questions about this President. These are questions
    which have been raised and raised and raised about whether this
    President is trustworthy, whether this President has
    demonstrated the character necessary to serve as President. And
    we really did already have a vote. Every one of us has already
    voted on whether to remove this President from the White House.
    Each one of us voted on that issue in November of 1996. I would
    assume a majority of us in this Chamber voted to remove him
    from the White House. But the American people chose to keep him
    there. The American people judged him to be worthy of the job
    and chose him to be their President for another 4 years. And
    they did not authorize us to second-guess that decision.
        So we need to look at our own job here, and say to
    ourselves, ``Are we here to pass judgment on the President's
    character, are we here to pass judgment on the President's
    trustworthiness, are we here to determine whether he is a
    proper example for young people, or instead are we here to
    decide whether he has committed high crimes and misdemeanors
    that would justify removing him from office?''
        Senator Joe Biden put it very well by saying that this
    branch of Government--the House and Senate--should be very
    reluctant to reach across and remove the head of another branch
    of Government. That is an extraordinary act. It has never
    occurred in the history of this country. For good reason it has
    never occurred. It would be a major mistake for us to take that
    action at this time.
        The framers of the Constitution did not intend Congress to
    remove a duly elected President on the basis of facts such as
    these, and they were right to deny the Senate that authority.
    The stability of the executive branch must not be put at risk
    by Congress, contrary to the ``electoral will,'' absent a clear
    showing of ``high crimes and misdemeanors'' by the President.
    There is no such clear showing here. The proper remedy for this
    kind of improper conduct is in the voting booth, not here on
    the floor of the United States Senate.
        In my view, the House misused the power of impeachment when
    it voted these articles of impeachment against the President.
    It would compound the misuse of power if the Senate were to
    vote to convict and remove. My vote will be to acquit.

                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                     Statement of Senator Robert F. Bennett

        Mr. BENNETT. Mr. Chief Justice, as I have sat through this
    trial, I have not spent much time on questions of reasonable
    doubt or where the preponderance of evidence lies. Whatever the
    importance of those concepts in a typical court, the
    constitutional implications of what we are considering are much
    more serious than the issues decided in a normal trial. I will
    not vote to remove a sitting President on the turning of a
    legal issue.
        Accordingly, early in the trial I decided that I would not
    vote to convict under the first article of impeachment. It
    struck me as overly legalistic. I listened to the lawyers argue
    about the proper form of the article, and I heard about
    questions of materiality--not a term I use in everyday
    conversation--and I decided that while the case was there, it
    was shaky. In order to be sure I would render impartial
    justice, I asked myself if I would remove Ronald Reagan in a
    similar circumstance. When I realized I would not, I decided
    that I could not vote to remove Bill Clinton.
        Once I had made that decision, I more or less tuned out
    further discussions on article I, from either side, and
    concentrated on article II.
        Here the issues seemed more disturbing. The Constitution
    guarantees that the most ordinary of citizens has the right to
    her day in court, regardless of her hair or her nose or her
    choice of attorneys. The man she sues, even if he is the most
    powerful man in the country, does not have the right to lie
    while testifying under oath in her case, to deny her truthful
    discovery just because it would embarrass him. He does not have
    the right to encourage others who are beholden to him, either
    for their jobs or for favors he has done for them, to do the
    same, even by interference. He does not have the right to coach
    and mislead potential witnesses. He does not have the right to
    use the awesome power of the White House public relations
    apparatus to spread false and malicious rumors about people--
    calling them ``stalkers,'' ``trailer park trash'' and
    ``liars''--just because he thinks they might embarrass him if
    they tell the truth.
        It has been said that it was understandable for President
    Clinton to do all these things because he was just trying to
    cover up a sexual affair, and, after all, everyone lies about
    sex. Well, not everyone. We have had other Presidents whose
    sexual improprieties have been made public at awkward times--
    Grover Cleveland, while a candidate for President, was exposed
    as having fathered a child out of wedlock. Asked by his
    panicked political allies what to do he said, ``Tell the truth,
    of course,'' and won the election. Bill Clinton should take
    such notes.
        What finally convinced me to vote for article II was the
    statement of my good friend, Dale Bumpers. I thought he was
    magnificent. He told us that the fundamental purpose of the
    Constitution was to ``keep bullies from running over weak
    people.''
        I was struck by that. I wrote it down. Then I asked myself,
    ``In this case, who is the bully, and who are the weak
    people?''
        While publicly posing as a helpless victim of a relentless
    prosecutor, it was President Clinton and the people in his
    famous ``war room'' who were the bullies, using Presidential
    powers and Presidential lies to run over the rights of Paula
    Jones and, if necessary, Monica Lewinsky.
        Any President who is willing to lie and smear and
    stonewall, whether under oath in a courtroom or before a TV
    camera, speaking confidentially to his aides or privately to
    his family--any President who is so ruthless, disdainful of the
    truth and callous of the rights of others that he is willing to
    do anything to ``just win, then''; any President who readily
    uses the power of his office for his personal ends regardless
    of who is hurt--that President is a bully and, as such, a
    threat to the constitutional liberties of us all.
        Dale Bumpers said that the Constitution was written to keep
    bullies from running over weak people. That's called justice.
    William Jefferson Clinton tried to obstruct that justice. And I
    decided to vote to remove him from office.
        So there I was--ready to vote not guilty on article I,
    guilty on article II. I sat down and wrote a fancy speech
    outlining these conclusions, showed it to a few friends,
    notified my staff and sat back to let things play out.
        As the trial proceeded, however, something was gnawing at
    me. The perjury charge kept creeping back into my mind. That
    something, as I confronted it, was my experience with the
    Clinton political apparatus and its modus operandi. At the
    heart of everything that apparatus and its operatives do,
    whatever the situation, is the process of lying.
        Some of their lies have been whoppers, some trivial. Most
    have been dismissed as mere ``spin,'' relatively few have been
    under oath, but the continuing pattern of distorting, avoiding
    and, when necessary, simply denying the truth goes back to the
    1992 campaign. It has carried through the three Senate
    investigations in which I have participated. On a parochial
    note, it defined the process of creating a stealth national
    monument in my State. It has permeated the entire PR campaign
    connected with the Lewinsky affair. The New York Times calls it
    ``habitual mendacity.''
        If this were a standard trial, as juror I would not know
    any of that. I would have to make up my mind solely on the
    basis of the evidence presented here. Some would say I still
    should.
        I believe that the framers of the Constitution dictated
    otherwise. They chose the Senate as the trial Court of
    Impeachment deliberately, giving us extensive powers as both
    judge and jury, and they were not naive enough to think that we
    would check our understanding of the history of the accused
    President at the door as we took up this burden. They intended
    for this to be different than a typical trial court.
        When I realized that, I began to rethink my earlier
    decision. With such a pattern of ``habitual mendacity'' running
    through his entire public career, could I really say that Bill
    Clinton's perjurious testimony before the grand jury didn't
    warrant removal?
        I made my decision to change my vote to guilty on article I
    during the closing arguments when Charles Ruff, the President's
    attorney, asked us a question with respect to an alleged high
    crime or misdemeanor. He asked, ``Would it put at risk the
    liberties of the people?''
        As I watched a replay of the President's testimony
    repeating obvious lies while under oath, I realized that the
    answer is yes. A President who has demonstrated a capacity to
    lie about anything, great or small, whether or not under oath,
    does threaten our liberties. We cannot be sure of anything he
    says; we cannot trust his word, whatever the issue. We will
    always be fearful of where that trait of his could take us, and
    we should be.
        So now I will vote guilty on both articles, with a clear
    conscience that I have done my duty. And I would vote the same
    if the President's name were Ronald Wilson Reagan.

                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                        Statement of Senator Jack Reed*
    ---------------------------------------------------------------------------

                                       * * * * *
    *Sen. Reed submitted an additional statement on February 24, see p.
    3103, below.
    ---------------------------------------------------------------------------
        Mr. REED. Mr. Chief Justice, for the past 6 weeks, the
    Senate has been engaged as a Court of Impeachment to try
    President William Jefferson Clinton--the first trial of an
    elected President in the history of the United States. Our
    deliberations will bring to a close more than a year of
    controversy which has left the American people both frustrated
    and dismayed. Hopefully, our decision will serve as a means of
    rededicating the energies of our Government to the service of
    the American people.
        In this endeavor, our solemn duty to the Constitution is
    paramount.
        Conscious of these responsibilities and based on the
    evidence in the record, the arguments of the House managers and
    the counsels for the President, I conclude as follows. The
    President has disgraced himself and dishonored his office. He
    has offended the justified expectations of the American people
    that the Presidency be above the sordid episodes revealed in
    the record before us. However, the House managers failed to
    establish that the President's conduct amounts to ``high Crimes
    and Misdemeanors'' requiring his removal from office in
    accordance with the Constitution. Moreover, the House managers
    also failed to prove, beyond a reasonable doubt, that the
    allegations in the articles would constitute the crimes of
    perjury or obstruction of justice.
        The constitutional grounds for impeachment, ``Treason,
    Bribery, or other high Crimes and Misdemeanors,'' indicate both
    the severity of the offenses necessary for removal and the
    essential political character of these offenses. The clarity of
    ``Treason'' and ``Bribery'' is without doubt. No more heinous
    example of an offense against the constitutional order exists
    than betrayal of the Nation to an enemy or betrayal of duty for
    personal enrichment. With these offenses as predicate, it
    follows that ``other high Crimes and Misdemeanors'' must
    likewise be restricted to serious offenses that strike at the
    heart of the constitutional order.
        Certainly, this is the view of Alexander Hamilton; one of
    the trio of authors of ``The Federalist Papers,'' which is the
    most respected and authoritative interpretation of the
    Constitution. In Federalist No. 65, Hamilton describes
    impeachable offenses as ``those offenses which proceed from the
    misconduct of public men, or, in other words from the abuse or
    violation of some public trust. They are of a nature which may
    with peculiar propriety be denominated POLITICAL, as they
    relate chiefly to injuries done immediately to the society
    itself.'' \1\
    ---------------------------------------------------------------------------
                                       * * * * *
    \1\ The Federalist Papers, No. 65 (Hamilton) at 396 (Clinton Rossiter,
    ed., 1961) (emphasis in original).
    ---------------------------------------------------------------------------
        This view is sustained with remarkable consistency by other
    contemporaries of Hamilton. George Mason, a delegate to the
    Federal Constitutional Convention, declared that ``high Crimes
    and Misdemeanors'' refer to ``great and dangerous offenses'' or
    ``attempts to subvert the Constitution.'' \2\ James Iredell, a
    delegate to the North Carolina Convention which ratified the
    Constitution and later a justice of the U.S. Supreme Court,
    stated during the Convention debates:
    ---------------------------------------------------------------------------
                                       * * * * *
    \2\ Max Farrand, ed., The Record of the Federal Convention of 1787, at
    550 (1966).

        The power of impeachment is given by this Constitution, to bring
    great offenders to punishment. . . . This power is lodged in those who
    represent the great body of the people, because the occasion for its
    exercise will arise from acts of great injury to the community, and the
    objects of it may be such as cannot be easily reached by an ordinary
    tribunal.\3\
    ---------------------------------------------------------------------------
                                       * * * * *
    \3\ Jonathan Elliot, Debates on the Adoption of the Federal
    Constitution, at 113 (emphasis added).

        Iredell sustains the view that an impeachable offense must
    cause ``great injury to the community.'' These interpretations
    strongly indicate that private wrongdoing, without a
    significant, adverse effect upon the nation, does not
    constitute an impeachable offense.
        Later commentators expressed similar views. In 1833,
    Justice Story quoted favorably from the scholarship of William
    Rawle in which Rawle concluded that the ``legitimate causes of
    impeachment . . . can have reference only to public character,
    and official duty. . . . In general, those offenses, which may
    be committed equally by a private person, as a public officer,
    are not the subject of impeachment.'' \4\
    ---------------------------------------------------------------------------
                                       * * * * *
    \4\ Joseph Story, Commentaries on the Constitution Sec. 799 at 269-270
    quoting William Rawle, A View of the Constitution of the United States
    at 213 (2d ed. 1829).
    ---------------------------------------------------------------------------
        This line of reasoning was manifest in the careful and
    thoughtful work of the House of Representatives during the
    Watergate proceedings in 1974. The Democratic staff of the
    House Judiciary Committee concluded that:

    [b]ecause impeachment of a President is a grave step for the nation, it
    is to be predicated only upon conduct seriously incompatible with
    either the constitutional form and principles of our government or the
    proper performance of constitutional duties of [the President's]
    office.\5\
    ---------------------------------------------------------------------------
                                       * * * * *
    \5\ Constitutional Grounds for Presidential Impeachment, Report by the
    Staff of the Impeachment Inquiry, House Comm. On Judiciary, 93rd Cong.,
    2d Sess. at 26 (1974).

        This view was echoed by many of the Republican Members of
    ---------------------------------------------------------------------------
    the Judiciary Committee when they declared:

    . . . the Framers . . . were concerned with preserving the government
    from being overthrown by the treachery or corruption of one man . . .
    [I]t is our judgment, based upon this constitutional history, that the
    Framers of the United States Constitution intended that the President
    should be removable by the legislative branch only for serious
    misconduct dangerous to the system of government.\6\
    ---------------------------------------------------------------------------
                                       * * * * *
    \6\ Impeachment of Richard M. Nixon, President of the United States,
    Report of the House Comm. on the Judiciary, 93rd Cong., 2d Sess., H.
    Rep. 93-1305 at 364-365 (Aug. 20, 1974) (Minority Views of Messrs.
    Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead,
    Maraziti, and Latta).

        This authoritative commentary on the meaning of ``high
    Crimes and Misdemeanors'' is supported by the structure of the
    Constitution which makes impeachment independent from the
    operation of the criminal justice system. Regardless of the
    outcome of an impeachment trial, the accused ``shall
    nevertheless be liable and subject to Indictment, Trial,
    Judgment and Punishment, according to Law.'' \7\ The
    independence of the impeachment process from the prosecution of
    crimes underscores the function of impeachment as a means to
    remove a President from office, not because of criminal
    behavior, but because the President poses a threat to the
    constitutional order. Criminal behavior is not irrelevant to an
    Impeachment, but it only becomes decisive if that behavior
    imperils the balance of power established in the Constitution.
    ---------------------------------------------------------------------------
                                       * * * * *
    \7\ U.S. Const. Art. I Sec. 3. Cl. 7.
    ---------------------------------------------------------------------------
        The House managers argue that we should apply the same
    reasoning to the removal of the President that we have applied
    to the trial of Federal judges. They make their argument with
    particular urgency in regard to article I and its allegations
    of perjury since several judges have been removed for
    perjury.\8\
    ---------------------------------------------------------------------------
                                       * * * * *
    \8\ For example, both Judge Walter L. Nixon, Jr. and Judge Alcee L.
    Hastings were convicted based on charges of perjury.
    ---------------------------------------------------------------------------
        This reasoning disregards the unique position of the
    President. The President is elected and popular elections are a
    compelling check on Presidential conduct. No such ``popular
    check'' was imposed on the judiciary. They are deliberately
    insulated from the public pressures of the moment to ensure
    their independence to follow the law and not a changeable
    public mood. As such, impeachment is the only means of removing
    a judge. And, the removal of one of the 839 Federal judges can
    never have the traumatic effect of the removal of the
    President. To suggest that a Presidential impeachment and a
    judicial impeachment should be treated identically strains
    credibility.
        Moreover, the Constitution requires that judicial service
    be conditioned on ``good Behavior.'' This adds a further
    dimension to the consideration of the removal of a judge from
    office. Although ``good Behavior'' is not a separate grounds
    for impeachment, this constitutional standard thoroughly
    permeates any evaluation of judicial conduct. Judges are
    subject to the most exacting code of conduct in both their
    public life and their private life.\9\ Without diminishing the
    expectations of Presidential conduct, it is fair to say that we
    expect and demand a more scrupulous standard of conduct,
    particularly personal conduct, from judges.
    ---------------------------------------------------------------------------
                                       * * * * *
    \9\ The Judicial Conference of the United States publishes a Code of
    Conduct for United States Judges, as prepared by the Administrative
    Office of the United States Courts. Cannon 2 of the Code requires
    federal judges to ``avoid impropriety and the appearance of impropriety
    in all activities.'' (March, 1997.) This Cannon requires a Judge to at
    all times act in ``a manner that promotes public confidence in the
    integrity and impartiality of the judiciary.'' Perceived violations of
    the Code could result in a complaint to the Judicial Conference, which
    can make referrals to the House Judiciary Committee.
    ---------------------------------------------------------------------------
        The House managers' argument is ultimately unpersuasive.
    Rather than reflexively importing prior decisions dealing with
    judicial impeachments, we are obliged to consider the
    President's behavior in the context of his unique
    constitutional duties and without the condition to his tenure
    of ``good Behavior.''
        Authoritative commentary on the Constitution, together with
    the structure of the Constitution allowing independent
    consideration of criminal charges, makes it clear that the term
    ``high Crimes and Misdemeanors'' encompasses conduct which
    involves the President in the impermissible exercise of the
    powers of his office to upset the constitutional order.
    Moreover, since the essence of impeachment is removal from
    office rather than punishment for offenses, there is a strong
    inference that the improper conduct must represent a continuing
    threat to the people and the Constitution, and not simply an
    episode that either can be dealt with in the courts or raises
    no generalized concerns about the continued service of the
    President.
        Measured against this constitutional standard, the
    allegations against the President do not constitute ``high
    Crimes and Misdemeanors.'' The uncontradicted facts of the case
    paint a sordid picture of the President's involvement in a
    clandestine, consensual affair with a young woman. His attempts
    to disguise this affair collided with the Jones lawsuit; a
    lawsuit filed against him in his capacity as a private citizen,
    and not in anyway directed at his conduct as President. Over
    many months, he misled and he dissembled about his relationship
    with Monica Lewinsky. He lied to his family, he lied to his
    colleagues, and, on January 26, 1998, he lied to the American
    people. All of these lies were designed to disguise his illicit
    but consensual relationship with Ms. Lewinsky. Only after being
    compelled to testify before a Federal grand jury in August of
    1998, did the President finally admit his relationship with Ms.
    Lewinsky.
        The House managers take this tale of deception and
    betrayal, more soap opera than high drama of state, and urge
    that it rises to behavior evidencing an impermissible exercise
    of his powers as President or an impermissible failure to
    discharge his duties as President which threatens the
    constitutional balance of government and can only be remedied
    by the removal of the President. They urge too much. The
    allegations, even construed in the most favorable light to the
    House managers, do not constitute ``high Crimes and
    Misdemeanors'' as that term has been consistently interpreted
    over the course of American history.\10\
    ---------------------------------------------------------------------------
                                       * * * * *
    \10\ These allegations are a far cry from the most relevant historical
    precedent, the Watergate affair of President Richard M. Nixon. For
    example, President Nixon attempted to cover up a burglary of the
    Democratic National Committee by enlisting the authority and the
    assistance of the Central Intelligence Agency. The precipitating event
    of this crisis was a direct attack on a fundamental Constitutional
    tenet, the right to free and fair elections unimpeded by the criminal
    attempts to steal information and wiretap telephones. Moreover,
    President Nixon liberally exercised the formal powers of his office to
    impede the investigation.
    ---------------------------------------------------------------------------
        One could confidently stop at this point and reach a
    judgment to acquit the President. Such a judgment does not
    forgive the disreputable behavior of the President. Rather, it
    does, as it must, keep faith with the Constitution.
        However, to stop at this juncture and ignore the
    allegations of criminal conduct could leave several
    misperceptions. First, such an approach could be criticized as
    failing to afford the House of Representatives appropriate
    recognition as the proponent of articles of impeachment. The
    House of Representatives acted in the discharge of its
    exclusive constitutional prerogative to impeach the President.
    They cast these articles as criminal violations, and due
    deference must be given to the decision of the House. Second,
    failing to examine the allegations of criminal conduct may
    leave the erroneous impression that criminal activity by the
    President can never rise to the level of ``high Crimes and
    Misdemeanors.'' And, finally, failing to examine these
    allegations leaves in doubt charges of criminal misconduct
    against the President. Although the Senate does not sit as a
    criminal court, a condemnation or exoneration ``by silence''
    would be unfair to both the President and to the American
    people.
        The House managers argue in article I that the President
    committed the crime of perjury while testifying before the
    Federal grand jury on August 17, 1998. They argue in article II
    that the President committed the crime of obstruction of
    justice in the Jones case. After considering the evidence and
    the arguments of the House managers and the White House
    counsels, I believe that the House managers have not shown,
    beyond a reasonable doubt, that the President is guilty of the
    alleged crimes.
        It is without dispute that the House managers have the
    burden of proof. It is also without dispute that each Senator
    has the right individually to determine what constitutes the
    appropriate burden of proof. Because of the gravity of this
    impeachment process, but, more significantly, because of the
    urging of the House managers,\11\ I believe that a standard of
    beyond a reasonable doubt should be used.\12\ This is the
    standard used in the prosecution of criminal cases.
    ---------------------------------------------------------------------------
                                       * * * * *
    \11\ Mr. Manager McCollum stated, ``none of us, would argue . . . that
    the President should be removed from the office unless you conclude he
    committed the crimes that he is alleged to have committed.'' 145 Cong.
    Rec. S260 (daily ed. Jan. 5, 1999) (Statement of Mr. Manager McCollum).
    The House managers invited the Senate to arrive at a conclusion beyond
    a reasonable doubt before voting to convict the President. I take them
    at their word.
                                       * * * * *
    \12\ The adoption of a standard of ``beyond a reasonable doubt'' in
    this matter should not be construed as implying that the same standard
    must be utilized in each and every Impeachment proceeding. Conduct of
    ``civil officers'' in the performance of their official duties might
    pose such an immediate threat to the Constitution that a less exacting
    standard could properly be used. Any choice of a standard of proof
    must, at a minimum, consider the nature of the allegations and the
    impact of the alleged behavior on the operation of the government.
    ---------------------------------------------------------------------------
        Article I alleges that the President committed perjury
    before the grand jury by knowingly making false, material
    statements. The first great hurdle that the House managers must
    overcome is the fact that the House refused to adopt an article
    of impeachment regarding the President's testimony at the Jones
    deposition. However one characterizes these two statements
    under oath, no one can argue that the President was more
    truthful at the Jones deposition. Most, if not all, would argue
    that he was considerably less truthful at the Jones deposition.
    This discrepancy fatally undercuts the contention that this
    article constitutes ``high Crimes and Misdemeanors,'' and it
    seriously erodes the claim that the President committed the
    crime of perjury before the grand jury. Unlike the Jones
    deposition, the President admitted up front in his grand jury
    testimony that he had engaged in ``inappropriate intimate
    behavior'' with Ms. Lewinsky while they were ``alone.''
        Confronted with this preemptive statement by the President,
    the article generally alleges perjury without citing specific
    statements from the grand jury testimony and leaves the House
    managers with the task of sifting through the record to suggest
    examples of the President's alleged perjury. They suggest four
    general areas.
        First, they point to discrepancies between the testimony of
    the President and Monica Lewinsky about intimate details of
    their relationship. This is a difficult proposition to prove
    without corroborating evidence, and the House managers offer
    none. Moreover, some of these details, such as the number of
    times they engaged in sexual banter on the phone, are just not
    material.
        Second, the House managers attempt to ignore the
    President's preliminary statement and argue that he adopted the
    ``perjurious'' testimony of his Jones deposition. This is
    simply not true. To make this assertion, the House managers use
    the President's grand jury testimony that ``I was determined to
    walk through the mine field of this deposition without
    violating the law, and I believe I did.'' \13\ But, the
    President's peremptory statement clearly indicated that he was
    not vouching for the facts of his Jones deposition. The
    President's statement expresses his state of mind. It is not an
    affirmation of the Jones testimony. Not even Independent
    Counsel Starr alleged that the President committed perjury in
    this way.
    ---------------------------------------------------------------------------
                                       * * * * *
    \13\ Grand Jury Testimony of President Clinton on 8/17/98 as cited in
    the House Managers' Trial Brief, p. 60.
    ---------------------------------------------------------------------------
        Third, the House managers allege that the President's
    silence, while his counsel made representations about the
    Lewinsky affidavit, constitutes perjury. This novel theory of
    ``unspoken perjury'' fails from the lack of any conclusive
    evidence concerning the President's state of mind at this time.
    Such evidence is necessary to prove the specific intent to
    establish the crime.
        Fourth, the House managers alleged that the President
    committed perjury when he denied his involvement in the
    obstruction of justice, particularly his alleged involvement in
    the exchange of gifts between Monica Lewinsky and Betty Currie.
    This topic will be discussed in more detail with respect to
    article II. At this juncture, it is sufficient to note that the
    House managers have not presented evidence to indicate beyond a
    reasonable doubt that the President committed perjury.
        Fifth, the House managers allege that the President
    committed perjury when he denied ``coaching'' Betty Currie.
    Again, this issue will be addressed in more detail with respect
    to article II. But, this allegation also fails from the absence
    of persuasive evidence establishing the President's specific
    intent in conducting this conversation with Ms. Currie.
        Finally, the House managers allege that the President
    committed perjury when he gave false information to his aides
    about his relationship with Ms. Lewinsky. This too raises the
    issue of the President's state of mind. His grand jury
    testimony expressed his belief that he tried to say things that
    were true. He acknowledged that he misled, but he asserted that
    he tried not to lie. To prove that these statements are
    perjurious, the House managers had to prove that the President
    had the necessary specific intent. They have not done so.
        Article II alleges that the President obstructed justice.
    The article sets forth seven ``acts'' which the House managers
    argue the President used to implement this ``scheme.''
        Three of these alleged ``acts,'' encouraging Monica
    Lewinsky to file a false affidavit, urging her to give false
    testimony, and finding her a job to obtain her silence, crash
    on an immovable evidentiary rock: Monica Lewinsky's
    uncontradicted and often repeated statement, ``no one ever
    asked me to lie and I was never promised a job for my
    silence.'' \14\ The House managers offered other circumstantial
    evidence, but this too failed to be persuasive.
    ---------------------------------------------------------------------------
                                       * * * * *
    \14\ Part I, Appendices to the Referral to the U.S. House of Reps.,
    Communication from the Office of the Independent Counsel, Kenneth W.
    Starr, 105th Cong. 2d Sess., H. Doc. 105-311 (September 18, 1998) at
    1161. (Ms. Lewinsky responding to a question from a juror.) See also
    Counsel to the President's Trial Brief, p. 57.
    ---------------------------------------------------------------------------
        The fourth ``act'' involves the transfer of gifts between
    Ms. Lewinsky and Ms. Currie. Although Ms. Lewinsky's testimony
    strongly suggests that the President directed Ms. Currie to
    retrieve gifts, the two parties to this suggested transaction,
    the President and Ms. Currie, flatly deny any such
    conversation. Certainly, there is more than a reasonable doubt
    based on this conflicting testimony; particularly, since no one
    has ever impeached Ms. Currie's credibility.
        The fifth ``act'' recharacterizes the President's silence,
    while his attorney made representations about Ms. Lewinsky's
    affidavit, as obstruction of justice. This allegation fails
    based on the lack of any conclusive evidence of the President's
    state of mind.
        The sixth ``act'' involved the purported coaching of Betty
    Currie by the President after his Jones deposition. This
    allegation too turns on the President's state of mind. The
    House managers argue that the President's intent was to
    influence the testimony of Ms. Currie as a potential witness.
    White House counsels argue that the President had no reasonable
    anticipation that she would be a witness. But, more decisively,
    they argue that his intent was to confirm his story in
    anticipation of a media onslaught. The lack of persuasive
    evidence about his state of mind also undercuts this
    allegation.
        Finally, the last allegation involves the President's
    purported attempt to influence the testimony of his aides.
    Again, the House managers have not shown beyond a reasonable
    doubt that the President intended to make his statement to
    influence their testimony. There is an equally plausible
    inference that the President was simply continuing his public
    campaign to deny his relationship with Ms. Lewinsky. This
    campaign led him to lie to the American public and no one
    suggests he was then tampering with witnesses. Indeed, as a
    result of these public statements, it seems unlikely that he
    would tell his aides anything else.
        The House managers have not sustained their burden of proof
    in regard to article II.
        It is clearly evident that the facts of the case require
    acquittal. As such, serious questions can and should be raised
    about the unwarranted extension of the trial. Given the
    significant doubts surrounding the case of the House managers,
    a motion to dismiss, followed by a debate on censure should
    have been utilized to properly put an end to these proceedings.
    Instead, a majority of the Senate accommodated the desire of
    the House managers to excessively pursue allegations that were
    politically damaging to the President. Indeed, had Members of
    the House of Representatives been allowed to consider censure
    this matter may never have reached the Senate.
        We, as a Nation and as the Senate, have come to the end of
    a long and wearisome road. It has wandered through scandal and
    deception. Many of those who have trod this road, both
    individuals and institutions, have seen their reputations
    besmirched. The journey emanated from the reckless conduct of
    William Jefferson Clinton. But, the passage has also exposed
    vicious political partisanship and the reckless and relentless
    exploitation of the powers of the independent counsel. In the
    midst of this dishonor, deception, and rancor, we could have
    easily lost our way. But we reached this moment because we have
    been guided by the Constitution and inspired by the common
    sense and common decency of the American people, and with such
    a guide and such inspiration, we will do justice with our
    votes, whether they be to convict or acquit.
        For my part, the Constitution and the evidence compels me
    to vote to acquit the President on both articles of
    impeachment.

                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                         Statement of Senator Mike Enzi

        Mr. ENZI. Mr. Chief Justice and colleagues of the Senate,
    this has been a month-long ethics and Constitution class--with
    mandatory attendance. That should have value for each of us.
        I'm getting more mail each day than I normally get in a
    month--and most of it is from your constituents. That's right.
    Out of every 1,000 letters I get, only 30 are from Wyoming. I
    have some ideas what your constituents are saying. I'm not a
    lawyer. I'm not going to present any legal arguments. Most of
    my constituents aren't lawyers. I notice that most of your
    constituents aren't either.
        I've only served on one jury before and we didn't even get
    to render a verdict. A boy was being tried for poaching deer
    out of season--shot with a .22. He was caught redhanded in the
    barn with the .22 and two of the six deer hanging to be
    butchered. The boy's argument began claiming he hadn't been
    properly read his rights. His dad, supporting from the
    audience, stopped the trial by asking the judge if he could
    speak with his son. They went into the hall a couple minutes. A
    boy freshly chastised said, ``I want to plead guilty. In our
    family we don't believe in getting off on technicalities.'' A
    successful trial. I watched a boy become a man.
        I thought about propounding a unanimous consent that
    anything already said couldn't be repeated as testimony even
    though it could be submitted. I thought that would speed up the
    proceedings. I will not propound it but will attempt to follow
    it. Instead of the smooth transitions and brilliant arguments,
    you will only hear what is left. I trust you will rush to get a
    copy of my whole statement. Here goes.
        The President was so thorough in denying any relationship
    with Monica Lewinsky that Janet Reno believed him. Janet Reno
    is the person who expanded the investigation into the Monica
    Lewinsky matter. The President told all of us he had done
    nothing wrong. His own Attorney General believed him. Janet
    Reno was helping to clear the air on these ludicrous charges
    when she gave Ken Starr the approval, direction and budget.
        When our country was founded oaths meant everything. A
    man's word was his bond. Their oath was honor and duels were
    fought to defend honor. When this trial started, you and I had
    to take an oath. It struck me that I might be taking an oath to
    determine if oaths still mean anything.
        The White House argues that the President's actions will
    not have an effect on anyone. I am hearing from judges who say
    people before their court are asking for the same treatment
    given the President. They do not feel their situation is as
    blatant as the President and they are more repentant and
    remorseful. Some have even taken action to correct their wrong.
    All feel they should get a suspended sentence.
        I was disappointed with the White House failure to explain
    all of the charges. Their rebuttal was focused on those charges
    for which they felt they could answer or, more accurately, use
    to create the most confusion. Skipping the tough issues is not
    an answer. This is not an issue of spin or even polls.
        Impeachment is the most serious indictment a President or
    judge can get. The President was impeached by the House of
    Representatives. His reaction was to celebrate in the Rose
    Garden of the White House--spin again--more spin than a kid's
    top. Truth was needed. Dizzy deception is what we've gotten.
        The President's counsel admit he lied, was evasive,
    misleading. The words and adjectives used by the White House
    counsel during the trial should be enough to condemn the
    President. But they still expect us to trust the President with
    the country? Do you think he will only lie about sex? This man
    sends our children into war. He has to be held to the highest
    standard. I would feel more comfortable if even one person
    would have said, ``He didn't do this.'' Only the President said
    that, and we all know he wasn't truthful.
        Last year an Air Force pilot, an officer, was forced to
    resign. She was having a consensual sexual affair. It was
    adultery. She didn't lie about it. She was forced to resign--
    removed from office--because we couldn't trust her with deadly
    weapons. The President pushes the button on the whole world--
    not just on one plane. Oh, that's right, this isn't about
    personal sex. No one would ever be removed from office for
    that.
        But the President is doing a great job. Job performance
    cannot be the defense for perjury or obstruction of justice or
    sexual harassment or any other crime. If a bank president
    embezzled even a little money from his bank would we leave him
    alone? Would we say, ``That's OK because the bank was doing
    well''?
        We had a hypothetical situation posed to us--an employee
    who controlled the whole computer system and he did what the
    President did. If there is any parallel, you'd fire him. You'd
    fire him because you have been cross-training a vice president
    of computer systems. I've listened to the arguments about world
    peace and I've got to say that's a terrible indictment of the
    capabilities of the vice president.
        When the video evidence was countered, White House counsel
    had one presentation on Ms. Lewinsky's testimony. A second
    presentation was made on Vernon Jordan's testimony. Why didn't
    White House counsel counter Sidney Blumenthal's testimony at
    all? Charges made, charges unanswered. If you have enough
    votes, I guess you only need to look credible.
        Presidents have power. Power draws loyalty. Are we a
    country with one set of standards for the rich, famous, or
    powerful? Is that the way we want our country to be? This isn't
    even a popularity contest. Popularity cannot be a defense in an
    impeachment trial.
        House Manager Rogan said he would risk his political future
    for the Constitution. He said, ``Dreams come and dreams go, but
    conscience is forever.'' We are supposed to be the collective
    conscience of our Nation. Are we trying instead to salve our
    conscience?
        We talk of censure? Isn't that just another way to salve
    our conscience? When this trial is over we better come together
    as a nation--undivided and behind whoever is the President--not
    debating again to what degree he is bad.
        Some have been wrestling with whether the offenses ``rise
    to the level of impeachment.'' The founders may have been a lot
    tougher than we are. We've talked about a guilty vote by a two-
    thirds majority removing from office. The founders provided for
    a second vote--a vote that takes away more rights and honor--
    the right to hold public office ever again. Should we suggest
    the offenses, especially in the cumulative, rise to the level
    of impeachment and then wrestle with the question and vote on
    ``forever''? Judges are appointed for life. Presidents have the
    title for life.
        I heard a suggestion that we can't remove the President for
    sexual harassment because we are not his boss or because he has
    such a critical position. The founders recognized both those
    circumstances. We are not the President's boss--but we have
    been given that responsibility through impeachment. He holds a
    critical position, that's why the founders established the
    succession. Remember, that was when impeachment could put
    another party into the Presidency. And that was when the Senate
    was appointed, not elected.
        ``The Rise and Fall of the Roman Empire'' was a book we
    were introduced to in high school. Rome went through this phase
    too. Free lunches for the masses, an emphasis on entertainment,
    and no accountability for the powerful. We have seen the rise
    of America. Will we be listed in history as the start of the
    fall? Our society is eroding. Our values are disappearing. If
    you watch the news, many nights the main lead even during this
    trial is about the multiple murders right around us.
        We've been talking about ``an impeachable standard.'' We've
    talked about the ``Reagan Test.'' I'm going to suggest two more
    tests. The ``Mom Test'' and the ``Spouse Test.'' When you were
    growing up, did your mom need proof ``beyond a reasonable
    doubt'' before punishment? Did she ever say, ``Don't put
    yourself in a position where it even looks like you did
    something wrong?'' Circumstantial evidence was enough. Did your
    mom ever say,``Watch out who you hang out with; it reflects on
    you?'' Did your mom say, ``Watch your actions--they reflect on
    you and your family?'' Did your mom ever say, ``Act so I won't
    be embarrassed tomorrow reading the front page of the paper
    about what you did today?'' The President has complained that
    others are out to get him. That he is the most investigated
    President in history. Perhaps he ought to apply the ``Mom
    Test.''
        What about the ``Spouse Test''? My wife has applied that
    test. She said, ``If this were a Republican President, I would
    have already chained myself to the White House fence until he
    resigned.'' She is absolutely stymied that women's groups
    haven't done that. For years she and I fought the accusations
    that women's groups were only about allowing abortion--but
    their silence on the President has changed my mind. I will not
    defend them as they have not defended any woman defamed by the
    actions and the words of the President. And a final ``Spouse
    Test''--when you are playing games with sex definitions ask,
    ``What would my spouse think I was doing?''
        While we may have a country doing well economically, we are
    headed toward moral bankruptcy if the trend is not reversed. We
    are becoming ``de-moralized.''
        With this case we are all in a ``no-win'' situation. We
    have heard the media and the Democrats note that the
    Republicans are committing political suicide. But just as many
    mention the Democrats are filing moral bankruptcy. History will
    be the judge of us all. Our constituents just expect us to do
    what is right. They will expect us to do what is right based
    even on what comes out in the future. Yes, what is right based
    on the books and future disclosures of the participants. They
    will judge us even based on the future actions of this
    President. Our words will be forgotten; our verdict won't.
        This isn't about politics. It's about our country. It's not
    about Bill Clinton. It's about the future of the Presidency.
    The process is on trial. The Senate is on trial. No,
    truthfully, truth is on trial.
        As we enter into our final deliberations on whether or not
    to convict President Clinton on the two articles of impeachment
    presented to us by the House of Representatives, I think it is
    imperative that we remember the oath each of us took at the
    outset of this historic process. Each one of us took an oath
    before God to do ``impartial justice according to the
    Constitution and the laws.'' That oath should guide our
    thoughts and actions for it reminds us of the gravity of this
    process and the weighty responsibility we assumed by our own
    free will. We must finally remember that we answer not only to
    future generations who will judge whether we did right by the
    Constitution we swore to uphold, but also to that eternal
    witness of our most solemn oath.
        I will be the first to admit that striving to be impartial
    has been very difficult. To be a good juror is a heavy burden.
    That duty is heightened when one is also called to wear a
    judge's robe when sitting as a silent juror weighing the
    evidence, probing the credibility and motives of the various
    witnesses, and ascertaining the appropriate law which applies
    to the facts before you. There are few duties we will face in
    our life as grave as this one: to decide the political fate of
    the President of the United States.
        Before the trial started I read everything I could find
    that dealt with impeachment history. As the trial progressed, I
    read volumes of published evidence, including the prior
    testimony of the witnesses in this proceeding. I have attended
    all of the proceedings in the Senate from start to finish. I
    have carefully watched all of the videotaped depositions. I
    have read all of the transcripts of these depositions. I
    watched many parts of the depositions several times to be sure
    I understood exactly what each witness was saying and how that
    testimony fit with that witnesses' prior testimony and with the
    testimony of other witnesses who testified under oath. These
    depositions were very helpful in focusing the key points of
    this trial and deciding who was testifying truthfully and who
    was lying in instances where the testimony is in conflict. In
    short, I believe I have taken into account nearly all of the
    pertinent information in this case in coming to my final
    decision.
        This case challenges us to consider whether, in light of
    all the evidence, President Clinton's actions indicate that he
    has, in the words of Alexander Hamilton, ``abused or violated
    some public trust.'' In making this determination, we must
    first decide whether allegations presented by the House
    managers do in fact constitute ``high Crimes and Misdemeanors''
    as contemplated in article II, section 4 of the Constitution. I
    have come to the conclusion that they do.
        I believe that perjury and obstruction of justice
    demonstrate intentional, premeditated violations of an
    indispensable public trust. In taking the oath of office,
    President Clinton twice raised his right hand and placed his
    hand on the Bible swearing to uphold and defend the
    Constitution and to faithfully execute the laws of the United
    States. By this oath, he took upon himself the duty to be the
    chief law enforcement officer of the United States. Actions
    which undermine this high duty, whether they involved
    committing perjury in a judicial proceeding or obstructing
    justice, strike at the very heart of the rule of law.
        There is no contradiction that perjury and obstruction of
    justice are serious crimes for the average citizen in the
    United States. Both of these offenses presented by the House
    managers are felonies under the Federal criminal code, and both
    carry equivalent or even higher minimum sentences than bribery
    under the Federal Sentencing Guidelines. Nor is the seriousness
    of these crimes simply a matter of abstract speculation. We
    heard video testimony of a real, live citizen who has paid a
    very heavy price indeed for the crime of perjury. In July of
    1995, Dr. Barbara Battalino, a physician who worked for the
    Veterans' Administration, lied under oath about an encounter
    she had had with one of her patients. As a result of this
    perjury, Dr. Battalino was fired from the Veterans'
    Administration, she lost her license to practice medicine, she
    was prohibited from ever practicing law--she also had a law
    degree--and she was required to wear an electronic ankle
    bracelet for 3 years. Those who argue that perjury about sexual
    matters is not serious owe Dr. Battalino a heartfelt apology.
    Dr. Battalino lied one time about one consensual act of oral
    sex.
        Moreover, both perjury and obstruction of justice were
    counted among the list of ``public wrongs'' as opposed to
    private wrongs under common law at the time of the American
    founding. These are the very kind of crimes the founders
    contemplated when they included the impeachment and removal
    mechanism in the Constitution. These crimes were not considered
    to be private offenses by the common law, nor by the Founding
    Fathers. The preeminent commentator on the English common law
    at the time of the American founding, William Blackstone,
    described perjury, or false swearing in a judicial proceeding,
    as an ``offense against public justice.'' As with perjury,
    obstruction of justice was considered a ``high misprision'' or
    ``high misdemeanor'' at the time of the drafting of our own
    Constitution.
        It should be remembered that this Senate has convicted and
    removed Federal judges for perjury. In the 1980s alone, this
    body removed three Federal judges for lying under oath. Many in
    this Chamber had occasion to vote in those cases and voted to
    remove these judges because they saw that the act of perjury,
    even if it involved lying about one's taxes, was incompatible
    with a judge's duty to uphold the Constitution and laws of the
    United States.
        When confronted with these very recent precedents, the
    White House lawyers have argued that this Senate should apply a
    lesser standard to the President than to Federal judges. They
    argue that Federal judges should be held to a higher standard
    because they are given life tenure under article III of the
    Constitution. I must admit, that this is an argument that I
    cannot square either with the plain language of the
    Constitution or with common sense. Do we really want to hold
    our President to a lower standard than the Federal judges he
    appoints? It is our President, after all, who appoints all the
    U.S. attorneys and the Federal marshals, who names all the
    Cabinet officials, who has the authority to send American
    troops into battle, and who can sign treaties with foreign
    nations. A corrupt Federal district court judge can work
    injustice on the litigants who enter his courtroom. A corrupt
    President, by contrast, has the power to wreak havoc on the
    entire political order.
        The President's oath forbids him to selectively decide
    whether to follow the laws of the land based on a calculation
    of political expediency or determination of personal gain or
    loss. He is bound to follow the Constitution and the laws of
    our country in and out of season. By intentionally violating
    this duty, the President's actions display the tendencies of an
    unbridled monarch rather than a constitutional executive who
    must bow before the law he swore to faithfully execute.
        On the specific article of perjury, there is abundant
    evidence that President Clinton violated his oath to ``tell the
    truth, the whole truth, and nothing but the truth'' on several
    occasions. As the chief law enforcement officer of the United
    States, the President was bound to ``tell the whole truth'' and
    act in a manner becoming of the dignity of his office.
    President Clinton did not do this. When asked before the
    Federal grand jury on August 17, 1998, whether he understood
    that he had an obligation to tell the truth, the whole truth,
    and nothing but the truth in his prior deposition of January
    17, 1999, in a Federal civil rights suit, the President
    testified that ``his goal was to be truthful, but not
    particularly helpful.'' He later admitted that his testimony
    had been ``misleading.'' For any plain-speaking American, to be
    misleading is the same as lying. In short, the President
    violated his oath to ``tell the whole truth'' when he misled
    the court.
        The facts indicate that the President was not attempting to
    be truthful and was not truthful in his deposition in the Jones
    Federal civil rights case. Moreover, he lied about the nature
    of his relationship with a subordinate employee before the
    Federal grand jury. The President also allowed his attorney,
    Robert Bennett, to file a false affidavit on his behalf denying
    his relationship with Monica Lewinsky. The President continued
    this pattern of deception by lying to his top aides with the
    knowledge that they were likely to be called as witnesses
    before the Federal grand jury. He then attempted to cover up
    these lies by claiming he had possibly ``misled'' his aides,
    but he did not lie to them since he knew they were likely to be
    called as witnesses before the Federal grand jury. These were
    lies. They were lies under oath. They were lies that adversely
    impacted the rights of a U.S. citizen to obtain relief in a
    civil rights case in Federal court. They were lies under oath
    in a Federal grand jury after he had been begged by his aides,
    his friends, and some in this Chamber to finally tell the
    truth. They were lies of a public character and they were
    unbefitting the chief law enforcement officer of our country.
        What is perhaps most disturbing about these lies is that
    the President's actions indicate he had no intention of ever
    telling the truth of his relationship. He had already lied
    under oath in a Federal civil rights action. He lied to his top
    aides and Cabinet officers, he lied to his friends and
    political allies, and he lied with perfect calculation to the
    American public, including myself. I remain convinced that the
    only reason the President admitted his relationship at all was
    the discovery of the now famous ``blue dress.'' Only when it
    became clear that he could no longer continue his pattern of
    judicial and public deception did the President admit that he
    had in fact had an ``improper relationship'' with Monica
    Lewinsky. Unfortunately, the President's deception did not end
    with the revelation of the DNA. Rather, it graduated to legal
    hairsplitting, attempts to torture plain English language, and
    statements which degraded the judicial process and insulted the
    intelligence of the American public. The President has not
    carried out the public trust the American public entrusted to
    him when he was twice elected President.
        When the President's actions became public, the President
    even turned his sword of deception against his partner in
    perjury. Once the Washington Post broke the story on the
    President's extramarital affair and his possible perjury and
    obstruction of justice, the President called in his top aides
    to deny the story and destroy the character of Monica Lewinsky.
    We have seen and heard the video testimony of one of President
    Clinton's top aides, Sidney Blumenthal. Immediately after the
    story broke, President Clinton called Sidney Blumenthal into
    the Oval Office and denied the entire story. He went on to say
    that Monica Lewinsky was a troubled young woman who was called
    the ``stalker'' by her peers. He said that she came on to him
    and made a sexual demand of him, but he rebuffed her. The
    President went so far as to claim that Ms. Lewinsky had
    threatened to tell people that she had had an affair with him,
    even though it was not true. In the words of Mr. Blumenthal,
    the President ``lied to him.'' As expected, Mr. Sidney
    Blumenthal repeated these lies before the Federal grand jury.
    There is also growing evidence that Mr. Blumenthal, or other
    key White House aides, circulated these lies to the popular
    media. Such conduct further establishes that the President was
    willing to go to all lengths to prevent anyone from discovering
    the truth about his illegal conduct in a Federal civil rights
    case.
        The President's lawyers argued that the President could not
    have intended to corruptly influence the grand jury proceeding
    since the lies the President told his top aides were no
    different than the lie the President told the American people
    when he adamantly denied having ``sexual affairs, with that
    woman, Miss Lewinsky.'' If this is the best defense the White
    House lawyers can wage for their client, it speaks volumes
    about the President's character. Unfortunately, it is also
    false. The President never told the American people that Monica
    Lewinsky was a stalker, or that she wore her skirts too tight,
    or that she came on to him and made sexual demands on him. This
    is exactly what the President told his aide, Sidney Blumenthal.
    The President never enumerated the sexual acts he ``did not
    commit'' with Monica Lewinsky. He did deny with great
    specificity these acts when questioned by his assistant chief
    of staff, John Podesta. The President did lie to the American
    public. However, he also told other lies to his top aides,
    knowing that they were likely to be called as witnesses before
    the criminal grand jury.
        There is also substantial evidence that the President
    attempted to obstruct justice in both the civil rights case
    brought against him and the Federal criminal investigation
    conducted by Judge Starr. It should be noted that Judge Kenneth
    Starr's investigation was not the creature of President
    Clinton's political enemies, as some have asserted. President
    Clinton's own Attorney General, Janet Reno, directed Judge
    Starr to expand his investigation to include the allegations in
    this case. If Janet Reno is a member of the vast right wing
    conspiracy, then that operation is very vast indeed.
        We now know that Monica Lewinsky filed a false affidavit in
    the Jones civil action. We also know that the President called
    Ms. Lewinsky at home at 2:30 in the morning to inform her that
    she had been named on the witness list in the Jones civil
    rights case. We also know that in this conversation the
    President also suggested Ms. Lewinsky could file an affidavit
    to avoid testifying. Finally, we know that the President
    reminded Ms. Lewinsky of their agreed-upon ``cover stories'' to
    conceal their relationship. While the President's lawyers have
    made much over Ms. Lewinsky's statement that ``the President
    never asked me to lie,'' they are unable to put a positive spin
    on the cover stories and the President's attempts to encourage
    Monica Lewinsky to file an affidavit in the first place.
        It stretches the bounds of credulity beyond recognition to
    believe that the President intended Ms. Lewinsky to tell the
    truth when: (1) he himself lied under oath about their
    relationship, (2) he reminded Ms. Lewinsky of their cover
    stories in the same conversation in which he suggested that she
    file an affidavit, and (3) he relied on Ms. Lewinsky's false
    affidavit in his own testimony denying their relationship.
    Finally, when Ms. Lewinsky asked President Clinton if he wanted
    to see her signed affidavit, he said he didn't need to see it
    because he had ``seen 15 others like it.'' This response
    remains one of the more puzzling in this case and leaves open
    the possibility that the President tampered with other
    witnesses in the Jones civil rights case.
        We also now know that the President's personal secretary,
    Betty Currie, hid presents under her bed that had been
    subpoenaed in the Jones case. These are the gifts the President
    had given to Monica Lewinsky during their relationship. Ms.
    Lewinsky has testified that Betty Currie definitely called her
    about the gifts, and the only way Ms. Currie could have known
    about the gifts is if the President instructed her to pick them
    up. While the President's lawyers deny this explanation, the
    only phone record we know about is a phone call made from Betty
    Currie to Ms. Lewinsky on the day she picked up the gifts. The
    President's lawyers have failed to produce any concrete
    evidence to contradict this explanation. Concealing gifts that
    are under subpoena in a legal proceeding is illegal and it
    obstructs the administration of justice.
        Moreover, the conclusion that it was in fact President
    Clinton who directed Betty Currie to conceal the presents is
    bolstered by the fact that the President corruptly attempted to
    influence Ms. Currie's testimony in a Federal civil rights
    suit. President Clinton made several false statements to Betty
    Currie on Sunday, January 18, 1997, the day after he testified
    in the Jones lawsuit. Ms. Currie, who explained that it was
    very unusual for the President to ask her to come in to work on
    a Sunday, testified that President Clinton made a series of
    false statements to her as if asking for her consent.
    Specifically, the President stated to Ms. Currie: (1) You were
    always there when she [Monica Lewinsky] was there, right? We
    were never really alone. (2) You could see and hear everything.
    (3) Monica came on to me, and I never touched her, right? (4)
    She wanted to have sex with me and I couldn't do that. All of
    these statements were false, and all of them occurred the day
    after Judge Wright had expressly forbidden any of the parties
    deposed or their attorneys from discussing the deposition with
    anyone.
        The President's lawyers have argued that the President made
    these statements to refresh his recollection or to find out
    what Ms. Currie knew in the event of a press avalanche. Neither
    of these explanations is plausible. It is impossible to refresh
    one's recollection with false, leading questions. It is also
    impossible to find out what someone else knew if you tell them
    what they are supposed to believe. The plausibility of either
    of these explanations is entirely discounted when you consider
    that the President called Betty Currie in a second time, on
    January 20 to ``remind'' her of these statements. The most
    likely explanation for these statements is far more sinister;
    that the President was intending to influence the testimony of
    a likely witness in a Federal civil rights proceeding.
    President Clinton was, in fact, trying to get Betty Currie to
    join him in his web of deception and obstruction of justice.
        The inescapable conclusion I have come to is that the
    President of the United States set upon a deliberate,
    premeditated plan to deceive the court in two separate legal
    proceedings and to encourage others to deceive the court as
    well. The President first defended himself by claiming to be
    the unfortunate victim of a vast right wing conspiracy. Only
    after the physical evidence uncovered the truth about his
    affair did the President claim he was only trying to protect
    his family from these embarrassing revelations. Neither of
    these excuses justifies the President's actions. A defendant in
    a legal proceeding does not have the right to perjure himself
    because he questions the motives of the plaintiff. There are
    proper legal procedures and remedies available to any defendant
    who believes he has been the victim of a lawsuit predicated on
    frivolous legal theories or springing from personal malice. It
    is, however, never legitimate to respond to even a frivolous
    lawsuit by lying under oath.
        There has been a great debate on how the President's
    actions will impact our Nation, especially if those actions go
    unpunished. Last year I read of a town in Midwestern America
    that had experienced a number of killings in the first 2 months
    of the year. A consultant was hired to find the cause of these
    brutal acts. I believe the findings in his report should cause
    all of us to take pause. He explained that first a window is
    broken and nobody fixes it. That leads to a lawn that isn't
    mowed. Through a series of similar instances, the kids think
    nobody cares about them. If we let the President off for
    intentionally violating the rule of law, what do we tell our
    children when they are caught breaking the law? That we have
    one law for the rulers and another for the ruled? Do we tell
    them they have to follow the law until they become powerful
    enough, or clever enough, or rich enough to violate the law
    with impunity? What do we tell the Federal judges who have lost
    their robes and gavels for committing perjury? What do we tell
    military officers who have lost their livelihood for violating
    their oaths and rules of their office? What do we tell average
    citizens who have lost their jobs, their freedom, and their
    fortunes for violating their oaths to tell the truth in a court
    of law? If the legacy we leave to our children is one of
    cynical duplicity, I fear that even an ever-increasing Dow
    Jones average will be incapable of salvaging our next
    generation, or even, I fear, our civilization.
        I must conclude that while the power of impeachment and
    removal is a strong measure and one that should never be taken
    gently, it is an indispensable remedy in our government for
    those public officers who have so violated their public trust
    as to be unworthy to continue holding offices of public trust.
    The great Supreme Court Justice and constitutional scholar
    Joseph Story perhaps best summarized the impeachment mechanism
    as one which ``holds out a deep and immediate responsibility,
    as a check upon arbitrary power; and compels the chief
    magistrate, as well as the humblest citizen, to bend to the
    majesty of the laws.'' Those who would disregard this rule of
    law for their own personal or political ends must not be
    allowed to remain in offices of public trust. For this reason,
    I will vote to convict President Clinton on both articles of
    impeachment.
        I thank the Chief Justice and yield the floor.

                                    ------

           [From the Congressional Record--Senate, February 22, 1999]

                    Statement of Senator Russell D. Feingold

        Mr. Feingold. Mr. Chief Justice, I ask unanimous consent
    that my opinion in the recently concluded impeachment trial of
    President William Jefferson Clinton be printed in the Record.
        There being no objection, the opinion was ordered to be
    printed in the Record, as follows:

                     Opinion of Senator Russell D. Feingold

    I. Introduction
    II. Analysis of Alleged Federal Crimes
        A. Standard of Proof
        B. Perjury
        C. Obstruction of Justice
    III. High Crimes and Misdemeanors
    IV. Conclusion

        Only 154 Senators have ever been sworn to sit in a Court of
    Impeachment for the trial of an American president. For this senator,
    to sit in judgment of this President was a sorrowful experience. The
    President and I began our careers in Washington together in January
    1993. On the crisp, winter day of his first inauguration, I was moved
    by the poetry of Maya Angelou, which celebrated the ``pulse of . . .
    [a] new day'' in American politics and culture. All along in this
    process, I have regretted that his presidency has come to this, but
    have sought not to personalize that regret in a way that would affect
    my judgment. Taking the oath of impartiality on January 7 helped me to
    do that, but let me say, I very much regret that the President's
    conduct brought us to this day.
        This somber experience requires a senator to blend three different
    considerations: (1) the historical purposes of impeachment and the
    record of past impeachments; (2) the current legal and political merits
    and implications of these impeachment proceedings; and (3) the
    potential impact of the current impeachment proceedings on future
    impeachments and the stability of the American constitutional system.
        In attempting to reconcile these considerations, a senator has only
    the Andrew Johnson impeachment trial to look to for precise precedents
    for a presidential impeachment trial. Each senator is expected to
    render independently his or her judgment about the applicable law and
    then to apply that law to his or her own individual understanding of
    the facts of the case. This Opinion is an explanation of my attempt to
    meet that challenge.
                                i. introduction
        Strive as they may to minimize its import, the House Managers and
    those advocating removal of the President must recognize that the
    single most salient fact in this entire case is that on November 5,
    1996, 47,402,357 Americans voted to reelect William Jefferson Clinton.
    That decision was the right and the responsibility of the American
    people.
        By contrast, impeachment and removal from office prior to the
    expiration of a president's four-year term of office must be viewed as
    an extreme and radical remedy, given that it overrides the solemn,
    quadrennial decision of the American people. For us to remove a duly
    elected president could well be the most momentous constitutional event
    in the history of our country, save the Civil War. The people choose
    their leaders in America, and we must not lightly reverse their will.
    To overrule the voters, the offense must be grave and the case must be
    very strong.
        Too much of the rhetoric in this impeachment debate has focused on
    whether the President should be permitted to keep ``his'' job, in light
    of his unacceptable behavior. The question is better phrased as whether
    the President's conduct is sufficiently egregious to require the
    Congress to undo the decision of more than 47 million Americans to give
    him that job in the first place. Nor is it a valid argument or
    palliative to suggest that the same number of Americans also voted for
    Vice President Albert Gore Jr., and that he would become president upon
    President Clinton's removal. This argument is far too dependent on the
    particular nature of the unusual positive connection between this
    President, this Vice President, and the American people. It flies in
    the face of the few actual examples of past presidents who faced the
    prospect of impeachment.
        In 1868, President Johnson, an unpopular president who had been
    President Lincoln's vice-president, himself had no vice president. A
    member of the Senate would have succeeded him had he been convicted. In
    the case of President Nixon, whose resignation merely substituted for a
    nearly certain removal from office in an impeachment trial, Gerald R.
    Ford was elevated to the presidency. He had never been elected
    popularly to an office higher than the House of Representatives. In any
    event, the political similarity of a vice-president to a president
    cannot be taken seriously as an argument that conviction will be less
    wrenching for the country or damaging to the institution of the
    presidency. The crucial fact in this case remains that on November 5,
    1996, the American people hired one man and one man alone to be their
    president, and they have a right to expect that their decision will be
    honored and preserved, except in the most dire circumstances.
        This principle does not apply in the same way to the impeachment of
    judges. Elected presidents and appointed judges are chosen differently
    and their removal must be considered differently. They are starkly
    different in the nature and scope of their duties and in the sources of
    their constitutional legitimacy.
        In the American constitutional system, it cannot soundly be argued
    that every precedent from past impeachments of judges must control in
    the impeachment of an elected president. I do not suggest here a lower
    standard of behavior for presidents. Rather, I believe that our system
    requires a higher standard for removal of an elected president than for
    an appointed judge. Judges serve for life ``during good behavior.''
    That is a long time, with no means of removing a judge except
    impeachment. Presidents are chosen by the people in a sacred democratic
    process. If the people become displeased with the president they have
    chosen, they need only wait for the next election or the end of his
    term.
        Thus, the analogy of an elected president to an appointed judge is
    weak. Weaker still are the arguments that the President must be removed
    because a corporate manager or military officer would be removed under
    similar circumstances. Corporate life is an arena of private behavior
    and corporate positions do not proceed from popular elections.
    Personnel decisions in the boardroom are of no broad constitutional
    consequence. Military officers likewise are not chosen by the voters.
    The corporate and military analogies cannot justify overturning a
    presidential election.
        Yet, while overturning an election is the most severe
    constitutional sanction in our democracy, this President has chosen to
    conduct himself in such a manner as to run the risk that the U.S.
    Senate reasonably could conclude that he has committed ``high Crimes
    and Misdemeanors.'' That is not the conclusion I ultimately reach. But
    at least with regard to one of the charges in Article II, the President
    came perilously close to committing an impeachable offense. Even
    without his removal, this is a tragic occurrence in our nation's
    history and a personal disappointment to me as one who holds the
    abilities and many of the accomplishments of this President in high
    esteem.
        This impeachment process has led members of the Senate to consult
    the relatively scant history of American impeachments. Much of the
    history relates to the impeachment of federal judges, and this was of
    some limited relevance to these proceedings. Of the greatest relevance,
    however, are the histories of the impeachment and acquittal of Andrew
    Johnson in 1868, and the virtual impeachment and conviction of
    President Nixon, who resigned in the face of near certain removal in
    1974.
        Based on my reading and study, the actions of President Clinton lie
    somewhere between the conduct of the presidents in the Johnson and
    Nixon episodes. The general historical view appears to be that the case
    against President Johnson lacked a credible basis for removal, the
    primary accusation being that President Johnson removed a cabinet
    secretary from office in circumvention of the law. President Johnson
    disputed the constitutionality of the statute he was alleged to have
    violated, and apparently had a good basis for that view. The United
    States Supreme Court ultimately struck down a similar statute as
    unconstitutional. Myers v. United States, 272 U.S. 52 (1926). Johnson
    argued that he was the victim of a partisan Congress, determined to
    punish him for his policies. History has adopted that view. The
    President's defenders point to the Johnson case and they argue that the
    impeachment of President Clinton is the same sort of partisan exercise,
    unfounded in fact or law.
        The President's accusers point to the case of President Nixon. In
    contrast to the relatively weak case against President Johnson, most
    regard President Nixon's actions in covering up his and others' efforts
    to interfere with the 1972 presidential election to be a classic
    example of the type of conduct that the framers sought to discourage
    with the ``high Crimes and Misdemeanors'' provision. President Nixon's
    misdeeds almost certainly would have led to his impeachment and
    conviction if he had not resigned. His alleged crimes were clearly
    committed in the course of his public duties, subverting the
    Constitution, compromising the integrity of the processes of
    government, and using agents of the government for illegal political
    purposes. The President's accusers argue that the same is true of
    President Clinton.
        With all due respect to historians and constitutional scholars who
    may know more or feel differently, it is my sense that the case against
    President Clinton is the first close or ``hard'' case of presidential
    impeachment in our nation's long history. This case lies in the middle.
    It is a hard case and senators may see it either way.
        In the ordinary practice of law, there is a saying that ``hard
    cases make bad law.'' Some people may invoke that phrase when they
    complain that the President has ``gotten away with it.'' Others may
    invoke it with concern that we have somehow made it easier to impeach,
    if not convict, a president. I have tried to remember that adage as we
    have made our procedural and evidentiary decisions along the way. Our
    actions in this trial and our decision today may hold even greater
    significance for our nation's constitutional structure than the past
    two presidential impeachments, as wrenching and important as each of
    those was in our nation's history and in its time. I hope, in the end,
    that this hard case has made good law.
                     ii. analysis of alleged federal crimes
    A. Standard of proof
        In drafting the two Articles of Impeachment against President
    Clinton, the House of Representatives sought to portray certain conduct
    by the President as meeting the constitutional standard of ``High
    Crimes and Misdemeanors.'' In the specific language employed by the
    House in the Articles, and in the forceful arguments advanced by the
    House Managers on the Senate floor, a strategic choice was made. A
    particular approach was adopted that the House Managers clearly believe
    puts their case in its strongest light. They could simply have recited
    and attempted to prove certain conduct by the President and then
    argued, independent of the strictures of modern criminal law, that the
    President had committed ``High Crimes and Misdemeanors'' as that term
    has been understood throughout this nation's constitutional history.
        Perhaps to make the facts of the case more easily understandable,
    or perhaps because the conduct alone may lack the gravity to justify
    the removal from office of the President of the United States, the
    House Managers chose another course, laden with the opprobrium of the
    modern statutory federal criminal law. Rather than simply alleging a
    course of general presidential misconduct, they placed enormous
    reliance on their assertion that the President committed the serious
    federal crimes of perjury and obstruction of justice. Indeed, in his
    opening statement on January 15, House Manager McCollum stated quite
    directly:
        ``The first thing you have to determine is whether or not the
    President committed crimes. It is only if you determine he committed
    the crimes of perjury, obstruction of justice, and witness tampering
    that you will move to the question of whether he is removed from
    office. In fact, no one, none of us, would argue to you that the
    President should be removed from office unless you conclude that he
    committed the crimes that he is alleged to have committed.''
        The very names of these crimes connote in modern America the type
    of conduct that is hard to reconcile with the continuation in office of
    the chief law enforcement officer of this nation. The House Managers'
    strategy was clever. It had an emotional power deeply rooted in the
    nation's abhorrence of disrespect for the law. It also placed the
    triers of fact and law in the position of potentially having to justify
    a decision that the President committed these federal crimes, but that
    these particular instances of alleged perjury and obstruction of
    justice did not constitute ``High Crimes and Misdemeanors'' as intended
    by the Framers.
        I see nothing inappropriate in this approach and, in some ways, it
    assisted me in organizing my thoughts about this case. An obligation,
    however, does attend the House Managers' decision to rely on proving
    that the President committed actual federal statutory crimes. That
    obligation relates to the standard of proof.
        I cannot justify concluding that the President should be removed
    from office for committing these federal crimes unless the case is
    proved by the same standard of proof that any federal prosecutor would
    be required to meet in a federal criminal case. This standard requires
    that the President be shown to have committed one of the two crimes
    alleged ``beyond a reasonable doubt,'' as that standard of proof is
    understood in our criminal justice system. The ``beyond a reasonable
    doubt'' standard is guaranteed to defendants in criminal cases by the
    due process clause of the Constitution. Victor v. Nebraska, 511 U.S. 1
    (1994). To apply any lesser standard in this trial would be unfair not
    only to the President, but also to the tens of millions of Americans
    whose right to have the President finish his term could be overridden
    by a mere likelihood or possibility that he actually committed such
    serious crimes.
        In other words, the House Managers are free to use the ``sword'' of
    the language of the federal criminal law but cannot simultaneously
    deprive the president of the ``shield'' that same criminal law provides
    any defendant by requiring the prosecution to prove its case by the
    highest standard of proof in our legal system.
    B. Perjury
        Article I charges the President with committing numerous acts of
    perjury in his Grand Jury testimony of August 17, 1998. To convict an
    individual of perjury under 18 U.S.C. Sec.  1621 or Sec.  1623, the
    prosecution in a criminal case must prove beyond a reasonable doubt
    that the defendant: (1) knowingly or willfully made a (2) false, (3)
    material declaration (4) under oath (5) in a proceeding before or
    ancillary to any court or grand jury of the United States. To be
    perjurious, the false statements must be knowingly or willfully false
    and material to the proceeding in which they are given. Literally true
    statements, even if misleading, are not perjurious. And if a witness
    honestly believes that his or her testimony is true at the time the
    testimony is given, it is not perjurious, even if it is later shown to
    have been false.
        Before turning to the allegations of perjury in Article I, I must
    comment on the failure of the House to specify the perjurious
    statements on which it based its charge. The President's counsel made a
    convincing argument that if Article I were offered as an indictment in
    a criminal case, it would be dismissed out of hand for this failure.
    And despite being alerted to this deficiency in the President's answer
    and his opening trial memorandum, the House Managers steadfastly
    refused to be specific and complete in their discussion of the perjury
    charges, constantly referring to alleged acts of perjury as mere
    examples.
        As a Senator who has tried to apply a thorough and impartial legal
    analysis to these charges, I have found this refusal to specify the
    alleged perjurious statements somewhat frustrating. Unfortunately, even
    at the conclusion of this trial, it is still very difficult to be sure
    of what the full list of alleged perjuries includes. Indeed, it is even
    difficult to be sure if the House Managers continue to rely on all of
    the charges they raised in their trial memorandum and opening
    presentation.
        The House listed four ``categories'' of perjury before the Grand
    Jury. With respect to the first category, ``the nature and details of
    his relationship with a subordinate Government employee,'' I find that
    some of the examples that the House Managers raised in their trial
    memorandum and in presenting their case in the trial are truly
    frivolous. The Grand Jury was investigating perjury and obstruction of
    justice in the civil case pursued by Paula Jones. Once the President
    admitted that his relationship with Monica Lewinsky included
    inappropriate sexual conduct, of what possible materiality to the Grand
    Jury's inquiry was the question of how many times such conduct
    occurred?
        The testimony of the President concerning whether he engaged in
    conduct with Ms. Lewinsky that would have been considered ``sexual
    relations'' as that term was defined in the Jones case is the one
    instance of testimony in this category cited by the House Managers that
    was clearly material to the Grand Jury's investigation of possible
    perjury in the deposition. As to the specific facts at issue, we still
    have only the conflicting testimony of the two witnesses, Ms. Lewinsky
    and the President. While there are good common sense reasons to doubt
    the President's version of a wholly non-reciprocal sexual relationship,
    perjury has not been proven beyond a reasonable doubt. Even if we
    accept Ms. Lewinsky's version of what kind of touching occurred, the
    ultimate question of whether President Clinton's statements on this
    issue in the Grand Jury were actually false, turns on the question of
    what his intent was in engaging in those particular acts with Ms.
    Lewinsky. I simply cannot say that there is no reasonable doubt on this
    point. Even Ms. Lewinsky stated in her deposition that the President's
    intent was something on which she did not feel comfortable commenting.
        A second category of alleged perjury consists of statements by the
    President before the Grand Jury concerning his earlier testimony in the
    deposition in the Jones case. This is ``bootstrapping.'' It is
    particularly troubling because the House of Representatives, and even
    one of the House Managers, rejected an Article of Impeachment that
    alleged that the President committed perjury in the Jones deposition. I
    reject the House Managers' argument that the President reaffirmed his
    entire Jones deposition before the Grand Jury and therefore should be
    found guilty of perjury in the Grand Jury if any of his deposition
    testimony was false. The basis for this breathtaking position, as laid
    out by House Manager Rogan in response to Senator Nickles' question, is
    the statement made by the President in response to a question from the
    Independent Counsel concerning what the oath he swore to tell the truth
    in the Jones deposition meant to him. He said, ``I believed then that I
    had to answer the questions truthfully, that's correct.'' In my mind,
    that was not a reaffirmation of his entire Jones deposition testimony
    sufficient to make any perjury in that deposition perjury ``by
    reference'' before the Grand Jury.
        The President did state a few times in the Grand Jury that he
    intended to answer the Jones' lawyers questions in the deposition in a
    misleading but technically true manner, and House Manager McCollum
    highlighted a few of those statements in his closing argument
    concerning this category of perjury. For purposes of the charge of
    perjury before the Grand Jury in these statements, the key issue is not
    whether the President succeeded in negotiating the line between perjury
    and misleading but true testimony, but whether he intended to negotiate
    that line. Frankly, my reading of his testimony in the Jones deposition
    is that it was, in fact, his intent to tell the truth. In the Jones
    deposition, he was cagey and evasive, but he appeared to be trying
    mightily not to tell an out and out lie. Even though he may very well
    have crossed the line on a number of occasions, I have to find that
    there is reasonable doubt that the President was committing perjury in
    the Grand Jury when he said that his intent was to testify truthfully
    in the Jones deposition.
        The third part of Article I deserves only brief mention. It boils
    down to the charge that the President lied when he said he wasn't
    paying attention when his lawyer offered Monica Lewinsky's affidavit in
    the Jones deposition and argued that it meant that ``there is
    absolutely no sex of any kind, in any manner, shape, or form, with
    President Clinton.'' The only evidence that the House Managers offered
    to support their charge of perjury is the videotape of the deposition
    in which President Clinton is seen looking, we are told, in the
    direction of his lawyer when this conversation occurred. The House
    Managers tried to bolster this shockingly thin reed on which to base a
    perjury charge with a similarly inconclusive affidavit from a law clerk
    to Judge Susan Webber Wright. This is perhaps the weakest of the many
    inferences about the President's state of mind that the House Managers
    urge us to accept in order to convict. I am virtually certain that a
    perjury charge based on this kind of evidence would not be pursued by a
    federal prosecutor, and absolutely certain that a jury would not find
    guilt on such a charge beyond a reasonable doubt. I certainly cannot.
        The fourth and final part of Article I alleges that the President
    committed perjury when he testified in the Grand Jury concerning ``his
    corrupt efforts to influence the testimony of witnesses and to impede
    the discovery of evidence'' in the Jones case. This presumably refers
    to the President's statements to the Grand Jury concerning the gift
    exchange and his conversations with Betty Currie and other aides after
    his Jones deposition. With respect to the President's testimony about
    the gifts, I find it significant that Monica Lewinsky revealed for the
    first time in her Senate deposition that she had told the FBI shortly
    after the President's deposition that one of his statements about the
    gifts ``sounded familiar.'' Her Senate deposition was the first time
    that anyone learned about that FBI interview. Surely this was
    ``exculpatory information'' that the Independent Counsel and the House
    Managers had the responsibility to disclose to the President's counsel
    and bring to our attention.
        The President denied that he instructed Betty Currie to pick up the
    gifts from Monica Lewinsky. By charging the President with perjury for
    that statement, the House Managers have essentially tried to convert
    their obstruction charge into a perjury charge. But there is an
    unresolved conflict of testimony on the issue of who initiated the
    hiding of the gifts. As I will explain later, that conflict raises
    reasonable doubt in my mind about that portion of the obstruction
    charge. It is similarly dispositive of the perjury charge, which
    essentially amounts to a claim that the President lied when he said he
    did not obstruct justice by urging Betty Currie to pick up the gifts.
        The President stated in the Grand Jury that in his conversations
    with aides after his deposition in the Jones case he attempted to be
    literally truthful, but misleading, in order to conceal his affair with
    Ms. Lewinsky. The questioning here by the Independent Counsel was far
    too general to support a perjury conviction for his statement in the
    Grand Jury that he ``said things that were true'' to his aides. He
    certainly said many things that were true to his aides, and he told
    some lies. The clear import of his testimony was that he was trying to
    conceal his relationship with Ms. Lewinsky from his aides while being
    generally truthful to them. I do not believe that the President
    willfully or knowingly lied when he said this to the Grand Jury, nor do
    I believe that these statements were material to the Grand Jury's
    inquiry, since he was never asked about and he never denied making
    specific statements to his aides that were not true.
        As I will discuss later with respect to Article II, the President's
    conversations with Betty Currie give me the most pause and cause me the
    most concern in this whole matter. While it may be hard to believe the
    President's explanation in the Grand Jury that he was ``trying to
    figure out what the facts were,'' his intent in having the oblique and
    tortured conversation with Ms. Currie is not clear enough to find
    beyond a reasonable doubt that he committed perjury in the Grand Jury
    when he discussed that conversation.
        In sum, I do not believe that the House Managers have proved the
    elements of perjury beyond a reasonable doubt. But I also must say that
    even if one or two of these charges did meet that test, I would have
    some skepticism about Article I. It was a highly unusual situation that
    led to the President's appearance before the Grand Jury. Targets of
    criminal investigations are almost never subpoenaed to testify in the
    Grand Jury, and when they are subpoenaed, they invariably invoke their
    Fifth Amendment rights. Here, of course, the President did not invoke
    his right against self-incrimination but instead answered questions
    about the charges against him. And now he faces charges that he
    committed perjury when he denied committing the crimes of perjury in
    the deposition and obstruction of justice that the Grand Jury was
    investigating. I am uncomfortable with these prosecutorial tactics,
    which come very close, it seems to me, to using the Grand Jury not only
    to investigate potential crimes but to trap the President into
    committing them.
    C. Obstruction of justice
        In Article II, the House charged President Clinton with obstruction
    of justice and witness tampering. Once again, to successfully convict
    defendants in criminal cases of these charges, prosecutors must prove
    each of the elements of the crime beyond a reasonable doubt. And that
    is the standard I believe is most appropriate here.
        In the case of obstruction, the elements of a violation of 18
    U.S.C. Sec.  1503 are that: (1) a judicial proceeding was pending; (2)
    the defendant knew it was pending; and (3) the defendant corruptly
    endeavored to influence, obstruct, or impede the due administration of
    justice in the proceeding. The courts have indicated that the
    requirement that the defendant ``corruptly endeavored to influence''
    provides the element of intent in this crime. To ``corruptly endeavor
    to influence'' is to act voluntarily and deliberately with the purpose
    of improperly influencing or obstructing the administration of justice.
        Witness tampering under 18 U.S.C. Sec.  1512 requires proof that
    the defendant (1) corruptly persuaded or attempted to do so or engaged
    in misleading conduct toward another person (2) with intent (a) to
    influence or prevent that person's testimony in an official proceeding;
    or (b) to cause or induce any person to withhold testimony or physical
    evidence from an official proceeding.
        The charges against the President in Article II have been referred
    to by the House Managers as the ``seven pillars of obstruction.'' Some
    of these charges are more easily interpreted as allegations that the
    federal witness tampering statute has been violated. In any event, the
    crucial disputed element in all the charges against the President is
    intent to influence or obstruct the proceeding. The House Managers made
    little effort to distinguish between the two criminal statutes, which
    both include that element. Indeed, if the intent element of these
    crimes were proven, some of the alleged improper conduct of the
    President could fall under both statutes, which is one reason I have
    referred to the case against the President as a close one, with regard
    to Article II.
        The House Managers have regularly urged the Senate to look at the
    entirety of the charges against the President and not to pick apart the
    individual allegations. I think the more appropriate analysis, however,
    is to look at each allegation and determine if the elements of
    obstruction are proven beyond a reasonable doubt. In many cases, the
    House Managers seem to take the position that the intent to obstruct or
    influence can be inferred from a pattern of behavior. But each
    allegation cannot be considered part of a ``pattern of obstruction''
    unless it meets the elements of obstruction (or witness tampering) on
    its own. Otherwise, Article II become a series of ``bootstraps,'' which
    are alleged to add up to obstruction of justice without any specific
    action actually constituting a violation of federal law.
        Nonetheless, there is no question in my mind that Article II is the
    more serious of the two articles of impeachment, because the factual
    allegations are more troubling and because it charges conduct that
    involved a number of individuals, in and out of government, other than
    the President. If the allegations are true, this conduct would
    undermine respect for the rule of law and injure our system of justice
    even more deeply than perjury, which, of course, is a serious violation
    as well. Because I took these charges very seriously, I wanted to give
    the House Managers every reasonable opportunity to prove them. I
    supported the issuance of subpoenas to witnesses for depositions and
    the presentation of the witnesses' testimony to the Senate because I
    wanted to be very clear in my own mind about what had taken place
    before deciding whether to acquit or convict on this particular
    article.
        The first two obstruction charges against the President arise out
    of his late night telephone conversation with Monica Lewinsky on
    December 17, 1997. The House Managers charge that during that call the
    President encouraged Ms. Lewinsky to file a false affidavit and to lie
    if called upon to testify in the Jones case. While I may agree with
    House Manager Graham that a telephone call at the hour of 2:30 a.m. is
    not likely to be a casual call, the burden on the House Managers is to
    prove that the President committed a crime during the call, not merely
    to invite an inference that he was ``up to no good.'' And the direct
    evidence--testimony from Ms. Lewinsky--does not support the Managers'
    theory. She testified repeatedly that she never, ``ever'' discussed the
    contents of her affidavit with the President. In addition, according to
    Ms. Lewinsky, the discussion of ``cover stories'' in the December 17
    phone call was not in connection with her possible affidavit or
    testimony in the Jones case.
        There simply is not enough evidence that the President intended to
    influence Ms. Lewinsky's affidavit or testimony to find that the law
    was broken. According to Ms. Lewinsky, they discussed the possibility
    of her filing an affidavit in order to avoid testifying, but did not
    discuss the details of that affidavit. She testified that she thought
    the contents of affidavit could include a ``range of things,'' running
    from the innocuous to the deceitful. Indeed, the main evidence offered
    by the House Managers seems to be that the President and Ms. Lewinksy
    over the period of the relationship developed ``cover stories'' and
    planned to conceal their affair. The House Managers suggest that we
    must infer from the mention of these cover stories during the December
    17 conversation a signal to Ms. Lewinsky that they should be employed
    in the affidavit or in Ms. Lewinsky's testimony if she were called.
        The ``cover stories'' had been developed over a year earlier. The
    House Managers argue that they were transformed into obstruction of
    justice and witness tampering when Ms. Lewinsky became a witness in the
    Jones case by their mere mention in the telephone conversation of
    December 17. That is an interesting theory, but evidence of the
    President's intent to obstruct justice in that conversation is simply
    lacking. I do not believe a federal criminal prosecution would ever be
    brought with such a slim factual foundation, notwithstanding the
    earnest statements to the contrary by a number of the House Managers
    who are former prosecutors.
        Another allegation refuted by the depositions taken by the House
    Managers was the charge based on the efforts of Vernon Jordan to secure
    Monica Lewinsky a job. Jordan admitted that he sought a job for Ms.
    Lewinsky at the request of the President. However disturbing the
    conduct and whatever innuendo it invites, it was not against the law
    for the President to seek to aid a woman with whom he had carried on an
    illicit relationship. It only amounts to obstruction of justice or
    witness tampering if it is proven that the job assistance was offered
    with the intent of preventing her from testifying or influencing her
    testimony in the Jones case. Numerous facts cut against this
    allegation: (1) the President's efforts to help Ms. Lewinsky find a job
    started long before she was a witness in the Jones case; (2) Vernon
    Jordan's intensified efforts predated by at least a week his knowledge
    that she had been subpoenaed; (3) both Ms. Lewinsky and Mr. Jordan
    testified that they thought that the job search and the submission of
    Ms. Lewinsky's affidavit were not connected.
        Vernon Jordan's role in this whole story is nonetheless troubling.
    It is clear he made extraordinary efforts to help Ms. Lewinsky obtain
    employment, and he kept the President informed of his progress. But I
    cannot conclude beyond a reasonable doubt that his efforts must be
    attributed to a plan on the part of the President to prevent Ms.
    Lewinsky from testifying truthfully in the Jones case. Just as
    plausible is that the President's motive to help Ms. Lewinsky was
    loyalty or guilt, or to make it less likely that she would reveal the
    relationship, which had long since ceased to be sexual, to one of her
    friends or the press.
        Another charge in Article II deals with the President's failure to
    prevent his lawyer from relying on Ms. Lewinsky's misleading affidavit
    during the Jones deposition. But evidence of the President's intent to
    obstruct justice is completely lacking here. As a witness in a
    deposition, the President did not have a duty to monitor his lawyer's
    statements. One can only imagine what the President was thinking about
    as he listened to the lawyers and Judge Wright debate whether he was
    going to have to answer questions about his relationship with Ms.
    Lewinsky.
        Before turning to the most serious allegations of obstruction and
    witness tampering, let me comment on the final charge in Article II,
    which concerns the President's statements to aides who later were
    called before the Grand Jury to testify. This charge has been a
    sideshow and a distraction from the beginning. While the charge is
    listed in Article II as one of the ``means used to implement'' the
    ``course of conduct or scheme designed to delay, impede, cover up, and
    conceal the existence of evidence and testimony'' in the Jones case, it
    actually alleges an effort to obstruct the Grand Jury investigation.
    Furthermore, it assumes that in the days when the Lewinsky story was
    breaking, the President's conversations with his aides were aimed at
    influencing their eventual testimony in the Grand Jury, rather than
    dealing with the public firestorm that was enveloping the White House
    and the enormous personal embarrassment and humiliation that the
    President faced as his affair became public.
        There is much for the Congress and the nation to criticize about
    the President's behavior in this matter. Concealing the truth and the
    intimate details of this relationship from his close aides ranks well
    down on the list for me. I am much more outraged by his very public,
    very forceful denial of the affair to the American people on national
    television. Yet that denial does not appear to be part of a scheme to
    obstruct the Grand Jury. And the fact that the President's more
    elaborate lie about the nature of his relationship with Ms. Lewinsky in
    his conversation with Sidney Blumenthal found its way into press
    accounts is essentially irrelevant to the question of whether the
    President committed a crime. Yet the House Managers spent hours and
    hours trying to substantiate their claim that there was a White House
    effort, masterminded by the President, to discredit and attack Ms.
    Lewinsky. They even called Sidney Blumenthal as a witness and explored
    this issue in depth with him. Then, on the day our deliberations
    started, they sought to introduce new evidence and take new depositions
    because they believe that Mr. Blumenthal was untruthful in his
    deposition.
        After all this, the House Managers still have not explained what
    crime is lurking in the conspiracy they think they have found. The
    President cannot be impeached and removed from office for being a
    ``bully,'' or being ``mean,'' or because his Administration has a
    muscular spin operation. On this charge, not only is there a reasonable
    doubt that the President intended to obstruct justice when he misled
    his aides about his relationship with Ms. Lewinsky, there is no
    evidence at all that he did.
        Let me turn to the two charges of Article II that I view as the
    most serious and substantial--the concealment of gifts given by the
    President to Ms. Lewinsky and the President's two conversations with
    his personal secretary, Betty Currie, after he was deposed in the Jones
    case.
        It is significant that both of these allegations involve Ms.
    Currie. And the gift concealment allegation raises what is probably the
    most serious factual dispute in this case--the question of whether it
    was Ms. Lewinsky or Ms. Currie who suggested hiding the gifts. Yet even
    when given the opportunity to call a limited number of witnesses for
    depositions, the House Managers chose not to call Betty Currie. I was
    troubled by this at the time, particularly since the testimony of
    Sidney Blumenthal seemed so tangential to the case. Other than Monica
    Lewinsky, Betty Currie was the most important witness in this case, and
    the House Managers chose not to depose her.
        While I was inclined to give the House Managers the benefit of the
    doubt on their witness selection, I am prohibited from giving them the
    benefit of the doubt on whose testimony to believe on key disputes of
    fact. Without seeing Ms. Currie testify, I have no basis on which to
    compare her credibility to that of Ms. Lewinsky on the issue of who
    initiated the hiding of the gifts. Furthermore, Ms. Lewinsky testified
    that she was concerned about the Jones lawyers' request for the gifts
    long before her December 28 meeting with the President and her delivery
    of the gifts to Ms. Currie later that day.
        I was struck by Ms. Lewinsky's testimony on this point in her
    Senate deposition. She seemed indefinite when she reaffirmed her
    earlier testimony that Betty Currie had called her about the gifts,
    rather than vice versa. In this instance, I appreciated the opportunity
    to view Ms. Lewinsky's demeanor when she testified. She seemed
    significantly less certain about who raised the idea of hiding the
    gifts. I certainly do not conclude that she was lying, but her memory
    of the sequence of events did not seem as clear on this point as it was
    on many of the issues discussed in the deposition. The fact that the
    President gave Ms. Lewinsky even more gifts on December 28 lends
    additional weight to the theory that it was Ms. Lewinsky who wanted to
    hide the gifts, not the President.
        With an unresolved direct conflict between the testimony of the two
    primary witnesses on this allegation, I simply cannot find beyond a
    reasonable doubt that the President masterminded the gift exchange to
    obstruct the Jones case.
        Finally, we come to what for me has been the most difficult charge
    of Article II--the President's alleged ``coaching'' of Betty Currie.
    Neither the President's testimony in the Grand Jury concerning these
    conversations nor his lawyers' valiant efforts to explain them were
    wholly convincing. For the President to call his secretary into the
    Oval Office on a Sunday--the day after his deposition in the Jones
    case--and feed her a number of falsehoods about his relationship with
    Ms. Lewinsky is very alarming.
        The central issue, however, is the President's intent. Knowing that
    the secret of his relationship with Lewinsky was out, but not yet
    knowing who had told the Jones lawyers about it, the President could
    very well have been concerned mostly about public exposure and what his
    wife would soon learn. He knew that Betty Currie was aware of his
    friendship with Ms. Lewinsky, but he did not know how much she knew or
    had surmised about what went on behind closed doors. Since all of that
    activity had ended quite a long time before, it is not inconceivable
    that the President was trying to find out what Ms. Currie knew or even
    influence what Ms. Currie would say to other White House staff, without
    being specifically concerned with her being a witness in the Jones
    case.
        It is worth noting here that I am unconvinced by the argument
    frequently made by the House Managers that Monica Lewinsky was a
    crucial witness in the Jones case whose testimony might have changed
    the course of that litigation. Despite the fact that Monica Lewinsky
    was at one time a White House intern and later a White House employee,
    there is no allegation of sexual harassment in the relationship, and
    Ms. Lewinsky consistently characterized her interaction with the
    President as affectionate and consensual.
        The Jones case later was dismissed on legal grounds that were
    wholly unrelated to any issue on which Ms. Lewinsky could have shed
    light. Thus, it is my view that the President hoped that Ms. Lewinsky
    would not have to testify in the Jones case because he did not want
    their affair to become public, not because he was concerned about the
    impact of her testimony on Paula Jones' claims. When he called Ms.
    Currie into his office on January 18, he knew that someone had told the
    Jones lawyers about Monica Lewinsky. In that context, it is at least
    plausible that he was concerned about the imminent explosion of press
    attention and the political damage that would result from it, rather
    than his legal situation.
        Whatever our suspicions about the President's intentions in his
    conversations with Ms. Currie, the available evidence does not entitle
    us to a convincing inference about his state of mind that would support
    a finding of guilt. Therefore, although I still have concerns about
    this allegation of witness tampering, and I believe it was a serious
    charge to which the President's defense was weak, I do not believe that
    the House Managers have carried their burden to show beyond a
    reasonable doubt that the President's intent was to obstruct justice in
    the Jones case. I cannot reach this conclusion, however, without
    expressing my deepest concern and sadness that I am able to say only
    that the President apparently just barely avoided committing the crime
    of obstruction of justice in his conversations with Betty Currie.
                       iii. high crimes and misdemeanors
        Many Senators chose to reach the issue of the ``impeachability'' of
    the offenses charged against the President as a threshold question of
    law prior to hearing the House Managers' full case. Many voted for
    Senator Byrd's motion to dismiss on this basis. For two reasons, I
    believed it was appropriate to allow the facts of the case to be more
    fully presented and put into evidence before making a legal judgment.
        First, I believed that as a matter of deference and respect for the
    constitutional role of the House of Representatives, the case,
    including evidence, should be presented before the Senate reached a
    judgment. The Constitution gives the House the sole power of
    impeachment, and a determination of whether certain offenses constitute
    ``Treason, Bribery, or other high Crimes and Misdemeanors'' is
    necessarily a part of the House's decision to impeach a president.
    While the Senate's exclusive power to try, convict, and remove a
    president makes it the final arbiter of whether the conduct alleged is
    ``impeachable,'' I believe it is incumbent on the Senate to permit the
    House Managers a reasonable opportunity to set out their case against
    the President before making a decision on that question. Whatever
    misgivings I may have about the way the House exercised its
    constitutional power to impeach in this instance, I felt compelled to
    permit the House Managers a reasonable opportunity to make their case
    before I would exercise my role as both a trier of fact and a judge of
    law.
        Second, the historical and legal authorities on the question of
    what constitutes ``other high Crimes and Misdemeanors'' are varied and
    not wholly consistent. I believed that I could apply those authorities
    with more certainty to a clear and complete set of facts, after hearing
    the evidence, than to a set of allegations that might never be proved.
    I recognize that when courts entertain motions to dismiss in civil
    cases, they assume that all facts alleged in a complaint are true and
    determine the scope and impact of the particular statute or legal
    doctrine on which the claim for relief is based. But in this case, I
    felt more comfortable reaching the legal question of ``impeachability''
    after hearing the evidence. I was comfortable allowing this limited
    deference to the prerogatives of the House Managers in the interest of
    a thorough and constitutional process.
        Having decided that the House Managers failed to prove that the
    President committed the federal crimes they alleged, the question
    remains whether the underlying acts themselves, whether criminal or
    not, constitute conduct that under the Constitution constitute ``high
    Crimes and Misdemeanors'' that should result in the President's removal
    from office. On the issue of what constitutes ``high Crimes and
    Misdemeanors,'' as in many other issues in this impeachment and trial,
    there has been heated and polarizing rhetoric. The House Managers and
    their supporters argued vigorously that the criminal acts they charged
    were, on their face, high crimes. White House counsel and many
    historians and legal scholars argued the contrary, that these acts
    could in no way be considered high crimes.
        Other than bribery and treason, the Constitution itself gives no
    exhaustive or exclusive list of those offenses for which presidents
    should be removed from office. We are given only the phrase ``other
    high Crimes and Misdemeanors'' for guidance. The key to understanding
    the meaning of this phrase in my view are the words ``other'' and
    ``high.''
        As University of Chicago Law School Professor Joseph Isenbergh has
    written:
        ``. . . without the word `high' attached to it, the expression
    `crimes and misdemeanors' is nothing more than a description of public
    wrongs, offenses that are cognizable in some court of criminal
    jurisdiction.''
        Isenbergh notes that in the 18th Century, the word ``high'' when
    attached to the word ``crime'' or ``misdemeanor,'' described a crime
    aiming at the state or the sovereign rather than a private person, and
    thus a ``high Crime or Misdemeanor'' was not simply a serious crime,
    but one aimed at the highest powers of the state. This concept had been
    asserted by William Blackstone and others, and was well understood by
    the Framers of the Constitution.
        Indeed, Alexander Hamilton wrote in Federalist No. 65 that the
    crimes to be considered in a court of impeachment are:
        ``[T]hose offenses which proceed from the misconduct of public men,
    or in other words from the abuse or violation of some public trust.
    They are of a nature which may with particular propriety be denominated
    POLITICAL, as they relate chiefly to injuries done immediately to the
    society itself.''
        Writing at the time of the Nixon impeachment, Yale University Law
    Professor Charles Black commented that the crimes enumerated in the
    Constitution, treason and bribery, are crimes that ``so seriously
    threaten the order of political society as to make pestilent and
    dangerous the continuance in power of their perpetrator.'' In my view,
    ``other high Crimes and Misdemeanors'' must be interpreted as crimes or
    acts of a similar gravity and impact on society as those enumerated
    crimes.
        To determine whether the conduct that led to impeachment for these
    crimes meets the definition of a high crime, the underlying
    circumstances must govern and a determination must be made if the
    offense, in Black's words, ``threatens the order of political
    society.'' While it is certainly true that an act need not be criminal
    in a technical sense to constitute a threat to the well-being of the
    State, the acts in this case were not assaults on the State or the
    liberties of the people that threaten the order of political society,
    as contemplated by the Framers. This conduct does not justify
    overturning the will of the people as expressed in the 1996 election.
                                 iv. conclusion
        As I listened carefully to the trial proceedings over the past
    month, I was impressed with the efforts of counsel for both sides in
    making their cases. Even understanding the role of counsel as
    advocates, however, I was troubled by the exaggerated claims with
    regard to the strength of each side of the case.
        The House Managers referred to the evidence in support of removal
    as ``overwhelming,'' while the President's counsel described the House
    Managers' evidence as ``nonexistent.'' I find neither statement to be
    true and maybe a little reminiscent of the heated words of the Senator
    Charles Sumner of Massachusetts in his Opinion following the
    impeachment trial of President Andrew Johnson:
        ``In the judgment which I now deliver I cannot hesitate. To my
    vision the path is clear as day. Never in history was there a great
    case more free from all just doubt. If Andrew Johnson is not guilty,
    then never was a political offender guilty before; and, if his
    acquittal is taken as a precedent, never can a political offender be
    found guilty again. The proofs are mountainous. Therefore, you are now
    determining whether impeachment shall continue a beneficent remedy in
    the Constitution, or be blotted out forever, and the country handed
    over to the terrible process of revolution as its sole protection.''
        I cannot view the Clinton impeachment case from either extreme.
    This, unfortunately, was a close case that raised the very real specter
    of the nullification of an American presidential election. It is,
    however, at such a moment, when the high standard for impeachment and
    conviction becomes especially important.
        The reason I describe the decision of the American people to elect
    a president as the most salient fact in this case is not simply because
    it is the right of the American people to choose their president. It is
    also because of the constitutional goal of our Founding Fathers to
    create a system of political stability. Just as the Framers wished to
    avoid the uncertainty of a parliamentary system, we today in this last
    year of the twentieth century should be concerned about political
    instability and the threat that excessive partisanship poses to our
    constitutional order.
        I see the four year elected term of our president as a unifying
    force in our country. Yet this is the second time in my adult life that
    a President of the United States has undergone a serious impeachment
    process. And I am only 45 years old. In the nearly two hundred years
    prior to the case of President Nixon, this happened only once.
        Are these two recent impeachments a fluke? Is it coincidence that
    two of our recent presidents were thought by some to be sufficiently
    unfit to be president to warrant this procedure? I wonder how we will
    feel about the stability of our system if another presidential
    impeachment occurs sometime in the next ten or twenty years.
        I see a danger in this. I see a danger in this in an increasingly
    diverse country. I see a danger in this in an increasingly divided
    country. I see a danger when national elections seem never to be over.
    I see a danger when the lead House Manager in his concluding remarks in
    this trial asserts that we are engaged in a ``culture war'' in this
    country. I hope that is not where we are, and I hope that is not where
    we are heading.
        In making a decision of this magnitude, it is best not to err at
    all. If we must err, however, we should err on the side of avoiding
    such divisions, and of respecting the will of the people. Senator James
    W. Grimes of Iowa, one of the seven Republicans who voted to acquit
    President Andrew Johnson in 1868, said in his Opinion at the conclusion
    of the trial:
        ``I cannot agree to destroy the harmonious working of the
    Constitution for the sake of getting rid of an unacceptable President.
    Whatever may be my opinion of the incumbent, I cannot consent to trifle
    with the high office he holds. I can do nothing which, by implication,
    may be construed into an approval of impeachment as a part of future
    political machinery.''
        Spoken almost 131 years ago, these words express nearly perfectly
    my sentiments on the grave constitutional questions I was required to
    address in this case.

                                     ______

           [From the Congressional Record--Senate, February 23, 1999]

                     Statement of Senator Thomas A. Daschle

        Mr. DASCHLE. Mr. Chief Justice, my colleagues, in just a
    few moments each of us will be called upon to do something that
    no one has done in American history. We will be voting on two
    articles of impeachment against an elected President of the
    United States.
        Having listened carefully to nearly 50 of our colleagues
    who share my point of view, it is both difficult and
    unnecessary to attempt to reiterate the powerful logic and the
    extraordinary eloquence of many of their presentations.
        I share the view expressed by so many that this body must
    be guided by two fundamental principles. I recognize that we
    are not all guided by these principles, but I and others have
    been guided, first, by this question: Has the prosecution
    provided evidence beyond a reasonable doubt; and, second, if
    so, do the President's offenses rise to the level of gravity
    laid out by our founders in the Constitution?
        After listening to both sides of these arguments now for
    the past 5 weeks, I believe--I believe strongly--that the
    record shows that on both principles the answer is no--no, the
    case has not been proven beyond a reasonable doubt, and, no,
    even if it had been it would not reach the impeachable level.
        I also share the view expressed by many of my colleagues on
    the process which brought us here: an investigation by an
    independent counsel which exceeded the bounds of propriety; a
    decision by the Supreme Court subjecting sitting Presidents to
    civil suits--it is my prediction that every future President
    will be faced with legal trauma as a result--a deeply flawed
    proceeding in the House Judiciary Committee, which in an
    unprecedented fashion effectively relinquished its obligation
    to independently weigh the case for impeachment; the
    disappointing decision to deny Members of the Senate and the
    House the opportunity to vote on a censure resolution, even
    though I believe it would be supported by a majority in both
    Houses; and finally, the bitterly partisan nature of all the
    actions taken by the House of Representatives in handling this
    case.
        But as deeply disappointed as I am with the process, it
    pales in comparison to the disappointment I feel toward this
    President. Maybe it is because I had such high expectations.
    Maybe it is because he holds so many dreams and aspirations
    that I hold about our country. Maybe it is because he is my
    friend. I have never been, nor ever expect to be, so bitterly
    disappointed again.
        Abraham Lincoln may have been right when he said, ``I would
    rather have a full term in the Senate, a place in which I would
    feel more consciously able to discharge the duties required,
    and where there is more chance to make a reputation and less
    danger of losing it, than 4 years of the Presidency.''
        Maybe it is because of my disappointment that I was all the
    more determined to help give the Senate its chance to make a
    reputation, as Lincoln put it, at this time in our Nation's
    history.
        The Senate has served our country well these past 2 months.
    And I now have no doubt that history will so record. There are
    clear reasons why the Senate has succeeded in this historic
    challenge.
        First is the manner in which the Chief Justice has presided
    over these hearings. We owe him a big, big debt of gratitude.
    He has presented his rulings with clarity and logic. He has
    tempered the long hours and temporary confusion with a fine
    wit. In an exemplary fashion, he has done his constitutional
    duty and has made it possible for us to do ours.
        The second reason is our majority leader. Perhaps more than
    anyone in the Chamber, I can attest to his steadfast commitment
    to a trial conducted with dignity and in the national interest.
    He has demonstrated that differences--honest differences--on
    difficult issues need not result in dissent, and in the end the
    Senate can transcend those differences and conclude a
    constitutional process that the country will respect, and I do.
        Third is our extraordinary staff--the Chaplain, my staff in
    particular, Senator Lott's staff, the floor staff, the
    Parliamentarians, the Sergeant at Arms, the Secretary of the
    Senate. They have served us proudly. Their professionalism and
    the quality that they have demonstrated each and every hour
    ought to make us all proud.
        Finally, if we have been successful, it has been because of
    each of you--your diligence, your deportment, your thoughtful
    arguments on either side of these complex, vexing questions.
    This experience and each of you--each of you--have made me
    deeply proud to be a Member of the U.S. Senate.
        Growing up in South Dakota, I learned so much, as many of
    us have, from relatives and from the people in my hometown, and
    my parents especially. Something my father admonished me to do
    so many, many times in growing up is something I still remember
    so vividly today. He said, ``Never do anything that you
    wouldn't put your signature on.'' I thought of that twice
    during these proceedings--once when we signed the oath right
    here, and again last night when I signed the resolution for
    Scott Bates.
        I will hear Scott Bates' voice when I hear my name called
    this morning. My father passed away 2 years ago. He and Scott
    are watching now. And I believe they will say that we have a
    right to put our signature on this work, on what we have done
    in these past 5 weeks, for with our votes today we can now turn
    our attention to the challenges confronting our country
    tomorrow. And, as we do, I hope for one thing: That we will
    soon see a new day in politics and political life, one filled
    with the same comity and spirit that I feel in the room today,
    one where good governance is truly good politics, one which
    encourages renewed participation in our political system. It is
    a hope based upon a fundamental belief which is now 210 years
    old, a belief that here in this country with this Republic we
    have created something very, very special, a belief so ably
    articulated by Thomas Paine as he wrote ``Common Sense.''

        The sun will never shine on a cause of greater worth. This is not
    the affair of a city, a county, a province, or a kingdom, but of a
    continent. This is not the concern of the day, a year, or an age.
        Posterity is are virtually involved in the contest, and will be
    more or less affected even to the end of time by the proceedings now.

        So it is as we cast our votes today and begin a new
    tomorrow.
        Each of us understands that the decision we must make is
    the most demanding assigned to us, as Senators, by the
    Constitution. The framers did not believe it a simple matter to
    remove a President. They did not intend that it occur easily.
        Only a certain class of offenses--treason, bribery and
    other high crimes and misdemeanors--could justify the
    President's removal. Only a supermajority--two-thirds of the
    Senate--could authorize it.
        The framers made as plain as they could that each Senator
    must judge, on all the circumstances of the case, whether the
    facts support this extraordinary remedy.
        As I look at this case, I am compelled to consider it from
    beginning to end--from the circumstances under which the House
    fashioned and approved the articles, to the trial here in the
    Senate when the House pressed its arguments for conviction. And
    I find a case troubled from beginning to end--one marked by
    constitutional defects, inconsistencies in presentation,
    surprising concessions by the managers against their own
    position, and even damage done to that position by their own
    witnesses.
        In short, the case I have seen is one that I do not believe
    can bear the weight of the profound constitutional consequences
    it is meant to carry.
        Its constitutional defects began in the House.
        Rather than initiating its own investigation, and making
    its own findings, the House rested on the referral from
    Independent Counsel Kenneth Starr.
        Never before has the House effectively relinquished its
    obligation to independently weigh the case for impeachment.
        But this time it did, relinquishing that obligation to Mr.
    Starr.
        Mr. Starr's 454-page referral became the factual record in
    the House. The arguments he made in that referral served almost
    exclusively as the basis for the articles prepared and voted by
    the House.
        The House called no independent fact witness. The only
    witness was Mr. Starr. And it is telling that Mr. Starr's own
    ethics adviser, Professor Sam Dash, resigned his position with
    the Office of Independent Counsel to protest the improper role
    played by Mr. Starr in the impeachment process.
        The House proceedings set a dangerous constitutional
    precedent, and the decision to follow this course has
    reverberated throughout the trial here in the Senate.
        Because Mr. Starr carried the case in the House, the House
    did not develop or explain its own case until the time came to
    prepare for trial in the Senate. Those explanations, when they
    came, were replete with inconsistencies--not technical or minor
    inconsistencies, but rather inconsistencies that struck at the
    heart of their position.
        On the one hand, the managers charged the President with
    serious crimes. Yet they also argued that they should not be
    required to prove ``beyond a reasonable doubt'' that the
    President committed those crimes--that they need not meet the
    standard that applies throughout our criminal justice system.
        On the one hand, the managers acknowledged that the House
    rejected an article based on President Clinton's deposition in
    the Jones case. Yet throughout their presentations, including
    their videotaped presentation on February 6, they repeatedly
    relied on the President's statements in that civil deposition.
        On the one hand, the managers insisted that the record
    received from the House provided clear and irrefutable evidence
    of the President's guilt. Yet one manager declared that
    reasonable people could differ on the strength of the case, and
    another stated that he could not win a conviction in court
    based on that record.
        On the one hand, the managers originally claimed a record
    so clear that the House was not required to call a single fact
    witness--other than Mr. Starr. Yet in the Senate they insisted
    that their case depended vitally on witnesses.
        In the end, the Senate authorized the deposition of
    witnesses, two of whom--Ms. Lewinsky and Mr. Jordan--were
    central to the core allegations of perjury and obstruction of
    justice. These were witnesses identified by the House--
    witnesses the managers expected to help support their case.
        This is not, however, how it turned out.
        In the final blow to the case for removal brought by the
    managers, those very witnesses provided the Senate with clear
    and compelling testimony--in the President's defense.
        It cannot have escaped many of us that the defense showed
    more and longer segments of this testimony than the managers
    who sought these witnesses in the first place.
        What did Ms. Lewinsky say about the false affidavit she
    filed in the Jones case? That she never discussed the contents
    with the President. That she thought she might be able to file
    a truthful, but limited affidavit and still avoid testifying.
    That she had reasons completely independent from the
    President's for wanting to avoid testimony. That the President
    did not ask her to lie or promise her a job for her silence.
        What did Ms. Lewinsky say about the return of the gifts
    given to her by the President? That she raised with the
    President whether she should turn the gifts over to Ms. Currie.
    That she recalls that the President may have advised her to
    turn them all over to the Jones lawyers. That she told an FBI
    agent of this advice, but it somehow was omitted from the
    independent counsel's investigative report. That 6 days before
    her White House meeting with the President, she had already
    made an independent decision to withhold gifts from her own
    lawyer.
        What did Ms. Lewinsky and Mr. Jordan say about the job
    search for Ms. Lewinsky? That it was never connected to the
    preparation of her affidavit, much less conditioned on her
    making any false statements to a court.
        What did Mr. Jordan say about any pressure placed on the
    companies he contacted to hire Ms. Lewinsky? That he only
    recommended her. That two companies he contacted would not hire
    her. That the third company, which did hire her, did so on the
    strength of an interview in which she made a strong personal
    impression--much like the one she made to the managers in their
    first meeting with her.
        These witnesses--the House's witnesses--made it impossible,
    I believe, for the managers to sustain a case already weakened
    by a defective House process, serious inconsistencies in their
    arguments, and doubts about its merits that even some of the
    managers themselves candidly expressed.
        Surely a case for removal of the President must be
    stronger.
        Surely a case for conviction must be strong enough to unite
    the Senate and the public behind the most momentous of
    constitutional decisions.
        Surely a case to remove the President from office must be
    strong enough to meet the high standards established with such
    care by the Constitution's framers.
        In requiring that the Senate remove only for ``high''
    crimes and misdemeanors, the framers acted with care. As the
    House Judiciary Committee stated in its Watergate report 25
    years ago, ``[I]mpeachment is a constitutional remedy addressed
    to serious offenses against the system of government.'' Its
    purpose is to protect our constitutional form of government,
    not to punish a President.
        It is for this reason that the framers made clear that not
    all offenses by a Chief Executive are ``high'' crimes--and that
    even a President who may have violated the law, but not the
    Constitution, remains subject to criminal and civil legal
    process after he or she leaves office.
        Whatever legal consequences may follow from this
    President's actions, the case made by the House managers does
    not satisfy the exacting standard for removal.
        For all of these reasons, I will vote to acquit on both
    articles. This is my constitutional judgment about whether the
    Senate should remove the President from office. My personal
    judgment of the President's actions is something altogether
    different, reflecting my values and those of South Dakotans and
    millions of Americans.
        Like them, I am extraordinarily disappointed, and angered,
    by the President's behavior. Since I have long considered the
    President a friend, my own sense of betrayal could not run more
    deeply.
        There is no question that the President's deplorable
    actions should be condemned by the Senate.
        I fervently hope that the Senate will do what the House
    would not--permit the people's elected representatives to
    express themselves and reflect their constituents' views on the
    President's conduct, for the benefit of our generation and
    those still to come.
        So let us proceed now to a vote and resolve this
    constitutional task after these long and arduous months. Then
    the time will have come to return to the urgent work of the
    country.
        When we do, I believe that all of us--members of the
    majority and members of the minority, however we choose to cast
    our votes--will be able to agree on this:
        That in 1999, 100 Senators acted as the Constitution
    required, honoring their oath to do impartial justice and
    acting in the best interests of this country they so dearly
    love.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                    Statement of Senator Christopher S. Bond

        Mr. BOND. Mr. Chief Justice, my colleagues, I do not intend
    to give a comprehensive statement, nor do I intend to use all
    of the time allotted. But I feel it is very important to answer
    some of the points that have been raised. Let me deal with just
    a few of those.
        When I spoke to you in a previous session, I mentioned the
    cover story and said that while the cover story was not
    impeachable--the cover story which was admitted by counsel for
    the White House--it is a framework and a context in which we
    judge other actions.
        Objection has been made by my friends primarily on this
    side of the aisle that on occasion we have cited evidence where
    the President may not have been truthful, and we may have
    raised other arguments that go beyond the boundaries of the
    articles of impeachment as grounds for impeachment. Let me
    hasten to add I hope that no one would vote for a conviction on
    anything other than the items set forth in article I and the
    items set forth in article II. If there are other activities
    that may bear upon or indicate a pattern of conduct, that is
    one thing. But we must make our decision on the basis of that
    which has been presented to us by the House.
        On the other side, we have heard some very spirited and
    enthusiastic attacks on the independent counsel and on the
    House managers and even on the Paula Jones case itself. Let me
    make just a few points.
        No. 1, we threw Judge Alcee Hastings out of office as a
    judge for lying in a grand jury proceeding where he was not
    convicted. The objective is not to say that you can only commit
    perjury when a case is won or someone is convicted.
        No. 2, the independent counsel got into this because the
    attorney general felt that there were grounds to pursue the
    potential violations of law by the President in the Monica
    Lewinsky case. A three-judge court agreed, and the independent
    counsel was assigned to pursue this.
        Whatever you may think about what the House did, or what
    the Paula Jones attorneys did, or what the independent counsel
    did, that is not the question before us. That can be addressed,
    as some of my colleagues said, if there are investigations by
    the Department of Justice on improper activities by the OIC.
    Let that proceed in its own realm. We are here to judge on the
    evidence before us.
        As I said, we have a cover story. We have a cover story
    that was utilized regularly throughout by this President and by
    Monica Lewinsky.
        Objection has been made that, while we have the clear
    testimony that William Jefferson Clinton never said you should
    lie, he never said expressly you should file a false affidavit.
    Well, of course, he didn't. Of course, he didn't. He is a very
    sophisticated, very able lawyer. If you are concocting a scheme
    to obstruct justice, you don't tell somebody who is to be part
    of that scheme with you that you should lie under oath, that
    you should file a false affidavit because those people might
    just get called to testify under oath at some point, as they
    were in this case. But Mr. Clinton didn't have to do that
    because Monica Lewinsky understood very clearly that she was to
    stay with the cover story until she was told not to. She filed
    the false affidavit that he sought. He and his counsel used it
    in the deposition.
        Why was it filed? To keep him from having to testify
    truthfully in the deposition. Was he surprised by it? I do not
    believe it has one iota of credibility to say that after he
    went out and procured that false affidavit, he didn't know that
    his attorney was going to use it, and he was not going to rely
    on it. He got her to do the felonious deed of filing a false
    affidavit so he could avoid the danger of having to lie himself
    in a deposition.
        Mr. Clinton didn't engage in a conspiracy with his lawyer,
    Mr. Bennett. We hear about the one-man conspiracy. No. He
    foisted that on his attorney, Mr. Bennett, when he found out
    about the falsity of that affidavit, had to do what no attorney
    ever wants to do--he had to write a letter to the judge, and
    say, ``Disregard it. Disregard it. I was part, inadvertently,
    of a scheme to defraud the court.'' You notice he is not in the
    case any longer. He could not be part of that.
        We know that Mr. Clinton enlisted his loyal secretary to
    violate the law to go pick up gifts, and she and Monica
    Lewinsky, once again, committed felonies to continue the story
    to protect the President. And the gifts wound up under Betty
    Currie's bed.
        Mr. Clinton went to Betty Currie on a Sunday and 2 days
    later and told her things that he hoped she would say before
    the grand jury. He told his other subordinates things that he
    hoped they would say. He even trashed her when it appeared that
    she might be a hostile witness.
        Ladies and gentlemen of the Senate, I suggest to you that
    when you have this clear-cut evidence of a scheme carried out
    with direct evidence, testimony of Monica Lewinsky and others,
    Betty Currie and his subordinates, an Audrain County jury would
    not have any trouble finding him guilty of tampering with a
    witness or obstructing justice.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                      Statement of Senator Jeff Sessions*

        Mr. SESSIONS. Mr. Chief Justice and fellow Senators, I
    appreciate this proceeding. I appreciate the process we have
    gone through. I hope my remarks will be in the spirit of
    deliberation, and that some of what I say will be of value to
    you.
    ---------------------------------------------------------------------------
                                       * * * * *
    * Sen. Sessions submitted an additional statement on February 23, see
    p. 3094, below.
    ---------------------------------------------------------------------------
        If there was a mistake made in this case, it is that we
    have treated this more like a piece of legislation than a
    trial. It probably would have been better to have just allowed
    the House to have a week or 8 days to present evidence and the
    other side present their evidence and then vote and we would
    have been out of here. As it is, we have been involved in the
    managing of it. I have been impressed that together we have
    somehow gotten through it in a way that I think I can defend.
    It is marginal, but I think we have conducted a trial that I
    feel we can defend.
        The impeachment came from the House so we have to have a
    trial and a vote, in my opinion. Judging on matters like this
    is not easy, but we all have had to do it. Juries make
    decisions like this every day. The President has to grant
    pardons and make appointments and remove appointments. Senators
    have to vote on nominations and so forth. I have had the
    adventure of appearing before Senators judging me on a previous
    occasion. Now I am in this body and the other day the Chief
    Justice declared that we were all a court, and I thought, ``My
    goodness, I am a Federal judge and a Senator, how much better
    can life get than that?''
        Someone suggested that this is a political trial. But the
    more we make it like a real trial, the better off we are going
    to be and the better the people are going to like it and the
    more they will respect it. Our responsibility is to find the
    facts, apply the Constitution, the law, and the Senate
    precedent to those facts. Precedent is important. We should
    follow it unless we clearly articulate a reason to change.
    Unless we do so we are failing in our duty. If we want to
    change our precedent, we obviously have that power. But we
    don't come at this with a blank slate since the 1700s and
    Federalist No. 65. We have had a lot of impeachments since
    then, and this Senate has established some precedent during
    that time. I think the dialog between Madison and Mason
    suggests a somewhat different view of things than Federalist
    No. 65 in the minds of many. But I would just say to you we
    have had impeachment trials of Judges Claiborne, Nixon and
    Hastings since then. That is our precedent, in recent years,
    about what we believe are our laws and how they should be
    interpreted.
        I would say this about the case. Others may see it
    differently. But with regard to the obstruction article, I
    might have a bit of a quibble with the way the case was
    presented. I think there was a lot of time and effort spent on
    trees and not enough on the plain forest. Let me just say to
    you why I believe the proof of obstruction of justice is so
    compelling, beyond a reasonable doubt, to a moral certainty.
    That is because the President received interrogatories, he got
    a subpoena to a deposition, and he knew his day was coming. He
    knew he was going to have to tell the truth or he was going to
    have to tell a lie, and it wasn't going away.
        He tried to avoid the day. He went all the way to the
    Supreme Court to try to stop that case from going forward, and
    the U.S. Supreme Court unanimously ruled ``No, you don't get
    special privileges. You have to go forward with the case.'' So
    here he is having to do something. If he states he did not have
    a sexual relationship with Monica Lewinsky, if he files an
    answer to an interrogatory, which he did in December, in which
    he flatout stated that he had never had sex with a State or
    Federal employee in the last decade, that would be false. He
    filed such a false answer to a lawful interrogatory.
        Then he is at a deposition, and what happens at the
    deposition? His attorney tries to keep him from being asked
    about Monica Lewinsky. They produce her affidavit and the
    attorney says that the President has seen that affidavit and
    had the opportunity to study it. The President testifies later
    in that deposition: It is ``absolutely true.'' That is when it
    all occurred, right there, and talking with Monica beforehand
    was critical because if she didn't confirm the lie he was going
    to tell he couldn't tell it. She wanted a job and the President
    got it for her. If they didn't submit the Lewinsky affidavit,
    the President was going to be asked those questions. If they
    talked about the gifts, the cat was going to be out of the bag.
    It is just that simple. The wrong occurred right there.
        Then, when he left that deposition, he was worried. He
    called Betty Currie that night, right after that deposition,
    the same day, because he knew he had used her name and she was
    either going to have to back him up or he was in big trouble.
    So he coached her. That is what it is all about. You can talk
    about the facts being anything you want to, but that is the
    core of this case and it is plain and it is simple for anybody
    to see who has eyes to see with, in my view. So I think that is
    a strong case. The question is whether or not, if you believe
    that happened, you want to remove him from office, and I would
    like to share a few thoughts on that.
        Having been a professional prosecutor for 12 years as a
    U.S. attorney, and I tried a lot of cases myself, I really have
    felt pain for Ken Starr. I had occasion to briefly get to know
    him. I knew that his reputation within the Department of
    Justice as Solicitor General was unsurpassed. He was given a
    responsibility by the Attorney General of the United States and
    a court panel to find out what the truth was. The President
    lied, resisted, attacked him, attacked anybody Mr. Starr dealt
    with, virtually, in seeking the truth. And Ken Starr gets
    blamed for that, and then 7 months later we find out that the
    President was lying all the time. He was lying all the time.
    And somehow this is Ken Starr's fault that he pursued the
    matter? I am sure he suspicioned the President was lying but it
    couldn't be proven until the dress appeared and then we finally
    got something like the truth.
        One of the most thunderous statements made by counsel--I am
    surprised it didn't make more news than it did--was the
    representation by White House counsel that judges hold office
    on good behavior.
        Those of you who fight tenaciously for the independence of
    the judiciary, know that this is not the standard for removal
    of judges. The courts have gone through it in some detail. Law
    reviews have been written about it. Judge Harry T. Edwards,
    Court of Appeals for D.C. Circuit, wrote in a Michigan law
    review that:

        Under article II, a judge is subject to impeachment and removal
    only upon conviction by the Senate of treason, bribery, or other high
    crimes and misdemeanors.

        This is because he is a civil officer. The President, Vice
    President and judges are civil officers of the United States.
    There is only one standard for impeachment.
        The Constitution is a marvelous document. We respect it. To
    do so, we must enforce it as it is written. It says that civil
    officers, judges are removed for only those offenses. There are
    no distinctions between the President and judges. Just because
    one official is elected and one is not elected, one's term is
    shorter, or there are more judges than Presidents--makes no
    difference--that is not what the Constitution says. They face
    the same standard for impeachment.
        I really believe we are making a serious legal mistake if
    we suggest otherwise. If the standard is the same, then we have
    a problem because we removed a bunch of judges for perjury.
        Of course a President gets elected, but the President holds
    office subject to the Constitution. One of the limitations on
    your office as an elected official is don't commit a high crime
    or misdemeanor and if you commit a high crime or misdemeanor,
    you are to be removed. I don't think there is a lot of give in
    this, frankly.
        With regard to precedent, precedent is important because it
    helps us be objective, less political, less personal and do
    justice fairer. That is what the Anglo-American common law is
    all about. Judges have established precedent, and judges tend
    to follow that precedent unless there is a strong reason not
    to. This is important for the rule of law.
        Perjury and its twin, obstruction of justice, do amount to
    impeachable crimes, and our precedent in the Judge Nixon case
    proves that. I believe we set a good standard in that case,
    finding that perjury is a high crime, clearly, and we ought to
    stay with this standard.
        Some have argued that the House Judiciary Committee on the
    President Nixon matter declared that tax evasion was not an
    impeachable offense because it was not directly related to one
    of the President's duties. I don't think that is clear at all.
    In fact, as I recall, a few House Members and minority Members
    signed a statement to that effect. But let me ask you this, and
    think about this: If a minority on the House Judiciary
    Committee voted on something, or Gerald Ford said something
    when he was in the House about impeachment, such is not
    precedent for the U.S. Senate. It is our precedent that counts.
    It is the precedent established by Judge Hastings, Judge Nixon,
    and Judge Claiborne about which we ought to be concerned.
        I do not believe the Constitution says that the standard
    for removal is whether somebody is a danger to the Republic's
    future. The Constitution says if you commit bribery, treason,
    or other high crimes or misdemeanors, you are out, unless there
    are some mitigating circumstance somebody can find, but the
    test is not whether or not the official is going to continue to
    do the crime in the future. What if it is a one-time bribery
    that is never again going to happen. Mr. Ruff advocated the
    ``danger'' standard, and it really disturbed me because it is
    not in the Constitution.
        If we were to reject the standard we use for judges for
    impeachment, I do believe that would mean a lowering of our
    standards. We will not be holding the President to the same
    standards we are holding the judges in this country, and I
    don't think the Constitution justifies a dual standard.
        As a prosecutor who has been in the courtroom a lot, I am
    not as cynical as some have suggested today about the law. I
    have been in grand juries hundreds of times--thousands really.
    I have tried hundreds of cases. I have seen witnesses
    personally. I have been with them before they testified and
    have seen them agonize over their testimony. I know people who
    file their tax returns and pay more taxes than they want to,
    voluntarily, because they are men and women of integrity. I
    have seen it in grand juries. I have seen people cry because
    they did not want to tell the truth, but they told it. They
    filed motions to object to testifying, but when it came right
    down to it, they told the truth.
        I believe truth is a serious thing. Truth is real and
    falsehood is real. This is, in my view, a created universe and
    we have a moral order and when we deny the truth we violate the
    moral order and bad things happen. Truth is one of the highest
    ideals of Western civilization commitment to it defines us as a
    people. As Senator Kyl said, you will never have justice in a
    court of law if people don't tell the truth.
        So this is a big deal with me. I have had that lecture with
    a lot of people who were about to testify. I believe we ought
    not to dismiss this lightly.
        There was a poignant story about Dr. Battalino and her
    conviction for lying about a one-time sex act and the losses
    she suffered. Let me tell you this personal story, and I will
    finish.
        I was U.S. attorney. The new police chief had come to
    Mobile. He was a strong and aggressive leader from Detroit. He
    was an African American. He shook up the department,
    established community-based policing, and caused a lot of
    controversy. A group of police officers sued him. His driver, a
    young police officer, testified in a deposition that the chief
    had asked him to bug other police officers illegally. Not only
    that, he said, ``I've got a tape of the chief telling me to
    bug.''
        It leaked to the newspapers, all in the newspapers. They
    wanted to fire the chief. The FBI was called because it is
    illegal to bug somebody if there is not a consenting person in
    the room.
        It is different with Linda Tripp. Let me just explain the
    law. If you can remember and testify to what you hear in
    conversation, you can record that conversation and play it
    later under law of virtually every State in America. Maryland
    apparently is different.
        Here, the driver's action would be illegal. Anyway, the
    young officer finally, under pressure of the FBI, confessed.
    The lawsuit hadn't ended. The civil suit was still going on. He
    went back and changed his deposition and recanted. His lawyer
    came to me and said, ``Don't prosecute him, Jeff. He's sorry.
    He finally told the truth. He went back. The case wasn't
    over.''
        We prosecuted him. I felt like he had disrupted the city,
    caused great turmoil and violated his oath as a police officer,
    and that we could not just ignore that. The case was
    prosecuted. He was convicted, and it was affirmed on appeal.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                      Statement of Senator Paul Coverdell

        Mr. COVERDELL. Mr. Chief Justice and fellow colleagues, in
    the Capitol's Mansfield Room where our Conference has met over
    the last few weeks, there is a picture of our first President,
    George Washington, who celebrates a birthday this Monday. I was
    reminded that, from childhood through adulthood, George
    Washington carried around with him a copy of the ``Rules of
    Civility.'' The rules could be seen as a roadmap of how one
    should appropriately conduct himself or herself in society. As
    the Senate began its course through uncharted waters, civility
    has been our goal, if not our duty. We have done our best to
    work together, to be respectful of each other's views and to do
    justice according to the Constitution. Had we not started with
    this goal in mind, I fear the debate would have quickly
    descended into rancor, doing a disservice to our Nation.
        In the next few minutes, I want to explain how this trial
    unfolded for me, as well as the rationale behind some of the
    votes I've cast, including on the articles of impeachment.
        When the historians write their accounts of the impeachment
    trial of William Jefferson Clinton, I trust that, regardless of
    where one comes down on the facts of the case, they will agree
    that the Senate did it right. We conducted a trial that was
    fair to all sides, correct according to the Constitution and
    expeditious in accordance with the wishes of the American
    people. We also did our best to conduct our deliberations on a
    bipartisan basis.
        We began this process by taking a second and most solemn
    oath of office: to do impartial justice. For me, as a Senator,
    I can think of no more somber and important a constitutional
    duty than the one that was given us. Our first task was to
    draft a blueprint of how we would proceed in the trial. We met
    in closed session in the Old Senate Chamber where the
    discussions were civil, respectful, and frank on both sides. In
    the end, it was Senator Gramm of Texas, joined by Senator
    Kennedy of Massachusetts, two opposite sides of the political
    spectrum, who led us to a unanimous bipartisan agreement on how
    to proceed. The support of all 100 Senators was important
    because it opened the door to a trial that was conducted in a
    professional and judicious manner and without the discord that
    so many of the Washington wise men had predicted.
        After hearing the opening arguments made by both sides,
    Senator Robert Byrd offered a motion to dismiss the case
    against the President. If successful, this would have been the
    first dismissal of an impeachment trial in our Nation's
    history.
        My vote against this dismissal motion was premised on my
    sworn constitutional obligation to hear the facts and evidence
    and consider the law before I rendered a decision on whether
    the articles warranted the President's conviction and removal
    from office. Indeed, this was part of the oath we took--to do
    impartial justice. The Senate would not have been able to
    render a fair and correct judgment on the articles without
    receiving and objectively assessing the wealth of evidence
    presented by the House of Representatives and the White House.
    In short, dismissal was premature and inappropriate.
        Consistent with our duty to consider all the evidence
    fully, I supported an effort to allow both the House managers
    and the White House the opportunity to depose a limited number
    of key witnesses to resolve inconsistencies in testimony. After
    reviewing the depositions, I supported a bipartisan motion to
    make all of this information--both the videotapes and written
    transcripts--part of the permanent record so that each and
    every American could examine the evidence and draw their own
    conclusions. I also voted to allow both the House managers and
    the White House to use the videotaped deposition testimony on
    the floor of the Senate.
        Although I did support deposing a limited number of
    witnesses, I did not support an attempt to allow Ms. Lewinsky
    to testify as a live witness on the floor of the Senate. In my
    judgment, we provided the House managers a more than adequate
    opportunity to present their case: allowing for witnesses to be
    deposed, for the House managers to ask any questions necessary
    to resolve inconsistencies in testimony and to allow any
    portion of these tapes to be used on the floor to argue the
    case against the President. Consequently, I thought it
    inappropriate and unnecessary for Ms. Lewinsky to testify on
    the Senate floor. Seventy Senators felt similarly on this
    issue.
        The presentation with videotaped excerpts, rather than live
    witnesses, allowed both sides to make their arguments cogently.
    In my opinion, witnesses questioned on the floor, under a time
    agreement, would have made for a more fragmented process--
    objections by counsel would have disrupted the flow of
    presentations considerably. I believe that our decision to
    exclude live witness testimony was appropriate, fair, and
    improved the nature of closing arguments.
        It is the same sense of obligation and a desire to maintain
    decorum that guided me in my vote to uphold the Senate's time-
    tested tradition of deliberating impeachment trials in private.
    Opening the doors of the Senate during these final
    deliberations would have been a tragic mistake, ignoring years
    of precedent on this issue. For 2,600 years, since the ancient
    Athenian lawgiver Solon, trials have been open and jury
    deliberations have been private. Throughout our own history in
    every courthouse in America, we have had open trials, we have
    had public evidence, we have had public witnesses. But when the
    jury deliberates, it meets in private. Jury deliberations are
    held in private for the protection of all parties and to ensure
    a frank and open discussion of the evidence.
        Private jury deliberations have also been part of the
    Senate rules for 130 years. Some argue that these rules are
    outdated and need to be revised. However, in 1974 and 1986,
    when the Senate had an opportunity to vote on changes to these
    rules, it chose to leave intact the precedent that the
    deliberations should remain closed.
        Our private deliberations have promoted civil discussion on
    this grave matter of impeachment. Some of the most profound and
    thoughtful statements I've heard have come during these private
    meetings--where the absence of cameras has had the effect of
    turning politicians into statesmen. These private deliberations
    set a tone of civility and allowed the healing process to
    begin.
        After hearing all evidence and deliberations, at the end, I
    voted for both impeachment articles. Setting all the legal
    contortions aside, a vote against the articles, or to acquit,
    would be to ratify that there are two sets of law in our
    country--one set for our citizens and another for the President
    of the United States. This is a conclusion I could not reach or
    support. Therefore, my vote on both articles says in the
    simplest terms that no American is above the law and there must
    be one law that applies to us all.
        Today's outcome should be a surprise to no one. From the
    beginning, our two parties approached this issue in
    fundamentally different ways. While Democrats and Republicans
    agree that President Clinton committed very serious offenses,
    the disagreement is over whether or not these issues rise to
    the level that he should be removed from office. To some
    extent, the die had been cast when the Democrat Party decided
    to rally around the President. Like President Nixon's fate was
    sealed when his party fell against him, President Clinton's
    Presidency was secured by his party's allegiance.
        My hope is that no future Senate will ever be required to
    consider articles of impeachment against the President of the
    United States. But, if they do, I have every confidence that we
    have left behind an appropriate roadmap for them to fulfill
    their constitutional responsibilities. I am proud of the Senate
    and its Members. The Senate should be proud of the way it has
    conducted itself; we have done our jobs right by being fair to
    all parties, correct according to the Constitution and
    expeditious in accordance with the wishes of the American
    people.
        In conclusion, I thank the leaders on both sides. In
    particular, I single out Senator Lott for his leadership. This
    has clearly been one of his finest hours as our majority
    leader.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                      Statement of Senator Orrin G. Hatch

        Mr. HATCH. Mr. Chief Justice and distinguished Senators,
    Daniel Webster once observed that a ``sense of duty pursues us
    ever. It is omnipresent like the Deity. If we take to ourselves
    the wings of morning, and dwell in the uttermost parts of the
    sea, duty performed or duty violated is still with us. . . .''
    The duty which has faced each United States Senator is the
    obligation to do impartial justice in a matter of significant
    historical import with lasting consequences for our
    constitutional order--the consideration of the impeachment
    articles against President William Jefferson Clinton.
        Our duty calls on us to answer a serious question--whether
    the President's actions warrant his removal from office.
    Fundamentally, in arriving at our individual decisions, we must
    consider what is in the best interests of the American people.
    The President engaged in conduct that even his defenders
    recognize was reprehensible and wrong. A bipartisan majority of
    the House also found that he committed serious, impeachable
    crimes.
        So the test for the Senate must be to do what's in the best
    interest of our Nation. It is not a matter of what is easiest
    or cleanest. It is a matter of what is in the immediate and
    long term national interest. This has been, and it will
    continue to be, a subjective and difficult standard and one
    which I will discuss in greater detail later in my remarks.
        First, however, I wish to speak on the Senate's procedural
    responsibility when sitting as a Court of Impeachment, the
    constitutional law concerning impeachable offenses, and the
    articles of impeachment at issue in the present case. Finally,
    I will conclude with a discussion of whether--assuming the
    facts alleged have been proven--the best interests of the
    country would be served by removing President Clinton from
    office.
        Let me begin by explaining what the role of the Senate is
    in the impeachment process.
        Simply put, the Senate's role in the impeachment process is
    to try all impeachments. As Joseph Story wrote:

        The power [to try impeachments] has been wisely deposited with the
    Senate. . . . That of all the departments of the government, `none will
    be found more suitable to exercise this peculiar jurisdiction than the
    Senate.' . . . Precluded from ever becoming accusers themselves, it is
    their duty not to lend themselves to the animosities of party, or the
    prejudices against individuals, which may sometimes unconsciously
    induce'' the other body. In serving as the tribunal for impeachments,
    we must strive to attain and demonstrate impartiality, integrity,
    intelligence and independence. If we fail to do so, the trial and our
    judgment will be flawed.--Joseph Story, Commentaries on the
    Constitution of the United States, Section 386.

        In short, impeachment trials require Senators to act,
    wherever possible, with principled political neutrality. One
    question I have repeatedly asked myself during this scandal--
    when faced with questions concerning the interpretation of the
    relevant law, the process, the calls for resignation, or
    forgiveness--has been whether I would have taken the same
    position were this a Republican President. I have done this
    throughout the past year and I expect many of my colleagues
    have done the same.
        In 1993, the Supreme Court ruled in the case of United
    States versus Nixon that the process by which the Senate tries
    impeachments was nonjusticiable. As a result of the Nixon
    decision, the Senate has a heightened constitutional obligation
    in impeachment cases.
        As constitutional scholar Michael Gerhardt notes in his
    1996 book, ``The Federal Impeachment Process'':

        Congress may make constitutional law--that is, make judgments about
    the scope and meaning of its constitutionally authorized impeachment
    function--subject to change only if Congress later changes its mind or
    by constitutional amendment. Thus, Nixon raised an issue about
    Congress's ability, in the absence of judicial review, to make
    reasonably principled constitutional decisions.

        I believe the Senate has conducted this trial in a fair
    manner and that we have made principled constitutional
    decisions. I commend my colleagues on both sides of the aisle--
    in particular the majority leader, Trent Lott--for the
    impartial and proficient manner in which we have conducted our
    constitutional obligation.
        At the core of our deliberations was the tension between,
    on the one hand, our shared interest in putting this matter
    behind us and getting on with the Nation's business, and, on
    the other hand, our interest in affording the President, and
    the weighty matter of impeachment, that process which is due
    and fair. While there are decisions the Senate reached with
    which I differed, I want to make clear my view that the Senate
    has ably balanced these competing interests. A fair and full
    trial that we were once told would take 1 year has been
    completed in less than 6 weeks. The credit for this process
    rests with every Member of the Senate, with the House managers,
    counsel for the President, and the Chief Justice.
        Of great concern to me is what the standard should be for
    impeachment in this and future trials. The President's counsel
    argued that the President can only be removed for constituting,
    what Oliver Wendell Holmes termed in free speech cases a
    ``clear and present danger.'' It was contended that a President
    can only be removed if he is a danger to the Constitution. As
    such, according to the President's counsel, removable conduct
    must relate to egregious conduct related to performance in
    office. Even if the House's allegation that President Clinton
    committed acts of perjury and obstruction of justice is proven
    true, it was argued then such behavior does not rise to
    impeachable offenses because it was private, not public,
    conduct. In this case an inappropriate sexual relation with a
    subordinate employee was the predicate of the charged offenses.
    But such a standard establishes an impossibly high bar as to
    render impotent the impeachment clauses of the Constitution. I
    hope that no matter the outcome of this trial, President
    Clinton's view of what constitutes an impeachable offense does
    not become precedent. If it does, I fear the moral framework of
    our Republic will be frayed. If it does, the legitimacy of our
    institutions may very well become tattered. It would create the
    paradox of being able to convict and jail an official for
    committing, let's say, homicide but not to be able to remove
    that official from holding positions of public trust.
    Committing crimes of moral turpitude, such as perjury and
    obstruction of justice, go to the very heart of qualification
    for public office.
        The overwhelming consensus of both legal and historical
    scholars is that the Constitution mandates the removal of the
    ``President, Vice President, and all civil Officers of the
    United States''--which includes federal judges--``upon
    impeachment by the House and conviction by the Senate of
    `Treason, Bribery or other high Crimes and Misdemeanors.' ''
    (U.S. Const., art. II., sec. 4.) The precise meaning of this
    latter clause is critical to the outcome of the impeachment
    trial.
        The President's advocates agree with their critics that
    this standard is the sole standard for Presidential impeachment
    but contend that the ``or other'' phrase indicates that grounds
    for impeachment must be criminal in nature because treason and
    bribery are crimes or acts committed against the state.
        Such crimes or acts must be heinous, they contend, because
    the term ``crimes and misdemeanors'' is preceded by the
    descriptive adjective ``high'' in the impeachment clause. These
    advocates also claim that there exists no proof of criminal
    wrongdoing, that we have evidence of only a private affair
    unrelated to performance in public office, and that abuse of
    power related to official conduct--not present here--is a
    prerequisite for impeachment.
        Many learned scholars oppose this view. Looking at the
    debates in the Constitutional Convention in Philadelphia in
    1787, they note that the Convention originally chose treason
    and bribery as the sole standard for impeachment. George Mason
    argued that this standard was too stringent and advocated that
    ``maladministration'' be added to the list. James Madison
    objected, believing that no coherent definition of
    ``maladministration'' existed and that such a lenient standard
    would make the President a pawn of the Senate. The Convention,
    as a result, settled on the phrase ``Treason, Bribery or other
    high Crimes or Misdemeanors.'' It is clear that the phrase
    ``high crimes and misdemeanors'' was considered by the framers
    to have a more narrow and specific meaning and, indeed, it is a
    term taken from English precedent.
        Accordingly, many scholars, including Raoul Berger, the
    dean of impeachment scholars, in ``Impeachment: The
    Constitutional Problems'' (1973), contend that the phrase
    ``high Crimes and Misdemeanors'' is a common law term of art
    that reaches both private and public behavior. Treason and
    bribery are acts that harm society in that they constitute a
    corruption on the body politic. Consequently, ``other high
    crimes and misdemeanors'' encompasses similar acts of
    corruption or betrayals of trust and need not constitute formal
    crimes. Indeed, Alexander Hamilton in Federalist No. 65 makes
    clear that impeachment is political, not criminal, in nature
    and reaches conduct that goes to reputation and character. In
    the 17th and 18th centuries the term ``misdemeanor'' refers not
    to a petty crime but to bad demeanor.
        History thus demonstrates that acts or conduct that demeans
    the integrity of the office or harms an individual's reputation
    in such a way as to engender a lack of public confidence in the
    office holder or the political system is an impeachable
    offense. Justice Joseph Story, in his celebrated ``Commentaries
    on the Constitution of the United States,'' section 762 (1835),
    made this abundantly clear when he wrote that impeachment lies
    for private behavior that harms the society or demeans its
    institutions:

        In the first place, the nature of the functions to be performed:
    The offences, to which the power of impeachment has been, and is
    ordinarily applied, as a remedy, are of a political character. Not but
    that crimes of a strictly legal character fall within the scope of the
    power, (for, as we shall presently see, treason, bribery, and other
    high crimes and misdemeanors are expressly within it;) but that it has
    a more enlarged operation, and reaches, what are aptly termed,
    political offenses, growing out of personal misconduct, or gross
    neglect, or usurpation, or habitual disregard of the public interests,
    in the discharge of the duties of political office.

        Even though the framers rejected the English model of
    impeachment as a form of punishment and promulgated removal as
    the remedy for conviction, most scholars contend that the
    framers looked to English precedent to define ``high crimes and
    misdemeanors.'' There is a wealth of evidence that a betrayal
    of public trust or reckless conduct that places a high office
    in disrepute constitutes ``high misdemeanors.'' The modifier
    ``high'' refers to acts against the state or commonwealth. In
    the 18th century, the term ``political'' also encompassed our
    modern term of ``social.'' So conduct that harmed society as a
    whole or denigrated the public respect and confidence in
    governmental institutions constituted ``high crimes and
    misdemeanors.''
        As such, both English and American officials have been
    impeached for drunkenness, for frequenting prostitutes, even
    for insanity, in other words private conduct that is unrelated
    to official acts. Such behavior is seen as defaming the office
    that the accused held and diminishing the people's faith in
    government. Impeachment is thus seen by many scholars as a
    means of removing unqualified office holders.
        Thus, impeachment and removal does not have to be
    predicated upon commission of a crime. Consequently,
    impeachment and removal is not in essentially a criminal
    punishment, a conclusion that is also textually demonstrated by
    the fact that the framers expressly provided for later
    indictment and criminal conviction of an impeached and removed
    President.
        A high crime and misdemeanor, according to this view, does
    not have to amount to a crime or be related to official
    conduct. Even if President Clinton's acts of perjury were
    predicated upon lying about a private sexual relation, they
    still must be considered high crimes and misdemeanors. The fact
    that the underlying behavior was private in its genesis is
    irrelevant. Such private acts demean the Office of the
    President and betray public trust. Those acts, therefore, are
    impeachable.
        I must emphasize that even if the President's counsel is
    correct in that private acts unrelated to performance in office
    are not impeachable offenses, I believe the gravamen of what
    President Clinton committed are public, not private, acts that
    are unambiguous breaches of public trust. Perjury and
    particularly obstruction of justice are conduct that attack the
    very veracity of our justice system. Furthermore, I vehemently
    disagree that the underlying conduct was a purely private
    concern because the conduct involved a Federal employee in a
    work environment.
        Lying under oath, hiding evidence, and tampering with
    witnesses destroy the truth-finding function of our
    investigatory and trial system. Perjury and obstruction of
    justice are particularly pernicious if committed by a President
    of the United States who has sworn pursuant to the oath of
    office to protect the Constitution and laws of the United
    States. Whether perjury and obstruction of justice can be
    considered private or public acts is of no moment. They are
    twin ``high crimes,'' harming the political order and requiring
    impeachment and removal from office.
        A related argument made by the President's counsel is that
    a President should be held to a less stringent standard than
    Federal judges in impeachment trials. Because many judges have
    been removed for conduct unrelated to performance in office,
    such as Judges Claiborne and Nixon, who were convicted and
    removed for perjurious statements unrelated to their
    performance in office, the President is almost compelled to
    make this argument.
        In essence, the President's counsel contend that article
    III's requirement that judges hold office for ``good behavior''
    is not simply a description of the term of office, but a
    grounds for impeachment if violated. Presidents--and other
    civil officers--are subject to the more stringent high crimes
    and misdemeanors standard.
        Most scholars reject this view. For instance, Michael J.
    Gerhardt, author of ``The Federal Impeachment Process'' (1996),
    testified in the House Constitutional Subcommittee of the
    Judiciary Committee in November that the impeachment standard
    of high crimes and misdemeanors applies to all civil officers,
    including judges as well as the President. This is the sole
    constitutional ground for impeachment. Article III's good
    behavior provision for judges simply sets the duration for
    judicial office--lifetime unless impeached. There are simply no
    differing standard for judges and the President.
        Let me now turn to the facts of this case. The House
    alleges in article I that the President should be removed
    because he committed acts of perjury. The House alleges in
    article II that the President should be removed because he
    obstructed and interfered with the mechanisms and duly
    constituted processes of the justice system.
        To demonstrate why I believe it is so, it is necessary to
    discuss both the legal standards and how the facts meet the
    requirements of those standards. I will first discuss perjury,
    and, next, turn to obstruction of justice.

                                   article i

        In his conduct while President of the United States, William
    Jefferson Clinton, in violation of his constitutional oath faithfully
    to execute the office of President of the United States and, to the
    best of his ability, preserve, protect, and defend the Constitution of
    the United States, and in violation of his constitutional duty to take
    care that the laws be faithfully executed, has willfully corrupted and
    manipulated the judicial process of the United States for his personal
    gain and exoneration, impeding the administration of justice, in that:
        On August 17, 1998, William Jefferson Clinton swore to tell the
    truth, the whole truth, and nothing but the truth before a Federal
    grand jury of the United States. Contrary to that oath, William
    Jefferson Clinton willfully provided perjurious, false and misleading
    testimony to the grand jury.

        ``Whoever under oath . . . in any proceeding before or
    ancillary to any court or grand jury knowingly makes any false
    material declaration . . . shall be fined under this title or
    imprisoned not more than five years, or both.'' See 18 U.S.C.
    1623(a). In a prosecution for perjury under 18 U.S.C. 1623(a),
    the prosecution must prove the following elements: (i) the
    declarant was under oath, (ii) the testimony was given in a
    proceeding before a court of the United States, (iii) the
    witness knowingly made, (iv) a false statement, and (v) the
    testimony was material. United States v. Whimpy, 531 F.2d 768
    (1976). The first two elements are not at issue here because it
    is undisputed that President Clinton testified under oath
    before a grand jury of the United States. As the discussion
    below reveals, the House managers proved the remaining elements
    of perjury beyond a reasonable doubt for key aspects of
    President Clinton's grand jury testimony.
        President Clinton committed perjury before the grand jury
    when he testified falsely concerning his motivation for making
    five statements to Betty Currie. Hours after his deposition in
    the Jones case, President Clinton called his secretary Betty
    Currie and asked her to come to the White House the next day,
    January 18. (Currie Grand Jury Testimony, Jan. 27, 1998, pp.
    65-66.) On that Sunday afternoon, the President made the
    following five statements to Ms. Currie about Monica Lewinsky:
    (1) ``You were always there when she was there, right?''; (2)
    ``We were never really alone.''; (3) ``Monica came on to me,
    and I never touched her, right?''; (4) ``You can see and hear
    everything, right?''; and (5) ``She wanted to have sex with me,
    and I cannot do that.'' (Currie Grand Jury Testimony, Jan. 27,
    1998, pp. 71-74.) President Clinton repeated these same
    questions and statements to Betty Currie a few days later.
    (Currie Grand Jury Testimony, Jan. 27, 1998, pp. 80-81.) When
    he discussed his deposition testimony regarding Ms. Lewinsky
    with Betty Currie on these two occasions, President Clinton
    violated Judge Wright's strict order prohibiting any discussion
    of the Jones deposition.
        President Clinton lied to the grand jury when he testified
    about his motivation for making these statements. When asked
    before the grand jury about these statements to Betty Currie,
    the President testified that he asked these ``series of
    questions'' in order to ``refresh [his] memory about what the
    facts were.'' (Clinton Grand Jury Testimony, Aug. 17, 1998, p.
    131.) He further testified that he wanted to ``know what
    Betty's memory was about what she heard, what she could hear''
    and that he was ``trying to get as much information as quickly
    as I could . . . [a]nd I was trying to figure [it] out . . . in
    a hurry because I knew something was up.'' (Clinton Grand Jury
    Testimony, Aug. 17, 1998, p. 56.) Immediately following
    extensive questioning on this issue, a different prosecutor
    from the Office of Independent Counsel asked the President that
    ``[i]f I understand your current line of testimony, you are
    saying that your only interest in speaking with Ms. Currie in
    the days after your deposition was to refresh your own
    recollection.'' (Clinton Grand Jury Testimony, Aug. 17, 1998,
    pp. 141-42; emphasis added.) President Clinton answered:
    ``Yes.'' (Id.)
        President Clinton's testimony that he was ``only'' trying
    to ``refresh [his] memory about what the facts were'' is
    perjury because a person cannot ``refresh'' his memory with
    statements and questions that he knows are false. Each of
    President Clinton's five statements to Currie is either an
    outright lie or extremely misleading. President Clinton knew
    the facts of his relationship with Ms. Lewinsky, and he knew
    his statements to Betty Currie were false. By definition, these
    false questions and statements could not have helped President
    Clinton accurately refresh his memory.
        In addition, Betty Currie could not possibly have known the
    answers to some of these questions. For example, how could
    Betty Currie have known whether the President ever ``touched''
    Ms. Lewinsky or whether Ms. Currie was ``always there when [Ms.
    Lewinsky] was there?'' Common sense defies the President's
    explanation: if one is trying to refresh his memory or gather
    information quickly, he does not ask questions of a person to
    which the person could not know the answers. The fact that
    Betty Currie could not have known the answers to these
    questions further undermines President Clinton's testimony that
    he was trying to refresh his memory or gather information
    quickly.
        If the President was merely trying to refresh his
    recollection or gather information quickly why did he repeat
    these questions and statements to Currie a few days later? As
    the House managers noted during the trial, instead of asking a
    series of specific leading questions, why didn't President
    Clinton ask Currie a general question about what she recalled
    about Ms. Lewinsky's activity at the White House? Moreover,
    President Clinton's blatant violation of Judge Wright's order
    prohibiting any discussion of the Jones deposition casts
    further doubt on his testimony on this issue. The President's
    testimony regarding his motivation for these statements is
    false. He did not make these statements to refresh his
    recollection. Rather, as the following section explains, the
    President made these statements to Ms. Currie in order to
    influence her potential testimony in the Jones suit and to
    influence her possible responses to the media.
        In a perjury case under 18 U.S.C. 1623, the prosecution
    must prove that the defendant ``knowingly'' made the false
    statement. Under this statute, ``knowingly'' means merely that
    the defendant made the false statement ``voluntarily and
    intentionally, and not because of mistake or accident or other
    innocent reason.'' United States v. Fawley, 137 F.3d 458, 469
    (7th Cir. 1998); United States v. Watson, 623 F.2d 1198 (7th
    Cir. 1980).
        The President knowingly made these false statements about
    his motivation for speaking to Betty Currie after his
    deposition. He did not make these statements by ``mistake or
    accident or other innocent reason.'' Rather, President Clinton
    lied about his motivation to conceal his true purpose in making
    these statements to Currie. In reality, President Clinton was
    attempting to corroborate his deceitful testimony in the Jones
    deposition with a prospective witness. When he made these
    statements to Currie, the President knew that she was a likely
    witness in the Jones case because he repeatedly referred to
    Currie when asked about Ms. Lewinsky by the Jones lawyers.
    (Clinton Deposition Testimony, Jan. 17, 1998, p. 58.) President
    Clinton actually told the Jones lawyers to ``ask Betty'' in
    response to one question in the deposition. (Clinton Deposition
    Testimony, Jan. 17, 1998, pp. 64-66.) In fact, Betty Currie was
    subpoenaed by the Jones lawyers only days after the President's
    deposition.
        Moreover, in addition to influencing a prospective witness
    in the Jones suit, the President had another motivation for
    coaching Ms. Currie: She was a probable target of press
    inquiries about this controversy. In fact, a prominent reporter
    from Newsweek had already called Currie on January 15, 1998 and
    asked her about Ms. Lewinsky. (Currie Grand Jury Testimony, May
    6, 1998, pp. 120-21.) The President had a motive to influence
    information Currie might give to the media--in addition to
    testimony she might give as a witness in Jones v. Clinton. The
    President knowingly made these statements to Ms. Currie in
    order to influence both her potential testimony and her
    possible responses to the media.
        ``Because the Grand Jury's function is investigative,
    materiality in that context is broadly construed.'' United
    States v. Gribbon, 984 F.2d 471 (2d Cir. 1993). Courts have
    consistently held that in a grand jury, ``a false declaration
    is `material' within the meaning of [18 U.S.C.] 1623 when it
    has a natural effect or tendency to influence, impede or
    dissuade the Grand Jury from pursuing its investigation.''
    United States v. Kross, 14 F.3d 751 (2d Cir. 1994).
        President Clinton's false statements to the grand jury
    regarding his January conversations with Betty Currie are
    material to the grand jury's investigation of obstruction of
    justice. To determine whether the President obstructed justice
    in the Jones case, it was critical for the grand jury to
    ascertain whether President Clinton attempted to influence the
    testimony of Currie, a potential witness in that case.
    President Clinton's statements to Currie the day after his
    deposition strongly indicate that he was seeking to influence
    her testimony. The President's false statements about his
    motivation for making these statements to Currie had the
    ``natural effect or tendency'' to ``impede or dissuade the
    Grand Jury from pursuing its investigation'' of obstruction of
    justice in the Jones case.
        In his trial brief, the President offers only a brief
    defense to this perjury allegation. First, the President argues
    that ``Ms. Currie's testimony supports the President's
    assertion that he was looking for information as a result of
    his deposition'' when he made these statements to Currie.
    (President's Trial Brief, p. 53.) As discussed earlier,
    however, this is implausible. A person cannot accurately gather
    information by making false or misleading statements to another
    person.
        Second, in his brief, the President refers to Currie's
    grand jury testimony in which she testified that she felt no
    pressure to agree with the President when he made these
    questions and statements. (President's Trial Brief, pp. 51-53.)
    However, the fact that Ms. Currie testified that she did not
    feel pressured is completely irrelevant to whether the
    President committed perjury concerning these statements.
    President Clinton's state of mind--not Ms. Currie's--is at
    issue here because he is the one accused of perjury.
        In sum, the House managers proved beyond a reasonable doubt
    that President Clinton: (1) knowingly (2) lied about his
    motivation for making these deceitful statements to Betty
    Currie (3) concerning a material matter under investigation by
    the grand jury (4) while under oath before a Federal grand
    jury.
        Another example of perjury before the grand jury concerns
    President Clinton's testimony that he did not engage in
    ``sexual relations'' with Ms. Lewinsky even under his alleged
    understanding of the definition used in the Jones case. Even
    under his purported interpretation of the term, however,
    Clinton admitted to the grand jury that if the person being
    deposed touched certain enumerated body parts of another
    person, then that would constitute ``sexual relations.''
    (Clinton Grand Jury Testimony, Aug. 17, 1998, pp. 95-96.) When
    asked if he denied engaging in such specific conduct, Clinton
    answered ``[t]hat's correct.'' (Id.)
        President Clinton lied to the grand jury when he testified
    concerning the nature and extent of the sexual relationship.
    First, human nature and common sense strongly undermine
    President Clinton's testimony. It is undisputed that President
    Clinton and Ms. Lewinsky engaged in sexual activity on at least
    10 occasions over the course of 16 months. President Clinton's
    testimony to the grand jury that he never touched Ms. Lewinsky
    in certain areas with the intent to arouse is simply not
    believable given the nature and extent of their contact.
        In addition, Ms. Lewinsky's testimony directly contradicts
    the President. She testified in detail repeatedly before the
    grand jury about each of their sexual encounters. According to
    Ms. Lewinsky's testimony, she and President Clinton engaged in
    conduct that constituted ``sexual relations'' even under the
    President's purported understanding of the term during 10
    encounters. It is important to note that Ms. Lewinsky's
    testimony about the extent of their sexual conduct occurred
    before the President's grand jury testimony made these precise
    sexual details important. Moreover, Ms. Lewinsky's friends,
    family members, and medical therapists corroborated her account
    by testifying to the grand jury that Lewinsky made near-
    contemporaneous statements to them that President Clinton
    fondled her in a variety of ways during their encounters.
    Finally, the fact that President Clinton lied to the American
    people about this tawdry affair badly undermines his
    implausible testimony on this issue.
        As mentioned earlier, in a perjury case under 18 U.S.C.
    1623, the prosecution must prove that the defendant
    ``knowingly'' made the false statement. Under this statute,
    ``knowingly'' means merely that the defendant made the false
    statement ``voluntarily and intentionally, and not because of
    mistake or accident or other innocent reason.'' United States
    v. Fawley, 137 F.3d 458, 469 (7th Cir. 1998); United States v.
    Watson, 623 F.2d 1198 (7th Cir. 1980).
        President Clinton knowingly made these false statements
    about the nature and extent of his sexual relationship. He did
    not make these statements by ``mistake or accident or other
    innocent reason.'' Instead, the President had a strong motive
    to lie about the extent of the sexual contact in order to avoid
    being accused of perjury in the Jones deposition. After Ms.
    Lewinsky's dress was discovered, President Clinton could no
    longer deny a sexual affair. However, because he repeatedly
    denied having ``sexual relations'' with Ms. Lewinsky in the
    Jones deposition, the President was trapped. As mentioned
    earlier, the President was forced to admit that fondling Ms.
    Lewinsky in certain ways would constitute ``sexual relations''
    even under his purported interpretation of the term.
    Consequently, President Clinton had to deny such fondling
    before the grand jury to prevent an admission that he committed
    perjury in his civil deposition, despite how implausible this
    denial is. In summary, President Clinton committed perjury
    before the grand jury by insisting that his testimony in the
    Jones deposition on this key matter was true. Perhaps due to
    fear of being charged with perjury in the Jones deposition,
    President Clinton committed the more serious offense of perjury
    before a grand jury.
        As mentioned earlier, ``because the Grand Jury's function
    is investigative, materiality in that context is broadly
    construed.'' United States v. Gribbon, 984 F.2d 471 (2d Cir.
    1993). Courts have consistently held that in a grand jury, ``a
    false declaration is `material' within the meaning of [18
    U.S.C.] 1623 when it has a natural effect or tendency to
    influence, impede or dissuade the Grand Jury from pursuing its
    investigation.'' United States v. Kross, 14 F.3d 751 (2d Cir.
    1994).
        The President's false statements about the extent of his
    sexual conduct with Ms. Lewinsky are material to the grand
    jury's investigation of whether the President committed perjury
    in the Jones deposition. In an effort to determine whether
    President Clinton testified truthfully in his deposition, the
    Office of Independent Counsel questioned the President at
    length before the grand jury about the nature and extent of his
    sexual relationship with Ms. Lewinsky. The President's tortured
    definition of sexual relations makes these details material to
    whether he committed perjury in the Jones deposition. Simply
    put, if the President touched Ms. Lewinsky in certain ways, he
    is guilty of perjury in the Jones deposition. Obviously,
    President Clinton's false statements on this matter had the
    ``natural effect or tendency to influence, impede or dissuade
    the Grand Jury from pursuing its investigation'' of perjury in
    the Jones deposition.
        In President Clinton's trial brief, the only rebuttal to
    his allegation of perjury is that ``[t]his claim comes down to
    an oath against an oath about immaterial details concerning an
    acknowledged wrongful relationship.'' (President's Trial Brief,
    p. 44.) Even this one pithy sentence, however, is inaccurate.
    First, as the earlier discussion reveals, there is more
    evidence than an oath against an oath. Human nature and common
    sense badly undermine the President's testimony. In addition,
    Ms. Lewinsky testified in detail repeatedly before the grand
    jury about the extent of the sexual relationship, while the
    President reverted to his prepared statement 19 times to avoid
    answering specific sexual questions. Moreover, the testimony of
    Ms. Lewinsky's family, friends, and medical therapists provide
    additional evidence of the President's perjury. Finally, the
    fact that President Clinton lied to the entire Nation about
    this sordid affair--and only acknowledged the affair when
    confronted with evidence of Ms. Lewinsky's dress--devastates
    his credibility on this issue.
        In sum, the House managers provide beyond a reasonable
    doubt that President Clinton: (1) knowingly (2) lied about the
    extent of his sexual activity with Ms. Lewinsky (3) concerning
    a material matter under investigation by the grand jury (4)
    while under oath before a Federal grand jury.
        In addition, I have concluded that President Clinton lied
    in other instances before the grand jury. While these lies
    might not sustain a conviction for perjury in a court of law,
    they are profoundly troubling nonetheless. For instance, it
    strongly appears that President Clinton lied to the grand jury
    when he testified that he did not believe certain acts that he
    and Ms. Lewinsky engaged in were covered by any of the terms
    and definitions used in the Jones suite. The following
    definition of ``Sexual Relations'' was used at the Jones
    deposition:

        For the purposes of this deposition, a person engages in `sexual
    relations' when the person knowingly engages in or causes contact with
    . . . [certain enumerated body parts] of any person with the intent to
    arouse . . .'' (Emphasis added.)

    Amazingly, President Clinton testified to the grand jury that
    he does not believe and did not believe at the Jones deposition
    that this definition includes certain acts which I will not
    specify. Without addressing these lurid details, Clinton
    interprets ``any person'' to mean ``any other person'' under
    the definition. There is no legal basis for him to interpret
    the definition in this manner.
        I do not believe that President Clinton can reasonably
    claim this interpretation. First, under the President's
    interpretation, one person can engage in sexual relations,
    while his or her partner in the same activity is not engaged in
    sexual relations. Obviously, this is an implausible and absurd
    conclusion. Second, no reasonable person would have understood
    the definition in the Jones suit not to encompass the
    particular activity that President Clinton and Ms. Lewinsky
    engaged in. It is important to remember that the underlying
    allegation in the Jones suit concerned the same particular acts
    involved in the Lewinsky affair. Why would the Jones lawyers
    use a definition that did not include the very conduct alleged
    by their client? Given this context, the President's testimony
    that he did not believe the definition included certain conduct
    is not believable.
        Finally, the President had a clear motive to lie about his
    understanding of the definition of sexual relations. After Ms.
    Lewinsky's dress was discovered, the President could no longer
    deny his sexual affair. However, the President repeatedly
    denied having ``sexual relations'' with Ms. Lewinsky in the
    Jones deposition. President Clinton's absurd interpretation of
    the definition of sexual relations allowed him to admit to a
    sexual relationship--which he had to do given the dress--
    without simultaneously admitting to perjury in the Jones
    deposition. Because perjury is such a difficult crime to prove,
    I have concluded that the President might not be convicted in a
    court of law for perjury concerning his testimony on this
    issue. I am convinced, however, that President Clinton lied to
    the grand jury about this matter. While this testimony might
    not generate a conviction in a court of law, it was clearly
    contrived and is profoundly troubling.
        Let me now turn to the facts of the second article of
    impeachment alleging obstruction of justice. Article II alleges
    that:

        In his conduct while President of the United States, William
    Jefferson Clinton, in violation of his oath faithfully to execute the
    office of President of the United States and, to the best of his
    ability, preserve, protect, and defend the Constitution of the United
    States, and in violation of his constitutional duty to take care that
    the laws be faithfully executed, has prevented, obstructed, and impeded
    the administration of justice, and has to that end engaged personally,
    and through his subordinates and agents, in a course of conduct or
    scheme designed to delay, impede, cover up, and conceal the existence
    of evidence and testimony related to a Federal civil rights action
    brought against him in a duly instituted judicial proceeding.

        In order to determine whether the President has engaged in
    the type of acts charged, it is important that the law be first
    addressed in order to guide us in understanding how the facts
    relate to the violations alleged.
        The Federal obstruction of justice statute punishes
    ``[w]hoever
    . . . corruptly . . . influences, obstructs, or impedes, or
    endeavors to influence, obstruct, or impede, the due
    administration of justice.'' (18 U.S.C. 1503(a).) Known as the
    ``omnibus clause,'' section 1503(a) ``clearly forbids all
    corrupt endeavors to obstruct or impede the due administration
    of justice,'' United States v. Williams, 874 F.2d 968, 976 (5th
    Cir. 1989), which is defined as ``the performance of acts
    required by law in the discharge of duties such as appearing as
    a witness and giving truthful testimony when subpoenaed.''
    United States v. Partin, 552 F.2d 621, 641 (5th Cir. 1977). The
    statute has alternatively been interpreted as forbidding
    ``interferences with . . . judicial procedure'' and aiming ``to
    prevent a miscarriage of justice.'' United States v. Silverman,
    745 F.2d 1386, 1398 (11th Cir. 1984).
        ``There are three core elements that the government must
    establish to prove a violation of the omnibus clause of section
    1503: (1) there must be a pending judicial proceeding; (2) the
    defendant must have knowledge or notice of the pending
    proceeding; and (3) the defendant must have acted corruptly
    with the specific intent to obstruct or impede the proceeding
    in its due administration of justice.'' United States v.
    Williams, 874 F.2d 968, 976 (5th Cir. 1989). Accord United
    States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993) (adding the
    word ``influence'' to the terms ``obstruct or impede'' in the
    intent element).
        The purpose of the statute, according to the Supreme Court
    is not directed at the success of the corruptive effort, ``but
    at the `endeavor' to do so.'' United States v. Russell, 255
    U.S. 138, 143 (1921) (opining that the word ``endeavor'' was
    used instead of ``attempt'' in order to avoid the technical
    distinctions between attempts, which are punishable, and
    preparation for attempts, which are not). See also United
    States v. Aguilar, 515 U.S. 593, 599 (1995) (holding that while
    the endeavor must have the `natural and probable effect' of
    interfering with the due administration of justice, the
    defendant's actions need not be successful, citing Russell).
        The statute criminalizing witness tampering prohibits,
    inter alia, the use or attempted use of corrupt persuasion or
    misleading conduct with the intent of influencing, delaying, or
    preventing testimony in an official proceeding, causing a
    person to withhold testimony or documentary evidence, alter or
    destroy physical evidence, evade legal process, or be absent
    from an official proceeding to which such person has been
    legally summoned. (18 U.S.C. 1512(b).) ``To sustain its burden
    of proof for the crime of tampering with a witness . . . the
    Government must prove . . . that the [d]efendant knowingly,
    corruptly persuaded or attempted to corruptly persuade . . . a
    witness; and second, that the [d]efendant . . . did so
    intending to influence the testimony of [that witness] at the
    [g]rand [j]ury proceeding.'' United States v. Thompson, 76 F.3d
    442, 452-453 (2d Cir. 1996).
        The witness tampering statute's prohibition of corruptly
    persuading someone with intent to ``influence, delay, or
    prevent the testimony of any person in an official
    proceeding,'' has been interpreted to mean exhorting a person
    to violate his legal duty to testify truthfully in court.
    United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996)
    (rejecting defendant's argument that a simple request to
    testify falsely was outside the scope of section 1512(b)),
    cert. denied, 117 S.Ct. 1279 (1997). As the Second Circuit
    explained: ``Section 1512(b) does not prohibit all persuasion
    but only that which is `corrupt.' The inclusion of the
    qualifying term `corrupt' means that the government must prove
    that the defendant's attempts to persuade were motivated by an
    improper purpose to . . . . A prohibition against corrupt acts
    `is clearly limited to . . . constitutionally unprotected and
    purportedly illicit activity.'' United States v. Thompson 76
    F.3d 442, 452 (2d Cir. 1996) (quoting United States v. Jeter,
    775 F.2d 670, 679 (6th Cir. 1985)).
        Apart from corrupt persuasion with intent to influence a
    person's testimony, section 1512(b) proscribes engaging in
    misleading conduct with intent to influence such testimony. (18
    U.S.C. 1512(b)(1).) As one court described it, ``[t]he most
    obvious example of a section 1512 violation may be the
    situation where a defendant tells a potential witness a false
    story as if the story were true, intending that the witness
    believe the story and testify to it before the grand jury.''
    United States v. Rodolitz, 786 F.2d 77, 81-82 (2d Cir. 1986).
        Some courts have interpreted conduct that was not
    misleading to the person at whom it was directed, even if it
    was intended to mislead the government, as outside the scope of
    section 1512. E.g., United States v. King, 762 F.2d 232, 237-
    238 (2d Cir. 1985). However, the Rodolitz court distinguished
    the facts in King, where there was insufficient evidence that
    the witness was actually mislead, from the situation where the
    declarant makes false statements to a witness who is ignorant
    of their falsity. See Rodolitz, 786 F.2d at 81-82 (``In giving
    the statutory language its fair meaning, the court must find
    that making false statements to convince another to lie falls
    squarely within the definition of `engaging in misleading
    conduct toward another person' under section 1512.'').
        The witness tampering statute explicitly states that ``an
    official proceeding need not be pending or about to be
    instituted at the time of the offense.'' (18 U.S.C.
    1512(e)(1).) However, courts have implied some state of mind
    element. E.g., United States v. Kelly, 36 F.3d 1118, 1128
    (D.C.Cir. 1994) (``It therefore follows that section 1512 does
    not require explicit proof of [defendant's] knowledge . . .
    that such proceedings were pending or were about to be
    instituted. . . . The statute only requires that the jury be
    able reasonably to infer from the circumstances that
    [defendant], fearing that a grand jury proceeding had been or
    might be instituted, corruptly persuaded persons with the
    intent to influence their possible testimony in such a
    proceeding.'')
        In subpart (1) of article II, it is averred that:

        On or about December 17, 1997, William Jefferson Clinton corruptly
    encouraged a witness in a Federal civil action brought against him to
    execute a sworn affidavit in that proceeding that he knew to be
    perjurious, false and misleading.

        Subpart (2) alleges that:

        On or about December 17, 1997, William Jefferson Clinton corruptly
    encouraged a witness in a Federal civil rights action brought against
    him to give perjurious, false and misleading testimony if and when
    called to testify personally in that proceeding.

        Subparts (1) and (2) are flip sides of the same coin. In
    essence, the two subparts charge that the President's 2:30 a.m.
    phone call to Ms. Lewinsky on December 17, 1997, informing her
    of her presence on a witness list in the Jones case was
    designed to encourage her to provide a false affidavit in the
    case to avoid testifying, or failing that, that she give false
    testimony hiding the true nature of their relationship. What
    does the evidence show?
        It should be recalled that the presence of Ms. Lewinsky's
    name on the Jones witness list first came to the attention of
    the President no later than December 17, 1997. (Clinton Grand
    Jury Testimony, Aug. 17, 1998, pp. 83-84.) He was certainly
    aware of the true nature of their relationship, and it can be
    inferred that he knew that knowledge of the existence of that
    relationship would be detrimental to his case. It is also known
    that a cover story had been developed earlier to hide the
    relationship from others that included the false representation
    that Ms. Lewinsky's visits to the oval office were for the
    purpose of bringing the President papers or to visit Ms.
    Currie. (Clinton Grand Jury Testimony, Aug. 17, 1998, pp. 83-
    84.)
        Ms. Lewinsky testified that in the same 2:30 a.m.
    conversation in which he informed her of the presence of her
    name on the witness list, the President told her that she could
    always say she was bringing him papers or visiting Ms. Currie,
    consistent with their previous cover series. (Lewinsky
    Deposition Testimony, Feb. 1, 1999, 145 Cong. Rec. S1219.) Ms.
    Lewinsky and the attorneys for the President have argued that
    since Ms. Lewinsky did in fact ``see'' Ms. Currie on those
    visits to the President and since she was ``carrying'' papers,
    that story was not untruthful and therefore could not have been
    designed to obstruct justice. However, that rationale defies
    logic and common sense.
        In the first place, the purpose of the visits was not to
    see Ms. Currie. Secondly, the papers she carried were just
    props, not to be handed over to the President, but to be
    falsely characterized as papers for the President if
    questioned. Therefore, were she to testify in a deposition that
    the purpose of her trips to the Oval Office to visit the
    President were actually to deliver papers or visit Ms. Currie,
    those would be false representations. The creation of a cover
    story followed by actions consistent with that cover story do
    not make the story any more truthful. Therefore, the
    President's instruction to her to rely on the cover story is in
    fact an instruction to her to lie.
        Other evidence supports this conclusion, not the least of
    which is the affidavit filed by Ms. Lewinsky in the case after
    those discussions with the President took place, an affidavit
    she herself later testified as being false. How else could she
    have characterized it? In that affidavit, Ms. Lewinsky stated
    that she ``never had a sexual relationship with the
    President.'' This was false. She swore that ``[t]he occasions I
    saw the President after I left my employment at the White House
    in April, 1996, were official receptions, formal functions or
    events related to the U.S. Department of Defense, where I was
    working at the time. There were other people present on those
    occasions.'' This statement too was false. She also averred
    that ``I do not possess any information that could possibly be
    relevant to the allegations made by Paula Jones or lead to
    admissible evidence in this case.'' Once again, this statement
    was false, as the President was aware, since he knew of the
    gifts he had given to Ms. Lewinsky. (Clinton Grand Jury
    Testimony, Aug. 17, 1998, pp. 32-35.)
        The President repeatedly said that he thought that Ms.
    Lewinsky ``could,'' and he emphasizes the word ``could,'' have
    been able to draft a narrow truthful affidavit. (Clinton Grand
    Jury Testimony, Aug. 17, 1998, pp. 69, 116-17.) The problem is
    that although she ``could'' have been able to draft such an
    affidavit, the end product was not a truthful affidavit. Thus
    the President's intentional failure to prevent his attorney
    from using that false affidavit at his deposition provides
    further evidence of his corrupt intention during the December
    17, 1997, phone call to Ms. Lewinsky.
        Given these facts, the House has proven beyond a reasonable
    doubt that the President endeavored to corruptly influence the
    affidavit and potential testimony of Ms. Lewinsky in his
    December 17, 1997, 2:30 a.m. call to her.
        In subpart (3), it is alleged that:

        On or about December 28, 1997, William Jefferson Clinton corruptly
    engaged in, encouraged, or supported a scheme to conceal evidence that
    had been subpoenaed in a Federal civil rights action brought against
    him.

        This allegation relates to the obstruction of justice by
    Ms. Lewinsky and Ms. Currie in hiding gifts provided to Ms.
    Lewinsky by the President under the bed of Ms. Currie. The only
    question that needs to be answered here in whether the
    President participated in that effort.
        What does the evidence show? By December 28, 1997, Ms.
    Lewinsky had been subpoenaed to appear as a witness in the
    Jones case. In addition to demanding her appearance to testify,
    the subpoena also required that Ms. Lewinsky turn over any
    gifts given to her by the President. (Lewinsky Deposition
    Testimony, Feb. 1, 1999, 145 Cong. Rec. S1221.) Under the
    pretense of meeting with Ms. Currie, Ms. Lewinsky went to the
    White House on Sunday, December 28, 1997, to discuss her
    subpoena with the President. Now, at the time of that visit,
    there is no indication that the President was aware that
    particular items had been subpoenaed by the Jones lawyers from
    Ms. Lewinsky. Without the benefit of that information, the
    President freely gave Ms. Lewinsky a number of additional
    gifts. (Lewinsky Deposition Testimony, Feb. 1, 1999, 145 Cong.
    Rec. S1224.) So when Ms. Lewinsky informed the President of
    that fact, one can infer that he must have been at the very
    least, surprised, and probably, somewhat troubled. When asked
    by Ms. Lewinsky at that meeting whether she should hide the
    gifts or give them to someone else like Ms. Currie for
    safekeeping, the President either failed to respond or said he
    needed to think about it. (Id.)
        Ms. Lewinsky testified that she left the White House and
    later received a phone call from Ms. Currie stating that she
    understood Ms. Lewinsky had something for her, or, the
    President said you have something for me. Ms. Lewinsky
    immediately understood that statement by Ms. Currie to refer to
    the gifts from the President she had discussed with him earlier
    in the day. (Lewinsky Deposition Testimony, Feb. 1, 1999, 145
    Cong. Rec. S1225.) She then proceeded to gather up all those
    gifts. However, according to Ms. Lewinsky, she unilaterally
    withheld some of those gifts from Ms. Currie which were of
    sentimental value to her.
        The President's first defense to this allegation is based
    upon a minor discrepancy in Ms. Lewinsky's testimony concerning
    the time that the gifts were retrieved by Ms. Currie. The
    argument is that if Ms. Lewinsky was mistaken by 1\1/2\ hours
    in her recollection of when the gifts were retrieved by Ms.
    Currie, then her recollection of who initiated the retrieval is
    also suspect. (Statement of Cheryl Mills, Jan. 20, 1999, 145
    Cong. Rec. S826-27.)
        This is a red herring. The timing itself is unimportant.
    What is important is the fact that the call came from Ms.
    Currie. (Lewinsky Deposition Testimony, Feb. 1, 1999, 145 Cong.
    Rec. S1225.) Ms. Currie's cell phone records tend to support
    the notion that Ms. Lewinsky's memory is accurate as to who
    called whom about the gifts. After all, the only way that Ms.
    Currie would have known about the gifts and made the call is if
    the other party to those discussions, the President, apprised
    her of that conversation and asked her to pick up the gifts.
        The fall-back defense of the President is based upon the
    fact that he had given her more gifts that same day, the idea
    being that his giving other gifts to Ms. Lewinsky is
    inconsistent with a plan to hide those gifts. (Statement of
    Cheryl Mills, Jan. 20, 1999, 145 Cong. Rec. S827.) This,
    however, is belied by the fact that the President provided her
    with those gifts before the issue of the gifts being subpoenaed
    came up in their conversation that day. (Lewinsky Deposition
    Testimony, Feb. 1, 1999, 145 Cong. Rec. S1224.) It is
    reasonable to infer that the President's understanding of the
    gift pickup was unrestricted. He expected Ms. Lewinsky to give
    all the gifts to Ms. Currie for safekeeping, even the ones she
    had received that day. The fact that Ms. Lewinsky kept some of
    the gifts does not change the nature of the intended scheme.
        The evidence adduced as to subpart (3) shows beyond a
    reasonable doubt that the President corruptly engaged in,
    encouraged or supported a scheme to conceal evidence in the
    Jones case.
        Subpart (4) makes the accusation that:

        Beginning on or about December 7, 1997, and continuing through and
    including January 14, 1998, William Jefferson Clinton intensified and
    succeeded in an effort to secure job assistance to a witness in a
    Federal civil rights action brought against him in order to corruptly
    prevent the truthful testimony of that witness in that proceeding at a
    time when the truthful testimony of that witness would have been
    harmful to him.

        It is uncontroverted that Vernon Jordan did not actively
    seek to find a job for Ms. Lewinsky until she was on the
    witness list in the Jones case. Once she was on the witness
    list, he engaged in a high-level job search under the guidance
    of the President and reported his progress in that regard
    directly to the President. (Jordan Deposition Testimony, Feb.
    2, 1999, 145 Cong. Rec. S1231-36.) Moreover, he knew at the
    time of his job search that Ms. Lewinsky was a potential
    witness in the Jones case and, according to Ms. Lewinsky, was
    apprised by her of the sexual nature of her relationship with
    the President. (Lewinsky Grand Jury Testimony, Aug. 6, 1998,
    pp. 138-39.) And of course, in that very same time frame, he
    procured for her an attorney to help her file a false affidavit
    freeing her from testifying in the case and to prepare that
    false affidavit in time for it to be used in the President's
    deposition in the Jones case. (Jordan Deposition Testimony,
    Feb. 2, 1999, 145 Cong. Rec. S1240-41.)
        One could speculate that the President's use of one of the
    most powerful attorneys in Washington, and a close friend of
    the President, to find a lowly Defense Department employee and
    former intern a lucrative and prestigious job by contacting
    some of the most powerful executives in the country was just an
    act of kindness unrelated to her pending testimony in the Jones
    case. One could conclude that the numerous calls made by Mr.
    Jordan to the President and Ms. Currie, the calls made by the
    President to Mr. Jordan, and the calls made by Mr. Carter to
    Mr. Jordan, calls which coincided with the effort to get Ms.
    Lewinsky to file a false affidavit and secure her a job, were
    simply coincidental.
        One could surmise that Mr. Jordan's call to Ronald Perelman
    after Ms. Lewinsky felt she had a bad interview, which call led
    to a second successful interview, was unrelated to her
    cooperation in signing the affidavit only a day earlier. One
    could believe that Mr. Jordan had a great interest in assisting
    Ms. Lewinsky to find a job prior to her name showing up on the
    witness list in the Jones case and only failed to do so because
    he had no time, but was somehow able to find and devote
    substantial time to that effort, coincidentally, after her name
    showed up on the witness list. One could undertake such
    speculation. But that would defy common sense and reason.
        The President became personally engaged in the effort to
    find Ms. Lewinsky a job only after her name appeared on the
    Jones witness list. He then used his powerful friend to find
    Ms. Lewinsky a job because he believed out of gratitude for his
    help in obtaining a job, she would continue to hide their
    relationship. He kept in constant direct contact with Mr.
    Jordan up until the time that the affidavit was completed and
    she had received and accepted a job offer from Revlon. Indeed,
    the President actually spoke to Mr. Jordan during a meeting
    between her and Mr. Jordan on December 19, 1997. (Lewinsky
    Grand Jury Testimony, Aug. 6, 1998, p. 131.) Mr. Jordan
    immediately called the President to report his fears the moment
    he thought Ms. Lewinsky may have turned Government witness when
    he learned Mr. Carter had been relieved of his representation
    by her. (Jordan Grand Jury Testimony, June 9, 1998, pp. 45-46.)
        One need only look at the contrary actions by the President
    once he believed Ms. Lewinsky may have decided to cooperate
    with the independent counsel investigation. Once he believed
    that she may have been cooperating with the Office of the
    Independent Counsel, he began to disparage her to aides like
    Sidney Blumenthal. (Blumenthal Deposition Testimony, Feb. 3,
    1999, 145 Cong. Rec. S1248). After that date, the President
    discussed the wisdom of destroying her credibility and
    reputation with Dick Morris. (Morris Grand Jury Testimony, Aug.
    18, 1998, p. 35.) Can anyone doubt that her favorable testimony
    was tied into the President's efforts to conceal his
    relationship with her and that the intensified job search was
    the President's endeavor to keep her from telling the truth?
    Put another way, does anyone believe that the President would
    have used Vernon Jordan to help get her a job after she agreed
    to tell the truth to the Jones attorneys or to the independent
    counsel? Of course not. It was not in the President's interest
    to reward her for the truth--she was only rewarded for her
    failure to tell the truth. Her reward for telling the truth was
    to be smeared by the President and his spin machine.
        The President's attorneys repeat the mantra that Ms.
    Lewinsky believes that she was not promised a job for her false
    testimony in the Jones case. But that really isn't the issue.
    The law requires an endeavor to corruptly influence her
    testimony. Regardless of how Ms. Lewinsky perceived or
    misperceived the reasons for the high-level assistance she
    received, there was no such misconception on the part of the
    President and Mr. Jordan. The corrupt endeavor by the President
    was confirmed by two powerful and compelling words that cannot
    be parsed or stripped of meaning. Those two words summed up the
    month long effort to protect the President: ``Mission
    accomplished.'' There can be no other meaning of those words in
    the context used by Mr. Jordan other than the completion of a
    crucial and time sensitive task by him on behalf of the
    President.
        The proof as to subpart (4) is sustained beyond a
    reasonable doubt that the President intensified and succeeded
    in an effort to secure job assistance to a witness in a Federal
    civil rights action brought against him in order to corruptly
    prevent the truthful testimony of that witness in that
    proceeding at a time when the truthful testimony of that
    witness would have been harmful to him.
        Subpart (5) alleges that:

        On January 17, 1998, at his deposition in a Federal civil rights
    action brought against him, William Jefferson Clinton corruptly allowed
    his attorney to make false and misleading statements to a Federal judge
    characterizing an affidavit, in order to prevent questioning deemed
    relevant by the judge. Such false and misleading statements were
    subsequently acknowledged by his attorney in a communication to that
    judge.

        There is no question that during the deposition of the
    President by the Jones attorneys, the President's attorney, Mr.
    Bennett, made the following statement:

    . . . Counsel is fully aware that Ms. Lewinsky has filed, has an
    affidavit which they are in possession of saying that there is
    absolutely no sex of any kind, in any manner, shape or form, with
    President Clinton . . .

        Mr. Bennett made this statement in an effort to cut off any
    questioning of the President about his relationship with Ms.
    Lewinsky. That statement was false, as was later admitted by
    Mr. Bennett, even given the contorted reading of the definition
    of sexual relations as purportedly understood by the President.
    It is equally clear that the President did not correct this
    assertion by his attorney.
        The President's primary defense to this allegation is that
    he wasn't paying attention to what was said by his attorney.
    This statement cannot be believed. The videotape of that
    deposition clearly shows the eyes of the President shifting
    from person to person as each spoke or argued their perspective
    on the issue. As each spoke, the President focused on the
    speaker. It is ludicrous to assert that when the name Monica
    Lewinsky was brought up, the President was not keenly aware of
    the significance of that line of questioning.
        He knew the work that had been done to get her affidavit
    completed before the deposition. He understood the disclosure
    of that relationship could do irreparable damage to his case
    and to his Presidency. There is nothing to indicate he was
    anything less than completely aware of what was said and of his
    failure to correct that record to his detriment. I choose to
    believe my own eyes and common sense, not the implausible
    explanation put forward by the attorneys for the President.
        The secondary defense offered by the President, that Mr.
    Bennett's use of the word ``is'' precluded the necessity to
    reveal any sexual relationship with Ms. Lewinsky not occurring,
    essentially, in that room during the deposition, is not worthy
    of a detailed refutation or response.
        The evidence demonstrates that the President allowed his
    attorney to make false and misleading statements to a Federal
    judge characterizing an affidavit, in order to prevent
    questioning deemed relevant by the judge, thus obstructing the
    administration of justice.
        In subpart (6), the House makes the contention that:

        On or about January 18, 1998, and January 20-21, 1998, William
    Jefferson Clinton related a false and misleading account of events
    relevant to a Federal civil rights action brought against him to a
    potential witness in that proceeding, in order to corruptly influence
    the testimony of that witness.

        This allegation relates to the statements made to Ms.
    Currie by the President in his unusual Sunday meeting with her
    after the Jones deposition, and in his repetition of those
    statements the following Tuesday or Wednesday after the Starr
    investigation had become public. The President has not
    contested the fact that the statements made to Ms. Currie were
    false and misleading. Nor has he provided any answer as to why
    the statements, if designed to help refresh his recollection,
    were false and had to be repeated to her again several days
    later. After being confronted with the subpoena issued to Ms.
    Currie by the Jones attorneys in the days after his deposition,
    and the revised witness list containing her name, the
    President's attorneys have now backed off the notion that no
    one could have thought Ms. Currie would be a witness at the
    time of these statements. Despite this, the President still
    asserts that those false and misleading statements were
    designed to refresh his recollection and that he personally did
    not believe that she would become a witness. Once again, this
    defense defies credulity.
        When these statements were made, the President was defying
    a court order not to discuss his testimony. (Clinton Deposition
    Testimony, Jan. 17, 1998, pp. 212-13.) He knew it was essential
    to do so regardless of that order because he had blatantly
    inserted Ms. Currie into the case as a fact witness. He
    mentioned her name during his deposition no less than six
    times, on one occasion even stating that the Jones attorneys
    would have to ``ask Betty.'' Clearly, the Jones attorneys got
    the message; they added Ms. Currie to the witness list and
    subpoenaed her the following week. So did the President. Having
    ``brought'' her into the case, the President realized the
    absolute need to make sure her testimony would dovetail with
    his assertions that he had no improper relationship with Ms.
    Lewinsky.
        It is apparent that the Sunday meeting was designed to
    corruptly mislead Ms. Currie when she would be called as a
    witness in the Jones case. What was left unanswered by the
    President, but for which there can be but one answer, was why
    the President repeated the false statements to Ms. Currie on
    Tuesday or Wednesday.
        The answer lies in the record. By Tuesday, the President
    had learned that Judge Starr was investigating the case.
    (Jordan Grand Jury Testimony, June 9, 1998, pp. 55-74.) He knew
    that the evidence in the Jones case would lead Judge Starr to
    Ms. Currie, just as surely as he knew it would lead the Jones
    attorneys to her. So he had to reinforce the false statements
    he had told Ms. Currie the previous Sunday because the stakes
    had just risen substantially. The President needed to be sure
    he was covered by Ms. Currie for both the Jones case and for
    the independent counsel investigation to come.
        Once again the evidence shows that the President related a
    false and misleading account of events relevant to a Federal
    civil rights action brought against him to a potential witness
    in that proceeding, in order to corruptly influence the
    testimony of that witness.
        The House asserts in subpart (7) that:

        On or about January 21, 23 and 26, 1998, William Jefferson Clinton
    made false and misleading statements to potential witnesses in a
    Federal grand jury proceeding in order to corruptly influence the
    testimony of those witnesses. The false and misleading statements made
    by William Jefferson Clinton were repeated by the witnesses to the
    grand jury, causing the grand jury to receive false and misleading
    information.

        This subpart relates to the President's discussions with
    Erskine Bowles, John Podesta and Sidney Blumenthal concerning
    the nature of his relationship with Ms. Lewinsky. The President
    does not deny the testimony of Mr. Podesta where he related
    that the President said that he had no sexual relationship with
    Ms. Lewinsky, including oral sex. Nor does he deny the
    testimony of Sidney Blumenthal that he characterized Ms.
    Lewinsky as a stalker who had threatened him, and whose
    seduction he had declined. The President also admits that he
    knew it was likely they would be grand jury witnesses when he
    made those statements to them.
        Their client having conceded the basic facts of this
    allegation, the President's attorneys first try to make the
    argument that the President could not have been intending to
    influence the grand jury since he did not tell his aides
    anything different than he had told any other person publicly.
    However, the evidence is unrefuted that his denials to his
    aides were fundamentally different from his public
    pronunciations in that they departed from even his tortured
    definition of sexual relations. Moreover, he created a false
    impression of Ms. Lewinsky in order to besmirch her character
    and credibility in a blatant attempt to both misguide the grand
    jurors, and it can be inferred by the fact such information was
    provided to his communications aide, to publicly disparage her
    character.
        The second defense offered is that the President's attempts
    to keep his aides out of the grand jury show he was not trying
    to corruptly influence that body. However, this argument loses
    force in light of the fact that only specious arguments were
    made to prevent their testimony. Knowing they would fail, they
    were arguably designed to serve his private interest in
    delaying the investigation and creating an impression of Judge
    Starr as overreaching and out of control. Moreover, the
    President had months to correct his misstatements to Mr.
    Blumenthal prior to his grand jury testimony, but failed to do
    so even when he knew he would be called before the grand jury
    to repeat the earlier lies told to him by the President.
    (Blumenthal Deposition Testimony, Feb. 3, 1999, 145 Cong. Rec.
    S1249.)
        In effect, the President killed two birds with one stone.
    His chimeric fight to prevent his aides from testifying was
    used effectively in a public relations campaign to impugn the
    independent counsel investigation. And when he lost the
    ``battle'' that he knew would inevitably fail, he was aware the
    false and slanderous testimony preordained to be given by his
    aides would be of assistance to him in misleading the grand
    jury.
        There is substantial proof as to subpart (7) that the
    President made false and misleading statements to potential
    witnesses in a Federal grand jury proceeding in order to
    corruptly influence the testimony of those witnesses.
        For the reasons I have just outlined, the evidence proves
    beyond a reasonable doubt, that the President is guilty of
    article II.
        This impeachment trial is of momentous constitutional
    consequence. A removal of the President--a coequal branch of
    government--must not be taken lightly. But that--now that we
    have decided to end the trial by a final vote--does not negate
    the duty that each Senator has, as individual conscience
    dictates, to vote to acquit or convict based upon the evidence.
    Posterity demands that each of us justify the votes Senators
    render in the impeachment trial of the President.
        Future generations of Americans will look to what we do as
    precedents for impeachments. This is particularly true since
    our Nation has faced only one impeachment trial of a
    President--that of Andrew Johnson in 1868. But it is also true
    for judges and other Federal officials as well. Let me thus
    explain in some detail why I shall vote for conviction.
        The Constitution vests great discretion in the Senate in
    determining whether to remove an impeached official. The
    framers intentionally followed the English model where the
    House of Commons possessed the power to impeach or indict
    officials and the House of Lords the authority to try the
    impeached official. As such, the House of Representatives was
    delegated the authority to impeach and the Senate the power to
    try, convict, and remove. The Senate was chosen as the
    repository of this awesome power because it was considered the
    more mature Chamber of Congress. Serving 6-year terms instead
    of the 2 years for the House, the Senate was seen as a bulwark
    against the shifting tides of public opinion.
        The age qualification differences--30 for the Senate and 25
    for the House--demonstrates that maturity in the Senate would
    dominate over youthful passion. And most important, while the
    House was prone to passionate factional rifts, because
    Representatives are elected from small sometimes single-issue
    districts, Senators are elected statewide where, it was hoped,
    factions would counteract factions. Thus, the Senate was
    designed to be more attuned to the public interest than to the
    special interest.
        Consequently, when the Senate sits as a court of
    impeachment, it does not have to rubber-stamp the House's view
    as to what is an impeachable offense. As recognized by the
    Supreme Court in the Nixon case, the Senate was vested by the
    framers with the sole power to try impeachments. The Senate is
    thus vested with independent judgment as to what process to
    employ in the trial.
        It also follows that the Senate was granted the discretion
    to determine whether the factual allegations made by the House
    are true and whether such findings by the Senate rise to the
    level of high crimes and misdemeanors. Furthermore, the Senate,
    as the upper Chamber insulated against popular passions and the
    factions of special interests, could make a subjective
    determination of the public good in defining high crimes and
    misdemeanors and in removing an official.
        In the words of my esteemed colleague, Robert Byrd, the
    answer of whether a person is fit to remain in office requires
    both detached objectivity and subjective judgment rising above
    temporary popular passions of whether continuation in office
    ``brings the political--or judicial--system into disrepute and
    undermines the people's trust and confidence in government.''
        Supportive of this discretionary authority to remove
    officials--an authority that must be divorced from the fleeting
    and flaming emotions of the times--is the constitutional
    supermajority safeguard of a two-thirds vote of the Senate
    needed to remove officials. This requirement is a further
    guarantee against the tide of popular passion and tilts the
    impeachment process towards acquittal.
        Accordingly, a Senator in impeachment trials must consider
    two factors: (1) whether the allegations are true; and (2)
    whether the facts proven rise to the level of high crimes and
    misdemeanors--impeachable offenses. In determining the second
    prong--whether the facts proven rise to the level of high
    crimes and misdemeanors--the subjective intent of Senators of
    what is in the public interest is a factor to consider. I have
    already discussed the facts and the standard for impeachable
    offenses. Now I will discuss whether the public interest--in
    other words what is best for the country--requires that the
    acts committed by President Clinton rise to the level of high
    crimes and misdemeanors requiring his removal.
        I believe that it has. Some of my colleagues, particularly
    those on the other side of the aisle, contend that it is not in
    the public interest to remove President Clinton, because the
    economy is doing well, or because of his foreign policy
    successes, or because he is extremely popular in the polls. But
    these factors--no matter how important--do not justify ignoring
    the constitutional mandate of removal upon proving that
    impeachable acts were committed.
        Polls should not be a factor in this trial. Our system of
    government is not a pollocracy. It is a representative republic
    where the people, as a constitutional matter, speak only
    through elections of their representatives. America is thus a
    constitutional republic, and will remain so ``if''--in the
    words of Benjamin Franklin--``you can keep it.'' The only way
    to ``keep it'' is to respect the processes established by the
    Constitution itself.
        Simply put, the Constitution mandates the conviction and
    removal of civil officers, including the President, upon
    proving ``treason, bribery, and other high crimes and
    misdemeanors.'' I believe that the House managers have proved
    beyond a reasonable doubt that President Clinton has committed
    acts of perjury and obstruction of justice. I believe that
    Senators should come to the same subjective determination, as I
    have, that these acts of perjury and obstruction of justice so
    erodes our civil and criminal justice system as to conclude
    that the public good is served by removal.
        A President of the United States is not simply a political
    leader. A President is a head of state and a role model for
    Americans, particularly our children. What kind of message will
    we send to our posterity if President Clinton's conduct is not
    considered worthy of removal? What amount of cynicism and
    disrespect for our governmental institutions will we engender
    if we impose one set of rules for the common man--imprisonment
    for acts of perjury and obstruction of justice--and another for
    the President of the United States--who receives a pass from
    removal because he is powerful or has done a ``good job'' in
    some eyes?
        Our children are extremely vulnerable to the growing
    cynicism surrounding this trial. We have all heard stories that
    some children justify their deceits by claiming that the
    President of the United States lied as well. Many wise
    philosophers have exclaimed that a republic can survive only if
    its citizens are moral. I am afraid that our children may not
    learn that lesson.
        Not to remove here is to diminish the rule of law. As
    Manager Rogan warned in his closing argument, ``[u]p until now,
    the idea that no person is above the law has been unquestioned.
    And yet this standard is not our inheritance automatically.
    Each generation of Americans ultimately has to make the choice
    for themselves. Once again, it is time for choosing. How will
    we respond?'' We should respond by safeguarding the rule of law
    by voting to remove the President.
        Whether President Clinton has done a ``good job'' is a
    matter of partisan debate. In fact, adopting a ``good job''
    exception--a term that is so flexible and vague as to be
    meaningless as a constitutional standard--merely exasperates
    the partisan tensions ever present in impeachment trials.
        The same analysis applies for the ``good economy means no
    removal'' theory. It is intuitive that economic growth can
    never justify crime or acts rising to the level of high crimes
    and misdemeanors warranting removal. If President Clinton is
    removed, our economy will not suffer. The world will still spin
    on its axis. Our Constitution provides for orderly succession
    and stable government. Removal will not overturn an election,
    as some have argued. The constitutional impeachment procedures
    were designed simply to remove unqualified or corrupt
    officials. Vice President Gore, pursuant to the Constitution,
    will become President and life will go on.
        Let me emphasize that by requiring removal upon proving the
    commission of impeachable offenses, the framers believed that
    it is in the public good to remove the official.
        President Clinton is guilty of high crimes and misdemeanors
    and his poll numbers, no matter how lofty, cannot insulate him
    from the dictates of the Constitution. The President believes
    that a rule of polls should govern the Senate's decision. But
    as Manager Rogan correctly observed, ``the personal popularity
    of any President pales when weighed against the fundamental
    concept that forever distinguishes us from every nation on the
    planet. No person is above the law.'' There is no escaping the
    Senate's duty enshrined in the impeachment oath that we do
    ``impartial justice'' and remove the President if we believe
    that his actions amounted to high crimes and misdemeanors.
        I do not take pleasure or gain any sense of gratification
    for the decision I must make today. For literally months, night
    and day, I have anguished over the serious accusations against
    President Clinton and what they mean for our country, our
    society, and our children.
        I know none of us enjoys sitting in judgment of the
    President, our fellow human being, but that is our job and we
    cannot ignore our responsibility. I believe most of us will do
    a sincere job of trying to fulfill our oath to do impartial
    justice.
        I have diligently strived to extend my deepest respect to
    the President--indeed, to the Presidency--throughout this
    process. I wanted to be able to support President Clinton. I
    believe that I have been more than fair. I have tried not to
    rush to judgment.
        All of my life I have been taught to forgive and forget. I
    have always tried to live up to that belief. As a leader in my
    church, I have dealt with a great number of human frailties,
    people with a wide variety of problems, and I have always
    believed that good people can repent of their sins and be
    forgiven.
        Indeed, to the dismay of some, I had expressed a hope and a
    desire early on in this constitutional drama that the President
    would acknowledge his untruthful statements. He chose to do
    otherwise and perpetuated his untruthfulness. Although some
    believe this is solely a private matter, I feel this is really
    about the President's fidelity to the oath of office and the
    rule of law.
        I have always been prepared to vote my conscience. Indeed,
    my concerns regarding the bad precedent a likely acquittal
    would set have been somewhat calmed by something the great
    constitutional scholar, Joseph Story, once wrote about
    acquittal in impeachment cases. Mr. Story noted that in cases
    in which two-thirds of the Senate is not satisfied that a
    conviction is warranted, ``it would be far more consonant to
    the notions of justice in a republic, that a guilty person
    should escape than that an innocent person should become the
    victim of injustice from popular odium . . . ''
        Nonetheless, I am reminded of a quote by President Theodore
    Roosevelt, a statement that applies to the matter before the
    Senate:

        Honesty is not so much a credit as an absolute prerequisite to
    efficient service to the public. Unless a man is honest, we have no
    right to keep him in public life; it matters not how brilliant his
    capacity. . . .
        ``Liar'' is just as ugly a word as ``thief,'' because it implies
    the presence of just as ugly a sin in one case as in the other. If a
    man lies under oath or procures the lie of another under oath, if he
    perjures himself or suborns perjury, he is guilty under the statute
    law. Under the higher law, under the great law of morality and
    righteousness, he is precisely as guilty if, instead of lying in a
    court, he lies in a newspaper or on the stump; and in all probability
    the evil effects of his conduct are infinitely more widespread and more
    pernicious.

        President Theodore Roosevelt's words cannot be ignored--nor
    can the Constitution. After weighing all of the evidence,
    listening to witnesses, and asking questions, I have concluded
    that President Clinton's actions warrant removal from office.
        Committing crimes of moral turpitude such as perjury and
    obstruction of justice go to the heart of qualification for
    public office. These offenses were committed by the Chief
    Executive of our country, the individual who swore to
    faithfully execute the laws of the United States.
        This great Nation can tolerate a President who makes
    mistakes. But it cannot tolerate one who makes a mistake and
    then breaks the law to cover it up. Any other citizen would be
    prosecuted for these crimes.
        President Clinton did more than just break the law. He
    broke his oath of office and broke faith with the American
    people. Americans should be able to rely on him to honor those
    values that have built and sustained our country, the values we
    try to teach our children--honesty, integrity, being
    forthright.
        For 13 miserable months, we have struggled with the
    question of what to do about President Clinton's actions. The
    struggle has divided the Nation.
        To those of us who have ourselves taken an oath to uphold
    the Constitution--which represents the rule of law and not of
    men--it should not matter how brilliant or popular we feel the
    President is. The Constitution is why we govern based on the
    principle of equality and not emotion. The Constitution is what
    guides us as a nation of laws and not personalities. The
    Constitution is what enables us to live in freedom.
        I will vote for conviction on both articles of impeachment
    not because I want to but because I must. Upholding our
    Constitution--a sacred document that Americans have fought and
    died for--is more important than any one person, including the
    President of the United States.
        When all is said and done, I must fulfill my oath and do my
    duty. I will vote guilty on both article I and article II.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                     Statement of Senator Patrick J. Leahy

        Mr. LEAHY. Mr. Chief Justice, I would like to submit a
    statement delivered by our colleague Senator Dodd on January 8
    at the commencement of the impeachment trial of President
    Clinton.
        This statement, like the others delivered that day, is
    remarkable in several respects.
        First, it captures the rich history that has transpired
    over the years in the Old Senate Chamber--a history marked
    often by greatness, but occasionally by shame.
        Second, it wonderfully expresses Senator Dodd's own
    personal sense of the history of the Senate. His reflections on
    past Senators--from Roger Sherman, the Founding Father whose
    seat Senator Dodd occupies, to his own father, former Senator
    Thomas Dodd--remind us that the Senate is an institution made
    up of individuals, and that the totality of their actions
    shapes the destiny not just of the Senate itself but indeed of
    the entire country.
        Third, and most importantly, Senator Dodd's statement
    stands as a powerful plea for cooperation and bipartisanship in
    the discharge of the Senate's profound responsibility in this
    trial. Senator Dodd's statement played a critical role in
    setting the stage for the historic bipartisan agreement reached
    at the outset of the trial, and for the spirit of civility that
    prevailed throughout this ordeal. I commend Senator Dodd's
    statement to all citizens who in the future may wish to learn
    something of how the Senate was inspired to conduct the
    impeachment trial of President Clinton in a noble and dignified
    manner.
        I am beginning my 25th year in the Senate. After Senator
    Dodd spoke I told him his speech was one of the finest I had
    heard in those years.
        No Senator ever spoke more directly--or more persuasively--
    to other Senators about the duty we all have to the
    Constitution and the Senate. I am proud to serve with him.
        I ask unanimous consent that the text of Senator Dodd's
    statement be printed in the Record.
        There being no objection, the statement was ordered to be
    printed in the Record as follows:

    Remarks by Senator Christopher J. Dodd, Old Senate Chamber, January 8,
                                      1999

        Mr. DODD. Let me begin by thanking our two leaders. While none of
    us can say with any certainty how this matter will be concluded, if we,
    like every other institution that has brushed up against this lurid
    tale, end up in a raucous partisan brawl, it will not be because of the
    example set by Tom Daschle and Trent Lott. The graces have once again
    blessed this extraordinary body by delivering two noble and decent men
    to lead us.
        I want to express a special thanks to you, Tom, for asking me to
    share my thoughts this morning on the issue before us.
        On a light note, it was in this very room 4 years ago that I lost
    the Democratic leader's post to Tom Daschle. Of the 47 members of the
    Democratic Caucus, 46 were here that morning to vote. When the ballots
    were counted, Tom and I had each received 23 votes--a dead heat. The
    absent Democratic colleague who voted for Tom with a proxy ballot was
    Ben Nighthorse Campbell. Several weeks later I received a very late
    night call from Ben in which he shared with me his decision to change
    political parties. Ben and I have been good friends for some time, and
    I told him he ought to do what he felt was right. The next morning I
    decided to have some fun with our Democratic leader, Tom Daschle, by
    sending him a note asking that in light of Ben's decision to become a
    Republican, did Tom think a recount of the leader's race might be in
    order?
        Considering the wonderful job our leader Tom has done, particularly
    over these last several weeks, I'm glad he did not even consider the
    offer.
        Allow me further to note a point of personal privilege. I am deeply
    proud to share the representation of my State in the Senate with Joe
    Lieberman. Over these past couple of weeks, Joe and Slade Gorton have
    once again demonstrated the value of their presence in the Senate.
    While many of us, from time to time, have claimed to speak for the
    Senate--few rarely do. On that day in September, Joe, your remarks
    delivered on the Senate floor about the President's behavior were, I
    believe, the sentiments of the entire Senate. We thank you.
        Joe and I represent the Constitution State. Joe sits in the seat
    once held by Oliver Ellsworth, the second Chief Justice of the Supreme
    Court. I sit in the seat of Roger Sherman, the only Founding Father to
    sign all four of our cornerstone documents: the Declaration of
    Independence, the Articles of Confederation, the Constitution and The
    Bill of Rights. Roger Sherman was also the author of the Connecticut
    Compromise which created this Senate in which we now serve.
        So by institutional lineage, I feel a special connection with the
    Senate. On a personal level, I am also very much a product of the
    Senate. Forty years ago this week, I was a very proud 14-year-old
    watching from the family gallery as my father took the same oath I took
    on Wednesday. I also remember that day meeting another new Senator,
    Robert C. Byrd of West Virginia.
        I only mention these facts because I am overwhelmed by a profound
    sense of history as we embark on this perilous journey over the coming
    weeks. I want my institutional forebear, Roger Sherman, and my father
    to judge that on my watch, as a temporary custodian of this Senate
    seat, I did my best.
        I want to express a special thanks to Trent Lott for having the
    wisdom of choosing this most historical room for our joint caucus.
    Trent could have chosen any number of other venues, larger, more
    accommodating rooms around the Capitol for this meeting. But either by
    divine inspiration or simple choice he decided to bring us--Democrats
    and Republicans--together here.
        It was 140 years ago this week--January 4, 1859--that our Senate
    predecessors moved from this room to the Chamber we now occupy. While
    in use, this room was the stage of some of the Senate's most worthy and
    memorable moments.
        The Missouri Compromise was brokered here. So was the Compromise of
    1850. And the famous Webster-Hayne debate took place here in 1830. The
    spirits of Henry Clay, John Calhoun and Daniel Webster--great
    statesmen, great compromisers, giants of our Senate--are here with us
    today. Maybe one day those who come after us will add this joint
    meeting to the list of those other great moments in the history of the
    U.S. Senate.
        But this Chamber also witnessed one of the Senate's most
    regrettable moments--the caning in 1856 of Senator Charles Sumner by
    Representative Preston Brooks.
        Congressman Brooks walked right through this center door and
    proceeded to beat Senator Sumner.
        That tragic incident was precipitated by a strong antislavery
    speech from Senator Sumner in which Representative Brooks felt Sumner
    had accused his colleague and Brook's cousin, Senator Andrew Butler of
    South Carolina, of having an illicit sexual relationship with a young
    woman who was a slave.
        Far from being a momentary bitter, personal dispute, the Sumner
    caning, according to many historians, effectively ended the thin shred
    of comity and compromise that existed in the Senate. Forty-eight months
    later our great Civil War began.
        We are now gathered in this revered room in the face of a great
    constitutional question. Which of the spirits that inhabit this Chamber
    will prevail as we begin this process? Can we find the common ground of
    Clay, Calhoun and Webster? Or will we assault each other by resorting
    to a rhetorical caning?
        I would urge our two leaders to try once more before the scheduled
    vote of 1 p.m. to find a solution to the issue of witness testimony.
        It has been argued that there is little or no difference between
    the two proposals, and, while they may seem slight, I believe our
    failure to make the right choice puts the conduct of this process and
    the public confidence in the Senate at grave risk.
        The President's conduct was deplorable; the conduct of the Office
    of Independent Counsel has raised grave concerns on all sides; and the
    highly partisan spectacle in the House has provoked public revulsion.
    We are the court of last resort--the only hope of restoring public
    confidence rests with us.
        The issue of whether to exclude witnesses altogether or leave open
    the possibility of their testimony rests on how we weigh the relative
    risk of prohibiting witnesses against the risk of severely damaging or
    destroying the shared goals and desires of all Senators.
        Over the past several weeks, in telephone conversations, meetings
    and joint appearances on news programs, I have concluded there are six
    points of common agreement:
              (1) There is the sincere desire for this profound burden we
            did not ask for to be devoid of partisanship;
              (2) We must act with total fairness, and we must be perceived
            by the public as having acted fairly;
              (3) We must act with deliberate speed and not flounder;
              (4) We must assure that the Senate retains sole custody of
            how this matter is conducted and concluded;
              (5) We must demonstrate appropriate respect for the judicial
            branch, the executive branch and the House of Representatives;
            and
              (6) We must jealously protect the dignity of the Senate as we
            consider what most Americans believe to be, at the very least,
            the most undignified personal behavior of an American
            President.
        If we permit the House managers and the White House to call
    witnesses, do we not risk the partisan brawling through party-line
    voting that will surely ensue? And does not that risk outweigh the risk
    that some of us may not benefit from body language or voice inflection
    that some witnesses may provide? I think not.
        A process as proposed by Senators Gorton and Lieberman that allows
    a full explanation of the House managers case over several days and an
    equal amount of time allocated for the President's defense, in addition
    to 2 days of questions from Senators, would meet any reasonable
    person's standard of fairness. The added fact that we will have at our
    disposal more than 60,000 pages of grand jury testimony, hearings and
    evidence should satisfy any objective analysis that we can conduct this
    process fairly.
        There is no more important business before the Senate than the
    conduct and conclusion of this impeachment trial. I am of the view that
    no other business ought to intervene while this matter is pending. As I
    have said, we must act fairly--but we must also act expeditiously--not
    rush--but act with deliberate speed and purpose.
        Any first semester law student knows that once witnesses are
    subpoenaed, fundamental fairness allows for depositions and discovery.
    Depending on the number of witnesses, the delays will undoubtedly be
    lengthy.
        I readily acknowledge that there are some risks in excluding the
    testimony of live witnesses--but does that risk exceed the almost
    certain risk of causing the Senate to be unnecessarily tied up with
    this matter for weeks if not months?
        As I have stated, this unsolicited task of disposing of this
    impeachment is paramount, but we would all agree it is not our only
    responsibility.
        There are urgent matters, both foreign and domestic, that we must
    attend to in the 106th Congress. Pete Domenici's concern about the
    budget and not repeating the budget debacle of last year, Social
    Security reform, Ted Stevens' concern about the accuracy of our weapons
    in Iraq, and the Brazilian economic crisis are just a small sample of
    the agenda this Senate must address. The risk of not dealing with these
    matters must be weighed against the wisdom of calling live witnesses in
    this proceeding.
        The Constitution is clear--only the Senate has the power to try
    impeachments. We and we alone must be the custodians of our own
    procedures. While the calling of live witnesses does not necessarily
    mean the Senate would lose control of the proceedings, there is the
    undeniable risk that once the witness parade begins, the ability of the
    Senate, and the Senate alone, to manage these proceedings fairly,
    expeditiously, and in a nonpartisan fashion could be lost.
        We Senators have a serious responsibility to be respectful of the
    judicial branch in the presence of Chief Justice Rehnquist, the
    executive branch in the presence of counsel for the President, and the
    House of Representatives in the presence of the House managers. Being
    respectful and deferential to these institutions should not be confused
    with deferring to these institutions. Chief Justice Rehnquist has
    indicated to our leaders that he intends to be a passive presiding
    officer, except in some narrow instances. The White House, through
    their counsel, indicated that it would prefer to avoid calling
    witnesses. Only the House managers are insisting on the use of
    witnesses. Furthermore, the House managers agree that the exclusion of
    witnesses by the Senate would deprive them of the ability to make their
    case and be taken as an act of disrespect by the Senate.
        I find it stunningly ironic that the House Judiciary Committee saw
    no similar disrespect to their fellow House members when they presented
    their articles of impeachment before the full House without the benefit
    of a single witness appearing before their panel. When asked why no
    witnesses had been called before the House Judiciary Committee, some
    Members argued that the calling of witnesses would have unduly delayed
    their proceedings and the presence of some witnesses could have
    reflected poorly on the dignity of the House.
        The obvious question occurs that if the House managers were
    unwilling to risk an expeditious handling of their procedures and
    unwilling to risk the potential for a lewd and lurid spectacle in their
    Chamber, why then should we in the Senate submit our Chamber to similar
    risks when there is no compelling benefit to be gained?
        A process that would allow either side in this matter to call
    witnesses--with the approval of a bare majority--risks setting in
    motion a Senate proceeding where we Senators would sit in muted
    silence, as my friend Mitch McConnell has pointed out, while our
    Chamber becomes the stage for the most lurid and salacious testimony of
    which we and the American people are all too painfully aware and of
    which the public wants to hear no more.
        Would whatever marginal benefit this testimony could provide
    outweigh the cost to the reputation of the Senate or the dignity of
    this institution?
        I submit that we should not run the risk of allowing this
    institution to be used by anyone as a forum to appeal to the most base
    instincts of a few.
        For these reasons, I would strongly urge you, my colleagues, not to
    run all the substantial risks to the conduct of this process and the
    reputation of our Senate by permitting the unnecessary procession of
    witnesses in the well of our Chamber.

                                     ______

           [From the Congressional Record--Senate, February 23, 1999]

                       Statement of Senator Jeff Sessions

        Mr. SESSIONS. Mr. Chief Justice, the Constitution of the
    United States requires the Senate to convict and remove the
    President of the United States if it is proven that he has
    committed high crimes while in office. It has been proven
    beyond a reasonable doubt and to a moral certainty that
    President William Jefferson Clinton has persisted in a
    continuous pattern to lie and obstruct justice. The chief law
    officer of the land, whose oath of office calls on him to
    preserve, protect and defend the Constitution, crossed the line
    and failed to protect the law, and, in fact, attacked the law
    and the rights of a fellow citizen. Under our Constitution,
    such acts are high crimes and equal justice requires that he
    forfeit his office. For these reasons, I felt compelled to vote
    to convict and remove the President from office.
        Facing a lawsuit the U.S. Supreme Court had upheld against
    him, President Clinton had to make a decision. He could tell
    the truth or lie and obstruct justice. He took the course of
    illegality. This case is not about an isolated false statement,
    it is about the President of the United States using his
    office, his power, his staff, and his popularity to avoid
    providing truthful answers and evidence that was relevant to a
    civil lawsuit. President Clinton's actions demonstrated a
    pattern of untruth and disdain for the legal system he had
    sworn to uphold.
        President Clinton resisted the lawsuit from the time it was
    filed. Among other defenses, he argued that he, as the
    President, was not subject to the civil legal system while in
    office. The Supreme Court unanimously rejected this
    proposition. His legal arguments having failed, the President
    began to use illegal means to defeat the action. Since the
    truth would be damaging, he took steps to see that the truth
    concerning his relationship with Monica Lewinsky would never
    come out.
        President Clinton began his obstruction of justice by
    denying to the court material truths. He first filed with the
    court false answers to written questions, interrogatories,
    under oath. He then bolstered his lies to the court by
    procuring from Monica Lewinsky a supporting false affidavit
    which he filed with the court. When questioned at his
    deposition about the truthfulness of the Lewinsky affidavit,
    President Clinton, without any hesitation, told the court that
    it was ``absolutely true.'' The President then proceeded,
    confident in his obstruction of the truth, to lie repeatedly
    under oath about their relationship in the deposition.
        Indeed, the President orchestrated a scheme to deceive the
    court, the public and the grand jury. The facts are disturbing
    and compelling on the President's intent to obstruct justice.
    When Monica Lewinsky received a subpoena for the gifts, the
    President knew that if they were produced, his relationship
    would be revealed. I believe Monica Lewinsky's testimony that
    she discussed with the President what to do with the gifts. I
    also believe that Betty Currie got the gifts from Monica
    Lewinsky and hid them under her bed only after approval from
    the President. Secreting evidence under subpoena is a crime.
    The President secured a job for Ms. Lewinsky in large part
    because he wanted her to file a false affidavit and to continue
    to cover up their true relationship. The President coached his
    personal secretary twice to ensure that if she were called as a
    witness in the civil case she would not contradict his
    testimony given the day before. The President intentionally
    lied to aides in an effort to have them mislead the public and
    the grand jury. This is to me a clear pattern of obstruction of
    justice.
        The most conclusive proof of obstruction of justice,
    however, is the most obvious. Clearly, the President succeeded
    at defeating the right of the Paula Jones attorneys to get
    discovery as they were entitled. He got away with it. But for
    the indisputable DNA evidence that was only produced when Ms.
    Lewinsky confessed 7 months later, the obstruction would have
    continued to be successful. Even when confronted with this
    evidence at the grand jury in August, the President chose to
    confuse the definition of words that have plain meanings
    instead of telling the truth.
        From a strictly legal point of view the perjury count was
    not as clear as it might first appear. In fact, standing alone
    these perjury charges may have failed to be impeachable.
    However, the President made his false statements as part of a
    continuous pattern to obstruct justice and deceive. This
    pattern establishes the necessary criminal intent. The
    President before the grand jury continued to deny facts and
    details that are by their very nature important in a sexual
    harassment suit. The President also intentionally deceived the
    grand jury regarding his participation in the concealing of the
    gifts and lied regarding his effort to obstruct justice by
    coaching Betty Currie. His admissions, though significant,
    steadfastly failed to cover any issues that would establish
    that his previous actions were in violation of the law. The
    President denies that these statements are false. However, he
    has no reservoir of credibility left after he so persistently
    lied to the public for 7 months. In my judgment these
    statements, which were aggravated by continuous lying to the
    American people, are sufficient under the circumstances of this
    case to warrant conviction on this article. The President was
    not obligated to appear before the grand jury, but if he chose
    to do so, he was obligated to tell the complete truth.
        Each statement must be individually evaluated in a perjury
    case. The President's statements that he did not believe he had
    violated the law and that he was not paying ``a great deal of
    attention'' to his lawyers when they gave false information to
    the court are not credible. Even so, I believe they are too
    subjective in nature to be defined as clear acts of perjury
    under the law. The President's response to clearly worded
    questions were intentionally designed to be misleading and
    deceptive; however, the Supreme Court has held in Bronston v.
    United States, 409 U.S. 352 (1973), that it is not perjurious
    for a witness to give an unresponsive answer even if the
    witness intends to mislead his questioner. With this in mind, I
    conclude that the other charged statements, not delineated
    above, are misleading and false but not perjurious. I wish it
    were not so, but the President is a practiced liar. In summary,
    this President has deliberately, premeditatedly, and with
    calculation set about to defeat the justice system by criminal
    acts which include perjury and obstruction of justice.
        Contrary to the stunning argument by the President's
    attorneys, there is just one impeachment standard for
    Presidents and judges. It is found in article II, section 4 of
    the Constitution, which states,

        The President, Vice President and all civil Officers of the United
    States, shall be removed from Office on Impeachment for, and Conviction
    of, Treason, Bribery, or other high Crimes and Misdemeanors.

        Advocates on both sides of this case agree that Federal
    judges are civil officers of the United States. As civil
    officers, they ``shall be removed'' on impeachment and
    conviction of high crimes and misdemeanors. The President's
    attorneys in this case have argued that there is a different
    standard for impeachment and removal of Federal judges.
        The President's attorneys made a clever argument that the
    ``good behavior'' clause, which refers to a judge's tenure,
    sets a separate standard of impeachable conduct for Federal
    judges. They cite in support of this proposition article III,
    section 1 of the Constitution, which states:

        The Judges, both of the supreme and inferior Courts, shall hold
    their offices during good Behavior, and shall, at stated Times, receive
    for their Services a Compensation which shall not be diminished during
    their Continuance in Office.

        Historical research clearly shows that when the
    Constitution was drafted and ratified, the phrase ``good
    behavior'' had nothing to do with impeachment. The clause
    simply referred to the term of office and compensation for a
    Federal judge. It is generally accepted that the legislative
    branch's power to actually remove a Federal judge, a member of
    a separate and coequal branch of government, is limited to
    impeachment.
        Before the American Revolution, American colonial judges
    were not independent. They served at the pleasure of the
    British king and could be dismissed at his command. The British
    monarch also controlled the salaries of colonial judges.
    Americans recognized that an independent judiciary was a
    fundamental component of a free society. In fact, they included
    the lack of an independent judiciary as part of the ``long
    train of abuses'' in the Declaration of Independence: ``[King
    George III] has made Judges dependent on his Will alone, for
    the tenure of their offices, and the amount and payment of
    their salaries.'' In response, the framers of the Constitution
    delineated through article III, section 1, that Federal judges
    would not serve at the whims of Congress or the President.
        Moreover, Alexander Hamilton, a drafter of the
    Constitution, addressed the impeachment standard for judges in
    Federalist No. 79, one of a series of essays explaining the
    Constitution. In that essay he writes:

        The precautions for [federal judges'] responsibility are comprised
    in the article respecting impeachments. . . . This is the only
    provision on the point, which is consistent with the necessary
    independence of the judicial character, and it is the only one which we
    find in our own constitution in respect to our own judges.

        Thus, the Constitution provided but one standard of removal
    of judges and it is the same one applied to the President.
        In our history there has been only one effort to impeach a
    judge on the ``good behavior'' standard, and that effort
    failed. In 1805, the Jefferson administration encouraged an
    impeachment of Justice Samuel Chase, an outspoken Justice of
    the Supreme Court and member of the opposition Federalist
    Party. Chase was impeached for his conduct while sitting as a
    circuit judge. The Senate acquitted Justice Chase and thus
    redeemed the drafters' original intent that judges can only be
    impeached for high crimes and misdemeanors.
        So let any notion that judges may be impeached under a
    different standard be put to rest. That conclusion is
    inconsistent with the Constitution and not supported by
    history.
        It is easy to understand why the President's attorneys
    found it necessary to argue that Federal judges may be removed
    under a different impeachment standard. The reason is that if
    the President is guilty of the same conduct that has led to the
    impeachment, conviction, and removal of three Federal judges in
    the last 13 years, and if the constitutional standard is the
    same, and if the substance of the allegations are the same,
    then he too must be removed.
        In 1986, the Senate convicted Federal Judge Harry E.
    Claiborne of three articles of impeachment that involved
    fundamental dishonesty: Judge Claiborne was convicted for
    knowingly filing false tax returns. Like every American who
    pays income tax, Judge Claiborne certified under penalty of
    perjury that his tax returns were true. For 2 years, he
    submitted such returns when he knew them to be false. He was
    subsequently impeached, convicted and removed. The President's
    lies in this case were, in my opinion, worse because they
    constituted a frontal assault on the integrity of the justice
    system. The President did not lie on a form to hide income from
    the Government; he lied under oath before a Federal judge in an
    official proceeding to defeat a civil rights lawsuit filed by
    an American citizen. Under Senate precedent, that is
    impeachable conduct.
        Another example of recent senatorial precedent is the
    Hastings case. In 1989, the Senate convicted Judge Alcee
    Hastings of Florida on 7 of 12 articles of impeachment that
    were presented by the House. Judge Hastings was alleged to have
    taken a bribe to alter the outcome in a case before his court.
    Judge Hastings was convicted in the Senate on seven articles of
    impeachment. Judge Hastings was convicted for knowingly making
    false statements to the jury in his own bribery trial at which
    he was acquitted. In the same year, Judge Walter Nixon was
    convicted by the Senate for lying under oath before a grand
    jury. Judge Nixon corruptly attempted to obstruct justice by
    denying his efforts to intervene in a State court prosecution
    for a friend--a case unrelated to his duties as a Federal
    judge.
        In the present impeachment case, we are not dealing with a
    blank slate. The Senate's actions in earlier cases are our
    clearest guide on how to proceed in the trial of President
    Clinton. The Senate has demonstrated three times in the last 13
    years that perjury by civil officers of the United States
    requires removal. It is inconceivable that equally
    reprehensible conduct by the President in this case should not
    also lead to his conviction and removal. By not so acting, the
    result will be an immediate lowering of our standards for
    impeachment and that standard will apply to judges as well.
    This argument defines us down, reducing the dignity of the
    Presidency and the Congress.
        As one who loves the law and who has spent the better part
    of his professional career trying cases, I understand in a
    profound way just how important it is for justice that citizens
    tell the truth in court. As a Federal prosecutor, I presented
    thousands of cases to a grand jury and tried hundreds. On many
    occasions I have seen witnesses tell the truth, even when it
    was very painful for them. Many have been driven to tears but
    still they honored their oath. Millions of Americans honestly
    fill out their tax returns and pay large sums of money simply
    because they are honest and believe in the rule of law. Such
    integrity is a source of great strength for our country.
        The rule of law and the need for integrity in our justice
    system is why perjury cases are prosecuted in America. About 7
    years ago, when I was still the U.S. Attorney for the Southern
    District of Alabama, a case came before me. My own city of
    Mobile had as its chief of police a strong African American who
    aggressively worked to reform the office, establish community-
    based policing, and worked to create a new level of discipline.
    Opposition grew and lawsuits were filed against him. A young
    police officer, who had been the chief's driver, testified in a
    deposition in a Federal lawsuit against the chief. He stated
    that the chief of police had ordered him to ``bug'' the patrol
    cars of other police officers and that he had a secret tape
    recording giving him this illegal order to commit a crime. The
    deposition was released quickly to the newspapers. The city
    council, police department, and the people were in an uproar.
    Under careful questioning by an experienced FBI agent, the
    young officer admitted that he had lied in the deposition
    regarding the tape recording.
        As U.S. attorney, it was my decision whether the officer
    would be prosecuted for his perjury. His counsel argued that he
    was young, that he did lie but had corrected his false
    testimony at a later time. He argued that we should decline to
    prosecute. After reflection and review, I concluded that a
    sworn police officer who had told a plain lie under oath, even
    a young officer, should be prosecuted in order to preserve the
    rule of law and the integrity of the system. Our office
    prosecuted that case. The officer was convicted, and that
    conviction was later affirmed by the U.S. Court of Appeals for
    the Eleventh Circuit. For me personally, I have concluded that
    I cannot hold a young police officer to a different and higher
    standard than the President of the United States.
        In sum, it is crucial to our system of justice that we
    demand the truth. I fear that an acquittal of this President
    will weaken the legal system by suggesting that being less than
    truthful is an option for those who testify under oath in
    official proceedings. Whereas the handling of the case against
    President Nixon clearly strengthened the Nation's respect for
    law, justice and truth by sending a crystal-clear message about
    the requirement for honesty, the Clinton impeachment may
    unfortunately have the opposite result.
        Finally, it is important to pause a moment to reflect on
    truth itself. I believe we live in a created and ordered
    universe and that truth and falsehood are real. They are
    capable of being ascertained. I reject the doctrine of
    relativism that suggests everything is OK. We must always
    strive to hold the banner of truth high. Indeed, the pursuit of
    truth wherever it leads has been a hallmark of our civilization
    and is the single quality that has made us such a vibrant and
    productive nation. Of course, none of us are perfect and we
    often fail in our personal affairs, but when it comes to going
    to court, and its comes to our justice system, a great nation
    must insist on honesty and lawfulness. Our country must insist
    upon that for every citizen. The chief law officer of the land,
    whose oath of office calls on him to preserve, protect and
    defend the Constitution, crossed the line and failed to defend
    the law, and, in fact, attacked the law and the rights of a
    fellow citizen. Under our Constitution, equal justice requires
    that he forfeit his office. For these reasons, I felt compelled
    to vote to convict and remove the President from office.
        Some will not agree with my conclusion. In that case, or if
    I have otherwise offended you in any way during this process, I
    ask for your forgiveness. I have sincerely tried to bring to
    bear the training and experience that I have had, along with
    the values with which we were raised in Alabama, to decide this
    important matter.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                    Statement of Senator Christopher J. Dodd

        Mr. DODD. Mr. Chief Justice, I rise to extend a word of
    thanks to Chief Justice Rehnquist for his distinguished service
    in presiding over this trial.
        The Supreme Court sits just a few short yards from this
    Chamber. Yet its Justices and its working remain largely
    unknown to those of us who serve here. Perhaps that conceptual
    distance successfully reflects the framers' construct of
    legislative and judicial branches that act for the most part
    independently of one another.
        Suffice it to say that our knowledge of the Chief Justice
    was rather limited prior to the commencement of the impeachment
    trial. We knew of his reputation as a formidable intellect, as
    a scholar--including on the topic of impeachment--and as an
    efficient manager of the courtroom. We did not as a group know
    much more about him.
        What we learned during that course of that trial is that
    the Chief Justice brought his many estimable qualities to bear
    on this unique legal challenge. He brought a deep historical
    understanding of the impeachment process. He instilled
    confidence in each Senator that he would conduct himself in a
    manner faithful to the role prescribed for the Chief Justice by
    the framers. At all times, he guided the trial with a firm and
    fair hand--not hesitating to use his judgment and common sense
    when appropriate, but never pressing a point of view on matters
    better left to the collective judgment of the Senate. He
    demonstrated a continuing respect and appreciation for the
    workings of this body. Last but not least, he brought a
    refreshing sense of humor to his task, which made our task as
    triers of fact somewhat more bearable.
        Although this was a historic occasion, no one who took part
    in it relished doing so. There is collective relief, I think,
    that this constitutional ordeal is now behind us. But as we
    look back at these past remarkable weeks, we can all take
    comfort and pride in knowing that this second impeachment trial
    in our Nation's history was presided over by an individual of
    great intelligence, historical knowledge, and wit.
        These qualities made him uniquely suited to his task. The
    Senate and the entire Nation owe a debt of thanks to Chief
    Justice Rehnquist for rendering such valued and distinguished
    service.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                    Statement of Senator Christopher J. Dodd

        Mr. DODD. Mr. Chief Justice, the Senate has just discharged
    its duty under the Constitution to try the impeachment of
    President Clinton. We have rendered our judgment.
        We have been asked to consider another, albeit lesser, form
    of punishment of the President--a resolution of censure. That
    resolution is authored by the Senator from California, Mrs.
    Feinstein, and the Senator from Utah, Mr. Bennett. Senator
    Feinstein attempted to bring it before the Senate by way of a
    motion to suspend the rules in order to permit her motion to
    proceed. The Senator from Texas, Mr. Gramm, objected, and then
    moved to indefinitely postpone consideration of Mrs.
    Feinstein's motion. Since two-thirds of the Senate failed to
    vote in the negative, his point of order was sustained, and the
    motion to proceed failed.
        I did not support Senator Gramm's motion for the simple
    reason that I did not believe it appropriate to deny to Senator
    Feinstein and others the opportunity to bring before the Senate
    a resolution of censure following the conclusion of the
    impeachment trial of the President. Had this resolution or
    something similar to it--say, a proposal to make ``findings of
    fact'' about the President's conduct--been offered during the
    impeachment trial, I would have strenuously opposed its
    consideration.
        In my view, such a proposal is not permitted by the
    Constitution when raised as part of an impeachment trial. The
    Constitution is clear on this point. Article I, section 3
    states that ``Judgment in Cases of Impeachment shall not extend
    further than to removal from office, and disqualification to
    hold and enjoy any Office of honor, Trust, or Profit under the
    United States. . . .'' Our sole choice when trying an
    impeachment case is whether or not to convict and remove--and
    then disqualify from holding any further office--the individual
    in question. The framers decided not to give Senators leeway to
    create additional judgment options--no matter how creative,
    convenient, or compelling they may be.
        Because Senator Feinstein's motion was made after the
    conclusion of the trial, during legislative session, I believed
    it was appropriate and timely for the Senate's consideration.
        That is not to say, however, that I would have supported
    the resolution had the motion to proceed carried. On the
    contrary, I would have opposed it--as I would have opposed each
    of the several proposed censure resolutions that have
    circulated in recent days. The President has acted in a manner
    worthy of censure. No one denies that.
        However, I have serious misgivings about a censure
    resolution emanating from this body and this body alone. I am
    concerned about what it may mean--not for this President, but
    for the institution of the Presidency. I understand the passion
    to voice--loudly and unmistakably--disapproval of the
    President's conduct. But it must be tempered by an even greater
    passion for the office he holds, and for the constitutional
    balance of power between the executive and legislative branches
    of government.
        Federalist No. 73 speaks of ``the propensity of the
    legislative department to intrude upon the rights, and to
    absorb the powers, of the other department.'' It warns of a
    presidency ``stripped of [its] authorities by successive
    resolutions, or annihilated by a single vote.''
        My colleagues, we must qualify our understandable disdain
    for this President's conduct with the admonition to protect the
    office that he will occupy for a mere 23 months longer.
        Nowhere does the Constitution expressly permit us to take
    up such a resolution. Nor does it expressly prohibit such a
    step. Yet the Senate, and the Congress as a whole, has been
    remarkably restrained in even considering censure resolutions.
    It has been even more reluctant to adopt them. Only once, in
    1834, was a President formally censured by resolution. Three
    years later, that resolution was expunged.
        The President at that time was Andrew Jackson. The driving
    force behind his censure was Henry Clay. Jackson had defeated
    Clay in the presidential election of 1832. In 1834, they
    remained bitter political adversaries.
        Jackson argued that the resolution was repugnant to the
    constitutional principle of checks and balances between the
    branches of government. If the Senate wanted to punish him, he
    said, it has only one avenue acceptable under the Constitution:
    It would have to wait for the House to send an impeachment.
        I am not convinced that a resolution censuring a President
    is unconstitutional. But I certainly agree that it is, at least
    in the context of the present case, unwise. There have been
    numerous instances where Presidents behaved in a manner deemed
    outrageous and even dangerous to the country. Franklin
    Roosevelt was roundly criticized for his efforts to ``pack''
    the Supreme Court. President Truman seized the steel mills.
    President Reagan and then-Vice President Bush presided over the
    Executive Branch while an illegal scheme, run out of the White
    House, was conducted to sell arms to Iran and use proceeds from
    those sales to support armed rebellion in Nicaragua. The
    behavior of these individuals arguably was at least as
    egregious as President Clinton's. But the Senate did not pursue
    a censure resolution against any of them.
        Ours is not a parliamentary system. In the United States,
    we do not entertain votes of ``no confidence'' against our
    chief executive. We elect presidents, not prime ministers.
        A censure resolution in the present instance will seem
    modest, perhaps even insignificant, in relation to the
    impeachment conducted by the House. However, future generations
    may well come to view censure as an American-made vote of ``no
    confidence'' against future occupants of the Oval Office. We
    may pave the way to a new form of executive punishment. And it
    may be used not only in cases of personal misconduct. It could
    be used against a President who simply makes an unpopular or
    unwise, but nevertheless lawful and well-intended, decision.
        Ultimately, we could subject future Presidents, who have
    not been impeached, to this form of punishment. In doing so, we
    risk eroding the independence and authority of the Presidency.
    I do not want to see the Senate take such a risk.

                                    ------

           [From the Congressional Record--Senate, February 23, 1999]

                     Statement of Senator Patrick J. Leahy

        Mr. LEAHY. Mr. Chief Justice, I regret to have to return to
    an unfinished aspect of the Senate impeachment trial of
    President Clinton.
        On February 2, I attended the deposition of Vernon Jordan
    as one of the Senators designated to serve as presiding
    officers. On February 4, the Senate approved the House
    managers' motion to include a portion of that deposition in the
    trial record. Unfortunately, the House managers moved to
    include only a portion of the videotaped deposition in the
    trial record and left the rest hidden from the public and
    subject to the confidentiality rules that governed those
    proceedings.
        On Saturday, February 6, at the conclusion of his
    presentation, Mr. Kendall asked for permission to display the
    last segment of the videotaped deposition of Vernon Jordan, in
    which, as Mr. Kendall described it, ``Mr. Jordan made a
    statement defending his own integrity.'' The House managers
    objected to the playing of the approximately 2-minute segment
    of the deposition that represented Mr. Jordan's ``own statement
    about his integrity.''
        I then rose to request unanimous consent from the Senate
    that the segment of the videotaped deposition be allowed to be
    shown on the Senate floor to the Senate and the American
    people. There was objection from the Republican side.
        I noted my disappointment at the time and in my February 12
    remarks about the depositions. After the conclusion of the
    voting on the articles of impeachment and before the
    adjournment of the Court of Impeachment, unanimous consent was
    finally granted to include the ``full written transcripts'' of
    the depositions in the public record of the trial. As far as I
    can tell, however, the statement of integrity by Mr. Jordan has
    yet to be published in the Congressional Record.
        I regret that the Senate chose to prohibit the viewing of
    the videotape of this powerful personal statement during the
    trial. I regret that it continues to be restricted from public
    viewing.
        In order to be sure the transcript that is being made a
    part of the public trial record is readily available to the
    public, I ask unanimous consent that the following portion of
    the written transcript of the deposition of Vernon Jordan, that
    containing his statement of integrity heretofore suppressed, be
    printed in the Record.
        There being no objection, the material was ordered to be
    printed in the Record, as follows:

        The Witness. Mr. Chairman, may I be just permitted a moment of
    personal privilege? I don't know about the rules here, but uh, I'd like
    to say something if you would permit.
        Mr. Hutchinson. Mr. Chairman----
        Senator Thompson. Well, Mr. Jordan, quite frankly, it depends on
    what the subject matter is and what you'd like----
        The Witness. Well, it won't be a declaration of war. [Laughter.]
        Senator Thompson. Counsel, did you have----
        Mr. Hutchinson. I would reserve the objection. I think that's
    permissible under the rules. So I would state my objection, let him
    answer it, and if--we can debate that if it becomes an issue in the
    Senate. I'd like to reserve the objection.
        Senator Thompson. All right.
        The Witness. It's just something I want you, Mr. Hutchinson, and
    the House Managers to understand about Vernon Jordan. And that is, you
    know, it's a very long way from the first public housing project in
    this country for black people, where I grew up. It's a long way from
    there to a corner office at Akin Gump. It's a long way from University
    Homes to the corporate board rooms of America. It's a long way from
    University Homes to the Oval Office. And I have made that journey
    understanding one thing, and that is that the only thing I have in this
    world that belongs to me is fee simple absolute, completely and
    totally, is my integrity.
        My corner office at Akin Gump is at best tenuous. My house, my
    home, is at best tenuous. My bank account, my stocks and my bonds, they
    are ultimately of no moment.
        But what matters most to me, and what was taught to me by my
    mother, is that the only thing that I own totally and completely is my
    integrity. And my integrity has been on trial here, and I want to tell
    you that nothing is more important to me than that.
        The President is my friend. He was before this happened, he is now,
    and he will be when this is over. But he is not a friend in that I have
    no friends for whom I would sacrifice my integrity. And I want you to
    understand that.
        Senator Thompson. Thank you, Mr. Jordan.
        If there is no further question, then this deposition is completed,
    and we stand adjourned.
        The  Witness. Thank you.

                                     ______

           [From the Congressional Record--Senate, February 24, 1999]

                         Statement of Senator Jack Reed

        Mr. REED. Mr. Chief Justice, I ask unanimous consent that
    my opinion memorandum relating to the impeachment of President
    Clinton be printed in the Record.
        There being no objection, the opinion memorandum was
    ordered to be printed in the Record, as follows:
     [In the Senate of the United States sitting as a Court of Impeachment]

    Opinion Memorandum of United States Senator John F. Reed, February 12,
                                      1999

                                 i. conclusion
        Based on the evidence in the record, the arguments of the House
    managers and the arguments of counsel for the President, I conclude as
    follows: The President has disgraced himself and dishonored his office.
    He has offended the justified expectations of the American people that
    the Presidency be above the sordid episodes revealed in the record
    before us. However, the House managers have failed to prove that the
    President's conduct amounts to the Constitutional standard of ``other
    high Crimes and Misdemeanors'' subjecting him to removal from office.
                           ii. statement of the case
        On December 19, 1998, the United States House of Representatives
    passed H. Res. 611,\1\ ``Impeaching William Jefferson Clinton,
    President of the United States, for high Crimes and Misdemeanors.'' The
    House Resolution contains two Articles of Impeachment declaring that,
    first, the President committed perjury before a Federal grand jury on
    August 17, 1998, and, second, the President obstructed justice in
    connection with the civil litigation of Paula Jones.\2\
    ---------------------------------------------------------------------------
        \1\ H. Res. 611, 105th Cong., 2d Sess., (1998) (enacted).
        \2\ In the course of deliberations in the House, no witnesses to
    the underlying events were called. The House Judiciary Committee held
    four hearings and called only one material witness, the Independent
    Counsel, Kenneth Starr. Mr. Starr testified that he was not present
    when any of the witnesses testified before the Grand Jury. The
    President's attorneys were allowed two days to present their defense,
    and they called a series of expert witnesses.
    ---------------------------------------------------------------------------
        Pursuant to article I, section 3 of the United States Constitution,
    the United States Senate convened a Court of Impeachment on January 9,
    1999, and each Senator took an oath to render ``fair and impartial
    justice.'' \3\ As Alexander Hamilton stated in Federalist No. 65,
    ``what other body would be likely to feel confidence enough in its own
    situation to preserve, unawed and uninfluenced, the necessary
    impartiality between an individual accused and the representatives of
    the people, his accusers?'' \4\
    ---------------------------------------------------------------------------
        \3\ Rule XXV, Procedure and Guidelines for Impeachment Trials in
    the United States Senate, Prepared by Floyd Riddick and Robert Dove,
    99th Cong., 2d Sess., S. Doc. 99-33 (August 15, 1986) at 6.
        \4\ The Federalist No. 65, at 398 (Alexander Hamilton) (Clinton
    Rossiter, ed., 1961) (Emphasis in original).
    ---------------------------------------------------------------------------
        The obligation of the Senate is to accord the President, as the
    accused, the right to conduct his defense fairly and, while respecting
    the House's exclusive Constitutional prerogative to bring Articles of
    Impeachment, to put the House to the proof of its case. At the core of
    our task is the fundamental understanding that our system of government
    recognizes the rights of defendants and the responsibilities of the
    prosecution to prove its case. Such a basic tenet of our law and our
    experience as a free people does not evaporate in the rarified
    atmosphere of a Court of Impeachment simply because the accused is the
    President and the accusers are the House of Representatives.
        The House of Representatives submitted a certified, written record
    of over 6,000 pages. By unanimously adopting S. Res. 16, on January 8,
    1999, the Senate agreed to proceed with the Court of Impeachment based
    on ``the record which will consist of those publicly available
    materials that have been submitted.'' The Senate Resolution also
    provided that, following the presentations of the House managers, the
    response of the President's attorneys, and a period of questions by
    Senators, it would be in order to consider a motion to dismiss and a
    motion to depose witnesses.
        On January 27, 1999, the Senate voted 56 to 44, against dismissing
    the Articles of Impeachment. On the same day, by the same margin, the
    Senate passed a resolution, S. Res. 30, allowing the Managers to depose
    three witnesses: Ms. Monica S. Lewinsky, Mr. Vernon E. Jordan, Jr., and
    Mr. Sidney Blumenthal. These depositions were taken on February 1, 2,
    and 3, 1999, respectively.
        After Senators were provided an opportunity to view the videotaped
    depositions, the Senate reconvened as a trial of impeachment on
    February 4, 1999. At that time a motion by the House Managers to call
    Ms. Lewinsky to the floor of the Senate as a witness was rejected by a
    vote of 30 to 70. Voting 62 to 38, the Senate agreed to permit portions
    of the video to be used on the floor of the Senate during both a 6-hour
    ``evidentiary'' session and for closing arguments. The White House
    declined to offer a motion to call witnesses. The Senate then rejected
    a motion by Democratic Leader Daschle to proceed directly to a vote on
    the Articles of Impeachment.
        On Saturday, February 6, 1999, the Senate heard 6 hours of
    presentation, evenly divided, concerning the evidence obtained in the
    three depositions. On Monday, February 8, 1999, the Senate heard
    closing arguments from the House Managers and Counsel for the
    President. The following day, the Senate voted on a motion to open
    deliberations to the public. That motion received 59 votes, several
    short of the supermajority required to change Senate impeachment rules.
    The Senate then voted to adjourn to closed deliberations. A final vote
    was taken on the articles on Friday, February 12, 1999.
                        iii. the constitutional standard
        ``The Senate shall have the sole Power to try all Impeachments.''
    \5\ With these few words, the Framers of the Constitution entrusted the
    Senate with the most awesome power within a democratic society. We are
    the final arbiters of whether the conscious and free choice of the
    American people in selecting their President will stand.
    ---------------------------------------------------------------------------
        \5\ U.S. Const., art. I, Sec. 3, cl. 7.
    ---------------------------------------------------------------------------
    1. ``Other High Crimes and Misdemeanors''
        The Constitutional grounds for impeachment indicate both the
    severity of the offenses necessary for removal and the essential
    political character of these offenses. ``The President, Vice President
    and all civil Officers of the United States shall be removed from
    Office on Impeachment for, and Conviction of, Treason, Bribery, or
    other high Crimes and Misdemeanors.'' \6\ The clarity of ``Treason''
    and ``Bribery'' is without doubt. No more heinous example of an offense
    against the Constitutional order exists than betrayal of the nation to
    an enemy or betrayal of duty for personal enrichment. With these
    offenses as predicate, it follows that ``other high Crimes and
    Misdemeanors'' must likewise be restricted to serious offenses that
    strike at the heart of the Constitutional order.
    ---------------------------------------------------------------------------
        \6\ U.S. Const., art. II, Sec. 4.
    ---------------------------------------------------------------------------
        Certainly, this is the view of Alexander Hamilton, one of the trio
    of authors of the Federalist Papers, the most respected and
    authoritative interpretation of the Constitution. In Federalist No. 65,
    Hamilton describes impeachable offenses as ``those offenses which
    proceed from the misconduct of public men, or, in other words, from the
    abuse or violation of some public trust. They are of a nature which may
    with peculiar propriety be denominated POLITICAL, as they relate
    chiefly to injuries done immediately to the society itself.'' \7\
    ---------------------------------------------------------------------------
        \7\ The Federalist No. 65, at 396 (emphasis in original).
    ---------------------------------------------------------------------------
        This view is sustained with remarkable consistency by other
    contemporaries of Hamilton. George Mason, a delegate to the Federal
    Constitutional Convention, declared that ``high Crimes and
    Misdemeanors'' refer to ``great and dangerous offenses'' or ``attempts
    to subvert the Constitution.'' \8\ James Iredell served as a delegate
    to the North Carolina Convention that ratified the Constitution, and he
    later served as a Justice of the United States Supreme Court. During
    the Convention debates, Iredell stated:
    ---------------------------------------------------------------------------
        \8\ Max Farrand, ed., The Records of the Federal Convention of
    1787, at 550 (1966).
    ---------------------------------------------------------------------------
        The power of impeachment is given by this Constitution, to bring
    great offenders to punishment. . . . This power is lodged in those who
    represent the great body of the people, because the occasion for its
    exercise will arise from acts of great injury to the community, and the
    objects of it may be such as cannot be easily reached by an ordinary
    tribunal.\9\
    ---------------------------------------------------------------------------
        \9\ Jonathon Elliot, Debates on the Adoption of the Federal
    Constitution at 113 (1974).
    ---------------------------------------------------------------------------
        Iredell's understanding sustains the view that an impeachable
    offense must cause ``great injury to the community.'' Private
    wrongdoing, without a significant, adverse effect upon the nation,
    cannot constitute an impeachable offense. James Wilson, a delegate to
    the Federal Constitutional Convention and, like Iredell, later a
    Supreme Court Justice, wrote that impeachments are ``proceedings of a
    political nature . . . confined to political characters, to political
    crimes and misdemeanors, and to political punishments.'' \10\
    ---------------------------------------------------------------------------
        \10\ Michael J. Gerhardt, The Federal Impeachment Process: A
    Constitutional and Historical Analysis at 21 (1996).
    ---------------------------------------------------------------------------
        Later commentators expressed similar views. In 1833, Justice Story
    quoted favorably from the scholarship of William Rawle in which Rawle
    concluded that the ``legitimate causes of impeachment . . . can have
    reference only to public character, and official duty. . . . In
    general, those offenses, which may be committed equally by a private
    person, as a public officer, are not the subject of impeachment.'' \11\
    ---------------------------------------------------------------------------
        \11\ 2 Joseph Story, Commentaries on the Constitution Sec. 799 at
    269-70 quoting William Rawle, A View of the Constitution of the United
    States at 213 (2d ed. 1829).
    ---------------------------------------------------------------------------
        This line of reasoning is buttressed by the careful and thoughtful
    work of the House of Representatives during the Watergate proceedings.
    The Democratic staff of the House Judiciary Committee concluded that:
    ``[b]ecause impeachment of a President is a grave step for the nation,
    it is to be predicated only upon conduct seriously incompatible with
    either the constitutional form and principles of our government or the
    proper performance of constitutional duties of president office.'' \12\
    ---------------------------------------------------------------------------
        \12\ Constitutional Grounds for Presidential Impeachment, Report by
    the Staff of the Impeachment Inquiry, House Comm. on Judiciary, 93rd
    Cong., 2d Sess. at 26 (1974).
    ---------------------------------------------------------------------------
        This view was echoed by many on the Republican side. Minority
    members of the Judiciary Committee declared:
        The Framers . . . were concerned with preserving the government
    from being overthrown by the treachery or corruption of one man. . . .
    [I]t is our judgment, based upon this constitutional history, that the
    Framers of the United States Constitution intended that the President
    should be removable by the legislative branch only for serious
    misconduct dangerous to the system of government.\13\
    ---------------------------------------------------------------------------
        \13\ Impeachment of Richard M. Nixon, President of the United
    States, Report of the House Comm. on the Judiciary, 93rd Cong., 2d
    Sess., H. Rep 93-1305 at 364-65 (Aug. 20, 1974) (Minority Views of
    Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott,
    Moorhead, Maraziti and Latta).
    ---------------------------------------------------------------------------
    2. The Constitutional Debates
        Adding impressive support to these consistent views of the meaning
    of the term, ``high Crimes and Misdemeanors,'' is the history of the
    deliberations of the Constitutional Convention. This history
    demonstrates a conscious movement to narrow the terminology as a means
    of raising the threshold for the impeachment process.
        Early in the debate on the issue of Presidential impeachment in
    July of 1787, it was suggested that impeachment and removal could be
    founded on a showing of ``malpractice,'' ``neglect of duty'' or
    ``corruption.'' \14\ By September of 1787, the issue of Presidential
    impeachment had been referred to the Committee of Eleven, which was
    created to resolve the most contentious issues. The Committee of Eleven
    proposed that the grounds for impeachment be ``treason or bribery.''
    \15\ This was significantly more restricted than the amorphous standard
    of ``malpractice,'' too restricted, in fact, for some delegates. George
    Mason objected and suggested that ``maladministration'' be added to
    ``treason and bribery.'' \16\ This suggestion was opposed by Madison as
    returning to the vague, initial standard. Mason responded by further
    refining his suggestion and offered the term ``other high Crimes and
    Misdemeanors against the State.'' \17\ The Mason language was a clear
    reference to the English legal history of impeachment. And, it is
    instructive to note that Mason explicitly narrowed these offenses to
    those ``against the State.'' The Convention itself further clarified
    the standard by replacing ``State'' with the ``United States.'' \18\
    ---------------------------------------------------------------------------
        \14\ 2 Farrand, The Records of the Federal Convention of 1787, at
    64-69.
        \15\ Id.
        \16\ Id.
        \17\ Id. (emphasis added).
        \18\ Id.
    ---------------------------------------------------------------------------
        At the conclusion of the substantive deliberations on the
    Constitutional standard of impeachment, it was obvious that only
    serious offenses against the governmental system would justify
    impeachment and subsequent removal from office. However, the final
    stylistic touches to the Constitution were applied by the Committee of
    Style. This Committee has no authority to alter the meaning of the
    carefully debated language, but could only impose a stylistic
    consistency through, among other things, the elimination of redundancy.
    In their zeal to streamline the text, the words ``against the United
    States'' were eliminated as unnecessary to the meaning of the
    passage.\19\
    ---------------------------------------------------------------------------
        \19\ Id.
    ---------------------------------------------------------------------------
        The weight of both authoritative commentary and the history of the
    Constitutional Convention combines to provide convincing proof that the
    impeachment process was reserved for serious breaches of the
    Constitutional order which threaten the country in a direct and
    immediate manner.
    3. The Independence of Impeachment and Criminal Liability
        Article I, section 3 of the United States Constitution provides
    that ``[j]udgment in Cases of Impeachment shall not extend further than
    to removal from Office, and disqualification to hold and enjoy any
    Office or honor, Trust or Profit under the United States: but the Party
    convicted shall nevertheless be liable and subject to Indictment,
    Trial, Judgment and Punishment, according to Law.'' \20\ As James
    Wilson wrote:
        [i]mpeachments, and offenses and offenders impeachable, [do not]
    come . . . within the sphere of ordinary jurisprudence. They are
    founded on different principles; are governed by different maxims; and
    are directed to different objects; for this reason, the trial and
    punishment of an offense on an impeachment, is no bar to a trial and
    punishment of the same offence at common law. \21\ The independence of
    the impeachment process from the prosecution of crimes underscores the
    function of impeachment as a means to remove a President from office,
    not because of criminal behavior, but because the President poses a
    threat to the Constitutional order. Criminal behavior is not irrelevant
    to an impeachment, but it only becomes decisive if that behavior
    imperils the balance of power established in the Constitution.
    ---------------------------------------------------------------------------
        \20\ U.S. Const., art. I Sec. 3, cl. 7 (emphasis added).
        \21\ James D. Andrews, ed., The Works of James Wilson at 408
    (1896).
    ---------------------------------------------------------------------------
    4. Conclusion
        Authoritative commentary on the Constitution, together with the
    structure of the Constitution allowing independent consideration of
    criminal charges, makes it clear that the term, ``other high Crimes and
    Misdemeanors,'' encompasses conduct that involves the President in the
    impermissible exercise of the powers of his office to upset the
    Constitutional order. Moreover, since the essence of Impeachment is
    removal from office rather than punishment for offenses, there is a
    strong inference that the improper conduct must represent a continuing
    threat to the people and the Constitution. It cannot be an episode that
    either can be dealt with in the Courts or raises no generalized
    concerns about the continued service of the President.
                           iv. judicial impeachments
        The House managers urge that the standards applied to judges must
    also be applied identically to the President. Their argument finds
    particular urgency with respect to Article I and its allegations of
    perjury. Several judges have been removed for perjury, and the House
    managers suggest that this experience transforms perjury into a per se
    impeachable offense.\22\
    ---------------------------------------------------------------------------
        \22\ For example, both Judge Walter L. Nixon, Jr. and Judge Alcee
    L. Hastings were convicted on charges based on perjury.
    ---------------------------------------------------------------------------
        This reasoning disregards the unique position of the President.
    Unlike Federal judges, the President is elected by popular vote for a
    fixed term. Popular elections are the most obvious and compelling
    checks on Presidential conduct. No such ``popular check'' is imposed on
    the judiciary. Federal judges are deliberately insulated from the
    public pressures of the moment to ensure their independence to follow
    the law rather than a changeable public mood. As such, impeachment is
    the only means of removing a judge. Moreover, the removal of one of the
    839 Federal judges can never have the traumatic effect of the removal
    of the President. To suggest that a Presidential impeachment and a
    judicial impeachment should be treated identically strains credulity.
        There is an additional Constitutional factor to consider. The
    Constitution requires that judicial service be conditioned on ``good
    Behavior.'' \23\ This adds a further dimension to the consideration of
    the removal of a judge from office. Although ``good Behavior'' is not a
    separate grounds for impeachment, this Constitutional standard
    thoroughly permeates any evaluation of judicial conduct.
    ---------------------------------------------------------------------------
        \23\ ``The Judges, both of the supreme and inferior Courts, shall
    hold their Offices during good Behavior . . .'' U.S. Const., art. III,
    Sec. 1.
    ---------------------------------------------------------------------------
        We expect judges to be above politics. We expect them to be
    inherently fair. We expect their judgment to be unimpeded by personal
    considerations. And, we demand that their conduct, both public and
    private, reflect these lofty expectations. Judges are subject to the
    most exacting code of conduct in both their public life and their
    private life.\24\ Without diminishing the expectations of Presidential
    conduct, it is fair to say that we expect and demand a more scrupulous
    standard of conduct, particularly personal conduct, from judges. A
    large part of these heightened expectations for judges emerges directly
    from their particular role in our government. They immediately and
    critically determine the rights of individual citizens. The fates and
    lives of individual Americans are literally in their hands. They
    personify more dramatically than anyone, including the President, the
    fairness and reasonableness of the law. Should they falter, the
    foundation of ``equal justice under law'' is more seriously strained
    than the failings of any other citizen.
    ---------------------------------------------------------------------------
        \24\ The Judicial Conference of the United States publishes a Code
    of Conduct for United States Judges, as prepared by the Administrative
    Office of the United States Courts. Cannon 2 of the Code requires
    federal judges to ``avoid impropriety and the appearance of impropriety
    in all activities.'' (March, 1997). This Cannon requires a Judge to act
    at all times in ``a manner that promotes public confidence in the
    integrity and impartiality of the judiciary.'' Perceived violations of
    the Code could result in a complaint to the Judicial Conference, which
    can make referrals to the House Judiciary Committee.
    ---------------------------------------------------------------------------
        The differences between a Presidential impeachment and a judicial
    impeachment are not merely theoretical. The Senate treats a
    Presidential impeachment differently from a judicial impeachment in
    both procedure and substance. The Senate routinely allows a select
    committee to receive testimony in the trial of a judge.\25\ Such a
    delegation of responsibility would be unthinkable in the trial of a
    President. But of even more telling effect are the substantive
    differences between Presidential and judicial impeachments. For
    example, Judge Harry Claiborne was impeached and removed subsequent to
    his criminal conviction for filing a false income tax return.\26\ In
    contrast, the inquiry into the Watergate break-in disclosed similar
    violations of the Federal Tax Code by President Nixon. Yet, the
    Judiciary Committee of the House of Representatives declined to approve
    an article of impeachment with respect to President Nixon's apparent
    violation of the Internal Revenue Code. A major factor in declining to
    press this article was the widespread feeling that such private
    misconduct was not relevant to a Presidential impeachment. According to
    Representative Ray Thornton (D-AR), ``there [had] been a breach of
    faith with the American people with regard to incorrect income tax
    returns . . . But . . . these charges may be reached in due course in
    the regular process of law. This committee is not a tax court nor
    should it endeavor to become one.'' \27\ Republican Representative Tom
    Railsback (R-IL) pointed out that there was ``a serious question as to
    whether something involving [the President's] personal tax liability
    has anything to do with his conduct of the office of the President.''
    \28\
    ---------------------------------------------------------------------------
        \25\ Rule XI, Procedure and Guidelines for impeachment Trials in
    the United States Senate, Prepared by Floyd Riddick and Robert Dove,
    99th Cong., 2d Sess., S. Doc. 99-33 (August 15, 1986) at 4.
        \26\ Proceedings of the United States Senate in the Impeachment
    Trial of Harry E. Claiborne, A Judge of the United States District
    Court for the District of Nevada, 99th Cong., 2d Sess., S. Doc. No. 99-
    48 (1986) at 291-98.
        \27\ The Evidentiary Record of the Impeachment of President William
    Jefferson Clinton, [hereinafter The Record] S. Doc. 106-3, 106th Cong.,
    1st Sess., Vol. XVII, at 10 (January 8, 1999) (quoting Hearings Before
    the House Comm. on the Judiciary Pursuant to H. Res. 803, 93d Cong., 2d
    Sess. 549 (1974) (Statement of Congressman Ray Thornton)).
        \28\ Id. (Statement of Congressman Railsback).
    ---------------------------------------------------------------------------
        The reconciliation of this disparate treatment is found by once
    again recalling the Constitution and not by simply adopting the facile
    notion that if impeachment applies to judges then it must apply
    identically to the President. The function of impeachment is to remove
    a ``civil officer'' who so abuses the particular duties and
    responsibilities of his office that he poses a threat to the
    Constitutional order. Furthermore, the Constitution provides an
    additional condition on the performance of judges with the ``good
    Behavior'' standard. The particular duties of the Judiciary together
    with their obligation to demonstrate ``good Behavior,'' renders
    comparison with the President inexact at best.\29\
    ---------------------------------------------------------------------------
        \29\ Various legal scholars and authoritative commentary make this
    point. In support of the ``Judicial Integrity and Independence Act,''
    which would have established a non-Impeachment procedure for removing
    judges, Senator Lott submitted an article by conservative legal
    scholars Bruce Fein and William Bradford Reynolds. Messrs. Fein and
    Reynolds concluded ``federal judges are also subject to Article III
    Sec. 4, which stipulates that judges shall serve only during `good
    Behavior.' This is a stricter standard of conduct than the Impeachment
    standard. . . .'' 135 Cong. Rec. S15269 (daily ed. July 19, 1989)
    (quoting Fein and Reynolds, Judges on Trial: Improving Impeachment,
    Legal Times, October 30, 1989.) Senator Lott also submitted a
    statement, by then Assistant Attorney General William Rehnquist,
    supporting similar legislation in 1970, which stated that ``the terms
    `treason, bribery and other high Crimes and Misdemeanors' are narrower
    than the malfeasance in office and failure to perform the duties of the
    office, which may be grounds for forfeiture of office held during good
    behavior.'' 135 Cong. Rec. S 15270 (daily ed. July 19, 1989) (quoting
    The Judicial Reform Act: Hearings on S. 1506 Before the Subcomm. on
    Improvements in Judicial Machinery of the Comm. on the Judiciary, 91st
    Congress, 2d Sess. (April 9, 1970) (Statement of Asst. Attorney General
    William H. Rehnquist, Office of Legal Counsel)).
    ---------------------------------------------------------------------------
        The Managers' argument is ultimately unpersuasive. Rather than
    reflexively importing prior decisions dealing with judicial
    impeachments, we are obliged to consider the President's behavior in
    the context of his unique Constitutional duties and without the
    condition to his tenure of ``good Behavior.''
                            v. the standard of proof
        Judicial proceedings, by definition, resolve an issue in dispute. A
    party seeks an outcome, provided for by the rule of law, and petitions
    for that result. The petitioning party has the burden of producing
    evidence. After hearing the evidence, the trier of fact, to some degree
    of certainty, reaches a conclusion. The critical factor is often the
    degree of certainty necessary.
        American jurisprudence utilizes three standards of certainty:
    evidence beyond a reasonable doubt, clear and convincing evidence, and
    a preponderance of the evidence. The standard is determined by the
    gravity of the issue in dispute and the degree of harm resulting from
    an incorrect decision.
        Generally, proof beyond a reasonable doubt, or to a moral
    certainty, is required to convict an individual of a criminal offense.
    Black's Law Dictionary defines reasonable doubt as ``a doubt as would
    cause prudent men to hesitate before acting in matters of importance to
    themselves.'' \30\ Sample Federal jury instructions provide that ``[a]
    reasonable doubt is a doubt based upon reason and common sense--the
    kind of doubt that would make a reasonable person hesitate to act.
    Proof beyond a reasonable doubt, must, therefore, be proof of such a
    convincing character that a reasonable person would not hesitate to
    rely and act upon it in the most important of his or her own affairs.''
    \31\
    ---------------------------------------------------------------------------
        \30\ Black's Law Dictionary at 1265 (6th ed. 1990) (citing U.S. v.
    Chas. Pfizer & Co., Inc., 367 F.Supp. 91, 101(S.D. N.Y. 1973)).
        \31\ Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff, Kevin
    F. O'Maley, Federal Jury Practice and Instructions, Sec. 12.10
    Presumption of Innocence, Burden of Proof, and Reasonable Doubt (West
    1992).
    ---------------------------------------------------------------------------
        Clear and convincing evidence is utilized in cases involving a
    deprivation of individual rights not rising to criminal offenses, such
    as the termination of parental rights. Finally, general civil cases,
    which pit private parties against each other, are adjudicated on the
    preponderance of the evidence, i.e., more likely than not. Frequently
    the burden of proof is determinative of the outcome.
        In an impeachment trial, each Senator has the obligation to
    establish the burden of proof he or she deems proper. The Founding
    Fathers believed maximum discretion was critical for Senators
    confronting the gravest of constitutional choices. Differentiating
    impeachment from criminal trials, Alexander Hamilton argued, in
    Federalist No. 65, that impeachments ``can never be tied down by such
    strict rules . . . as in common cases serve to limit the discretion of
    courts in favor of personal security.'' \32\ In this regard, Hamilton
    also recognized that an impeached official would be subject to the
    comprehensive rules of criminal prosecution after impeachment.\33\
    ---------------------------------------------------------------------------
        \32\ The Federalist No. 65, at 398.
        \33\ Id. at 399.
    ---------------------------------------------------------------------------
        Senate precedent maintains this discretion. In the 1986 impeachment
    trial of Judge Claiborne, the Senate overwhelmingly rejected a motion
    by the judge to adopt ``beyond a reasonable doubt'' as the standard of
    proof necessary to convict and remove.\34\ That vote has been
    interpreted by subsequent courts of impeachment as ``a precedent
    confirming each Senator's freedom to adopt whatever standard of proof
    he or she preferred.'' \35\
    ---------------------------------------------------------------------------
        \34\ 132 Cong. Rec. S15507 (daily ed. October 7, 1986).
        \35\ Gerhardt, The Federal Impeachment Process: A Constitutional
    and Historical Analysis, at 42 (1996).
    ---------------------------------------------------------------------------
        The constitutional gravity of an impeachment trial suggests that
    the evidentiary bar be high. As I have discussed previously, the
    Founders viewed impeachment as a remedy to be utilized only in the
    gravest of circumstances by a supermajority of Senators. The
    Constitution gives to the people the right to remove a President
    through the electoral process every four years. Only in the most
    extreme of examples, when the constitutional order is threatened, is
    Congress to intervene and remove our only nationally elected
    representative. Nullification of a popularly elected President is a
    grave action only to be taken with high certainty.
        Constitutional analysis strongly suggests that in a Presidential
    impeachment trial a burden of proof at least equivalent to ``clear and
    convincing evidence'' and more likely equal to ``beyond a reasonable
    doubt'' must be employed.\36\ Had the charges of this case involved
    threats to our constitutional order not readily characterized by
    criminal charges, I would have been forced to further parse an exact
    standard. However, for all practical purposes, the managers have
    themselves established the burden of proof in this case.\37\
    ---------------------------------------------------------------------------
        \36\ See Charles L. Black, Jr., Impeachment: A Handbook, at 14-19
    (1974)
        \37\ The adoption of a standard of ``beyond a reasonable doubt'' in
    this matter should not be construed as implying that the same standard
    must be utilized in each and every Impeachment proceeding. Conduct of
    ``civil officers'' in the performance of their official duties might
    pose such an immediate threat to the Constitution that a less exacting
    standard could properly be used. Any choice of a standard of proof
    must, at a minimum, consider the nature of the allegations and the
    impact of the alleged behavior on the operation of the government.
    ---------------------------------------------------------------------------
        The articles, embodied in H. Res. 611, accuse the President of
    perjury and obstruction of justice. This allegation of specific
    criminal wrongdoing is repeated in their trial brief.\38\ Indeed, in
    their presentation, the managers have stated, ``none of us, would argue
    . . . that the President should be removed from the office unless you
    conclude he committed the crimes that he is alleged to have committed.
    . . .'' \39\ The House Managers invited the Senate to arrive at a
    conclusion beyond a reasonable doubt before voting to convict the
    President. I take them at their word.
    ---------------------------------------------------------------------------
        \38\ Trial Memorandum of the United States House of
    Representatives, In Re Impeachment of President William Jefferson
    Clinton, [hereinafter HMTB] (Submitted pursuant to S. Res. 16) at 1.
        \39\ 145 Cong. Rec. S260 (daily ed. Jan. 15, 1999) (Statement of
    Mr. Manager McCollum).
    ---------------------------------------------------------------------------
        After reading their trial brief, listening to their presentation of
    the evidence, viewing depositions, and considering their closing
    argument, I conclude that the President is not guilty of any of the
    allegations beyond a reasonable doubt. I reach this conclusion mindful
    of the admonishment of the Founders that impeachment is not a punitive,
    but rather a constitutional remedy. Having concluded that the charges,
    even if proven, do not rise to the level of ``high Crimes and
    Misdemeanors'' an analysis of the specific charges is unnecessary.
    However, given the gravity of the charges alleged, an explanation is
    appropriate.
                      vi. perjury allegations of article i
        Article I alleges that the President committed perjury before a
    Federal grand jury on August 17, 1998. The charge must be measured
    against the fact that the full House of Representatives rejected an
    article of impeachment charging the President with perjury in a civil
    deposition. House Judiciary Committee Republicans, citing case law,
    have asserted that ``perjury in a civil proceeding is just as
    pernicious as perjury in criminal proceedings.'' \40\ The article
    before the Senate is further undercut by the fact that the article
    fails to cite, with specificity, testimony alleged to be false.
    ---------------------------------------------------------------------------
        \40\ Impeachment of William Jefferson Clinton, President of the
    United States, Report of the Comm. on the Judiciary, 105th Cong. 2d
    Sess., H. Rep. 105-830 (December 15, 1998) at 118 [hereafter Clinton
    Report].
    ---------------------------------------------------------------------------
        Perjury is a statutory crime, set forth in the U.S. Code at 18
    U.S.C. Sec. 1621, Sec. 1623. It requires proof that an individual has,
    while under the oath of an official proceeding, knowingly made a false
    statement about facts material to the proceeding. As seasoned Federal
    prosecutors testified before the House Judiciary Committee, perjury is
    a specific intent crime requiring proof of the defendant's state of
    mind, i.e., the charge cannot be based solely upon unresponsive,
    misleading, or evasive answers.\41\ Both the House managers and counsel
    for the President have referred to the statutes referenced above and
    agree on the elements necessary to convict on a charge of perjury.
    ---------------------------------------------------------------------------
        \41\ The Record, supra note 27, Volume X at 284 (Statement of
    Thomas P. Sullivan, Former U.S. Attorney, Northern District of
    Illinois).
    ---------------------------------------------------------------------------
        I find it hard to accept the proposition by the President's counsel
    that Mr. Clinton ``testified truthfully before the grand jury.'' \42\
    Rather than truthful, his testimony appears to be motivated by a desire
    not to commit perjury, i.e., making intentionally false statements
    about material facts. This dance with the law is not what one expects
    of a President. However, it is important to realize that in beginning
    his grand jury testimony, the President read a statement in which he
    admitted being ``alone'' with Ms. Lewinsky and engaging in
    ``inappropriate intimate'' \43\ contact with her. Thus, unlike the
    testimony he provided in the Jones civil deposition, the President
    admitted an improper, consensual relationship with Ms. Lewinsky. It is
    against this backdrop that the House managers allege perjury.
    ---------------------------------------------------------------------------
        \42\ Trial Memorandum of President William Jefferson Clinton, In Re
    Impeachment of President William Jefferson Clinton, [hereinafter PCTB]
    (Submitted January 13, 1999, pursuant to S. Res. 16) at 38.
        \43\ The full text of the President's statement before the Grand
    Jury can be found in The Record, supra note 27, Volume III, Part 1 of
    2, at 460-62; See also PCTB, supra note 42, at 39; See also HMTB, supra
    note 38, at 52-60.
    ---------------------------------------------------------------------------
        The managers allege in H. Res. 611, which reported the articles of
    impeachment to the Senate, that the President ``willfully provided
    perjurious . . . testimony . . . concerning one or more of the
    following: (1) the nature and details of his relationship with'' Ms.
    Lewinsky; (2) ``prior perjurious . . . testimony'' given in the Jones
    deposition; (3) ``prior false and misleading statements he allowed his
    attorney to make'' in the Jones deposition; and (4) ``his corrupt
    efforts to influence the testimony of witnesses and to impede the
    discovery of evidence'' in Jones. The facts refute some of these
    charges, while legal analysis, precedent and common sense preclude
    pursuit of the others.
    1. The Nature and Details of the Clinton/Lewinsky Relationship
        With regard to the first charge of perjury, the managers fail to
    cite specific perjurious language in the article; however, their trial
    brief provides several allegations. It asserts that the President's
    denial that he touched Ms. Lewinsky in certain areas with a specific
    intent is ``patently false.'' \44\
    ---------------------------------------------------------------------------
        \44\ HMTB, supra note 38, at 53.
    ---------------------------------------------------------------------------
        The most troubling evidence that the President lied in this
    instance is Ms. Lewinsky's testimony to the contrary. While Ms.
    Lewinsky has more credibility than the President concerning the
    intimacies of their relationship, experienced prosecutors, appointed by
    both Democrats and Republicans, have testified that conflicting
    testimony of this type would not be prosecuted for two reasons. First,
    ``he said, she said'' discrepancies regarding perjury are difficult to
    prove beyond a reasonable doubt without third party corroboration.\45\
    This is particularly true in this case, where first Independent Counsel
    Starr and now the House managers choose to believe Ms. Lewinsky when
    she helps their case, but impugn her testimony when she refutes their
    accusations. Second, testimony concerning sex in a civil proceeding
    would not normally warrant criminal prosecution.\46\ Indeed, in her
    Senate deposition, Ms. Lewinsky was unwilling to portray the
    President's testimony as untruthful.\47\
    ---------------------------------------------------------------------------
        \45\ The Trial Brief of the House Managers states that the
    President's testimony is ``directly contradicted by the corroborated
    testimony of Monica Lewinsky.'' Id. By ``corroborated'' the Managers
    refer to the fact that the Office of Independent Counsel (OIC) was
    extremely thorough in questioning all of Ms. Lewinsky's friends and
    associates to whom she described the intimate details of her contact
    with the President. Legally, the fact that Ms. Lewinsky relayed her
    recollection of the facts to various third parties does not provide
    additional, independent evidence of the nature of her contact with the
    President.
        \46\ The Record, supra note 27, Volume X at 284 (Statement of
    Thomas P. Sullivan, Former U.S. Attorney, Northern District of
    Illinois); see also Id. at 325, 332, 333 (testimony of Ronald K. Noble
    and William F. Weld).
        \47\ During her Senate deposition, Manager Bryant asked Ms.
    Lewinsky if, contrary to his defense, the President's contact with her
    fit into that described in the Jones deposition. In response Ms.
    Lewinsky said, ``I'm not trying to be difficult, but there is a portion
    of . . . [the] definition [used in the Jones deposition] that says, you
    know, with intent, and I don't feel comfortable characterizing what
    someone else's intent was. I can tell you that I--my memory of this
    relationship and what I remember happened fell within that definition .
    . . but I'm just not comfortable commenting on someone else's intent or
    state of mind or what they thought.'' 145 Cong. Rec. S1221 (daily ed.
    Feb. 4, 1999) (Senate deposition of Ms. Lewinsky).
    ---------------------------------------------------------------------------
        In further support of the perjury allegation regarding the ``nature
    and details'' of the Clinton-Lewinsky relationship, the managers also
    alleged that the President's grand jury testimony concerning his
    relationship with Ms. Lewinsky was perjurious because (1) his
    recollection of when the approximately two-year affair began differs
    from Ms. Lewinsky's by a few months; (2) he admitted to occasionally
    having inappropriate banter on the phone with Ms. Lewinsky when it
    occurred as many as seventeen times; and (3) he described his
    relationship with Ms. Lewinsky as beginning as a ``friendship.'' \48\
    ---------------------------------------------------------------------------
        \48\ See HMTB, supra note 38, at 57; see also Clinton Report, supra
    note 40 at 34.
    ---------------------------------------------------------------------------
        Disregarding the futility of attempting to judge the veracity of
    these statements, they appear to be totally immaterial to the grand
    jury given that the President admitted an affair with Ms. Lewinsky.
    Indeed, the triviality of these charges are indicative of the inability
    of the House managers to utilize any sense of proportionality in
    adjudicating the unacceptable behavior of the President. This weakness
    is magnified by the fact that the House managers have asserted that
    conviction on any one of their allegations of perjury warrant
    conviction.\49\
    ---------------------------------------------------------------------------
        \49\ H. Res. 611.
    ---------------------------------------------------------------------------
        It is difficult to believe that anyone would charge an individual
    with perjury, never mind advocate the removal of a popularly-elected
    President, based upon an interpretation of the words ``occasionally''
    or ``friendship.'' It is staggering that the managers, after forcing
    Ms. Lewinsky to testify under oath during this trial, would press her
    on the details and timing of her first intimate contacts with the
    President in order to ``prove'' the relationship did not begin as a
    ``friendship.'' \50\ As demonstrated by the frustration of the American
    people with this line of inquiry, the resources, both human and
    financial, expended by the managers were not warranted by the substance
    of the charge.
    ---------------------------------------------------------------------------
        \50\ 145 Cong. Rec. S1213 (daily ed. Feb. 4, 1999) (Transcript of
    Lewinsky Deposition in which Mr. Manager Bryant is questioning Ms.
    Lewinsky about the timing and intimate details of her relationship).
    ---------------------------------------------------------------------------
    2. Perjury Concerning the President's Deposition Testimony in Jones
        The managers' second charge of perjury is that before the grand
    jury the President repeated false testimony he gave in the Jones
    deposition. This argument appears to be an attempt to convict the
    President for lies he told in his Jones deposition, an article which
    the full House of Representatives rejected. Ultimately, this subsection
    of article I collapses on itself.
        In their trial brief the managers also assert that the President
    reaffirmed or adopted his entire deposition testimony before the grand
    jury. This is simply not true. To make this assertion the managers use
    the President's grand jury testimony that ``I was determined to walk
    through the mine field of this deposition without violating the law,
    and I believe I did.'' \51\ Before the grand jury the President refuted
    his deposition testimony that he was never alone with Ms. Lewinsky.\52\
    In addition to being inaccurate, these charges were rejected by the
    full House. Not even Independent Prosecutor Starr alleged that the
    President committed perjury concerning this issue.
    ---------------------------------------------------------------------------
        \51\ HMTB, supra note 38, at 60.
        \52\ In his opening statement before the Grand Jury the President
    began, ``When I was alone with Ms. Lewinsky. . . .'' The Independent
    Counsel followed-up and asked if he was alone with Ms. Lewinsky. The
    President answered, ``yes.'' The Record, supra note 43 at 460-62, 481.
    ---------------------------------------------------------------------------
    3. Perjury With Respect to Mr. Bennett's Offer of the Lewinsky
            Affidavit
        The third charge asserted by the managers to substantiate article I
    is that the President lied before the Grand Jury when he testified that
    ``I'm not even sure I paid attention to what he [Mr. Bennett] was
    saying.'' \53\ The President made this statement to the grand jury
    after being asked about Mr. Bennett's representation to the Jones court
    that Ms. Lewinsky's deposition verified that there was ``no sex of any
    kind in any manner'' between her and the President.
    ---------------------------------------------------------------------------
        \53\ HMTB, supra note 38, at 62.
    ---------------------------------------------------------------------------
        On page 62 of their trial brief the managers assert that this
    testimony is perjurious because ``it defied common sense'' and the fact
    that the video of the deposition ``shows the President looking directly
    at Mr. Bennett.'' This evidence fails to provide any insight on the
    President's state of mind and thus cannot meet the standard of proof
    that the President knowingly made a false statement.
    4. Perjury in Denying the Obstruction of Justice Charges
        Finally, in subpart four of article I, the managers allege that the
    President lied when he denied both tampering with witnesses and
    impeding discovery in the Jones case. This allegation bootstraps every
    allegation made in article II into an additional charge of perjury.
        First, the managers charge that the President lied when he told the
    grand jury that he instructed Ms. Lewinsky that if gifts were
    subpoenaed they would have to be turned over. I will address article
    II's charge of obstruction later. With regard to the charge that he
    committed perjury, Ms. Lewinsky provided testimony in her Senate
    deposition which requires rejection of the allegation. Ms. Lewinsky has
    testified that when she asked the President if she should give the
    subpoenaed gifts to someone, ``maybe Betty,'' the President either
    failed to reply or said ``I don't know,'' or ``let me think about
    that.'' \54\ However, after the President's grand jury testimony, Ms.
    Lewinsky was pressed on the issue. When a FBI agent asked if she
    recalled the President telling her that she must turn over gifts in her
    possession should they be subpoenaed by the Jones attorneys, Ms.
    Lewinsky said, ``You know, that sounds a little bit familiar to me.''
    \55\ On its face, Ms. Lewinsky's testimony would seem to make it more
    likely than not that the President told her to turn over whatever gifts
    she had.
    ---------------------------------------------------------------------------
        \54\ HMTB, supra note 38, at 64 (quoting Grand Jury testimony of
    Ms. Lewinsky).
        \55\ 145 Cong. Rec. S1228 (daily ed. February 6, 1999)(Senate
    Deposition Testimony of Ms. Lewinsky).
    ---------------------------------------------------------------------------
        There are two remaining allegations in the final subpart of article
    I. First, it is alleged that the President committed perjury when he
    told the grand jury that on January 18, 1998, he made statements to Ms.
    Currie to ``refresh his memory.'' Second, the managers allege that he
    lied when he testified to the grand jury that facts he relayed to his
    aides in denying an affair were ``true'' but ``misleading.''
        I am troubled by the inability of the President to be completely
    forthright concerning both his relationship with Ms. Lewinsky and
    subsequent attempts to conceal this affair from his family, friends,
    staff, constituents, and Ms. Jones. In no way do I condone this
    behavior. However, seasoned Federal prosecutors have made it known that
    the statements of this type, made by the President or an average
    citizen, would not, indeed should not, be prosecuted as perjury. The
    power and prestige of the Federal Government should not be brought to
    bear on a citizen regarding testimony in a civil case pertaining to an
    improper sexual affair. The impeachment trial has borne this out.
    Discrepancies in testimony between two individuals, and only those two,
    seldom satisfy the standard of proof beyond a reasonable doubt (or by
    preponderance of the evidence, for that matter.) Moreover, citizens are
    uncomfortable with such a role for government.
        The managers have alleged that a failure to convict the President
    on perjury grounds will destroy civil rights jurisprudence and allow
    any future President to lie with impunity. Both the managers and our
    Government weathered untruths during both the Iran-Contra investigation
    and the ethics investigation of former Speaker Gingrich. Citizens may
    well lack confidence in the ability of President Clinton to be honest
    about his personal life, this is not, however, a threat to our
    Government. The President, as a citizen, remains subject to both
    criminal and civil sanctions. The managers have failed to meet the
    burden of proof they set regarding the perjury charges brought against
    President William Jefferson Clinton.
                   vii. obstruction allegations of article ii
        Article II alleges that the President obstructed justice by
    engaging ``personally, and through his subordinates and agents, in a
    course of conduct or scheme designed to delay, impede, cover up and
    conceal the existence of evidence and testimony related to a Federal
    civil rights action brought against him in a duly instituted judicial
    proceeding.'' \56\ The focal point of these allegations is the Jones
    litigation. Article II outlines seven specific ``acts'' that the
    President used to implement this ``course of conduct or scheme.'' These
    ``acts'' will be analyzed to determine if they established a foundation
    for a finding of ``high Crimes and Misdemeanors.''
    ---------------------------------------------------------------------------
        \56\ H. Res. 611.
    ---------------------------------------------------------------------------
        As an initial point, it is necessary to set out the elements of the
    crime of obstruction of justice, as set forth at 18 U.S.C. Sec. 1503.
    The components of the offense include: (1) there existed a pending
    judicial proceeding; (2) the accused knew of the proceeding; and (3)
    the defendant acted ``corruptly'' with the specific intent to obstruct
    and interfere with the proceeding or due administration of justice.\57\
    ---------------------------------------------------------------------------
        \57\ 18 U.S.C. Sec. 1503. The House Managers periodically urge that
    the President is guilty of witness tampering. The crime of witness
    tampering is set forth at 18 U.S.C. Sec. 1512. This statute requires
    proof that a defendant knowingly engaged in intimidation, physical
    force, threats, misleading conduct, or corrupt persuasion with the
    specific intent to influence, delay, or prevent testimony or cause any
    person to withhold objects or documents from an official proceeding.
    Like the obstruction of justice charge, witness tampering requires
    proof of a specific intent to interfere with a witness.
    ---------------------------------------------------------------------------
        The critical question in regard to the allegations is whether the
    President acted with the specific intent to interfere with the
    administration of justice. Absent a demonstrable ``act'' coupled with a
    demonstrable ``specific intent,'' no crime occurs. The House managers
    point to the seven following acts as the basis of their claim.
    1. The Lewinsky Affidavit
        The article alleges that ``[o]n or about December 17, 1997, William
    Jefferson Clinton corruptly encouraged a witness in a Federal civil
    rights action brought against him to execute a sworn affidavit in that
    proceeding that he knew to be perjurious, false and misleading.'' \58\
    The allegations go to the Affidavit prepared by Monica Lewinsky in
    conjunction with the Jones litigation.
    ---------------------------------------------------------------------------
        \58\ H. Res. 611.
    ---------------------------------------------------------------------------
        The best evidence of the President's involvement in this affidavit
    is the testimony of Monica Lewinsky. Ms. Lewinsky has repeatedly and
    consistently stated that no one asked her or instructed her to lie.
        ``[N]o one ever asked me to lie and I was never promised a job for
    my silence.'' \59\
    ---------------------------------------------------------------------------
        \59\ The Record, supra note 27, Volume III, Part 1 at 1161
    (Lewinsky Grand Jury testimony 8/20/98).
    ---------------------------------------------------------------------------
        ``Neither the Pres[ident] nor Mr. Jordan (or anyone on their
    behalf) asked or encouraged Ms. L[ewinsky] to lie.'' \60\
    ---------------------------------------------------------------------------
        \60\ Id. at 718 (handwritten proffer of Lewinsky, given to OIC 2/1/
    98).
    ---------------------------------------------------------------------------
        ``Neither the President or JORDAN ever told LEWINSKY that she had
    to lie.'' \61\
    ---------------------------------------------------------------------------
        \61\ Id. at 1398 (FBI Interview with Lewinsky 7/27/98).
    ---------------------------------------------------------------------------
        ``Neither the President nor anyone ever directed LEWINSKY to say
    anything or to lie . . .'' \62\
    ---------------------------------------------------------------------------
        \62\ Id. at 1400.
    ---------------------------------------------------------------------------
        Despite these repeated denials, the House managers persist in
    arguing that the President influenced Ms. Lewinsky to file a false
    affidavit in a early morning phone call on December 17, 1997. They hang
    their case on a portion of the conversation that involved a discussion
    of the filing of an affidavit in response to a subpoena from the Jones
    lawyers and another portion of the conversation that dealt with the
    ``cover story'' that both the President and Ms. Lewinsky had been using
    to disguise their affair. Ms. Lewinsky has testified that, in a call on
    December 17, 1997, the President said ``Well, maybe you can sign an
    affidavit.'' \63\ The House managers argue that this statement alone
    must convict because both the President and Ms. Lewinsky knew that a
    truthful affidavit could never be filed given the clandestine nature of
    their relationship.\64\ This theory disregards the testimony of both
    the President and Ms. Lewinsky.\65\
    ---------------------------------------------------------------------------
        \63\ Id. (Grand Jury Testimony of Ms. Lewinsky on 8/6/98) (quoted
    in HMTB, supra note 38, at 22.)
        \64\ ``Both parties knew that the Affidavit would need to be false
    and misleading to accomplish the desired result.'' HMTB, supra note 38,
    at 22.
        \65\ The President testified that ``I've already told you that I
    felt strongly that she could issue, that she could execute an affidavit
    that would be factually truthful, that might get her out of having to
    testify. . . . And did I hope she'd be able to get out of testifying on
    an affidavit? Absolutely. Did I want her to execute a false affidavit?
    No, I did not.'' The Record, supra note 27, Volume X at 571.
        Ms. Lewinsky testified to the Grand Jury on 8/6/98, that ``I
    thought that signing an affidavit could range from anywhere--the point
    of it would be to deter or to prevent me from being deposed and so that
    that could range from anywhere between maybe just somehow mentioning,
    you know, innocuous things or going as far as maybe having to deny any
    kind of relationship.'' Id. at 844. In her Senate Deposition Mr.
    Manager Bryant asked Ms. Lewinsky, ``The night of the phone call, he's
    [the President is] suggesting you could file an affidavit. Did you
    appreciate the implications of filing a false affidavit with the
    court?'' Ms. Lewinsky replied, ``I don't think I necessarily thought at
    that point it would have to be false, so, no, probably not.'' 145 Cong.
    Rec. at S1218 (daily ed. February 4, 1999).
    ---------------------------------------------------------------------------
        Any lingering doubt about the nature of the telephone conversation
    on December 17, 1997, was erased by the videotaped testimony of Ms.
    Lewinsky before the Senate. The House managers repeatedly argued that
    the President not only influenced the content of her affidavit, but
    that the President was knowledgeable of those contents. In a response
    to Mr. Manager Bryant's question, however, Ms. Lewinsky unequivocally
    stated that ``[h]e didn't discuss the content of my affidavit with me
    at all, ever.'' \66\ The House managers argued that the telephone call
    on December 17, 1997, was a deliberate attempt by the President to
    compel Ms. Lewinsky to submit an affidavit that would explicitly
    encompass their pre-existing cover story. Again, in response to Mr.
    Manager Bryant's questions, Ms. Lewinsky stated:
    ---------------------------------------------------------------------------
        \66\ 145 Cong. Rec. at S1307 (daily ed. February 6, 1999).
    ---------------------------------------------------------------------------
        ``Q: Now, you have testified in the Grand Jury. I think your
    closing comments was that no one ever asked you to lie, but yet in that
    very conversation of December 17th, 1997, when the President told you
    that you were on the witness list, he also suggested that you could
    sign an affidavit and use misleading cover stories. Isn't that correct?
        ``A: Uh--well, I--I guess in my mind, I separated necessarily
    signing affidavit and using misleading cover stories. So, does----
        ``Q: Well, those two----
        ``A: Those three events occurred, but they don't--they weren't
    linked for me.'' \67\
    ---------------------------------------------------------------------------
        \67\ Id. at. S1306.
    ---------------------------------------------------------------------------
        The House managers argued that Ms. Lewinsky could have only filed
    the affidavit as a result of pressure from the President. They reasoned
    that only the President could benefit from Ms. Lewinsky's affidavit.
    Ms. Lewinsky totally refuted their view. Again, in another exchange
    with Mr. Manager Bryant, Ms. Lewinsky stated:
        ``Q: But you didn't file the affidavit for your best interest, did
    you?
        ``A: Uh, actually, I did.
        ``Q: To avoid testifying.
        ``A: Yes.
        ``Q: Why--why didn't you want to testify? Why would not you--why
    would you have wanted to avoid testifying?
        ``A: First of all, I thought it was nobody's business. Second of
    all, I didn't want to have anything to do with Paula Jones or her case.
    And--I guess those two reasons.'' \68\
    ---------------------------------------------------------------------------
        \68\ Id.
    ---------------------------------------------------------------------------
        After Ms. Lewinsky's videotaped testimony, it is clear that she
    filed the affidavit of her own volition to satisfy her own needs. The
    President did not influence the content of the affidavit. His remark in
    the December 17, 1997, conversation was, at the most, a terse response
    to her request rather than a elaborate directive to Ms. Lewinsky. There
    is no credible evidence that the President orchestrated an attempt to
    file a false affidavit.
    2. The Lewinsky Testimony
        The House managers assert that during that same early morning
    telephone conversation on December 17, 1997, the President
    ``corruptly'' encouraged Ms. Lewinsky to give ``perjurious, false and
    misleading testimony if and when called to testify personally in that
    proceeding.'' \69\
    ---------------------------------------------------------------------------
        \69\ H. Res. 611.
    ---------------------------------------------------------------------------
        Once again, this allegation completely fails to consider the sworn
    testimony of Ms. Lewinsky that ``no one ever asked me to lie and I was
    never promised a job for my silence.'' \70\ Moreover, Ms. Lewinsky's
    videotaped testimony before the Senate provides even more detail to her
    previous statements.
    ---------------------------------------------------------------------------
        \70\ The Record, supra note 27, Volume X at 1161 (quoting Ms.
    Lewinsky's Grand Jury testimony on 8/20/98). See also PCTB, supra note
    42, at 56-57.
    ---------------------------------------------------------------------------
        The House managers suggest that the ``cover story'' developed by
    Ms. Lewinsky and the President to disguise their relationship was
    explicitly urged upon Ms. Lewinsky by the President in response to the
    subpoena. There is little evidence to support this view. Indeed, the
    available evidence undermines the position of the House managers. The
    following grand jury testimony of Ms. Lewinsky indicates that there was
    no explicit linkage between their ongoing denials of a relationship and
    the Jones litigation.
        ``Q [JUROR]: It is possible that you also had these discussions
    [about denying the relationship] after you learned that you were a
    witness in the Paula Jones case?
        ``A: I don't believe so. No.
        ``Q: Can you exclude that possibility?
        ``A: I pretty much can. I really don't remember it. I mean, it
    would be very surprising for me to be confronted with something that
    would show me different but I--it was 2:30 in the--I mean, the
    conversation I'm thinking of mainly would have been December 17th,
    which was----
        ``Q: The telephone call.
        ``A: Right. And it was--you know, 2:00, 2:30 in the morning. I
    remember the gist of it and I--I really don't think so.
        ``Q: Thank you.'' \71\
    ---------------------------------------------------------------------------
        \71\ The Record, supra note 27, Volume X at 1119-90 (quoting Ms.
    Lewinsky's Grand Jury testimony on 8/20/98).
    ---------------------------------------------------------------------------
        The House managers have presented no credible evidence to overcome
    the sworn testimony of the parties.
    3. Concealment of Gifts
        The article alleges that ``[o]n or about December 28, 1997, William
    Jefferson Clinton corruptly engaged in, encouraged, or supported a
    scheme to conceal evidence that had been subpoenaed in a Federal civil
    rights action brought against him.'' The allegation refers to the
    transfer of gifts from Ms. Lewinsky to Betty Currie on December 28,
    1997.
        The House managers argue that the President directed Ms. Currie to
    contact Ms. Lewinsky and arrange for the collection of personal gifts
    that he gave Ms. Lewinsky and for their subsequent concealment in Ms.
    Currie's home. There is conflicting evidence whether Ms. Currie or Ms.
    Lewinsky arranged for the pickup of gifts. Regardless of who initiated
    the gift transfer, however, there is insufficient evidence that the
    President was involved in the transfer.
        The chain of events leading to the transfer of gifts began with a
    meeting between the President and Ms. Lewinsky on December 28, 1997.
    Ms. Lewinsky indicated in one of her grand jury appearances that in the
    course of the meeting she raised the topic of the numerous personal
    gifts that the President had given her in light of the Jones subpoena.
    According to her grand jury testimony, Ms. Lewinsky recalled: ``[A]t
    some point I said to him, `Well, you know, should I--maybe I should put
    the gifts away outside my house somewhere or give them to someone,
    maybe Betty.' And he sort of said--I think he responded, `I don't know'
    or `Let me think about that.' And left that topic.'' \72\
    ---------------------------------------------------------------------------
        \72\ Id. Volume III, Part 1 at 872 (Lewinsky Grand Jury testimony
    8/6/98). Ms. Lewinsky discussed this exchange with the President at
    least ten different times during her multiple interviews and
    appearances as a witness. In a subsequent appearance before the Grand
    Jury on August 20, 1998, she again recalled this discussion and stated
    ``And he--I don't remember his response. I think it was something like,
    ``I don't know, or `Hmm,' or--there really was no response.'' Id. at
    1122 (emphasis added). It is clear from her testimony that there was no
    discussion of the concealment of gifts with the President.
    ---------------------------------------------------------------------------
        The next link in the chain is the most confusing. There is no
    question that Betty Currie picked up a box of gifts from Monica
    Lewinsky on the afternoon of December 28, 1997. However, there is still
    an unresolved dispute concerning who initiated this activity. Both Ms.
    Currie and the President denied ever having any conversation in which
    the President instructed Ms. Currie to retrieve the gifts from Ms.
    Lewinsky. Ms. Currie has repeatedly testified that it was Ms. Lewinsky
    who contacted her about the gifts. On the other hand, Ms. Lewinsky
    testified that Ms. Currie called her to initiate the transfer.
        The managers and the committee report cited the following passage
    from Ms. Lewinsky's grand jury testimony.
        ``Q: What did [Betty Currie] say?
        ``A: She said, ``I understand you have something to give me.'' Or,
    ``The President said you have something to give me.'' Along those
    lines. . . .
        ``Q: When she said something along the lines of ``I understand you
    have something to give me,'' or, ``The President says you have
    something for me,'' what did you understand her to mean?
        ``A: The gifts.'' \73\
    ---------------------------------------------------------------------------
        \73\ Clinton Report, supra note 40 at 67-68 (quoting The Record,
    supra note 27, Volume III at 874-75 (Lewinsky Grand Jury testimony 8/6/
    98); see also HMTB, supra note 38, at 32-33. However, Ms. Lewinsky's
    recollection of references to the President in this conversation were
    later cast in doubt by her subsequent testimony. In her Grand Jury
    testimony, Ms. Lewinsky was quoted as:
        Q: [Juror]: Do you remember Betty Currie saying that the President
    had told her to call?
        A: Right now, I don't. I don't remember. . . .
        The Record, supra note 27, Volume III at 1141 (Lewinsky Grand Jury
    testimony 8/20/98).
    ---------------------------------------------------------------------------
        The uncontradicted evidence is that the President and Ms. Currie
    did not discuss the gifts. The uncontradicted evidence is that the
    President did not initiate the discussion of gifts with Ms. Lewinsky
    and made no substantive response to her discussion of the gifts. The
    unresolved issue is whether Ms. Lewinsky or Ms. Currie initiated the
    transfer of gifts. Ms. Lewinsky's videotaped testimony before the
    Senate does not resolve the issue of who initiated the gift transfer.
    It does, however, add critical details that suggest that Ms. Lewinsky,
    of her own volition, decided to surrender certain ``innocuous'' items
    to the Jones lawyers, while concealing other gifts. First, Ms. Lewinsky
    had already decided before the meeting with the President, on December
    28, 1997, to conceal items from the Jones lawyers. As she told House
    Manager Bryant in Senate deposition testimony: on December 22, 1997, 6
    days before her meeting with the President, she brought the gifts that
    she was willing to surrender to a meeting with Vernon Jordan.
        ``Q: Did, uh, you bring with you to the meeting with Mr. Jordan,
    and for the purpose of carrying it, I guess, to Mr. Carter, items in
    response to this request for production?
        ``A: Yes.
        ``Q: Did you discuss these items with Mr. Jordan?
        ``A: I think I showed them to him. . . .
        ``Q: Okay. How did you select those items?
        ``A: Uh, actually, kind of in an obnoxious way, I guess . . . they
    were innocuous. . . .
        ``Q: In other words, it wouldn't give away any kind of special
    relationship?
        ``A: Exactly.
        ``Q: And was that your intent?
        ``A: Yes.
        ``Q: Did you discuss how you selected those items with anybody?
        ``A: No.'' \74\
    ---------------------------------------------------------------------------
        \74\ 145 Cong. Rec. S1222 (daily ed. February 4, 1999) (deposition
    of Ms. Lewinsky).
    ---------------------------------------------------------------------------
        Not only did Ms. Lewinsky decide unilaterally to withhold certain
    gifts, she also decided unilaterally to conceal these gifts, not at the
    behest of the President, but out of her own concern for privacy. In
    response to a question posed by Mr. Manager Bryant, Ms. Lewinsky
    stated, ``I was worried someone might break into my house or concerned
    that they actually existed, but I wasn't concerned about turning them
    over because I knew I wasn't going to, for the reason you stated.''
    \75\
    ---------------------------------------------------------------------------
        \75\ 145 Cong. Rec. S1309 (daily ed. February 6, 1999) (deposition
    of Ms. Lewinsky as replayed during the trial). Manager Bryant's
    question is compound and slightly confusing, Ms. Lewinsky's response,
    combined with her testimony that she avoided testifying for reasons in
    her own best interest, makes clear that she had come to an independent
    conclusion not to provide gifts to the Jones attorneys.
    ---------------------------------------------------------------------------
        The final detail added by Ms. Lewinsky's videotaped testimony may
    be the most significant. The President testified to the grand jury that
    when Ms. Lewinsky raised the issue of gifts he responded: ``You have to
    give them whatever you have.'' \76\ When questioned by an FBI agent
    after the President's testimony, Ms. Lewinsky said that the words in
    the President's testimony, ``sounds [sic] a little bit familiar to
    me.'' \77\
    ---------------------------------------------------------------------------
        \76\ This statement has been dismissed by the House managers as
    self-serving at best. However, Ms. Lewinsky's Senate Deposition
    testimony lends significant collaboration to the President's claim. See
    supra, note 55, p. 23.
        \77\ Id.
    ---------------------------------------------------------------------------
    4. The Lewinsky Job Search
        The article alleges that ``[b]eginning on or about December 7,
    1997, and continuing through and including January 14, 1998, William
    Jefferson Clinton intensified and succeeded in an effort to secure job
    assistance to a witness in a Federal civil rights action against him in
    order to corruptly prevent the truthful testimony of that witness in
    that proceeding at a time when the truthful testimony of that witness
    would have been harmful to him.'' \78\
    ---------------------------------------------------------------------------
        \78\ H. Res. 611.
    ---------------------------------------------------------------------------
        This allegation focuses on the efforts to find employment for Ms.
    Lewinsky. Of critical importance is the undisputed fact that these
    efforts began long before Ms. Lewinsky was identified as a potential
    witness in the Jones case. Ms. Lewinsky herself initiated the search
    for employment based on her dissatisfaction with her job at the
    Pentagon and her perception that she would not be able to return to
    work in the White House. Ms. Lewinsky suggested that Vernon Jordan be
    enlisted to aid her, and his involvement was obtained at Ms. Lewinsky's
    request by Mr. Jordan's long-time friend Betty Currie.\79\
    ---------------------------------------------------------------------------
        \79\ In one of the more unusual aspects of this case, it appears
    that the idea to enlist Mr. Jordan's assistance came from Linda Tripp's
    ``advice'' to Ms. Lewinsky. See PCTB, supra note 42, note 103, at 78.
    ---------------------------------------------------------------------------
        The allegation of the House managers crashes on the same unshakable
    and uncontradicted statement that has bedeviled them from the start.
    Monica Lewinsky's unchallenged statement is that ``no one ever asked me
    to lie and I was never promised a job for my silence.'' \80\
    ---------------------------------------------------------------------------
        \80\ Supra, note 70 at 29.
    ---------------------------------------------------------------------------
        Unable to refute her statement, the House managers attempted to
    weave a pattern of circumstantial evidence. Each attempt of the House
    managers rapidly unraveled.
        Mr. Manager Hutchinson argued with great force and skill in his
    opening presentation that December 11, 1997, was the critical date in
    the case against the President. It was on that date that Judge Wright
    ordered the President to answer certain questions about ``other
    women.'' As Mr. Manager Hutchinson argued on the floor: ``And so, what
    triggered--let's look at the chain of events. The judge--the witness
    list came in, the judge's order came in, that triggered the President
    into action and the President triggered Vernon Jordan into action. That
    chain reaction here is what moved the job search along . . . . Remember
    what else happened on the day [December 11] again. That was the same
    day that Judge Wright ruled that the questions about other
    relationships could be asked by the Jones attorneys.'' \81\
    ---------------------------------------------------------------------------
        \81\ 145 Cong. Rec. S234 (daily ed Jan. 14, 1999) (presentation of
    Manager Hutchinson).
    ---------------------------------------------------------------------------
        The thrust of the House managers' argument is that the President
    learned that Ms. Lewinsky was on the witness list on December 6, 1997.
    He met with Mr. Jordan on December 7, 1997, to enlist Mr. Jordan in the
    Lewinsky job search, and, with the judge's order on December 11, 1997,
    making Ms. Lewinsky's testimony more likely, Mr. Jordan ``intensified''
    what had been a dormant record of assistance. This scenario is
    demonstrably false.
        The House Judiciary Committee report acknowledges that the meeting
    between the President and Mr. Jordan on December 7, 1997, had nothing
    to do with Ms. Lewinsky.\82\ Because of this lack of interest by the
    President and Mr. Jordan in Ms. Lewinsky's job search, the House
    managers had to seize an event that could plausibly trigger the
    ``intensification'' of the job search which allegedly occurred on
    December 11, 1997.
    ---------------------------------------------------------------------------
        \82\ Clinton Report, supra note 40, at 11. This fact alone casts
    serious doubt on the theory of the House Managers. If Ms. Lewinsky's
    appearance on the witness list was disturbing to the President, and he
    was participating in the job search to silence Ms. Lewinsky, why would
    he avoid discussing this matter with Mr. Jordan?
    ---------------------------------------------------------------------------
        Although December 11, 1997, was the date of a meeting between Mr.
    Jordan and Ms. Lewinsky, the record shows that this meeting was
    arranged prior to that date without the participation of the President.
    As early as Thanksgiving, Mr. Jordan and Ms. Lewinsky had a
    conversation in which Mr. Jordan told her that ``he was working on her
    job search'' and asked her to ``contact him again around the first week
    of December.'' \83\ In response to a request from Ms. Lewinsky, Betty
    Currie called Vernon Jordan on December 5, 1997, to request a meeting.
    This was one day before the President became aware of the appearance of
    Ms. Lewinsky's name on the witness list. Mr. Jordan told Ms. Currie to
    have Ms. Lewinsky call him to arrange a meeting. Ms. Lewinsky did so on
    December 8, 1997, confirming a meeting with Mr. Jordan on December 11,
    1997.
    ---------------------------------------------------------------------------
        \83\ The Record, supra note 27, Volume III at 1465 (Lewinsky OIC
    interview 7/31/98).
    ---------------------------------------------------------------------------
        Since the appearance of Ms. Lewinsky on the witness list did not
    prompt any accelerated action on the job search and since the meeting
    of Ms. Lewinsky and Mr. Jordan was contemplated and initiated before
    the release of the witness list, the House managers were forced to
    grasp for some other triggering event. Unwisely, as clearly stated in
    Mr. Manager Hutchinson's remarks, they chose the issuance of Judge
    Wright's order.
        Judge Wright initiated a conference call with lawyers in the Jones
    case at 6:33 p.m. (EST) on December 11, 1997. At 7:50 p.m. (EST), she
    concluded the conference by informing the parties that she would issue
    an ``order to compel'' testimony about ``other women.'' At that moment,
    Vernon Jordan was somewhere over the Atlantic Ocean on United flight
    946 bound for Amsterdam. His meeting with Ms. Lewinsky had concluded
    hours before. Obviously, the meeting with Ms. Lewinsky, the calls on
    her behalf, the ``intensification'' of the job search, had nothing to
    do with Judge Wright's order.
        Nothing so illustrates the fragility of the House managers' case as
    this dubious and discredited attempt to characterize Judge Wright's
    order as a catalyst for an illegal job search. Forced to beat a hasty
    retreat by the revelation of this attempted legal slight of hand, the
    House managers reversed course and argued, unconvincingly, that they
    always saw the triggering event as the release of the witness list on
    December 5, 1997, or the President's receipt of the list on December 6,
    1997.\84\
    ---------------------------------------------------------------------------
        \84\ It is interesting to note that the Article alleges that the
    incriminating events began on December 7, 1997, and continued
    thereafter until January 14, 1998. Once again, these constantly
    shifting dates illustrate the ad hoc nature of this argument.
    ---------------------------------------------------------------------------
        This assertion, however, contradicts the evidence that there was no
    discussion about Ms. Lewinsky during the meeting between the President
    and Mr. Jordan on December 7, 1997, and the evidence that the December
    11, 1997, meeting was arranged by Ms. Lewinsky and Mr. Jordan without
    knowledge of the witness list or Judge Wright's order and without the
    assistance of the President.
        Ms. Lewinsky received the active assistance of Mr. Jordan to obtain
    interviews and favorable recommendations with three prominent New York
    firms. She succeeded in obtaining a job at one of these firms, Revlon.
    According to representatives of these firms, they felt no pressure to
    hire Ms. Lewinsky \85\--behavior that undercuts the suggestions of the
    House managers that Mr. Jordan was engaged in a high stakes effort to
    find Ms. Lewinsky a job at all costs.
    ---------------------------------------------------------------------------
        \85\ The FBI investigators working for Mr. Starr recorded the
    following testimony of representatives of Revlon, American Express and
    Young and Rubicam: ``On December 11, 1997, HALPERIN received a
    telephone call from VERNON JORDAN [who recommended Ms. Lewinsky]. . . .
    There was no implied time constraint for fast action. HALPERIN did not
    think there was anything unusual about Jordan's request.'' The Record,
    supra note 27, Volume IV, Part 1 at 1286 (FBI Interview with Richard
    Halperin, Executive VP and Special Counsel, Mac Andrews & Forbes
    (holding company for Revlon) 3/27/98); ``Fairbairn said . . . there was
    no perceived pressure exerted by JORDAN.'' Id. at 1087 (FBI Interview
    with Ursula Fairbairn, Executive Vice President, Human Resources and
    Quality, American Express, 2/4/98). ``JORDAN did not engage in a `sales
    pitch' about LEWINSKY.'' Id. at 1222 (FBI Interview with Peter
    Georgescu, CEO of Young and Rubicam, 3/25/98).
    ---------------------------------------------------------------------------
        Mr. Jordan emphatically denied that he acted to silence Ms.
    Lewinsky. ``Unequivocally, indubitably, no.'' \86\ The President denied
    that he attempted to buy her silence. ``I was not trying to buy her
    silence or get Vernon Jordan to buy her silence.'' \87\ But, Ms.
    Lewinsky said it best: ``I was never promised a job for my silence.''
    \88\
    ---------------------------------------------------------------------------
        \86\ The Record, supra note 27, Volume IV, Part 2 at 1827 (Jordan
    Grand Jury testimony on 5/5/98).
        \87\ Id., Volume III, part 1 at 576 (Clinton Grand Jury testimony
    on 8/17/98).
        \88\ Id. at 1161 (Lewinsky Grand Jury testimony 8/20/98).
    ---------------------------------------------------------------------------
    5. Allowing False Statements by his Attorneys
        The article alleges that the President ``corruptly allowed his
    attorney to make false and misleading statements to a Federal judge
    characterizing an affidavit . . .'' \89\ This allegation rests on the
    President's silence during the Jones deposition while his attorney, Mr.
    Robert Bennett, cited the Lewinsky affidavit to Judge Wright as a
    representation that ``there is no sex of any kind in any manner, shape
    or form.'' \90\
    ---------------------------------------------------------------------------
        \89\ H. Res. 611.
        \90\ Clinton Report, supra note 40, at 72.
    ---------------------------------------------------------------------------
        There is no doubt about the President's silence. There is, however,
    doubt about the President's state of mind; whether he was aware of the
    interchange between his counsel and Judge Wright; and whether he formed
    the specific intent to use his silence to allow a falsehood to be
    advanced.
        The President consistently denied his awareness of this exchange
    and testified that he was concentrating on his testimony:
        ``I'm not even sure I paid much attention to what he was saying. I
    was thinking, I was ready to get on with my testimony here and they
    were having these constant discussions all through the deposition. . .
    .''
              * * * * * * *
        ``I was not paying a great deal of attention to this exchange. I
    was focusing on my own testimony. . . .''
              * * * * * * *
        ``I'm quite sure that I didn't follow all the interchanges between
    the lawyers all that carefully. . . .''
              * * * * * * *
        ``I am not even sure that when Mr. Bennett made that statement that
    I was concentrating on the exact words he used. . . .''
              * * * * * * *
        ``When I was there, I didn't think about my lawyers. I was,
    frankly, thinking about myself and my testimony and trying to answer
    the questions. . . .''
              * * * * * * *
        ``I didn't pay any attention to this colloquy that went on. I was
    waiting for my instructions as a witness to go forward. I was worried
    about my own testimony.'' \91\
    ---------------------------------------------------------------------------
        \91\ The Record, supra note 27, Volume III, Part 1 at 476-513
    (Clinton Grand Jury testimony on 8/17/98).
    ---------------------------------------------------------------------------
        The President's statements are clearly self-serving. The only
    evidence introduced by the House managers to refute the President's
    assertions is an invitation to the Senate to look at the videotape of
    the President's deposition in the Jones case and ``read his mind,'' and
    an affidavit from Barry W. Ward, Judge Wright's clerk. Mr. Ward
    confirms what may be inferred from the tape. ``From my position at the
    conference table, I observed President Clinton looking directly at Mr.
    Bennett while this statement was being made.'' \92\ But, Mr. Ward's
    ``mind reading'' abilities are probably on a par with the Senate's. As
    he indicated in an article in the Legal Times after the date of his
    affidavit, Mr. Ward concluded, ``I have no idea if he was paying
    attention. He could have been thinking about policy initiatives, for
    all I know.'' \93\ The House managers have not presented sufficient
    evidence to sustain the burden of proof with respect to this
    allegation.
    ---------------------------------------------------------------------------
        \92\ Ward Affidavit.
        \93\ Legal Times, February 1, 1999.
    ---------------------------------------------------------------------------
    6. The Conversations with Betty Currie
        The article alleges that ``[o]n or about January 18 and January 20-
    21, 1998, William Jefferson Clinton related a false and misleading
    account of events relevant to a Federal civil rights action brought
    against him to a potential witness in that proceeding. . . .'' \94\
    This allegation embraces two conversations between the President and
    Betty Currie, his executive secretary. On January 18, 1998, the day
    after his deposition in the Jones case, the President met with Ms.
    Currie and asked her a series of leading questions that he promptly
    answered himself by declaring ``Right?'' \95\ He had a similar
    conversation on January 20, 1998.
    ---------------------------------------------------------------------------
        \94\ H. Res. 611.
        \95\ HMTB, supra note 38, at 65.
    ---------------------------------------------------------------------------
        The House managers argue that the President knew these rhetorical
    questions were false and the only purpose for raising these questions
    was to influence the testimony of Ms. Currie.\96\
    ---------------------------------------------------------------------------
        \96\ Ms. Currie was not a witness in the Jones proceeding at the
    time of these conversations. House Managers argue that the President
    knew she would be called as a witness because of his constant
    references to Ms. Currie in his Jones deposition. Moreover, Ms. Currie
    became a witness on January 23, 1998, when the Jones lawyers added her
    to their witness list. White House counsels argue that Ms. Currie's
    addition to the witness list was not prompted by the President's
    testimony, but by information secretly provided to the Jones lawyers by
    Linda Tripp. They further add that it cannot be reasonably assumed that
    the President was aware that Ms. Currie was likely to be called as a
    witness. Obstruction and witness tampering statutes require knowledge
    that the individual is or will be a witness. This argument remains
    unresolved, but a lack of resolution injects further uncertainty as to
    the allegations.
    ---------------------------------------------------------------------------
        What is clear from the evidence is the fact that Ms. Currie was not
    influenced by the President's statements. Ms. Currie testified to that
    effect to the Grand Jury on July 22, 1998.
        ``Q: Now, back again to the four statements that you testified the
    President made to you that were presented as statements, did you feel
    pressured when he told you those statements?
        ``A: None whatsoever.
        ``Q: What did you think, or what was going through your mind about
    what he was doing?
        ``A: At the time I felt that he was--I want to use the word shocked
    or surprised that this was an issue, and he was just talking.'' \97\
    ---------------------------------------------------------------------------
        \97\ The Record, supra note 27, Volume III, Part 1 at 668 (Currie
    Grand Jury testimony on 7/22/98).
    ---------------------------------------------------------------------------
        Ms. Currie added in her testimony:
        ``Q: That was your impression, that he wanted you to say--because
    he would end each of the statements with ``Right?'', with a question.
        ``A: I do not remember that he wanted me to say ``Right.'' He would
    say, ``Right?'' and I could have said, ``Wrong.''
        ``Q: But he would end each of those questions with a ``Right?'' and
    you could either say whether it was true or not true.
        ``A: Correct.
        ``Q: Did you feel any pressure to agree with your boss?
        ``A: None.'' \98\
    ---------------------------------------------------------------------------
        \98\ Id.
    ---------------------------------------------------------------------------
        What is unclear from the evidence is the President's intent in
    making these statements. The President has testified: ``I do not
    remember how many times I talked to Betty Currie or when. I don't. I
    can't possibly remember that. I do remember, when I first heard about
    this story breaking, trying to ascertain what the facts were, trying to
    ascertain what Betty's perception was. I remember that I was highly
    agitated, understandably, I think.\99\
    ---------------------------------------------------------------------------
        \99\ The Record, supra note 27, Volume III, Part 1 at 593 (Clinton
    Grand Jury testimony on 8/17/98).
    ---------------------------------------------------------------------------
        The President's assertion is not without plausibility. He initiated
    the conversation after the Jones deposition where he learned that all
    of the details of his relationship with Monica Lewinsky were known by
    the Jones lawyers and shortly would be public knowledge. He faced an
    immediate public and political disaster. Although he knew what went on,
    he had to know what Betty Currie knew, not to influence her testimony
    but to determine the potential gaps in this story. Ms. Currie was the
    key ``go-between'' with Ms. Lewinsky and her recollection had to be
    confirmed. More precisely, the President had to know if his story would
    be contradicted by Ms. Currie.
        Given the facts, the President's explanation is as plausible as
    that advanced by the House managers. They have not established beyond a
    reasonable doubt that the President had the specific intent to
    transform these events into the crimes of obstruction of justice or
    witness tampering.
    7. The Corruption of Potential Grand Jury Witnesses
        The final subpart of the second article of impeachment states that
    ``[o]n or about January 21, 23, and 26, 1998, William Jefferson Clinton
    made false and misleading statements to potential witnesses in a
    Federal Grand Jury proceeding in order to corruptly influence the
    testimony of those witness.'' The managers have alleged that this
    caused the grand jury to receive ``false and misleading information.''
        In his referral, Independent Counsel Starr outlines denials about
    an affair with Ms. Lewinsky that the President made to members of his
    senior staff: John Podesta, Erskine Bowles, Sidney Blumenthal, and
    Harold Ickes.\100\ The lies that the President told ranged from
    immaterial \101\ to despicable.\102\ These lies call into question the
    President's character and judgment regarding this personal affair, but
    they most certainly do not rise to the level of criminal behavior.
    ---------------------------------------------------------------------------
        \100\ Referral from Independent Counsel Kenneth W. Starr to the
    House of Representatives, House Doc. 105-310, at 198-203 (September 11,
    1998).
        \101\ Mr. Podesta testified that the President told him that after
    Ms. Lewinsky left the White House (to work at the Department of
    Defense), she returned to visit Ms. Currie and that Ms. Currie was with
    them at all times. Id. at 88 (quoting Podesta Grand Jury Testimony of
    6/16/98).
        \102\ In his Senate Deposition Testimony Mr. Blumenthal testified
    that he related to the Grand Jury that on 1/21/98 the President told
    him that Ms. Lewinsky had ``come on to'' him, he [the President] had
    ``rebuffed'' her, and that Ms. Lewinsky then ``threatened'' him with
    telling people that the two had an affair. See 145 Cong. Rec. S1248
    (daily ed. February 4, 1999).
    ---------------------------------------------------------------------------
        In order to constitute obstruction of justice, the President would
    have had to specifically intended these individuals to go before the
    grand jury and lie. It is just as plausible, if not more plausible,
    that the President was simply trying to conceal and deny the affair
    from the public at large. The President spoke to his staff because of
    the appearance of press articles; their conversations had nothing
    whatsoever to do with the grand jury. As the Democratic minority of the
    House Judiciary Committee pointed out: ``does anyone really think the
    President would have admitted to this relationship . . .  if no grand
    jury had been sitting?'' \103\ Independent Counsel Starr called senior
    aides to the President before the grand jury because his prosecutors
    knew that the President, in furtherance of the public denials he was
    making, would have lied to his aides. Under the OIC and House managers'
    theory, by publically denying the affair, the President tampered with
    all the grand jurors, who must have known of his denials. This simply
    cannot be the case. The President is dishonorable for lying to his
    aides and putting them in legal jeopardy in this way, but he is not a
    criminal.
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        \103\ Clinton Report, supra note 40, at 385 (Minority Views).
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